Carranza-Ambris v. The Terminix International Company Limited Partnership

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 JAIME CARRANZA, individually and on Case No.: 20-cv-1819-DMS-WVG

behalf of all others similarly situated,

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ORDER (1) DENYING

Plaintiff,

13 DEFENDANT’S MOTION TO

v. STRIKE, (2) DENYING

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DEFENDANT’S MOTION TO

THE TERMINIX INTERNATIONAL

15 DISMISS

COMPANY LIMITED PARTNERSHIP,

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Defendant.

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19 This case comes before the Court on Defendant The Terminix International

20 Company Limited Partnership’s (“Terminix”) motion to strike Plaintiff Jaime Carranza’s

21 class allegations, or in the alternative, to dismiss the out-of-state class members for lack of

22 personal jurisdiction. Plaintiff filed a response in opposition, and Defendant filed a reply.

23 For the following reasons, Defendant’s motions are denied.

24 I.

25 BACKGROUND

26 Plaintiff alleges Defendant sent multiple automated text messages to Plaintiff’s

27 cellular telephone number in February and April of 2019, even though Plaintiff was not a

28 customer of Defendant. (Compl. ¶¶ 22–28.) Several of these messages informed Plaintiff

1 that a Terminix employee would be coming to the “Glendora house” on “Monday

2 morning.” (Id. ¶ 28.) Others described services such as spiderweb removal. (Id.) Plaintiff

3 did not give Defendant prior express written consent to send these messages. (Id. ¶ 29.)

4 Sometime in 2019, Plaintiff notified Defendant that Defendant was sending messages to

5 the wrong person. (Id. ¶ 31.) On June 12, 2020, Plaintiff called Defendant to discuss how

6 Defendant had obtained Plaintiff’s contact information. (Id. ¶¶ 32–33.) Defendant stated

7 Plaintiff would not be contacted in the future by Defendant. (Id. ¶ 35.) Despite this,

8 Plaintiff alleges he received another automated text message from Defendant on August 7,

9 2020. (Id. ¶ 37.)

10 Based on these allegations, Plaintiff filed a putative class action complaint on

11 September 15, 2020, claiming violation of the Telephone Consumer Protection Act

12 (“TCPA”), 47 U.S.C. § 227 et seq.. Plaintiff’s proposed class is:

13 All persons throughout the United States (1) to whom Defendant delivered, or

caused to be delivered, a text message, (2) directed to a number assigned to a

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cellular telephone service, (3) by using an automatic telephone dialing system,

15 (4) within four years preceding the date of this complaint through the date of

class certification.

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17 (Id. ¶ 57.) The present motions followed. (ECF No. 16.)

18 II.

19 LEGAL STANDARD

20 Under Federal Rule of Civil Procedure 12(f), a court may strike “any redundant,

21 immaterial, impertinent or scandalous matter” in a pleading. Fed. R. Civ. P. 12(f). An

22 “immaterial” matter has no essential or important relationship to the claim for relief or

23 defenses pleaded. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on

24 other grounds, 510 U.S. 517, 534–35 (1994). An “impertinent” matter consists of

25 statements that do not pertain and are unnecessary to the issues in question. Id.

26 Generally, motions to strike are disfavored because pleadings are of limited importance in

27 federal practice and such motions are usually used as a delaying tactic. RDF Media Ltd. v.

28 Fox Broadcasting Co., 372 F. Supp. 2d 556, 566 (C.D. Cal. 2005). Thus, courts will

1 generally grant a motion to strike only when the moving party has proved that the matter to

2 be stricken could have no possible bearing on the subject matter of the litigation. See Cal.

3 Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal.

