Brooks v. The Kroger Co., No. 3:2019cv00106 - Document 15 (S.D. Cal. 2019)
Court Description: ORDER Granting Defendant's Motion to Dismiss (Doc. No. 7 ). Signed by Judge Anthony J. Battaglia on 8/12/2019.(jrm)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Derrick Brooks, Case No.: 3:19-cv-00106-AJB-MDD Plaintiff, 12 13 14 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (Doc. No. 7) v. The Kroger Co., Defendant. 15 16 Before the Court is Defendant The Kroger Co.’s motion to dismiss Plaintiff Derrick 17 Brooks’ complaint. (Doc. No. 7.) Plaintiff’s TCPA action alleges Kroger called him for 18 marketing purposes and references portions of online customer complaints as evidence that 19 the calls were made unlawfully. However, when a complaint only asserts conclusory 20 findings and fails to incorporate the full consumer quotes illuminating the nature of 21 Kroger’s call—to warn about salmonella-tainted beef—the Court finds Plaintiff cannot 22 state a claim. Thus, the Court GRANTS Defendant’s motion to dismiss without leave to 23 amend. (Doc. No. 7.) 24 I. BACKGROUND 25 Plaintiff brings this class action under the Telephone Consumer Protection Act 26 (“TCPA”) against The Kroger Co. for alleged unauthorized marketing calls made using an 27 automated telephone dialing system (“ATDS”). (Doc. No. 1 at 2.) Plaintiff alleged Kroger 28 called him and other putative class members at least once on December 7, 2018, from 1 3:19-cv-00106-AJB-MDD 1 telephone number (800) 727-2333. (Id. ¶ 10.) 2 II. LEGAL STANDARDS 3 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings 4 and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state 5 a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 6 2001). The court may dismiss a complaint as a matter of law for: “(1) lack of a cognizable 7 legal theory or (2) insufficient facts under a cognizable legal claim.” SmileCare Dental 8 Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). 9 However, a complaint survives a motion to dismiss if it contains “enough facts to state a 10 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 11 (2007). 12 Notwithstanding this deference, the reviewing court need not accept legal 13 conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the 14 court to assume “the [plaintiff] can prove facts that [he or she] has not alleged . . . .” 15 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 16 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a 17 court should assume their veracity and then determine whether they plausibly give rise to 18 an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the 19 complaint, accepting all factual allegations as true, and drawing all reasonable inferences 20 in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 21 When ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence 22 outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion 23 for summary judgment, and it must give the nonmoving party an opportunity to respond. 24 See Fed. R. Civ. P. 12(b); Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998). A 25 court may, however, consider certain materials—documents attached to the complaint, 26 documents incorporated by reference in the complaint, or matters of judicial notice— 27 without converting the motion to dismiss into a motion for summary judgment. See Van 28 Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich, 13 F.3d 1370, 1377 2 3:19-cv-00106-AJB-MDD 1 (9th Cir. 1994); 2 James Wm. Moore et al., Moore's Federal Practice § 12.34[2] (3d ed. 2 1999). 3 Certain written instruments attached to pleadings may be considered part of the 4 pleading. See Fed. R. Civ. P. 10(c). Even if a document is not attached to a complaint, it 5 may be incorporated by reference into a complaint if the plaintiff refers extensively to the 6 document or the document forms the basis of the plaintiff’s claim. See Van Buskirk, 284 7 F.3d at 980; Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994), overruled on other 8 grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Venture 9 Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993). The 10 defendant may offer such a document, and the district court may treat such a document as 11 part of the complaint, and thus may assume that its contents are true for purposes of a 12 motion to dismiss under Rule 12(b)(6). The doctrine of incorporation by reference may 13 apply, for example, when a plaintiff’s claim about insurance coverage is based on the 14 contents of a coverage plan, see Parrino, 146 F.3d at 705–06, or when a plaintiff’s claim 15 about stock fraud is based on the contents of SEC filings, see In re Silicon Graphics Secs. 16 Litig., 183 F.3d 970, 986 (9th Cir. 1999). 