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Middleton v. Human Behavior Institute, Ltd.

United States District Court, D. Nevada

February 13, 2017



          Gloria M. Navarro Chief Judge

         Pending before the Court is the Motion to Dismiss, (ECF No. 10), filed by Defendant Human Behavior Institute, Ltd. (“Defendant”). Pro se Plaintiff Ervin Middleton (“Plaintiff”)[1]filed a Response, (ECF No. 16), and Defendant filed a Reply, (ECF No. 17). For the reasons discussed below, the Court GRANTS in part and DENIES in part Defendant's Motion.[2]

         I. BACKGROUND

         This case arises from Plaintiff's receipt of prerecorded telephone messages initiated by Defendant. (See Compl. ¶¶ 6-29). Plaintiff alleges that he has been listed on the national Do Not Call registry since August 2014. (Id. ¶ 29). Nevertheless, Plaintiff claims he received a series of unsolicited voice messages “with an automated dialer” from Defendant beginning on November 2, 2015. (Id. ¶ 6). Plaintiff alleges he returned Defendant's call at the number provided, “informed Defendant that he had reached the wrong number and instructed him not to call again.” (Id. ¶¶ 7-9). Plaintiff alleges he received another call from Defendant on January 18, 2016, which he returned in the same manner. (Id. ¶¶ 10-13). Plaintiff alleges that despite these requests, “Defendant called Plaintiff's phone number with an automated dialer again” on January 21, 2016, January 25, 2016, and February 1, 2016. (Id. ¶¶ 15-17).

         After this series of calls, Plaintiff alleges he mailed Defendant an “Intent to Sue certified letter, ” which was received by Defendant on February 8, 2016. (Id. ¶ 18). That same day, Plaintiff alleges he received another call from Defendant with an automated dialer. (Id. ¶ 20). Based upon these allegations, Plaintiff filed the instant suit in state court asserting Defendant violated the Telephone Communications Act, 47 U.S.C. § 227, et seq., and the Telemarketing and Consumer Fraud and Abuse Act, 16 C.F.R. § 310.4. On June 1, 2016, Defendant removed the case to this Court. In the instant Motion, Defendant seeks dismissal of all of Plaintiff's claims.


         Federal Rule of Civil Procedure (“Rule”) 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l. v. Ariz. Corp. Comm'n., 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

         The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added).

         “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . However, material which is properly submitted as part of the complaint may be considered” on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). The Court need not accept as true those allegations that contradict facts properly subject to judicial notice. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000).

         If the court grants a motion to dismiss for failure to state a claim, leave to amend should be granted unless it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so requires, ” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).


         A. TCPA

         Congress enacted the TCPA amid outrage from consumers “over the proliferation of intrusive, nuisance [telemarketing] calls to their homes.” Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012). “Congress determined that federal legislation was needed because telemarketers, by operating interstate, were escaping state-law prohibitions on intrusive nuisance calls. The Act bans certain practices invasive of privacy and directs the Federal Communications Commission (FCC or Commission) to prescribe implementing regulations.” Id. at 371. “The FCC's interpretations of TCPA are controlling unless invalidated by a court of appeals.” Olney v., Inc., No. 1:12-cv-01724-LJO, 2014 WL 1747674, at *4 (E.D. Cal. May 1, 2014); see also Hobbs Act, 28 U.S.C. § 2342, et seq.; Huricks v. Shopkick, Inc., No. C-14-2464 MMC, 2015 WL 5013299, at *2 (N.D. Cal. Aug. 24, 2015), appeal dismissed (Jan. 26, 2016) (“[C]ourts defer to the FCC's interpretation of a term in the TCPA, so long as the term is ‘not defined by the TCPA' and the FCC's interpretation is ‘reasonable.'”).

         Pursuant to its granted authority, the FCC previously issued regulations prohibiting “calls made by automated telephone dialing systems and artificial or prerecorded voice messages” unless there was an emergency or the called party provided her prior express consent. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8755 ¶ 5 (Oct. 16, 1992); see also 47 U.S.C. ยง 227(b)(1)(A) (prohibiting any call using an automatic telephone dialing system or an artificial ...

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