United States District Court, C.D. California
TERRY FABRICANT, individually and on behalf of all others similarly situated, Plaintiff,
v.
PAYMENTCLUB INC., Defendant.
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 ...