4 2002); Cortina v. Goya Foods, Inc., 94 F. Supp. 3d 1174, 1182 (S.D. Cal. 2015). In

5 exercising its discretion over whether to grant a motion to strike, the court “views the

6 pleadings in the light most favorable to the non-moving party.” Cal. Dep’t of Toxic

7 Substances Control, 217 F. Supp. 2d at 1033.

8 On a motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of

9 Civil Procedure 12(b)(2), the plaintiff bears the burden “to establish the district court’s

10 personal jurisdiction over the defendant.” Harris Rutsky & Co. Ins. Servs., Inc. v. Bell &

11 Clements Ltd., 328 F.3d 1122, 1128–29 (9th Cir. 2003). “Where, as here, the defendant’s

12 motion is based on written materials rather than an evidentiary hearing, the plaintiff need

13 only make a prima facie showing of jurisdictional facts to withstand the motion to dismiss.”

14 Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011) (citing

15 Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010)).

16 “Uncontroverted allegations in the complaint must be taken as true, and factual disputes

17 are construed in the plaintiff’s favor.” Freestream Aircraft (Berm.) Ltd. v. Aero Law Grp.,

18 905 F.3d 597, 602 (9th Cir. 2018) (citing Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d

19 1007, 1019 (9th Cir. 2002)).

20 Because “California’s long-arm statute allows courts to exercise personal

21 jurisdiction over defendants to the extent permitted by the Due Process Clause of the

22 United States Constitution[,]” this Court “need only determine whether personal

23 jurisdiction in this case would meet the requirements of due process.” Harris Rutsky, 328

24 F.3d at 1129 (internal quotation marks and citation omitted). “For a court to exercise

25 personal jurisdiction over a nonresident defendant consistent with due process, that

26 defendant must have ‘certain minimum contacts’ with the relevant forum ‘such that the

27 maintenance of the suit does not offend traditional notions of fair play and substantial

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1 justice.’ ” CollegeSource, Inc. v. AcademyOne, Inc., 653 F.3d 1066, 1073–74 (9th Cir.

2 2011) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 216 (1945)).

3 III.

4 DISCUSSION

5 Defendant moves to strike Plaintiff’s class allegations. In the alternative, Defendant

6 moves to dismiss the out-of-state class members. The Court addresses each motion in turn.

7 A. Motion to Strike

8 Defendant argues Plaintiff’s proposed class is not ascertainable and cannot satisfy

9 either the predominance or typicality requirements of Federal Rule of Civil Procedure 23.

10 Plaintiff contends a motion to strike class allegations at the pleading stage is disfavored,

11 and the issues raised by Defendant are better addressed on a motion for class certification.

12 “Federal Rule of Civil Procedure 23 governs the maintenance of class actions in

13 federal court. Parties seeking class certification must satisfy each of the four requirements

14 of Rule 23(a)—numerosity, commonality, typicality, and adequacy—and at least one of

15 the requirements of Rule 23(b).” Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1124

16 (9th Cir. 2017) (citing Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80 (9th Cir.

17 2011)); see Fed. R. Civ. P. 23.

18 “Class allegations may be stricken at the pleading stage.” Lyons v. Coxcom, Inc.,

19 718 F. Supp. 2d 1232, 1235 (S.D. Cal. 2009) (citing Kamm v. California City Dev. Co.,

20 509 F.2d 205, 212 (9th Cir. 1975)); In re Wal-Mart Stores, Inc. Wage & Hour Litig., 505

21 F. Supp. 2d 609, 615 (N.D. Cal. 2007); see Vinole v. Countrywide Home Loans, Inc., 571

22 F.3d 935, 941 (9th Cir. 2009) (recognizing “preemptive” challenges to class certification

23 prior to plaintiff’s filing of motion to certify); Tietsworth v. Sears, 720 F. Supp. 2d 1123,

24 1146 (N.D. Cal. 2010) (stating court has authority under Rule 12(f) and Rule 23 to strike

25 class allegations prior to discovery “if the complaint demonstrates that a class action cannot

26 be maintained”). “However, motions to strike class allegations are generally disfavored

27 because ‘a motion for class certification is a more appropriate vehicle.’ ” Lyons, 718 F.

