Charman v. California Check Cashing Stores, LLC.

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 THANE CHARMAN, Case No. 24-cv-00695-BAS-MMP 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS (ECF No. 29) 14 LEADSMARKET.COM, LLC, 15 Defendant. [17] 18 Presently before the Court is Defendant Leadsmarket.com, LLC (“Leadsmarket”)’s 19 Motion to Dismiss Plaintiff Thane Charman’s First Amended Complaint. (ECF No. 29.) 20 Plaintiff opposes, and Leadsmarket replies.1 (ECF Nos. 32, 34.) For the following reasons, 21 the Court GRANTS IN PART and DENIES IN PART Leadsmarket’s Motion to Dismiss. 22 I. BACKGROUND 23 Plaintiff, a resident of San Diego, California, brings this action under the Telephone 24 Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227 , which restricts phone 25 solicitations and the use of automated telephone equipment. (First Am. Compl. (“FAC”) 26 ¶ 1, ECF No. 14.) Plaintiff alleges he registered his phone number on the National Do27 1 The Court finds this matter suitable for determination on the papers submitted and without oral [28] 1 Not-Call Registry in November 2019 before receiving ninety-two unauthorized text 2 messages between April 2021 and December 2022. (Id. ¶¶ 26, 32–33.) “Each of the text 3 messages was an advertisement of subprime loans.” (Id. ¶ 52.) 4 Defendant Leadsmarket “is a company that solicits consumers for loan products and 5 refers the leads to companies like” California Check Cashing Stores, LLC. (FAC ¶ 29.) 6 Plaintiff alleges “Leadsmarket made the text messages on behalf of” California Check 7 Cashing Stores. (Id. ¶ 62.) Plaintiff asserts he does not have a prior relationship with 8 Leadsmarket or California Check Cashing Stores. (Id. ¶ 54.) Further, because he did not 9 give prior permission for Leadsmarket to contact him, Plaintiff claims these text messages 10 violate the TCPA. (Id. ¶¶ 55–59.) 11 Plaintiff’s First Amended Complaint brings three claims against Leadsmarket and 12 California Check Cashing Stores. (FAC ¶¶ 74–89.) California Check Cashing Stores was 13 dismissed after it reached a settlement. (ECF No. 26.) Leadsmarket now moves to dismiss 14 Plaintiff’s Complaint on several grounds. (Mot., ECF No. 29.) 15 II. ANALYSIS 16 A. Rule 8 17 Leadsmarket first moves to dismiss the First Amended Complaint under Rule 8 of 18 the Federal Rules of Civil Procedure. (Mot. 8:16–9:5.) Rule 8 requires that a complaint 19 contain “a short and plain statement of the claim showing that the pleader is entitled to 20 relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “is violated when a complaint is excessively 21 ‘verbose, confusing and almost entirely conclusory.’” Cafasso, U.S. ex rel. v. Gen. 22 Dynamics C4 Sys., Inc., 637 F.3d 1047, 1059 (9th Cir. 2011) (quoting Nevijel v. N. Coast 23 Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981)). 24 Leadsmarket argues Plaintiff’s Complaint violates Rule 8 because it is an 25 “impermissible ‘shotgun pleading.’” (Mot. 8:17–18.) The Court is not convinced. There 26 are only two named Defendants. Although some allegations group the two Defendants 27 together, others do not. (Compare FAC ¶¶ 27–32, with id. ¶¶ 60–68.) This is not a complex 28 case, and Leadsmarket knows what behavior forms the alleged basis for Plaintiff’s claim. 1 Further, even though the Complaint spans twenty-eight pages, nine of those pages 2 are a table listing the purported text messages. (See id. 8:23–18:5.) Hence, the Court is 3 not faced with “a tome approaching the magnitude of War and Peace” that warrants 4 scrutiny under Rule 8. See Cafasso, 637 F.3d at 1059 . The Court therefore denies 5 Leadsmarket’s Motion to Dismiss on this ground. 6 B. Rule 12(b)(6) 7 Leadsmarket moves to dismiss all of Plaintiff’s claims for lack of plausibility under 8 Rule 12(b)(6). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed 9 factual allegations; rather, it must plead “enough facts to state a claim to relief that is 10 plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has 11 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 13 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556 ). “Where a complaint 14 pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the 15 line between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, [16] 550 U.S. at 557 ). 