Winters v. Quicken Loans Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Richard Winters, Jr., No. CV-20-00112-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Quicken Loans Incorporated, 13 Defendant. [14] 15 Before the Court is Defendant Quicken Loans, LLC’s1 Motion to Dismiss (Doc. 12). 16 Defendant moves to dismiss Plaintiff Richard Winters, Jr.’s two claims for violations of 17 the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 (b). The motion is 18 granted with leave to amend. Defendant has also filed a Motion to Stay (Doc. 13). That 19 motion is denied, as moot, without prejudice. 20 I. BACKGROUND 21 Plaintiff has filed a putative class action complaint under the TCPA. He alleges that, 22 beginning on or around October 2018, Defendant contacted him via telephone calls and 23 text messages “in an effort to sell or solicit its services.” (Id. ¶ 9.) Plaintiff further states 24 that Defendant used an “automatic telephone dialing system” to place its calls and texts. 25 (Id. ¶¶ 12, 23 (citing 47 U.S.C. § 227 (a)(1).) Plaintiff identifies one specific text message, [27] 1 The motion was initially filed by “Quicken Loans, Inc.” Defendant subsequently notified 28 the Court that, effective April 15, 2020, it had changed its name to “Quicken Loans, LLC.” (Doc. 23.) 1 allegedly from Defendant, that he received on or before October 5, 2018. It stated: [2] Jeremy Streicher-Martinez Mortgage Banker Call or Text 3 (480) 305-9634 Email: JeremyStreicherMartinez@quickenloans.com Fax: (844) 429-7701 4 NMLS: 1052442 5 (Id. ¶ 22.) 6 Plaintiff brings suit individually and on behalf of members of two proposed classes. 7 The classes are comprised of persons who have received “solicitation/telemarketing 8 telephone calls from Defendant to said person’s cellular telephone made through the use 9 of any automatic telephone dialing system or an artificial or prerecorded voice” within the 10 last four years, and had either (1) not previously consented or (2) revoked prior consent to 11 receive such calls.2 (Id. ¶ 31, 32.) Plaintiff estimates that the class members are “in the 12 thousands, if not more.” (Id. ¶ 35.) 13 Plaintiff filed the original Complaint on January 15, 2020. (Doc. 1.) He then filed 14 the First Amended Complaint on January 31, 2020. (Doc. 7.) It alleges claims of negligent 15 and knowing or willful violations of the TCPA. Defendant filed a Motion to Dismiss on 16 March 16, 2020. (Doc. 12.) That motion is now fully briefed. The next day, Defendant filed 17 a Motion to Stay, which is also fully briefed.3 (Doc. 13.) 18 II. MOTION TO DISMISS 19 A. Legal Standard 20 A complaint must contain “a short and plain statement of the claim showing that the 21 pleader is entitled to relief” such that the defendant is given “fair notice of what 22 the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 23 545, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). 24 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or 25 the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. [26] 2 Both putative classes reference recipients of telephone calls, as opposed to text messages. [27] (Doc. 7 ¶¶ 30, 31). 28 3 The parties have also filed notices of supplemental authority in support of the Motion to Stay. (Docs. 22, 25, 26, 27.) 1 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint should not be 2 dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in 3 support of the claim that would entitle it to relief.” Williamson v. Gen. Dynamics Corp., [4] 208 F.3d 1144, 1149 (9th Cir. 2000). 5 The Court must accept material allegations in a complaint as true and construe them 6 in the light most favorable to Plaintiff. North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d 7 578, 580 (9th Cir. 1983). “Indeed, factual challenges to a plaintiff’s complaint have no 8 bearing on the legal sufficiency of the allegations under Rule 12(b)(6).” See Lee v. City of 9 Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Review of a Rule 12(b)(6) motion is 10 “limited to the content of the complaint.” North Star Int’l, 720 F.2d at 581. 