28 Supp. 2d at 1235–36 (quoting Thorpe v. Abbott Labs., Inc., 534 F. Supp. 2d 1120, 1125

1 (N.D. Cal. 2008)). Indeed, “the granting of motions to dismiss class allegations before

2 discovery has commenced is rare.” In re Wal-Mart Stores, 505 F. Supp. 2d at 615.

3 Defendant raises three challenges to Plaintiff’s proposed class. First, it contends the

4 proposed class is impermissibly broad, and therefore not ascertainable. Specifically,

5 Defendant argues many putative class members have suffered no injury, because those who

6 consented to receiving texts about Terminix services have no viable TCPA claim. Second,

7 Defendant argues the proposed class lacks predominance because the claims here require

8 fact-specific inquiries, such as whether an autodialer was used, whether each individual

9 was a customer of Defendant, and whether the individual consented to receiving messages.

10 Third, Defendant asserts the proposed class lacks typicality because the facts of this case

11 are unique to Plaintiff. Defendant contends the messages Plaintiff received were not “ ‘en

12 masse’ telemarketing communications,” but rather were targeted toward a particular

13 customer describing a specific service at a specific location. (Def.’s Mem. of P. & A. in

14 Supp. of Mot., ECF No. 16, at 12.)

15 Defendant raises salient points regarding Plaintiff’s proposed class. However, it has

16 not shown that the proposed classes are not certifiable as a matter of law. Lyons, 718

17 F.Supp.2d at 1236. The Court finds these issues are better resolved on a motion for class

18 certification with the benefit of discovery. See In re Wal-Mart Stores, 505 F. Supp. 2d at

19 615–16. The Court therefore denies Defendant’s motion to strike the class allegations.

20 B. Motion to Dismiss

21 In the alternative, Defendant moves to dismiss the out-of-state class members.

22 Relying on Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773

23 (2017) (“Bristol-Myers”), Defendant contends the Court cannot exercise specific personal

24 jurisdiction with respect to the non-California class members’ claims.1

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26 1 Plaintiff does not dispute that the Court lacks general jurisdiction over Defendant.

27 General jurisdiction only exists when a defendant’s “continuous and systematic” contacts

with the forum state render it essentially “at home” there. See Daimler AG v. Bauman, 571

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1 “Specific jurisdiction . . . depends on an ‘affiliatio[n] between the forum and the

2 underlying controversy,’ principally, activity or an occurrence that takes place in the forum

3 State and is therefore subject to the State’s regulation.” Goodyear Dunlop Tires

4 Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (citations omitted). The parties do

5 not dispute that the Court has specific jurisdiction over Defendant for Plaintiff’s TCPA

6 claim and the claims of proposed California class members. Defendant is headquartered

7 in Tennessee, but conducts business within California. (Compl. ¶¶ 5, 8.) Plaintiff alleges

8 Defendant “intentionally and voluntarily directed its text messages to Plaintiff, a California

9 resident, and this action arises from this contact with the forum.” (Id. ¶ 5.) However,

10 Defendant contends these allegations fail to establish personal jurisdiction with respect to

11 the claims of the unnamed out-of-state class members. Specifically, Defendant contends

12 Bristol-Myers, which required “a connection between the forum state and the specific

13 claims at issue,” 137 S. Ct. at 1781, applies to federal class action lawsuits, and thus the

14 Court cannot exercise personal jurisdiction over the out-of-state class members, whose

15 alleged injuries occurred outside of California.

16 Bristol-Myers arose out of a mass tort action filed in California Superior Court by a

17 group of plaintiffs, both California and out-of-state residents, who alleged a blood-thinning

18 drug had damaged their health. Id. at 1777–78. The Supreme Court held that the California

19 court lacked personal jurisdiction over the non-California plaintiffs’ claims. Id. at 1782.

20 It reasoned: “The relevant plaintiffs are not California residents and do not claim to have

21 suffered harm in that State. In addition . . . all the conduct giving rise to the nonresidents’

22 claims occurred elsewhere. It follows that the California courts cannot claim specific

23 jurisdiction.” Id.