17 III. DISCUSSION 18 Kroger argues the call it made to Plaintiff and other putative class members falls 19 under the emergency exception of the TCPA because the phone call warned consumers 20 about salmonella-tainted beef and was related to consumers’ injury or death. (Doc. No. 7- 21 1 at 9–10.) Kroger asserts Plaintiff’s complaint thus fails to state that the calls were done 22 for marketing purposes—a necessary fact under the statute. 23 The TCPA forbids making any call to a cellular or landline telephone using an 24 ATDS. 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B). The FCC defines “advertisement” to mean 25 “any material advertising the commercial availability or quality of any property, goods, or 26 services.” 47 C.F.R. § 64.1200(f)(1). Similarly, the FCC defines “telephone solicitation” 27 to mean “the initiation of a telephone call or message for the purpose of encouraging the 28 purchase or rental of, or investment in, property, goods, or services….” 47 C.F.R. 3 3:19-cv-00106-AJB-MDD 1 § 64.1200(f)(14). The TCPA, however, makes an exception for calls made for emergency 2 purposes. Id. at (b)(1)(A)(iii) (“(other than a call made for emergency purposes. . . .”), 3 (b)(1)(B) (“unless the call is initiated for emergency purposes. . . .”). The FCC defines 4 “emergency purposes” as “any situation affecting the health and safety of consumers.” 47 5 C.F.R. § 64.1200(f)(4). 6 First, the Court is troubled by Plaintiff’s misrepresentations in the complaint. 7 Plaintiff purposely omitted details from customer complaint information it found online to 8 make Kroger’s calls seem nefarious. Because the complaint refers to external information 9 found online, Kroger argues it can incorporate by reference the full quotations found there. 10 (Doc. No. 7-1 at 10–11.) The complaint includes five quotes. (Doc. No. 1 ¶ 15.) Those 11 include: 12 1. 2. 3. 4. 5. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Automated call from Kroger . . .” “annoying” “When I answer, they hang up.” “Call from Kroger stores . . .” “I got the same one from Kroger. Problem is, we don't have a Kroger where I live.” (Id.) Kroger’s motion notes the full quote for two of the complaints: 1. Ivan – 6 Dec 2018 “Automated call from Kroger, requesting that you return ground beef that was purchased between August and September of 2018, due to the threat of salmonella. Stores would include Smith’s, Ralph’s, Baker’s and other Kroger stores.” 4. Rizzo – 6 Dec 2018 “Call from Kroger stores advising that we purchased ground beef between Aug 15 & sept 10 , 2018. If you still have any in your freezer, be sure you return it back to the KrogercStore [sic].” (Doc. No. 7-1 at 11.) Kroger argues the Court can consider these quotes as evidence that it indeed called Plaintiff under the emergency exception without converting the motion to dismiss into a motion for summary judgement because it is incorporated by reference in Plaintiff’s complaint. Kroger argues the complaint should be dismissed for failure to comply with Rule 12(b)(6) and Rule 8, as the complaint only includes conclusory allegations and fails to plead a necessary element. 4 3:19-cv-00106-AJB-MDD 1 The Court agrees. The complaint makes only conclusory allegations that the calls 2 were done for marketing purposes, and even goes so far as to misrepresent information to 3 the Court in doing so. As such, the complaint fails to state that the calls were done for 4 marketing purposes. Accordingly, the Court GRANTS the motion to dismiss. 5 IV. AMENDMENT 6 Courts are instructed that leave to amend “shall be freely given when justice so 7 requires.” FED. R. CIV. P. 15(a). Justice, however, does not require that leave to amend 8 be granted where amendment would be futile. Nat’l Council of La Raza v. Cegavske, 800 9 F.3d 1032, 1041 (9th Cir. 2015). Here, the Court holds that amendment would be futile. 