11 B. Analysis 12 To properly plead a TCPA claim for calls made to a cellular phone, a plaintiff must 13 plead the following three elements: “(1) the defendant called a cellular telephone number; 14 (2) using an [ATDS or an artificial or prerecorded voice]; (3) without the recipient’s prior 15 express consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th 16 Cir. 2012) (citing 47 U.S.C. § 227 (b)(1)). The term “call” includes text messages for 17 purposes of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 18 2009). The TCPA authorizes a private right of action “to recover for actual monetary loss 19 from [ ] a violation, or to receive $500 in damages for each [ ] violation, whichever is 20 greater.” 47 U.S.C. § 227 (b)(3). In the case of knowing or willful violations, a court has 21 discretion to award up to treble damages for each violation. Id. § 227(b)(1). 22 Defendant argues that Plaintiff has failed to adequately provide notice to Defendant 23 of the claims against it; that Plaintiff has failed to allege that Defendant placed calls with 24 an automatic telephone dialing system or an artificial or prerecorded voice; and that 25 Plaintiff’s claim for knowing or willful violations of the TCPA fails for independent 26 reasons. The Court will address these arguments in turn. 27 1. Adequate Notice 28 Defendant first moves to dismiss Plaintiff’s claims because the First Amended [1] Complaint’s “sparse and conclusory allegations fail to provide fair notice to Quicken Loans [2] of the claims against it and the exposure it faces with respect to Plaintiff’s individual [3] claims.” (Doc. 12 at 6.) Specifically, with respect to the calls, Defendant argues that [4] Plaintiff has not sufficiently pleaded that it is plausible that “each came from Quicken [5] Loans,” nor has he alleged when or how many calls were received. (Id.) As noted, the First [6] Amended Complaint states that beginning in or around October of 2018, Defendant placed [7] “multiple” calls to Plaintiff’s cell phone number, ending in -6678. The calls came from [8] (480) 337-7104 and (480) 305-9634, “confirmed to be Defendant’s telephone numbers.” [9] (Doc. 7 ¶¶ 9, 10, 13, 18.) The Court is mindful of Defendant’s position that, given [10] Plaintiff’s sparse allegations, it may “be hard pressed to search its records and identify [11] pertinent phone calls.” Mendez v. Optio Sols., LLC, 219 F. Supp. 3d 1012, 1015 (S.D. Cal. [12] 2016). [13] The Court ultimately “does not believe, however, that either the TCPA or Rule [14] 8(a)(2) require the level of detail [Defendant] demands.” Id. This is because “detailed [15] factual allegations are not required” at the pleading stage, and a complaint need only [16] contain sufficient factual allegations to “state a claim to relief that is plausible on its face.” [17] Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570 ). Indeed, [18] multiple district courts have denied motions to dismiss raising this exact argument. In [19] Robinson v. Midland Funding, LLC, No. 10CV2261 MMA AJB, 2011 WL 1434919 , at *3 [20] (S.D. Cal. Apr. 13, 2011), the defendant moved to dismiss a TCPA claim because the [21] complaint failed to plead facts “as to how many calls were made, when they were made, or [22] what was stated on the call.” Id. at *3 . The court rejected this argument, noting that [23] although the allegations “seem vague,” neither the TCPA nor Rule 8 of the Federal Rules [24] of Civil Procedure required the plaintiff to “plead his claim with particularity.” Id. See also [25] Sepehry-Fard v. Department Stores National Bank, No. 13-CV-03131-WHO, 2013 WL 26 6574774, at *3 (N.D. Cal. Dec. 13, 2013), aff’d in part, 670 F. App’x 573 (9th Cir. 2016) [27] (allegations that “identified the general time frame for the calls (from early 2010 to late [28] 2012); identified the phone numbers the calls were placed to (his home and cellular [1] numbers); and identified the purpose of the prerecorded calls (to harass plaintiff to collect [2] a debt)” were sufficient). Similarly, here, although the First Amended Complaint is not the [3] picture of clarity, the Court will not dismiss Plaintiff’s claims for this reason. [4] Defendant also argues that Plaintiff did not allege either “the sender and recipient [5] information associated