United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [ECF
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE.
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.
alleges Defendants violated the Telephone Consumer Protection
Act (“TCPA”) under 47 U.S.C. § 227(b)(1)(A)
and § 227(c)(5).
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.
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.
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)).
Plaintiff's TCPA Claims
Morgan moves to dismiss Plaintiff's TCPA claims against
him.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)).
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.
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
is proceeding pro se and is entitled to a liberal
construction of his pleadings.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 ...