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Fishman v. Subway Franchisee Advertising Fund Trust, Ltd.

United States District Court, C.D. California

November 18, 2019

MALKA L. FISHMAN, individually and on behalf of all others similarly situated, Plaintiff,
v.
SUBWAY FRANCHISEE ADVERTISING FUND TRUST, LTD. d/b/a SUBWAY, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [20]

          OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Pending 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 Subway's Motion.[1]

         II. BACKGROUND

         Plaintiff 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.)

         Fishman 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, 27.)

         Subway now moves to dismiss for lack of personal jurisdiction and failure to state a claim. (See generally Mot.)

         III. REQUEST FOR JUDICIAL NOTICE

         Both 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.

         for 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.

         The 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.

         The 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.

         IV. LEGAL STANDARD

         A. 12(b)(2)

         Pursuant 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).

         A court 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).

         B. 12(b)(6)

         A court 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).

         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, 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).

         Where a 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).

         V. DISCUSSION

         A. ...


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