24 However, the Court’s decision explicitly left open the question of whether its

25 holding extends to federal personal jurisdiction. Id. at 1783–84 (“[S]ince our decision

26 concerns the due process limits on the exercise of specific jurisdiction by a State, we leave

27 open the question whether the Fifth Amendment imposes the same restrictions on the

28 exercise of personal jurisdiction by a federal court.”). Further, as the dissent notes, the

1 decision did not address whether the holding would apply to a class action, as opposed to

2 a mass tort action. Id. at 1789 (Sotomayor, J., dissenting).

3 The Ninth Circuit has not yet addressed whether Bristol-Myers applies to class

4 actions. In Molock v. Whole Foods Market Group, Inc., 952 F.3d 293, 295 (D.C. Cir.

5 2020), the D.C. Circuit held that absent class certification, putative class members are not

6 yet parties to an action, and thus a motion to dismiss their claims before certification is

7 premature. Recently, the Seventh Circuit held that Bristol-Myers’ principles do not apply

8 to a nationwide class action filed in federal court under a federal statute. Mussat v. IQVIA,

9 Inc., 953 F.3d 441, 443, 446–47 (7th Cir. 2020), cert denied, --- S. Ct. ----, 2012 WL 78484

10 (Jan. 11, 2021) (concluding only the named class representatives’ citizenship matters for

11 establishing personal jurisdiction in TCPA class action).

12 Defendant argues Bristol-Myers does apply to federal class actions, and thus the

13 texts sent to Plaintiff in California are insufficient to justify the exercise of personal

14 jurisdiction over claims for alleged incidents in other states. Defendant points to district

15 court cases which have applied Bristol-Myers to find personal jurisdiction lacking over

16 nationwide class actions. In response, Plaintiff contends Bristol-Myers does not extend to

17 this case. Plaintiff argues courts in this district have held Bristol-Myers does not limit

18 nationwide class claims brought under federal law, and that the Court should follow the

19 reasoning in Mussat. 2

20 Defendant’s arguments are unpersuasive. The Court is not convinced that the

21 holding in Bristol-Myers reaches unnamed plaintiffs in a class action brought in federal

22 court alleging claims under federal law.3 See, e.g., Schertzer v. Bank of Am., N.A., 445 F.

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24 2 Plaintiff further argues limiting nationwide class claims is inconsistent with the

25 congressional intent behind the TCPA. The Court declines to address this argument given

its finding that Bristol-Myers is inapplicable here.

26 3 Federal courts have found named plaintiffs in class actions based on diversity jurisdiction

27 are still required to demonstrate that the Court’s exercise of personal jurisdiction satisfies

due process as set forth in Bristol-Myers. See Goldstein v. Gen. Motors LLC, 445 F. Supp.

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1 Supp. 3d 1058, 1081 (S.D. Cal. 2020) (declining to extend Bristol-Myers to class actions

2 and denying defendant’s motion to dismiss claims of putative non-California class

3 members for lack of personal jurisdiction); Sousa v. 7-Eleven, Inc., No. 19-CV-2142 JLS

4 (RBB), 2020 WL 6399595, at *3 (S.D. Cal. Nov. 2, 2020) (holding “Bristol-Myers does

5 not apply to unnamed class members in a putative federal class action” and distinguishing

6 class action from a mass tort where each plaintiff is named in the complaint); In re Morning

7 Song Bird Food Litig., No. 12CV01592 JAH-AGS, 2018 WL 1382746, at *5 (S.D. Cal.

8 Mar. 19, 2018) (“While the claims of the non-resident named plaintiffs were pertinent to

9 the issue of specific jurisdiction in Bristol-Myers, claims of unnamed class members are

10 irrelevant to the question of specific jurisdiction.”); Sotomayor v. Bank of Am., N.A., 377

11 F. Supp. 3d 1034, 1037 (C.D. Cal. 2019) (“Although the Ninth Circuit has not addressed

12 this question, the weight of authority examining this issue has concluded that Bristol-Myers

13 does not apply to class actions.”).

