ORDER DENYING DEFENDANT’S MOTIONS TO DISMISS AND STRIKE
Defendant Progressive Casualty Insurance Company (“Defendant”) moves to dismiss plaintiff Peter Olney’s (“Plaintiff’) putative class-action Complaint on multiple grounds pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, to strike the class action allegations pursuant to Federal Rule of Civil Procedure 12(f). The Court finds the matter suitable for decision on the papers, without oral argument, рursuant to Civil Local Rule 7.1.d.l. Defendant’s motions are DENIED.
BACKGROUND
Plaintiff, a resident of California, sues on behalf of himself and all others similarly situated. Defendant is an Ohio corporation that provides insurance policies with its principal place of business in Ohio.
Plaintiff alleges that, beginning in July 2013, he received, without his consent, numerous “autodialed” telephone calls to his cellular telephone for which he alleges he incurred charges. Plaintiff alleges Defendant used “an ‘automatic telephone dialing system,’ (‘ATDS’) ... using an ‘artificial or prerecorded voice’ ... in order to collect an alleged debt from an unknown third party named Danielle.” (ECF No. 1, Compl. ¶ 16.) Plaintiff thus brings two claims under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., for (1) negligent violations of the TCPA and (2) knowing or willful violations оf the TCPA.
Defendant now moves the Court for dismissal on the grounds that Plaintiff lacks statutory standing because: (1) the TCPA allows only the intended recipient of a call to file suit; (2) alternatively, only the subscriber of the phone number can file suit; and (3) calling a debtor does not violate the TCPA, regardless of who answers the phone.
In the alternative, Defendant moves the Court to strike Plaintiffs class action allegations on the grounds that the class is facially uncertifiable because the class definition is overbroad and unascertainable.
DISCUSSION
I. Motion to Dismiss
A. Legal Standard
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block,
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co.,
B. Analysis
1. Statutory Standing
i. “Called Party” & “Intended Recipient”
Defendant argues Plaintiff lacks standing to assert a violation under the TCPA because only the “called party” has statutory standing to bring suit under the TCPA. Defendant asserts the “called party” is the “intended recipient” of the call. Plaintiff argues in response that standing is not limited to the “called party,” but rather, the TCPA allows “any person or entity” to bring suit.
Defendant relies on several cases that the Court finds either unpersuasive or distinguishable: Cellco P’ship v. Dealers Warranty, LLC,
Furthermore, the “intended recipient” interpretation was recently rejected by another court in this district. See Gutierrez v. Barclays Grp.,
Defendant is also correct, however, in noting that “identical words used in different parts of the same act are intend
Defendant further argues that public policy supports the limitation of standing to only the intended recipient. Defendant is concerned that a business could be liable anytime it calls an individual with a prerecorded message if someone other than the intended recipient answers. Defendant warns that, “if the called party is not the intended recipient, then a debtor could both avoid a debt and confer a TCPA claim by simply handing his cell phone to a person sitting next to him and permitting that person to answer the phone.” (Def. Memo at 8.) Although this concern has some validity, the TCPA was intended to protect individuals from receiving unsolicited calls and to deter callers from using automatic dialing systems and prerecorded messages in an unregulated fashion. Adopting Defendant’s position would shift responsibility from a business making automatic and prerecorded calls to individuals receiving them. The Court feels that the stronger public policy to be served by the TCPA is protecting individuals from such calls.
Other courts have also rejectеd Defendant’s public policy argument. See, e.g., Breslow,
Finally, as Plaintiff points out, Defendant’s position that only the intended recipient has standing to bring a claim under the TCPA has been squarely rejected in no less than twenty cases, cases that are factually similar to the instant case. See, e.g., Soppet,
Plaintiff argues that “any person or entity” has statutory standing to bring suit under the TCPA. Plaintiff cites several cases that adopt this position. See, e.g., Anderson v. AFNI, Inc.,
Plaintiff, however, ignores the fact that the “any person or entity” approach has been rejected by another court in this district. See Gutierrez,
iii. “Subscriber”
Defendant next argues that, even if the Court rejects the “intendеd recipient” definition of “called party,” Plaintiff still lacks standing to assert a TCPA claim because he has not alleged that he is the current subscriber of the number Defendant allegedly dialed. Plaintiff argues in response that “subscriber” should not be narrowly interpreted to mean only the “account holder,” but that it should also include the “regular user” of the phone. Plaintiffs argument is the better-reasoned position.