with the text message.” (Doc. 12 at 7.) The First Amended [6] Complaint states that “Defendant contacted Plaintiff, via calls and text messages, on his [7] cellular telephone ending in -6678.” (Doc. 7 ¶ 9.) It also states that Defendant contacted [8] Plaintiff from telephone numbers (480) 337-7104 and (480) 305-9634. (Id. ¶ 13.) Although [9] these allegations are not clearly connected to the text message, the Court concludes that, [10] taking them in the light most favorable to Plaintiff, they are sufficient to provide notice at [11] the pleading stage. The Court will not dismiss Plaintiff’s claim based on a lack of notice. [12] 2. ATDS and Artificial or Prerecorded Voice [13] It is unlawful to use any “automatic telephone dialing system [“ATDS”] or an [14] artificial or prerecorded voice” under the cellphone provision of the TCPA. 47 15 U.S.C. § 227 (b)(1)(A). Defendant argues that Plaintiff has failed to plausibly allege that it [16] used an automatic telephone dialing system or that any of the calls at issue contained an [17] artificial or prerecorded voice. The Court agrees on both points. [18] Under Ninth Circuit law, “the term automatic telephone dialing system means [19] equipment which has the capacity—(1) to store numbers to be called or (2) to produce [20] numbers to be called, using a random or sequential number generator—and to dial such [21] numbers.” Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018), cert. [22] dismissed, 139 S. Ct. 1289 (2019).4 To survive a motion to dismiss, a “[p]laintiff must [23] allege sufficient facts to allow the Court to ‘reasonably infer’ that Defendant used an [24] ATDS.” Schick v. Compass Lending Corp., No. CV-19-01736-PHX-JJT, 2019 WL 25 26 4 In light of a circuit split, the Supreme Court has recently granted a petition for certiorari to address “[w]hether the definition of ATDS in the TCPA encompasses any device that [27] can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] 28 a random or sequential number generator.’” See Facebook, Inc. v. Duguid, No. 19-511, 2020 WL 3865252 , at *1 (U.S. July 9, 2020). 1 6050256, at *2 (D. Ariz. Nov. 15, 2019) (citation omitted). Here, the First Amended 2 Complaint states that Defendant “used an ‘automatic telephone dialing system’ as defined 3 by 47 U.S.C. § 227 (a)(1) to place its call to Plaintiff seeking to solicit its services” and that 4 its text messages to Plaintiff were “placed via an ‘automatic telephone dialing system,’ 5 (‘ATDS’) as defined by 47 U.S.C. 227(a)(1) as prohibited by 47 U.S.C. § 227 (b)(1)(A).” 6 (Doc. 7 ¶¶ 12, 23.) 7 As numerous courts have recognized, this conclusory statement is insufficient to 8 state a claim under the TCPA. See, e.g., Forney v. Hair Club for Men Ltd., Inc., No. CV 9 16-9640-R, 2017 WL 4685549 , at *2 (C.D. Cal. June 26, 2017) (“Here, the only allegation 10 made by Plaintiff supporting the use of an automated telephone dialing system is her single 11 paragraph stating that she was called by an automated telephone dialing system in violation 12 of the TCPA. . . . Plaintiff provided nothing beyond a threadbare recitation of one of the 13 elements of her cause of action, that she was called by a machine, which this Court is not 14 obligated to accept as truth.”); Priester v. eDegreeAdvisor, LLC, No. 5:15-CV-04218-EJD, [15] 2017 WL 4237008 , at *2 (N.D. Cal. Sept. 25, 2017) (“[T]he court rejects any contention 16 that a TCPA plaintiff’s pleading obligation is satisfied by generically alleging the use of 17 an ATDS by a defendant, in a manner that simply parrots the statutory language.”). 18 The Court is mindful of Plaintiff’s concern that “it is impossible to know if a 19 company is using an ATDS without obtaining discovery on the issue first.” (Doc. 14 at 7.) 