Ewing v. Gonow Travel Club, LLC

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [ECF No. 9]

          HON. CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE.

         Plaintiff Anton Ewing filed a complaint against Defendants GoNow Travel Club, LLC (“GoNow”) and Francisco Morgan. (ECF No. 1.) Both Defendants moved to dismiss, and Plaintiff timely filed a first amended complaint. (First Amended Complaint, “FAC, ” ECF No. 7.) Defendant Morgan now moves to dismiss the FAC. (“Mot., ” ECF No. 9.) Plaintiff opposes the Motion. (“Opp'n, ” ECF No. 11.) The Court finds this Motion suitable for determination on the papers and without oral argument. Civ. L. R. 7.1(d)(1). For the reasons stated below, the Court GRANTS Defendant's Motion.

         I. FACTUAL ALLEGATIONS

         Plaintiff alleges Defendants violated the Telephone Consumer Protection Act (“TCPA”) under 47 U.S.C. § 227(b)(1)(A) and § 227(c)(5).

         Plaintiff alleges Defendants have been “bombarding” him with prerecorded calls (“robocalls”) and live-transfer calls using an automated dialing system (“ATDS”). (FAC ¶ 2.) Plaintiff alleges this occurred from August 2018 to February 2019. Plaintiff alleges Defendants have “placed repeated automated telephone calls” to his cell phone and home phone numbers, and “the calls exhibited signs of being made with an Automated Telephone Dialing System.” (Id. ¶ 27.) Plaintiff states he believes the calls were made using ATDS because there was a “long delay” before the call was connected, and a “bubble popping” noise before the prerecorded message started. (Id.) Plaintiff alleges in the alternative, Defendants hired a third-party business to call Plaintiff. (Id. ¶ 29.) Plaintiff states he never consented to any calls from Defendants, never visited any location operated by Defendants prior to the calls, and had no prior business relationship with Defendants. (Id. ¶¶ 2, 24.) Finally, Plaintiff alleges Defendant Morgan uses Defendant GoNow as his alter ego. (Id. ¶ 51.)

         II. LEGAL STANDARD

         A complaint must plead sufficient factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A Rule 12(b)(6) dismissal may be based on either a ‘lack of a cognizable legal theory' or ‘the absence of sufficient facts alleged under a cognizable legal theory.'” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).

         III. ANALYSIS

         A. Plaintiff's TCPA Claims

         Defendant Morgan moves to dismiss Plaintiff's TCPA claims against him.^[1]To successfully plead a TCPA claim, a plaintiff must allege defendant (1) called a cellular telephone number or any service for which the called party is charged for the call; (2) using an ATDS or an artificial or prerecorded voice; (3) without the recipient's prior express consent. 47 U.S.C. § 227(b)(1); Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 804 (9th Cir. 2017) (quoting Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)).

         As to the first element, to “make” a call under the TCPA the person must either (1) directly make the call, or (2) have an agency relationship with the person who made the call. Gomez v. Campbell-Ewald, Co., 768 F.3d 871, 877-79 (9th Cir. 2014). Plaintiff alleges Mr. Morgan directly called Plaintiff on his cell phone. (FAC ¶ 51.) This element is satisfied.

         As to the second element, an ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). Plaintiff specifically alleges Mr. Morgan called him using a “telephone dialing system.” (FAC ¶ 44.) But Plaintiff admits this conclusory allegation is “insufficient standing alone” and asserts he alleges “sufficient additional facts” to support the conclusion. (Id.) Plaintiff states he knows the calls were made using ATDS because the calls did not address Plaintiff personally, and Plaintiff has never heard of Defendants or visited any location operated by Defendants prior to the phone calls, and never provided his phone number to Defendants. (Id.)

         Plaintiff is proceeding pro se and is entitled to a liberal construction of his pleadings.^[2]Erickson v. Pardus, 551 U.S. 89, 94 (2007). But even so, the Court disagrees with Plaintiff that he has included sufficient plausible allegations to support his assertion that Mr. Morgan used ATDS. Plaintiff identifies Mr. Morgan's phone number as one beginning with 949. (FAC ¶ 51.) Plaintiff also alleges he was called nine times from three different numbers-none of which begin with 949. (Id. ¶¶ 8, 59, 60; see also Id. ¶ 61 (“GoNow Travel Club, LLC placed at least 9 telemarketing robocalls to Mr. Ewing” and the agents on the calls were named Dave and Robert).) Throughout his Complaint, when Plaintiff refers to the “harassing and annoying calls, ” he does not appear to be referring to calls coming from the 949 number. And when Plaintiff alleges that the calls “were ...