In Luna v. Shac, LLC dba Sapphire Gentlemen’s Club, 2014 WL 5324291 (N.D.Cal. 2014), Judge Lloyd denied a Motion to Dismiss a TCPA claim. The facts were as follows.
Plaintiff brings this proposed class action against Shac, Club Texting, and CallFire, alleging violations of the TCPA. In January 2014, Plaintiff received an unsolicited text message on his cellular telephone from Defendants. FAC ¶ 10. “Defendants Club Texting and Callfire were hired and/or retained by Defendant Shac to send his text-message … on Defendant Shac’s behalf.” Id. ¶ 10. “Defendants entered [Plaintiff’s] cellular-telephone number into a database and subsequently used equipment capable of storing and/or producing telephone numbers, as well as capable of dialing such numbers, to send the text message en masse to consumers, including Plaintiff.” Id. ¶ 13. “Defendant Shac retained the right to control–and, in fact, did control–the content of those messages, as well as to whom Defendants Club Texting and Callfire delivered the messages.” Id. ¶ 10.
Judge Lloyd denied the Motion to Dismiss.
CallFire argues: (1) Plaintiff failed to allege that CallFire initiated the call; (2) CallFire could not be the party that initiated the call because of the way its service works; (3) TCPA liability is limited to those who initiate a call, and a common carrier that simply transmits its customers’ messages does not initiate calls; and (4) this case should be referred to the FCC under the primary jurisdiction doctrine. In regards to the first argument, the FAC alleges that CallFire initiated the calls. Plaintiff alleges that “Callfire were hired and/or retained by Defendant Shac to send his text-message, along with the other text messages described below, on Defendant Shac’s behalf.” FAC ¶ 10. In addition, Plaintiff alleges that “Defendants entered [Plaintiff’s] cellular-telephone number into a database and subsequently used equipment capable of storing and/or producing telephone numbers, as well as capable to dialing such numbers, to send the text message en masse to consumers, including Plaintiff.” Id. ¶ 13. ¶ The second, third, and fourth arguments are nearly identical to the arguments that CallFire has made in motions to dismiss filed in similar actions brought against CallFire in other districts within the Ninth Circuit. See Couser v. Pre–Paid Legal Services, Inc., No. 12–CV–2575 LAB (WVG), Dkt. No. 28 (S.D.Cal. Aug. 16, 2013); Shay v. Callfire, Inc., No. 14–CV–1257 L(WVG), Dkt. No. 4 (S.D. Cal. June 18, 2014); Rinky Dink Inc. v. Elec. Merch. Sys. Inc., No. C13–1347 JCC, Dkt. No. 58 (W.D. Wash. June 26, 2014); Kauffman v. Callfire, Inc., No. 14–CV–1333 H(DHB), Dkt. No. 5 (S.D.Cal. Aug. 15, 2014). ¶ The courts in two of these cases analyzed the arguments presented here. FN3 This Court is persuaded by the thoughtful and thorough analysis in Couser v. Pre–Paid Legal Services, Inc., 994 F.Supp.2d 1100 (S.D.Cal.2014). First, Couser rejected CallFire’s argument that it could not be the party that initiated the call because of the way its service works, reasoning that the relationship between CallFire and its customers is too fact-intensive to resolve at the motion to dismiss phase. Id. at 1103. Second, Couser rejected CallFire’s argument that it is a common carrier that cannot be found liable under the TCPA. Id. at 1103–05. The court reasoned that the legislative history CallFire relied on was inconclusive, the FCC rulings addressed a different TCPA rule than the one at issue there, and there had not been sufficient discovery conducted to conclude that CallFire is a common carrier. Id. Third, Couser rejected CallFire’s argument that the case should be referred to the FCC under the primary jurisdiction doctrine, also on the basis that there had not been sufficient discovery conducted to conclude that CallFire is a common carrier. Id. at 1105–06. This Court finds the analysis in Couser convincing, and follows suit. See also Rinky Dink Inc. v. Elec. Merch. Sys. Inc., No. C13–1347 JCC, Dkt. No. 78 (W.D.Wash. Sept. 30, 2014) (adopting the court’s reasoning in Couser ). [FN3. The plaintiff in Shay voluntarily dismissed the action against CallFire before the court ruled on the motion to dismiss. Shay v. Callfire, Inc., No. 14–CV–1257 L(WVG), Dkt. No. 6 (S.D. Cal. June 27, 2014). The court in Kauffman granted the motion to dismiss on the basis that the plaintiff failed to allege that CallFire initiated the call, and declined to address the arguments that CallFire could not be the party that initiated the call because of the way its service works, that CallFire is a common carrier that could not be found liable under the TCPA, and that the case should be referred to the FCC under the primary jurisdiction doctrine.]