20 Indeed, “courts within the Ninth Circuit have acknowledged the difficulty a plaintiff faces 21 in knowing the type of calling system used without the benefit of discovery.” McCullough 22 v. Maximum Title Loans LLC, No. CV-19-00717-PHX-JJT, 2019 WL 3933754 , at *2 (D. 23 Ariz. Aug. 20, 2019). Accordingly, at the motion to dismiss stage, courts can “infer the use 24 of an ATDS from the details of the call.” Id. For example, “[s]uccessful TCPA complaints 25 allege that the messages they received were scripted or impersonal, from an obviously 26 automated number, formatted in code, or similarly factual details.” Forney, 2017 WL 27 4685549, at *2. Further, courts have found that “general allegations [of use of an ATDS] 28 are sufficiently bolstered by specific descriptions of the ‘telltale’ pause after plaintiff 1 picked up each call until the agent began speaking and that such allegations make it 2 plausible that an ATDS was used.” McCullough, 2019 WL 3933754 , at *3 (citation 3 omitted). 4 The First Amended Complaint contains no such allegations. Plaintiff’s response 5 brief does identify “supplemental facts in his possession,” including that at least some of 6 the calls contained a “click and/or beep before a live person came onto the phone.” (Doc. 7 14 at 8-9.) As Plaintiff’s response appears to recognize, the Court will not consider these 8 “supplemental” allegations at the motion to dismiss stage. See North Star Int’l, 720 F.2d at 9 581. Here, the First Amended Complaint’s “sparse factual allegations are insufficient to 10 plausibly suggest, even indirectly, that Defendant used an ATDS when it called him.” 11 Priester, 2017 WL 4237008 , at *3. 12 Plaintiff has also not adequately alleged that the calls used an artificial or 13 prerecorded voice. 47 U.S.C. § 227 (b)(1)(A). The First Amended Complaint states twice 14 that Defendant placed calls “using an automatic telephone dialing system or an artificial or 15 prerecorded voice.” (Doc. 7 ¶¶ 17, 38.) This is not sufficient. See Daniels v. ComUnity 16 Lending, Inc., No. 13CV488-WQH, 2015 WL 541299 , at *7 (S.D. Cal. Feb. 9, 2015) 17 (dismissing TCPA claim where the complaint allegations “included prerecorded voice 18 calls” but “alleges no facts to make this allegation plausible”); Forney, 2017 WL 4685549 , 19 at *2 (“This allegation does not describe the voice on the other line, whether it was a human 20 voice, if the message was impersonal, what the message said, or whether anyone responded 21 when she spoke.”). The Court also agrees with Defendant that Plaintiff’s allegation that he 22 “answered the telephone and told Defendant to stop calling him” does not support an 23 inference that Plaintiff was speaking with an artificial or prerecorded voice.5 (Id. ¶ 17; Doc. 24 12 at 10.) 25 The Court will accordingly dismiss Counts 1 and 2. If a defective complaint can be [26] 5 As above, Plaintiff provided “supplemental” information on this point as well, including [27] that “there was a pre-recorded voice on the line when Plaintiff answered the call,” and that 28 he then pressed a number to be transferred to a live representative. (Doc. 14 at 8.) The Court will not consider this in connection with the Motion to Dismiss. 1 cured, a plaintiff is entitled to amend the complaint before it is dismissed with prejudice. 2 See Lopez v. Smith, 203 F.3d 1122 , 1127–30 (9th Cir. 2000). Because it is possible that 3 Plaintiff could allege facts showing that Defendant used an automatic telephone dialing 4 system or that the calls contained an artificial or prerecorded voice, Plaintiff will have the 5 opportunity to amend his Complaint. 6 3. Knowing or Willful Violations 7 Defendant also argues that Count 2 of the Amended Complaint, for “knowing and/or 8 willful” violations of the TCPA, should be dismissed. (Doc. 12 at 11.) The Court agrees 9 that Count 2 necessarily fails for the reasons discussed above. Because Plaintiff will be 10 provided leave to amend, the Court will also address Defendant’s other arguments. 11 Defendant argues that Count 2 should be dismissed for the independent reason that 12 it “simply alleges a remedy and not a cause of action.” (Id.) The TCPA provides that a 13 court has the discretion to award up to treble damages for knowing or willful violations. 47 14 U.S.C. § 227 (b)(3). Defendant argues that courts “routinely” dismiss claims for willful or 15 knowing TCPA violations, but cites only one case from the Southern District of Ohio to 16 this effect.6 Defendant also cites one case from the District of Arizona stating, outside of 17 the TCPA context, that “punitive damages is a legal remedy and not a cause of action.” 