Fabricant v. Paymentclub Inc.

          ORDER GRANTING PLAINTIFF'S MOTION FOR RELIEF FROM L.R. 23-3 REGARDING DEADLINE FOR FILING MOTION FOR CLASS CERTIFICATION [27]; AND DENYING DEFENDANT'S MOTION TO DISMISS [38]

          OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On April 1, 2019, Plaintiff Terry Fabricant (“Fabricant”) filed a complaint against Net Element Inc. for violation of the Telephone Consumer Protection Act (“TCPA”) and willful or knowing violation of the TCPA. (See generally Compl., ECF No. 9.) Thereafter, on May 3, 2019 Fabricant amended his complaint to name Defendant Paymentclub Inc. (“Paymentclub”), which executed a Waiver of Service on May 9, 2019, resulting in a responsive pleading deadline of July 8, 2019. (See generally First Am. Compl. (“FAC”), ECF No. 21; Waiver of Service, ECF No. 22.)

         On June 25, 2019, Plaintiff moved for relief from Local Rule 23-3, which sets the deadline for moving for class certification. (Mot. for Relief from Local Rule 23-3 (“Mot. for Relief'”), ECF No. 27.) On July 10, 2019, Defendant filed a motion to dismiss the First Amended Complaint (“FAC”) for failing to state a claim.^[1] (Mot. to Dismiss (“MTD”), ECF No. 38.)

         II. LEGAL STANDARD

         A court may dismiss a complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To survive a dismissal motion, a complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

         The determination of whether a complaint satisfies the plausibility standard is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. A court is generally limited to the pleadings and must construe all “factual allegations set forth in the complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks omitted). But a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

         III. FACTUAL BACKGROUND

         Fabricant alleges that Paymentclub uses automatic telephone dialing system (“ATDS”) with the ability to store or produce telephone numbers to solicit business. (FAC ¶¶ 18, 19.) Fabricant alleges on January 22, 2019, he received a call from Paymentclub on his (818) mobile device without his consent. (FAC ¶¶ 21, 23, 25.) To identify the caller, Fabricant provided his email address to the sales representative and received an email from meesha@paymentclub.com. (FAC ¶¶ 31, 32.) Fabricant asserts that the call was not necessitated by an emergency and his privacy was violated by the “annoying, harassing nuisance.” (FAC ¶¶ 33, 35.)

         Fabricant seeks to represent a class of “[a]ll persons to whom (a) Defendant and/or a third party acting on Defendant's behalf made one or more non-emergency telephone calls; (b) to a cellular telephone number; (c) through the use of an automatic telephone dialing system or an artificial or prerecorded voice; (d) at any time in the period that begins four years before the date of filing the original complaint in this case and ends at the date of trial.” (FAC ¶ 37.)

         IV. DISCUSSION

         A. Motion for Relief from Local Rule 23-3

         Fabricant filed his Motion for Relief on June 25, 2019, seeking relief from the Central District's Local Rule 23-3, which requires a plaintiff to move for class certification within 90 days of “service of a pleading purporting to commence a class action other than an action subject to the Private Securities Litigation Reform Act of 1995.” See C.D. Local Rule 23-3. Paymentclub filed its Opposition to this Motion on July 15, 2019 claiming Fabricant provides no justification for his failure to comply with Local Rule 23-3. (Opp'n to Mot. for Relief, ECF No. 40.)

         Under Rule 6(b)(1)(A), “the court may, for good cause, extend the time with or without motion or notice if the court acts, or if a request is made, before the original time ...