445 F.Supp.3d 454
N.D. Cal.2020Background
- Plaintiff Reeve Schley (cell number ending in **) alleges Defendants One Planet Ops Inc. and Buyerlink LLC (dba contractors.com) sent at least five promotional text messages between Aug. 7–21, 2019 to his cellular number without consent. Messages were repetitive and sent from long-code numbers.
- Schley also alleges he received approximately 30 phone calls from Defendants between Aug.–Dec. 2019; he had registered his number on the National Do Not Call Registry and did not consent to calls.
- He experienced a brief pause or “dead air” before a live voice on at least two answered calls. He alleges no prior business relationship with Defendants. Defendants sought judicial notice that the number is associated with a business (Seed Furniture).
- Schley asserted three TCPA claims: (1) §227(b)(1)(A)(iii) ATDS calls/texts to a cellular line; (2) §227(c)/47 C.F.R. §64.1200(c) (calls to DNC-registered residential subscribers); and (3) §227(c)/47 C.F.R. §64.1200(d) (failure to maintain internal do-not-call list/procedures).
- Defendants moved to dismiss all claims. In opposition, Schley voluntarily dismissed the §227(c)/64.1200(c),(d) claims without prejudice. The court denied dismissal as to the ATDS-based claims for both texts and calls and found the motion moot as to the dismissed DNC claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Schley plausibly alleged use of an ATDS for promotional text messages | Messages were repetitive, promotional, multiple over short period, long-code does not preclude ATDS | Insufficient factual detail; could have been hand‑sent messages | Court: Plausible ATDS use alleged; denial of 12(b)(6) as to text claim |
| Whether Schley plausibly alleged use of an ATDS for phone calls | ~30 calls in few months + at least two instances of post‑answer pause support ATDS inference | Dead air on a small percentage of calls suggests inattentive caller, not ATDS | Court: Plausible ATDS use alleged when frequency and pauses are considered together; denial of 12(b)(6) as to call claim |
| Whether DNC-based §227(c)/64.1200 claims should be adjudicated | Schley alleged DNC registration and lack of consent | Defendants argued number is business line tied to Seed Furniture | Plaintiff voluntarily dismissed these claims; court dismissed them without prejudice (motion on these claims moot) |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must contain factual content allowing plausible inference of liability)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (established the plausibility pleading standard)
- Levitt v. Yelp! Inc., 765 F.3d 1123 (9th Cir. 2014) (Ninth Circuit guidance on pleading sufficiency under the TCPA)
- Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025 (9th Cir. 2008) (court accepts factual allegations as true and construes them for the nonmoving party)
- Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011) (if defendant offers a plausible alternative explanation, plaintiff survives dismissal unless defendant’s is so convincing that plaintiff’s is implausible)