10 Incorporating the entire online complaints by reference, the Court finds that there are no 11 set of facts which would solve Plaintiff’s problem. Plaintiff begs for a greater act by 12 Defendant than the statute contemplates. Plaintiff’s theory of the emergency exception 13 doctrine is that an individual must be in direct harm to justify a call. However, there is no 14 statutory or legal justification to read the exception so narrowly. Here, Kroger had a bona 15 fide emergency in its tainted and potentially life-threatening beef, and thus called potential 16 consumers of that beef to warn them. 17 Plaintiff’s reference to a recent Ninth Circuit case purporting to narrow the 18 emergency exception is unpersuasive. In Duguid v. Facebook, Inc., --- F.3d ---, 2019 WL 19 2454853, at *4 (9th Cir. 2019), plaintiff sued Facebook for text messages it sent plaintiff 20 alerting him of a security breach and urging him to log in to his account for more 21 information. Id. at *2. However, plaintiff argued he never had a Facebook account, could 22 not log in for more information, responded to the messages with “Off,” and after receiving 23 assurance from Facebook that he would not receive more messages, continued to receive 24 them. Id. 25 The Court discussed the emergency exception, noting that because plaintiff was “not 26 a Facebook customer and has advised Facebook of that fact repeatedly and through various 27 means of communication . . . . his account could not have faced a security issue, and [thus] 28 Facebook’s messages fall outside even the broad construction the FCC has afforded the 5 3:19-cv-00106-AJB-MDD 1 emergency exception.” Id. at *4. Notably, the Court cited a footnote in the TCPA’s Rules 2 & Regulations which states in part: “[P]urported emergency calls cannot be targeted to just 3 any person. These calls must be about a bona fide emergency that is relevant to the called 4 party.” See In re Rules & Regulations Implementing the Telephone Consumer Protection 5 Act of 1991 (hereinafter Rules & Regulations), 31 F.C.C. Rcd. 9054, 9063 ¶ 21 n.76 (Aug. 6 4, 2016). Plaintiff relies on this sentence in arguing Kroger’s calls do not fall under the 7 emergency exception. 8 However, this reliance is improper as three sentences later in the same footnote, the 9 Court stated the ruling was purposely narrow to the facts discussed in the ruling—calls 10 11 12 13 14 15 16 17 18 19 20 21 made in a schooling context. The full footnote, in relevant part, is as follows: First, purported emergency calls cannot be targeted to just any person. These calls must be about a bona fide emergency that is relevant to the called party. For example, calls about school closings, which we have already noted as a scenario that constitutes an emergency, would be relevant to parents or guardians of students or “other members of the school community.” See Letter to Marlene H. Dortch, Secretary, FCC, from Patrick R. Halley, counsel for Hubbard Broadcasting, Inc., CG Docket No. 02-278, dated Feb. 8, 2016 (Hubbard Ex Parte Filing) at 1-2. Second, our ruling addresses only the specific situation raised in the record concerning calls made by third parties who work in partnership with schools, such as “broadcasters who work directly with schools in order to send critical school-related public safety announcements, such as school closings.” Id. at 1 (emphasis added). Our ruling does not address other situations or calls made by other, unrelated third parties. Id. (emphasis added). 22 Thus, the Ninth Circuit’s reliance on that footnote in support of their attempt to rein 23 in the exception to anything non-related to school calls is dubious. Moreover, the 24 discussion in Duguid ought to be considered dicta because the Court does not rule on those 25 grounds. Duguid, 2019 WL 2454853, at *4. Rather, the Court discusses how the argument 26 is inappropriate for a dismissal stage since it was obvious on the face of the pleadings, 27 taking them as true, that plaintiff was not a Facebook customer. Duguid, 2019 WL 28 2454853, at *4. Finally, it is worth noting that Duguid alleged he did not have a Facebook 6 3:19-cv-00106-AJB-MDD 1 account in his complaint while Plaintiff failed to allege he never shopped at any Kroger 2 owned store. 3 Given these factors, the Court finds Duguid has little precedential value. Plaintiff 4 chiefly relies on the “purported” language pulled from Rules & Regulations to support its 5 argument that the emergency exception should not apply. However, as noted, that language 6 was not meant to be applied outside of schools. See supra. Thus, the Court finds 7 amendment would be futile as Plaintiff cannot plead around the true purposes of Kroger’s 8 call, and DENIES leave to amend. 9 V. CONCLUSION 10 For the reasons stated herein, the Court GRANTS Defendant’s motion to dismiss 11 without leave to amend. (Doc. No. 7.) The Court DIRECTS the Court Clerk to close the 12 case. 13 14 IT IS SO ORDERED. Dated: August 12, 2019 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:19-cv-00106-AJB-MDD
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