17 1. Count I 18 Count I alleges Leadsmarket sent Plaintiff automated text messages without his 19 consent in violation of 47 U.S.C. § 227 (b)(1)(A)(iii). (FAC ¶¶ 74–80.) In his opposition, 20 Plaintiff agrees to “voluntarily dismiss his claim[ ] under 47 U.S.C. § 227 (b)(1)(A)(iii).” 21 (Opp’n 4:17–20.) Hence, the Court grants the motion to dismiss Count I. 22 2. Count II 23 Plaintiff’s second and third claims allege Leadsmarket violated regulations issued 24 by the Federal Communications Commission (“FCC”). (FAC ¶¶ 81–89.) The TCPA 25 grants the FCC authority to issue certain regulations, and Congress expressly created 26 a private cause of action for violations of those regulations. 47 U.S.C. § 227 (c)(5). Count 27 II alleges Leadsmarket violated 47 C.F.R. § 64.1200 “by making multiple telemarketing [28] 1 solicitations to a consumer on the National Do-Not-Call Registry within a 12-month 2 period.” (FAC ¶¶ 81–85.) 3 Leadsmarket argues Count II fails because Plaintiff does not plausibly plead a theory 4 of liability under the TCPA. (Mot. 9:6–17:9; 20:20–22:3.) A defendant may be liable 5 under the TCPA under a theory of direct or vicarious liability. E.g., Thomas v. Taco Bell 6 Corp., 879 F. Supp. 2d 1079, 1084 (C.D. Cal. 2012). For example, 47 C.F.R. § 7 64.1200(c)(2) forbids “initiat[ing] any telephone solicitation to” a person on the do-not8 call registry. For direct liability, a plaintiff must show the defendant initiated the telephone 9 solicitation. See id.; see also, e.g., Brown v. Nano Hearing Tech Opco, LLC, No. 3:2410 CV-00221-BTM-JLB, 2024 WL 3367536 , at *3 (S.D. Cal. July 9, 2024). To allege 11 vicarious liability, the plaintiff must allege facts plausibly suggesting “an agency 12 relationship, as defined by federal common law, between the defendant and a third-party 13 caller [or text sender].” See Gomez v. Campbell-Ewald Co., 768 F.3d 871, 879 (9th Cir. 14 2014). 15 The Motion contends that Plaintiff’s allegations are conclusory and do not reveal a 16 TCPA violation. (Mot. 10:1–16:2.) Again, the Court is unconvinced. Plaintiff alleges 17 Leadsmarket is in “the business of marketing and fulfilling consumer loans in the subprime 18 market.” (FAC ¶ 27.) Leadsmarket “solicits consumers for loan products and refers the 19 leads to companies.” (Id. ¶ 28.) Further, the subject text messages solicited “subprime 20 loans.” (Id. ¶¶ 32, 52.) Plaintiff claims Leadsmarket “made the text messages.” (Id. ¶ 62.) 21 Plaintiff also alleges Leadsmarket and California Check Cashing Stores are responsible for 22 having “placed multiple text messages to Plaintiff within a twelve-month period to 23 Plaintiff’s residential phone line” that is listed on the do-not-call registry. (Id. ¶ 55.) In 24 addition, Plaintiff claims the text messages contained a link to a loan website. (FAC ¶ 34.) 25 Plaintiff alleges this website “is owned and operated by Defendant Leadsmarket.com.” 26 (Id.) There is enough here for the Court “to draw the reasonable inference that 27 [Leadsmarket] is liable for the misconduct alleged.” See Iqbal, 556 U.S. at 678 ; see also 28 Abboud v. Circle K Stores Inc., 731 F. Supp. 3d 1094 , 1103 (D. Ariz. 2024) (reasoning that 1 the allegation that the messages contained links to the defendant’s products made it 2 plausible that the defendant sent the messages to advertise its services, despite that other 3 allegations were conclusory); Ragsdale v. LeadPoint, Inc., No. 2:24-CV-04542-MCS-SK, [4] 2024 WL 5424125 , at *2 (C.D. Cal. Nov. 5, 2024) (rejecting a similar motion to dismiss 5 and reasoning courts found that a plaintiff states a claim when the pleading links an 6 anonymous solicitation to a defendant with more than a “bare allegation,” such as an 7 allegation that the message directed the recipient to a website with defendant’s products). 8 In addition, Leadsmarket contends the allegations for Count II are deficient because 9 Plaintiff does not adequately plead he received a “telephone solicitation.” (Mot. 20:26– 10 21:17.) However, the Complaint alleges the unauthorized text messages “advertised 11 subprime loans.” (FAC ¶ 52.) Messages contained a link to a website where an application 12 could be submitted to receive loan offers. (FAC ¶¶ 34–37.) That is enough to allege 13 Plaintiff received a “telephone solicitation.” Leadsmarket’s argument is unavailing. 14 In short, the Court denies Leadsmarket’s request to dismiss Count II for lack of 15 plausibility. 