18 Vellon v. Maxim Healthcare Servs., Inc., No. CV 08-263-TUC-FRZ, 2008 WL 11338452 , 19 at *10 (D. Ariz. Aug. 29, 2008). Nonetheless, the court in that case found it unnecessary to 20 dismiss the punitive damages claim because the plaintiff listed punitive damages in its 21 prayer for relief, such that it was “clear to the Court and both parties that Plaintiff is only 22 requesting punitive damages as a remedy.” Id. The same appears to be true here. (Doc. 7 23 at 10-11.) Further, courts in the Ninth Circuit have declined to dismiss separate causes of 24 action for knowing or willful violations of the TCPA. See, e.g., Keifer v. HOSOPO Corp., 25 No. 318CV1353CABKSC, 2018 WL 5295011 , at *5 (S.D. Cal. Oct. 25, 2018) (denying [26] 6 Michael W. Kincaid DDS, Inc. v. Synchrony Fin., No. 2:16-CV-790, 2017 WL 2599224 , [27] at *1 (S.D. Ohio June 15, 2017) (“Even though the TCPA specifically mentions injunctive 28 relief, the applicable section does not provide for injunctive relief as a cause of action, but rather, allows a plaintiff to seek injunctive relief as a remedy for a violation of the TCPA.”). 1 dismissal of a knowing/willful TCPA claim because “the Court finds the knowing and 2 willful violations of the TCPA have been sufficiently pled”). Dismissal of Count 2 is 3 therefore not appropriate on these grounds. 4 Finally, Defendant argues that the claim should be dismissed because Plaintiff 5 “pleads no plausible factual allegations of any knowing or willful violation.” (Doc. 12 at 6 12.) Plaintiff alleges that “on at least one occasion,” he “answered the telephone and told 7 Defendant to stop calling him.” (Doc. 7 ¶ 17.) The First Amended Complaint also alleges 8 that Defendant’s conduct constituted “numerous and multiple knowing and/or willful 9 violations of the TCPA.” (Id.) The Court takes these allegations as true for the purposes of 10 the present motion. Courts have found similar allegations to be sufficient to withstand a 11 motion to dismiss. See e.g., Pacleb v. Cops Monitoring, No. 2:14-CV-01366-CAS (JCx), [12] 2014 WL 3101426 , at * 4 (C.D. Cal. July 7, 2014) (finding an allegation that “defendant’s 13 conduct constituted multiple knowing and/or willful violations of the TCPA” sufficient to 14 withstand a motion to dismiss). 15 This is also not a proper basis for dismissing Count 2. Nonetheless, in light of 16 Plaintiff’s failure to adequately allege the use of an automatic telephone dialing system or 17 artificial or prerecorded voice, as described above, this claim will be dismissed. 18 III. MOTION TO STAY 19 Defendant has also filed a Motion to Stay (Doc. 13), arguing three separate grounds 20 for staying the case.7 In light of the Court’s ruling on the Motion to Dismiss, the Motion to 21 Stay is denied as moot. The denial is without prejudice to either party seeking a stay at a 22 later point. 23 IV. CONCLUSION 24 Accordingly, [25] 7 One of those grounds—the Supreme Court’s pending ruling in Barr v. American Ass’n of 26 Political Consultants, Inc., No. 19-631—is now moot. See Barr v. Am. Ass’n of Political Consultants, Inc, 140 S. Ct. 2335 (2020). Defendant also moved for a stay in light of the [27] then-pending petition for certiorari in Facebook, Inc. v. Duguid. The Supreme Court 28 granted certiorari on July 9, 2020. See Facebook, Inc. v. Duguid, No. 19-511, 2020 WL 3865252 , at *1 (U.S. July 9, 2020). 1 IT IS ORDERED that Defendant’s Motion to Dismiss Plaintiff's First Amended || Complaint (Doc. 12) is granted. 3 IT IS FURTHER ORDERED allowing Plaintiff 14 days from the issuance of this 4|| Order to file a Second Amended Complaint that conforms with the requirements set forth || in this Order. 6 IT IS FURTHER ORDERED that Defendant’s Motion to Stay (Doc. 13) is denied, as moot, without prejudice. 8 IT IS FINALLY ORDERED denying oral argument on the present motions.® 9 Dated this 4th day of September, 2020. [10] Micka T. Shunt 12 Michael T. Liburdi B United States District Judge [26] s Both parties have submitted legal memoranda and oral argument would not have aided 28 || the Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(4); Fed. R. Civ. P. 78(b). -10-