United States District Court, N.D. California
ORDER DENYING MOTION TO SET ASIDE RE: ECF NO.
TIGAR United States District Judge.
the Court is Plaintiff's motion to set aside the
Court's Order dismissing Plaintiff's first amended
complaint. ECF No. 104. The Court will deny the motion.
February 16, 2017, the Court dismissed with prejudice
Plaintiff's first amended complaint. ECF No. 101. The
Court concluded that Plaintiff had failed to plausibly allege
that Defendant Facebook, Inc. (“Facebook”) had
sent the challenged text messages using an Automatic
Telephone Dialing System (“ATDS”). Id.
In so finding, the Court compared Plaintiff's allegations
with those made in Flores v. Adir International,
LLC, 2015 WL 4340020 (C.D. Cal. July 15, 2015):
This Court dismissed Duguid's prior complaint because his
allegations that Facebook's “login notifications
are designed ‘to alert users when their account is
accessed from a new device'” after “users . .
. add their mobile numbers to their accounts” did not
plausibly support the inference that Facebook was using an
ATDS. ECF No. 48 at 9. It noted that Duguid “d[id] not
suggest that Facebook sends text messages en masse to
randomly or sequentially generated numbers.”
Id. at 9-10. Instead, Duguid's allegations
indicated that “Facebook's login notification text
messages are targeted to specific phone numbers and are
triggered by attempts to log in to Facebook accounts
associated with those phone numbers.” Id. at
9. In line with Flores, this suggested direct targeting that
was inconsistent with the existence of an ATDS. The Court
also dismissed Duguid's suggestion that since predictive
dialers constitute an ATDS, the capacity to produce or store
random or sequential numbers is not a necessary feature of an
ATDS, given that Duguid “has not alleged that Facebook
uses a predictive dialer, or equipment that functions like a
predictive dialer.” Id. at 11.
101 at 7.
Duguid added new facts in his amended complaint, none changed
the Court's ATDS conclusion. For example, “Duguid
newly allege[d] that Facebook uses a ‘computerized
protocol for creating automated text messages programmed to
appear customized to the user' through a template-based
process. FAC ¶¶ 25-30.” Id. The
Court concluded, however, that these “allegations of
customizable protocols and unique codes only further suggest,
in line with Duguid's other allegations, that the
messages were sent through direct targeting that is akin to
Flores.” Id. at 8. Duguid also added
allegations that Facebook's system has the
“capacity to generate sequential numbers, ” or,
even if it does not, that the capacity could “be
trivially added with minimal computer coding.”
Id. The Court rejected these additions as a
“conclusory” and therefore unhelpful repetition
of the “central elements of an ATDS.”
Id. The Court dismissed Duguid's claims with
now moves to set aside that order, arguing that the Court
“relied squarely” on Flores, which, on
March 24, 2017, the Ninth Circuit reversed in a memorandum
disposition. Flores v. Adir Int'l, LLC, No.
15-56260, 2017 WL 1101103, at *1 (9th Cir. Mar. 24, 2017).
The Ninth Circuit listed the five key facts alleged in the
(1) Adir sent Flores an identical text message on four
separate occasions; (2) every time Flores received this text
message, he sent a text message back to Adir saying
“Stop, ” and after sending that message, he
“almost immediately” received another text
message from Adir stating that he would no longer receive
text messages from Adir; (3) notwithstanding Adir's
representation that Flores would not receive further text
messages, Flores continued to receive the same text message
on at least three additional occasions; (4) both categories
of text messages-the initial texts and the removal
confirmation texts-were generically formatted and appeared to
be scripted; (4) although the initial texts included a
reference number, none of the texts referenced plaintiff
directly; and (5) the texts came from an SMS shortcode, which
are typically associated with automated services.
Id. at *1. Based on those allegations and with
almost no analysis, the Ninth Circuit held that the district
court erred in finding that “Flores did not
sufficiently allege the use of an ATDS because his
allegations ‘suggest direct targeting that is
inconsistent with the sort of random or sequential number
generations required for an ATDS' and because they
suggest that ‘Defendants attempts to contact him were
anything but random.'” Id. Construing the
facts in the light most favorable to Flores, the Ninth
Circuit concluded that “it is reasonable to infer that
the the [sic] equipment [Adir used] has the capacity to store
or produce telephone numbers to be called, using a random or
sequential number generator, even if it was not presently
being used for that purpose.” Id. (quoting
Satterfield v. Simon & Schuster, Inc., 569 F.3d
946, 951 (9th Cir. 2009) (internal quotation marks omitted).
before filing this motion, Plaintiff filed a notice of appeal
of the Court's February 16 Order in the Ninth Circuit.
ECF No. 102.
as here, the Court's ruling has resulted in a final
judgment or order, a motion to vacate judgment may be based
on Rule 60(b) of the Federal Rules of Civil Procedure. Under
Rule 60(b), a movant may seek relief from a final judgment
for six reasons: (1) mistake, inadvertence, surprise or
excusable neglect; (2) newly discovered evidence that by due
diligence could not have been discovered before the
court's decision; (3) fraud by the adverse party; (4)
voiding of the judgment; (5) satisfaction of the judgment; or
(6) any other reason justifying relief. See
Fed.R.Civ.P. 60(b); School Dist. 1J v. ACandS, Inc.,
5 F.3d 1255, 1263 (9th Cir. 1993). Such a motion must be made
within a “reasonable time, ” and as to grounds
for relief (1)-(3), no later than one year after the judgment
was entered. See Fed.R.Civ.P. 60(c).
seeks relief under Rule 60(b)(6). ECF No. 104 at 5. Rule
60(b)(6) is a “catchall provision” that applies
only when the reason for granting relief is not covered by
any of the other reasons set forth in Rule 60. Samish
Tribe v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)
(overruled on other grounds by United States v.
Washington,593 F.3d 790 (2010)). “It has been
used sparingly as an equitable remedy to prevent manifest
injustice and is to be utilized only where extraordinary
circumstances prevented a party from taking timely action to
prevent or correct an erroneous judgment.” Id.
(internal quotations omitted). Thus, to reopen a case under
Rule 60(b)(6), a party must establish “both injury and
circumstances beyond his control that prevented him from
proceeding in a proper fashion.” Id. (internal
quotations omitted); see, e.g.,