16 3. Count III 17 Count III pleads that Leadsmarket violated a regulation that mandates certain 18 procedures for telemarketers concerning internal do-not-call lists. (Id. ¶¶ 86–89.) These 19 procedures require telemarketers to have written policies related to maintaining an internal 20 do-not-call list; to train telemarketing personnel on the existence and use of the do-not-call 21 list; to record and disclose do-not-call requests; and to maintain do-not-call lists. See 47 22 C.F.R. § 64.1200 (d)(1)–(4). 23 Leadsmarket argues Count III lacks plausibility because Plaintiff “does not allege 24 any non-conclusory facts suggesting that there has been a violation of” the required 25 procedures. (Mot. 21:18–22:3.) On this point, the Court agrees. The First Amended 26 Complaint parrots the requirements listed in the regulations (FAC ¶ 87), but there are no 27 factual allegations addressing these procedures. For example, “[c]ourts have inferred that 28 internal do-not-call procedures are deficient when calls to an individual who has requested 1 not to be called continue.” Mattson v. Quicken Loans, Inc., No. 3:18-CV-00989-YY, 2018 2 WL 5255228 , at *6 (D. Or. Oct. 22, 2018). Thus, by extension, if Plaintiff had requested 3 that the solicitations cease, but Leadsmarket continued to send them, then that would raise 4 an inference that Leadsmarket was not complying with the requirements. See id.; see also 5 Drew v. Lexington Consumer Advoc., LLC, No. 16-CV-00200-LB, 2016 WL 1559717 , at 6 *7 (N.D. Cal. Apr. 18, 2016) (finding claim sufficient where plaintiff received text 7 messages, sent a cease-and-desist request, and asked for the internal do-not-call policy, but 8 the defendant failed to provide the policy). Because there are no comparable factual 9 allegations here, the Court finds Count III lacks plausibility. 10 Accordingly, the Court grants the request to dismiss Count III. Because the Court 11 has not previously dismissed this claim, the Court grants Plaintiff leave to amend Count 12 III. See Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so 13 requires.”). 14 C. Rule 12(b)(1) 15 Last, Leadsmarket moves under Rule 12(b)(1) to eliminate Plaintiff’s request for 16 injunctive relief. (Mot. 22:17–22:26.) Dismissal is appropriate under Rule 12(b)(1) if the 17 complaint fails to allege facts sufficient to establish subject matter jurisdiction. The court 18 has no jurisdiction to resolve any claim for which a plaintiff lacks standing. Lujan v. 19 Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing must be established for each 20 form of relief sought. Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 21 2018). 22 Here, Plaintiff alleges he last received an unauthorized text message in December 23 2022. (FAC ¶ 92.) His Opposition does not respond to Leadsmarket’s argument that he 24 fails to allege a risk of future harm that entitles him to injunctive relief. The Court thus 25 grants Leadsmarket’s Motion under Rule 12(b)(1) and dismisses Plaintiff’s claim for 26 injunctive relief. However, the Court again does so with leave to amend. Leave to amend 27 is appropriate because Leadsmarket’s challenge goes to the sufficiency of the pleading, and 28 the Court has not previously addressed this issue. See Fed. R. Civ. P. 15(a)(2). 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART 3 || Leadsmarket’s Motion to Dismiss (ECF No. 29). First, the Court GRANTS the request to 4 dismiss Count I without leave to amend. Second, the Court DENIES the request to dismiss 5 Count II. Third, the Court GRANTS the request to dismiss Count III with leave to amend. 6 || Finally, the Court GRANTS the request to dismiss the claim for injunctive relief with leave 7 amend. 8 If Plaintiff chooses to file a Second Amended Complaint, it must be filed no later 9 || than July 21, 2025. Plaintiff may not add any new claims or parties without leave of court. 10 || Further, any amended pleading must be separate and complete in and of itself and titled 11 |}Second Amended Complaint. All exhibits should be attached to the Second Amended 12 || Complaint. 13 If Plaintiff does not file an amended complaint, then Leadsmarket must file an 14 || answer to the First Amended Complaint no later than July 28, 2025. 15 IT IS SO ORDERED. 16 f 17 || DATED: July 7, 2025 (pict 4 (Lipha 6 18 United States District Judge