Defendant seeks to arbitrarily limit standing to only the individual whose name appears on the bill. Notably, Defendant does not cite a single case to support this position. Further, this position has been rejected by other courts. See, e.g., Cellco v. Plaza Resorts,
Some courts that hаve adopted the “current subscriber” interpretation suggest that a “subscriber” is the person who pays the bill. See, e.g., Soppet,
The Gutierrez court, however, concluded that a plaintiff need not show he was charged for the calls to be considered a subscriber. Gutierrez,
This Court is persuaded by the reasoning of Gutierrez and therefore finds that the regular user of a cellular telephone has standing to bring a claim under the TCPA, regardless of whether he is responsible for paying the bill. Even if thе Court were to find that only the person responsible for the bill has standing to bring suit, Plaintiff has sufficiently alleged that he was both the regular user and that he incurred a charge. (Comply 21.) Accordingly, the court will deny Defendant’s Motion to Dismiss with regard to standing.
2. TCPA & Debt Collection
Defendant contends that callers are exempt from liability under the TCPA if made for the purpose of debt collection, regardless of who answers the phone. Defendant rests this conclusion on the premise that the person Defendant was attempting to reach in this case (a person named Danielle) gave her prior express consent to be contacted at the phone number provided. Defendant relies on the conclusions set forth in In re Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 (“FCC Report”), 23 F.C.C.R. 559, 564 (F.C.C.2008), and Meadows v. Franklin Collection Serv., Inc.,
First, other than the fact that Plaintiff received a call apparently intended for “Danielle,” there are no facts alleged in Plaintiffs Complaint as to who Danielle is or what Danielle’s relationship with Defendant might be. Defendant may not seek dismissal based on facts outside the relevant complaint unless those facts are contained in documents attached to the complaint or subject to judicial notice. See Lee v. Los Angeles,
Second, even if the Court were to consider Defendant’s representation that it was attempting to collect a debt from Danielle, Defendant’s position lacks merit. In its Report, the FCC determined that “au-todialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the ‘prior express consent’ of the called party [and] such calls are
As for Meadows, that case involved debt collection calls placed to a residential land-line.
Third, other courts in this circuit have rejected Defendant’s argument. See, e.g., Robinson v. Midland Funding,
Finally, public policy weighs against Defendant’s argument. Acknowledging that debt collectors are exempt from liability under TCPA, regardless of whose cell phone number is called, would leave without redress an individual who receives prerecorded messages simply because he has a phone number that рreviously belonged to a debtor. As the court in Breslow stated: “[T]o hold otherwise might allow a defendant who obtained the prior express consent of a previous owner of a cellular phone number to forever escape liability for placing automated calls to subsequent owners of the same number.”
Based on the foregoing, the Court will deny Defendant’s Motion to Dismiss as to the argument that its calls were exempt from liability because they were made in an effort to collect a debt.
3. Treble Damages
Defendant asserts Plaintiffs second cause of action for treble damages should be dismissed because Plaintiff alleged no fаcts demonstrating that Defendant acted knowingly or willfully.
The court in Harris v. World Financial Network National Bank,
Plaintiff has alleged that he notified Defendant on August 14, 2013, that Defendant was dialing the wrong number and that Defendant continued to call Plaintiff. (Compl. ¶ 18.) As such, the Court will deny Defendant’s Motion to Dismiss as to Plaintiffs second cause of action.
In the alternative, Defendant asks the Court to strike Plaintiffs class allegations because the class definition is over-broad and unascertainable and because Plaintiff cannot cure this deficiency by amendment. The Court agrees with Plaintiff that Defendant’s request amounts to a premature effort to defeat class certification. The court in Blair v. CBE Group, Inc. similarly rejected a defendant’s motion to strike the class allegations at the pleadings stage in a complaint that is almost identical to the case at bar.
III. Local Rule 7.1
Lastly, Defendant points out that Plaintiffs memoranda of points and authorities exceed the page requirements set forth in Civil Local Rule 7.1.h. The Court agrees with Defendant’s interpretаtion of Civil Local Rule 7.1.h.
IV. Plaintiffs Objection to Defendant’s Extrinsic Evidence
Plaintiff objects to Defendant introducing certаin extrinsic evidence in support of its motions. Because the Court does not rely on the purported evidence, and because the Court will in any event deny Defendant’s motions, the Court will overrule Plaintiffs objection as moot.
V.Plaintiffs Request for Continuance to Take Discovery
Plaintiff requests “a continuance to obtain facts essential to justify Plaintiffs Opposition to Defendant’s Motion for Summary Judgment.” (ECF No. 15-3, Deck Abbas Kazerounian ¶ 3.) There is, of course, no pending motion for summary judgment. The Court will thus deny Plaintiffs request.
CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Defendant’s Motions to Dismiss and Strike, (ECF No. 12), are DENIED;
2. Plaintiffs objection to extrinsic evidence is OVERRULED;
3. Plaintiffs request for a continuance to take discovery is DENIED.
Notes
. The Court notes that its staff may have incorrectly informed the parties that the page limits set forth in Civil Local Rule 7.1.h apply to individual motions regardless of whether they are heard on the same day. The page limits, however, apply "to all motions noticed for the same motion day.”