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United States District Court for the District of Arizona
November 3, 2021, Decided; November 4, 2021, Filed
Pending before the Court is Defendant's motion for judgment on the pleadings (Doc. 52) and Plaintiff's motion to amend (Doc. 57). For the following reasons, the motion for judgment on the pleadings is granted, and leave to amend is denied.
Plaintiff Daniel DeClements listed a property for sale but took it off the market before it sold. (Doc. 12 at 21.) One day later, he received a text message:
Hey DANIEL, this is Steven with Berkshire Hathaway! I noticed your property on Axle Ave recently been taken [*2] off the market. I would like to interview with you for the job of getting it SOLD! When would be a good time for me to call and discuss this further with you?
(Id. at 22.) Plaintiff replied "Stop," and received the response, "You have successfully been unsubscribed. You will not receive any more messages from this number. Reply START to resubscribe." (Id.)
He then initiated this lawsuit on behalf of himself and a putative class. (Doc. 1 at 1, 25.) The operative complaint before the Court alleges that Defendants Americana Arizona, LLC d/b/a Berkshire Hathaway Homeservices Arizona Properties and Mark Stark,1 CEO of Americana Arizona violated the Telephone Consumer Protection Act of 1991 ("TCPA") by sending the text message. (Doc. 12 at 26.)
Defendant moved for judgment on the pleadings. (Doc. 52.) Plaintiff moved for leave to amend the complaint. (Doc. 57.) Both motions are fully briefed.
II. Motion for Judgment on the Pleadings
A motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) "is properly granted when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law." Fajardo v. Cty. of L.A., 179 F.3d 698, 699 (9th Cir. 1999). "Rule 12(c) is 'functionally identical' to Rule 12(b)(6) and . . . 'the same standard of review' applies to motions brought under [*3] either rule." Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (quoting Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir. 1989)). Thus, a motion for judgment on the pleadings will be granted if the complaint lacks "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (internal quotation marks and citation omitted).
The TCPA prohibits using an autodialer to make calls "to any telephone number assigned to a . . . cellular telephone service" that would charge the recipient for the incoming call, among other restrictions. Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167, 209 L. Ed. 2d 272 (2021); accord 47 U.S.C. § 227(b)(1)(A). An autodialer is a device with the "capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator." Id. And "a text message is a 'call' within the meaning of the TCPA." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
2021 U.S. Dist. LEXIS 213709 *; 2021 WL 5138279
Daniel DeClements, Plaintiff, v. Americana Holdings LLC, Defendants.
Prior History: Declements v. Americana Holdings LLC, 2020 U.S. Dist. LEXIS 113643, 2020 WL 3499806 (D. Ariz., June 29, 2020)
sequentially, phone number, text message, autodialer, pleadings, amend, randomly, generator