14 Defendant relies on Carpenter v. Petsmart, 441 F. Supp. 3d 1028 (S.D. Cal. 2020),

15 a case from this District where the court applied Bristol-Myers to a class action involving

16 claims under the Magnuson-Moss Warranty Act and common law claims for fraud, breach

17 of warranty, and unjust enrichment, and thus found it lacked personal jurisdiction over the

18 out-of-state class members’ claims. Defendant argues the burden of defending a

19 nationwide class action is significantly greater than defending an individual claim or

20 statewide class action, and that the State of California has little interest in the claims of

21 non-residents arising from alleged conduct by a non-California company occurring outside

22 of California. See Carpenter, 441 F. Supp. 3d at 1036. However, as another district court

23 reasoned, where a federal court presides over federal litigation, the interstate sovereignty

24 questions raised by Bristol-Myers—which involved California state court litigation—are

25 not present. Sloan v. GM LLC, 287 F. Supp.3d 840, 859 (N.D. Cal. 2018).

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27 personal jurisdiction pertaining to the unnamed, out-of-state class members’ claims, and

the Court’s subject matter jurisdiction is based on a federal question, not diversity.

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1 Defendant further argues the exercise of jurisdiction over out-of-state class

2 members’ claims would contravene due process and “offend the primary concern in

3 assessing personal jurisdiction.” (Def.’s Mem. of P. & A. 17 (internal citation and quotation

4 marks omitted).) However, courts have found that unnamed class members are not parties

5 for jurisdictional purposes. See, e.g., Sousa, 2020 WL 6399595, at *3–4 (concluding

6 unnamed class members are not “parties” for purposes of assessing personal jurisdiction);

7 Molock, 952 F.3d at 297 (“[U]nnamed class members are treated as nonparties for other

8 purposes, including jurisdictional ones.”). The Seventh Circuit in Mussat concluded

9 unnamed class members are not required to demonstrate either general or specific personal

10 jurisdiction, reasoning that such class members are similarly not considered parties for the

11 purpose of assessing diversity jurisdiction. 953 F.3d at 447; see id. (“As the Supreme Court

12 recognized . . . , ‘[n]onnamed class members . . . may be parties for some purposes and not

13 for others.’ ”) (quoting Devlin v. Scardeletti, 536 U.S. 1, 9–10 (2002)). The Seventh Circuit

14 additionally points out there was a “general consensus” prior to Bristol-Myers that

15 nationwide federal class actions were not prohibited by due process principles, and the

16 Supreme Court “regularly entertained nationwide classes” which relied on specific

17 jurisdiction without issue. Mussat, 953 F.3d at 445.4

18 Cases within the Ninth Circuit, and the Seventh Circuit’s recent decision in Mussat,

19 support the finding that Bristol-Myers’ holding does not apply to unnamed members of

20 federal class actions. The Court agrees that Bristol-Myers does not prohibit the exercise of

21 specific personal jurisdiction over unnamed out-of-state class members where, as here, a

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24 4 Since Bristol-Myers, at least one court in this District has certified a nationwide TCPA

25 class involving an out-of-state defendant. See McCurley v. Royal Seas Cruises, Inc., 331

F.R.D. 142, 151, 180 (S.D. Cal. 2019). That class was later partially decertified on motion

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of the plaintiffs, but a subclass of “[a]ll persons within the United States” who met certain

27 criteria remained. McCurley v. Royal Sea Cruises, Inc., No. 17-CV-00986-BAS-AGS,

2020 WL 4582686, at *2 (S.D. Cal. Aug. 10, 2020).

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1 ||class action alleges violation of a federal statute. Accordingly, Defendant’s motion to

2 || dismiss the out-of-state class members is denied.

3 IV.

4 CONCLUSION AND ORDER

5 For the reasons set out above, Defendant’s motion to strike is DENIED and

6 || Defendant’s motion to dismiss is DENIED.

7 IT IS SO ORDERED.

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9 || Dated: March 29, 2021 gf p

10 a Yn:

Hon. Dana M. Sabraw, Chief Judge

United States District Court

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