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Ibey v. Taco Bell, 12 CV 0583 (HVG) (S.D. Cal.; June 18, 2012)

Ibey v. Taco Bell, 12 CV 0583 (HVG) (S.D. Cal.; June 18, 2012)

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Confirmatory opt-out text does not violate TCPA.
Confirmatory opt-out text does not violate TCPA.

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Published by: Venkat Balasubramani on Jul 06, 2012
Copyright:Attribution Non-commercial


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JASON IBEY, individually and on behalf of all others similarly situated,Plaintiff,CASE NO. 12-CV-0583-H (WVG)
vs.TACO BELL CORP.,Defendant.On May 25, 2012, Defendant Taco Bell Corp. filed a motion to dismiss Plaintiff’scomplaint pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative forsummary judgment. (Doc. No. 15.) Plaintiff filed his opposition on June 11, 2012. (Doc. No.17.) Defendant filed its reply on June 18, 2012. (Doc. No. 19.) The Court, pursuant to itsdiscretion under Local Rule 7.1(d)(1), determines that these matters are appropriate forresolution without oral argument, submits the motion on the parties’ papers, and vacates thehearing scheduled for June 25, 2012. For the following reasons, the Court grants DefendantTaco Bell’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and grantsPlaintiff 30 days leave to amend to cure the deficiencies in the complaint. ///  /// 
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Case 3:12-cv-00583-H-WVG Document 20 Filed 06/18/12 Page 1 of 6
Plaintiff alleges that on or about February 14, 2012, he responded to an invitation tocomplete a survey about Taco Bell, and Plaintiff voluntarily sent a text message from hismobile phone to the number 93138. (Doc. No. 13 ¶ 9.) In response to his text message,Plaintiff alleges he received a text message providing instructions on how to complete thesurvey. (Id. ¶ 13.) Plaintiff alleges that shortly thereafter, he had second thoughts aboutcontinuing the survey and decided that he wished to cease communications with Taco Bell.(Id. ¶ 13.) To cease communications, Plaintiff allegedly sent the word “STOP” to the samenumber, 91318. In response to Plaintiff’s STOP message, Plaintiff alleges that Taco Bell sentPlaintiff a text message confirming that he had opted out of receiving text messagenotifications. (Id. 14.)Plaintiff alleges that the confirmation text message constituted an unsolicited text-message advertisement and was placed via an “automatic telephone dialing system” (“ATDS”),prohibited by the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1). (Id.
 ¶ 19.)
Inresponse, Defendant filed a motion to dismiss or, in the alternative, for summary judgment.(Doc. No. 15.)
DiscussionI.Judicial Notice
In general, the scope of review on a motion to dismiss for failure to state a claim islimited to “allegations contained in the pleadings, exhibits attached to the complaint, andmatters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007). Federal Rule of Evidence 201 allows a court to take judicial notice of facts that areeither “(1) generally known within the territorial jurisdiction of the trial court; or (2) capableof accurate and ready determination by resort to sources whose accuracy cannot reasonablybe questioned.” Fed. R. Evid. 201(b).Defendant submits for judicial notice Plaintiff Jason Ibey’s professional LinkedInprofile page and Mobile Marketing Association U.S. Consumer Best Practices. (Doc. No. 15.)Plaintiff opposed judicial notice of both documents. (Doc. No. 18.) The Court declines to take
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12345678910111213141516171819202122232425262728 judicial notice of the LinkedIn page or the Mobile Marketing Association U.S. Consumer BestPractices. The Court concludes that Plaintiff’s LinkedIn page may not be properly subject to judicial notice because Plaintiff’s employment status is not generally known within the Court’s jurisdiction, and LinkedIn is not a source whose accuracy cannot be reasonably questioned.See Fed. R. Evid. 201(b). Likewise, the contents of the Mobile Marketing Association U.S.Consumer Best Practices are not generally known within the Court’s jurisdiction and are nota source whose accuracy cannot be reasonably be questioned. Accordingly, the Court deniesDefendant’s request for judicial notice.
II.Legal Standards for Motion to Dismiss Pursuant to 12(b)(6)
A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) teststhe legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729,732 (9th Cir. 2001). Rule 8(a)(2) requires that a pleading stating a claim for relief contain “ashort and plain statement of the claim showing that the pleader is entitled to relief.” Thefunction of this pleading requirement is to “give the defendant fair notice of what the . . . claimis and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555(2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not needdetailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlementto relief’ requires more than labels and conclusions, and a formulaic recitation of the elementsof a cause of action will not do.” Id. A complaint does not “suffice if it tenders ‘nakedassertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678(2009) (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise aright to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Wright &Miller, Federal Practice and Procedure § 1216, 235–36 (3d ed. 2004)). “All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However,conclusory allegations of law and unwarranted inferences are insufficient to defeat a motionto dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9thCir. 1996); see also Twombly, 550 U.S. at 555. /// 
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Case 3:12-cv-00583-H-WVG Document 20 Filed 06/18/12 Page 3 of 6

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