Professional Documents
Culture Documents
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Plaintiff Kramer has filed suit against Defendants Autobytel,
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Inc., B2Mobile, LLC, and LeadClick Media, Inc., under the
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Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.
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(TCPA). The complaint alleges that Defendants sent Kramer and
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other similarly situated individuals thousands of unauthorized
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text messages. On October 26, 2010, on the parties' stipulation,
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the Court dismissed with prejudice Kramer's individual claims
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against Defendant Autobytel, and dismissed without prejudice the
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Case4:10-cv-02722-CW Document106 Filed12/29/10 Page2 of 14
5 opposes the motions. Because the motions have drawn into question
12 dismiss.
13 BACKGROUND
20 received ten text messages from Short Message Service (SMS) Code
26 was made using equipment that, upon information and belief, had
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5 identified the SMS short code 77893. 1AC ¶ 21. The body of the
18 B2Mobile:
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20 1AC ¶ 39.
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2 pleading.
3 LEGAL STANDARD
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12 equipment,” provides:
13 (a) Definitions. As used in this section-
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(1) The term “automatic telephone dialing system” means
15 equipment which has the capacity-
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3 DISCUSSION
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20 compliance with the TCPA. Over seven years ago the Federal
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3 TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954
10 Wireless Personal Comm., L.P., 329 F. Supp. 789, 805-06 (M.D. La.
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2 consent."
4 (N.D. Cal. 2008), for the proposition that “prior express consent”
5 under the TCPA is ambiguous in the context of text messaging.
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That decision, however, did not find ambiguity of the nature that
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Defendants in the present case assert. Leckler found ambiguity
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only as to whether the provision of a cell phone number on a loan
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12 this limited context does not overshadow the clarity of the FCC’s
13 statement in 2003 that the TCPA encompasses text messaging, nor
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the subsequent Ninth Circuit decision in Satterfield.
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Furthermore, the decision was later vacated for lack of subject
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matter jurisdiction. Leckler v. Cashcall, Case No. C 07-04002,
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2008 WL 5000528 (N.D. Cal.).
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19 Because the FCC announced years ago that the TCPA encompasses
20 text messages, and that is clearly the law in the Ninth Circuit,
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Iqbal, 129 S. Ct. at 1951, well-plead facts are taken as true and
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4 Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996).
5 Finally, LeadClick attacks Kramer's complaint for failure to
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include details about the content and dates of eight of the ten
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text messages he allegedly received. Kramer has offered to make
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this information available informally and through discovery;
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12 the plaintiff brought a class action lawsuit under the TCPA after
13 allegedly receiving unsolicited text messages. The court found
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the plaintiff's allegations regarding the text messages he
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received insufficient, but granted leave to amend. In the sole
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passage to address the issue, the court stated:
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After alleging several facts regarding the initial,
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offending SMS message he allegedly received from
19 Selling Source, Abbas makes broad, conclusory
allegations regarding the “numerous” further messages
20 that he allegedly received. See Compl. ¶¶ 17, 18.
While Rule 8(a)(2) does not require facts to be pled
21 with particularity, Abbas's allegations here provide
no notice to Selling Source about the subsequent
22 messages Abbas allegedly received. There is no
23 allegation regarding when Abbas received the later
messages, what those messages stated, or from what
24 numbers he received the later messages. Some fair
notice to Selling Source is particularly necessary
25 here because Abbas seeks recovery for each violation
of the TCPA.
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10 raised.
For the Northern District of California
12 for the lawsuit Kramer has brought. It is also true that Rule 8
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does not require Kramer to plead his claim with particularity.
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LeadClick argues that, in the complaint's current form, "There is
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no way to tell what involvement, if any, LeadClick had in the
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dissemination of the remaining eight text messages." However,
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18 this misses the crux of Kramer's putative class action under the
27 pleading stage about the time and context of every text message.
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CONCLUSION
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4 motion to dismiss. The parties shall appear before the Court for
5 a case management conference, as previously scheduled, on January
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4, 2011 at 2:00 pm.
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IT IS SO ORDERED.
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