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Ibey v. Taco Bell (Motion for Reconsideration)

Ibey v. Taco Bell (Motion for Reconsideration)

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Published by: Venkat Balasubramani on Jul 06, 2012
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Abbas Kazerounian, Esq. (SBN: 249203)ak@kazlg.com
Kazerouni Law Group, APC
2700 North Main Street, Suite 1000Santa Ana, California 92705(800) 400-6808Joshua B. Swigart, Esq. (SBN: 225557) josh@westcoastlitigation.com
Hyde & Swigart
411 Camino Del Rio South, Suite 301San Diego, CA 92108-3551(619) 233-7770(619) 297-1022Attorneys for Jason Ibey
Memorandum of Points and Authorities in Support of Plaintiff’s Motion to Reconsider
12345678910111213141516171819202122232425262728Jason Ibey, individually and on behalf of all others similarly situatedPlaintiffs,v.Taco Bell Corp.Defendant.
Case No: 12-cv-0583-H-WVGMemorandum of Points andAuthorities in Support of Plaintiff's Motion to ReconsiderPursuant to Fed. R. Civ. P. 59 andFed. R. Civ. P. 60.Date: August 6, 2012Time: 10:30 AMJudge: Hon. Marilyn L. Huff Oral Argument Requested
Case 3:12-cv-00583-H-WVG Document 22-1 Filed 07/03/12 Page 1 of 10
This is a class action lawsuit meant to protect consumers from the ongoing proliferation of SPAM messages being sent to their cellular telephones. SPAM has plagued consumers in the past through e-mail, and this latest marketing scheme isdesigned to SPAM cellular telephones in the same manner.Even so, this SPAM is still in its infancy. But the practice is growing as thesemarketing companies “test the water” to see what they can get away with, as here,and once these numbers are trapped, these companies often go so far as to thenexchange the numbers they trap with other solicitors, for the further purpose of making even more telephone calls. The numbers become valuable commodities.The Supreme Court of the United States recently noted that consumers areoutraged over the proliferation of these intrusive, nuisance calls, and that Congresshas found these calls to be an invasion of privacy.
 Mims v. Arrow Fin. Servs. LLC 
,132 S. Ct. 740, 745 (U.S. 2012). The time to curtail this type of SPAM is now;early in the evolution of such practices. This lawsuit attempts to do just that.
A.Legal Standard
Reconsideration is appropriate if the district court (1) is presented with newlydiscovered evidence, (2) committed clear error or the initial decision wasmanifestly unjust, or (3) if there is an intervening change in controlling law. Sch.Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9
Cir. Or. 1993), citing
 All  Hawaii Tours, Corp. v. Polynesian Cultural Center 
, 116 F.R.D. 645, 648 (D.Hawaii 1987), rev'd on other grounds, 855 F.2d 860 (9th Cir. 1988). There mayalso be other, highly unusual, circumstances warranting reconsideration.
II.ArgumentA.Plaintiff adequately pleaded the issue of Defendant using an ATDS inits initial complaint
The relevant portion of the TCPA provides as follows:
- 2 of 10 -
Case 3:12-cv-00583-H-WVG Document 22-1 Filed 07/03/12 Page 2 of 10
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is withinthe United States--(A)
to make any call 
(other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or anartificial or prerecorded voice--. . .to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which thecalled party is charged for the call[.]47 U.S.C. § 227(b)(1) (2006). (Emphasis added.)The statute further defines “automatic telephone dialing system” (the"ATDS") as “equipment which has the capacity – (A) to store or produce telephonenumbers to be called, using a random or sequential number generator; and (B) todial such numbers.”
. § 227(a)(1).The plain text of the statute requires only “the capacity” for such random or sequential generation, see 47 U.S.C. § 227(a)(1), and the implementing regulationsimpose no higher burden. See 47 C.F.R. § 64.1200(f)(1). Further, the Court of Appeals for the Ninth Circuit found this clear language mandates only allegationsof this “capacity.” see
Satterfield v. Simon & Schuster, Inc.
, 569 F.3d 946, 950 (9thCir. Cal. 2009). See also,
 Abbas v. Selling Source, LLC 
, 2009 U.S. Dist. LEXIS116697, 13-14 (N.D. Ill. Dec. 14, 2009), citing
, and holding under Fed.R. Civ. P. 12(b)(6), it is enough for a plaintiff to merely allege that the equipmentused by the defendant had the capacity to produce or store and dial numbersrandomly or sequentially. That is
what was pleaded here.This is also consistent with prior holdings in the Southern District of California. In
 Ryabyshchuk v. Citibank (South Dakota) N.A.
, 2011 U.S. Dist.LEXIS 136506, 5-6 (S.D. Cal. Nov. 28, 2011), the court found:
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Case 3:12-cv-00583-H-WVG Document 22-1 Filed 07/03/12 Page 3 of 10

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