United States District Court, C.D. California
MALKA L. FISHMAN, individually and on behalf of all others similarly situated, Plaintiff,
SUBWAY FRANCHISEE ADVERTISING FUND TRUST, LTD. d/b/a SUBWAY, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS 
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
before the Court is a Motion to Dismiss for lack of personal
jurisdiction of Defendant Subway Franchisee Advertising Fund
Trust, Ltd. d/b/a Subway (“Subway”) and for
failure to state a claim. (Mot. to Dismiss
(“Mot.”), ECF No. 6.) For the reasons that
follow, the Court GRANTS in part and DENIES in part
Malka L. Fishman (“Fishman”) brings suit against
Subway and alleges that Subway violated the Telephone
Consumer Protection Act (“TCPA”) by using an
automatic telephone dialing system (“ATDS”) to
send an unsolicited text message to her cellular device
ending in “3728”. (Compl. ¶¶ 5, 9, ECF
No. 1.) On or about September 3, 2016, Fishman alleges that
she received a text message outside the scope of any consent
that she may have provided to T-Mobile. (Compl. ¶ 24.)
The text message stated “This T-Mobile Tuesday, score a
free 6” Oven Roasted Chicken sub at SUBWAY, just for
being w/ T-Mobile. Ltd supplies. Get app for details:”
(the “Text Message”). (Compl. ¶¶ 9,
10.) Fishman alleges that though she consented to receiving
text messages from T-Mobile concerning its wireless telephone
services, she did not consent to receiving advertisements.
(Compl. ¶ 24.) The Text Message also contained a link to
t-mo.com that directed Fishman to a webpage that advertised
the “T-Mobile App” and “T-Mobile
Tuesdays.” (Compl. ¶¶ 11, 12.) Fishman
alleges that Subway was responsible for the transmission of
the Text Message that was sent to thousands of wireless
telephone numbers nationwide. (Compl. ¶¶ 13, 14.)
Moreover, Fishman alleges that T-Mobile was acting under the
direction and control of Subway and for the financial benefit
of Subway. (Compl. ¶¶ 13, 15, 18.)
alleges that “the equipment used to send the text
messages has the capacity to store or produce telephone
numbers to be called, using a random or sequential number
generator . . . without human intervention.” (Compl.
¶¶ 19, 20.) Fishman alleges that she suffered
invasion of privacy and was “frustrated and
annoyed” by the Text Message. (Compl. ¶¶ 26,
now moves to dismiss for lack of personal jurisdiction and
failure to state a claim. (See generally Mot.)
REQUEST FOR JUDICIAL NOTICE
Fishman and Subway file requests for judicial notice. Fishman
requests the Court judicially notice (1) appellate docket
report in the matter of Warwick v. Subway Restaurant,
Inc., (2) information from the Secretary of State
website concerning the state of incorporation of T-Mobile,
and (3) information from a government website regarding the
history of the telephone area code 310. (Pls.' Req.
Judicial Notice, ECF No. 22-2.) Subway requests the Court to
judicially notice (1) a Complaint filed against T-Mobile in
the Western District of Washington, (2) a Motion to Compel
Arbitration filed in the aforementioned T-Mobile matter, (3)
an Order granting a Motion to Dismiss in the Central District
of California, and (4) a screenshot of the T-Mobile Tuesdays
website mentioned in Fishman's Complaint.
Court may take judicial notice of “facts not subject to
reasonable dispute” because they are “generally
known within the trial court's territorial
jurisdiction” or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned. Fed.R.Evid. 201.
Court DENIES as moot Fishman's first two requests because
the Court does not find them pertinent in the disposition of
this motion. As for Fishman's third request, the Court
takes judicial notice that the area code “310” is
within the West Los Angeles area. Fed.R.Evid. 201; See
Eliman v. Law Office of Weltman, No. 12-cv-01599-DMG
(FMOx), 2013 WL 12119720, at *4 (C.D. Cal. Jan. 2, 2013)
(taking judicial notice that the area code 310 includes the
West Los Angeles area). The Court DENIES as moot Subway's
requests as the Court does not find them pertinent in the
disposition of this motion.
to Federal Rule of Civil Procedure (“Rule”)
12(b)(2), a party may seek to dismiss an action for lack of
personal jurisdiction. Once a party seeks dismissal under
Rule 12(b)(2), the plaintiff has the burden of demonstrating
that the exercise of personal jurisdiction is proper.
Menken v. Emm, 503 F.3d 1050, 1056 (9th Cir. 2007).
Where the motion is based on written materials rather than an
evidentiary hearing, “the plaintiff need only make a
prima facie showing of jurisdictional facts.” Sher
v. Johnson, 911 F.2d 1357, 1361 (9th Cir. 1990).
Accordingly, a court only “inquire[s] into whether [the
plaintiff's] pleadings and affidavits make a prima facie
showing of personal jurisdiction.” Caruth v.
Int'l Psychoanalytical Ass'n, 59 F.3d 126, 128
(9th Cir. 1995). Although the plaintiff cannot “simply
rest on the bare allegations of its complaint, ”
uncontroverted allegations in the complaint must be taken as
true. Amba Mktg. Sys., Inc. v. Jobar Int'l,
Inc., 551 F.2d 784, 787 (9th Cir. 1977); see
AT&T v. Compagnie Bruxelles Lambert, 94 F.3d 586,
588 (9th Cir. 1996). Factual disputes are resolved in the
plaintiff's favor. Pebble Beach Co. v. Caddy,
453 F.3d 1151, 1554 (9th Cir. 2006).
may exercise personal jurisdiction over a non-resident
defendant if the defendant has “at least ‘minimum
contacts' with the relevant forum such that the exercise
of jurisdiction ‘does not offend traditional notions of
fair play and substantial justice.'” Dole Food
Co., Inc. v. Watts, 303 F.3d 1104, 1110-11 (9th Cir.
2002) (quoting Int'l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)). A district court may exercise either
general or specific personal jurisdiction over non-resident
defendants. Fed. Deposit Ins. Corp. v. British-Am. Ins.
Co., 828 F.2d 1439, 1442 (9th Cir. 1987). Under
California's long-arm statute, courts may only exercise
personal jurisdiction if doing so “comports with the
limits imposed by federal due process.” Daimler AG
v. Bauman, 571 U.S. 117, 125 (2014).
may dismiss a complaint under 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).
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,
679 (9th Cir. 2001). 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).
district court grants a motion to dismiss, it should
generally provide leave to amend unless it is clear the
complaint could not be saved by any amendment. See
Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).