United States District Court, D. Nevada
M. Navarro Chief Judge
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”)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
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.
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
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.
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).
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).
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).
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. Job.com, 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
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. §
227(b)(1)(A) (prohibiting any call using an automatic
telephone dialing system or an artificial ...