United States District Court, W.D. Washington, Seattle
KATHARYN KALMBACH, individually and on behalf of all others similarly situated, Plaintiff,
NATIONAL RIFLE ASSOCIATION OF AMERICA, a New York corporation, and INFOCISION, INC., a Delaware corporation, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants InfoCision, Inc.
and National Rifle Association of America (the
“NRA”)'s Motion to Dismiss, brought under
Rule 12(b)(6). Dkt. #28. Defendants argue Plaintiff fails to
state a claim that Defendants: violated the Washington
Automatic Dialing and Announcing Device Statute
(“WADAD”), R.C.W. § 80.36.400; violated the
Washington Do Not Call Statute (“WDNC”), R.C.W.
§ 80.36.390; violated the Washington Consumer Protection
Act (“WCPA”), R.C.W. § 19.86, et
seq.; or invaded Kalmbach's (and the class
members') privacy under Washington common law. In
Response, Plaintiffs argue that the Complaint adequately
satisfies the Rule 12(b)(6) standard. The Court has
determined oral argument is unnecessary. For the reasons
stated below, the Court GRANTS IN PART AND DENIES IN PART
NRA is an organization focused on firearms, including
education, training, and advocacy. Pl.'s Compl., Dkt.
#1-1 at ¶ 1. Defendant InfoCision is a teleservices
company that places unsolicited telemarketing calls on the
NRA's behalf and for the NRA's benefit. Id.
at ¶¶ 2, 28.
Kalmbach is a Washington citizen and resident of King County.
Id. at ¶ 11. She is not and has never been a
member of the NRA. Id. at ¶ 47. On November 9,
2007, Ms. Kalmbach registered her landline telephone with the
National Do Not Call Registry. Id. at ¶ 41.
Beginning in July 2016, Plaintiff Kalmbach began to receive
daily, unsolicited and prerecorded calls on her landline
telephone placed by Defendant InfoCision on behalf of
Defendant NRA using phone number 425-405-6193. Id.
at ¶ 42. The pre-recorded message would state that the
call was intended for a woman that is not known by Plaintiff
Kalmbach. Id. The calls to Ms. Kalmbach were
explicitly made to solicit the purchase of an NRA membership.
Id. at ¶ 46. When the calls continued to be
received each day, Plaintiff Kalmbach grew frustrated and
eventually pressed the button indicated by the pre-recorded
message to proceed with the call as if she was the intended
potential customer. Id. at ¶ 43. This then
brought on another prerecorded message encouraging membership
sales and general support for Defendant NRA. Id.
Plaintiff Kalmbach was prompted to press a button to get a
membership, or another button to get additional information.
She pressed both, but she was unable to get a live agent on
the telephone in order to ask them to stop calling.
Id. at ¶ 43. After this unsuccessful attempt,
Ms. Kalmbach called the NRA to indicate her desire that the
calls stop. Id. at ¶ 44. Despite all of this,
Kalmbach continued to receive unsolicited pre-recorded calls
placed by Defendant InfoCision on behalf of the NRA for three
weeks. Id. at ¶ 45.
hired InfoCision to make the calls. Id. at ¶
25. These calls were made on behalf of the NRA membership
organization rather than its charitable companion, the NRA
Foundation. Id. at ¶¶ 24, 31. In addition
to soliciting paid memberships, the NRA markets goods and
services to members and potential members, including a
magazine subscription, various insurance policies, and a
“FREE” duffel bag. Id. at ¶¶
32-33. Further, the NRA disclaims on its membership page that
“[c]ontributions, gifts or membership dues made or paid
to the National Rifle Association of America . . . are not
deductible as charitable contributions for Federal income tax
purposes.” Id. at ¶¶ 29, 37.
February 10, 2017, Ms. Kalmbach filed a putative class action
complaint in state court, and Defendants removed to this
Court on March 13, 2017. Dkt. #1. The Complaint contains
causes of action brought under the Washington Automatic
Dialing and Announcing Device Statute (“WADAD”),
R.C.W. § 80.36.400; the Washington Do Not Call Statute
(“WDNC”), R.C.W. § 80.36.390; the Washington
Consumer Protection Act (“WCPA”), R.C.W. §
19.86, et seq.; and for invasion of privacy under Washington
law. Dkt. #1-1 at 13-16.
making a 12(b)(6) assessment, the court accepts all facts
alleged in the complaint as true, and makes all inferences in
the light most favorable to the non-moving party. Baker
v. Riverside County Office of Educ., 584 F.3d 821, 824
(9th Cir. 2009) (internal citations omitted). However, the
court is not required to accept as true a “legal
conclusion couched as a factual allegation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The complaint “must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. at 678. This
requirement is met when the plaintiff “pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. The complaint need not include
detailed allegations, but it must have “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Absent facial
plausibility, a plaintiff's claims must be dismissed.
Id. at 570.
WADAD and CPA Claims
Whether WADAD Claim provides a Private Right of Action
Motion begins by arguing that the WADAD does not
“create a private cause of action; it provides only a
per se violation of the Consumer Protection Act.” Dkt.
#28 at 4 (citing Agne v. Rain City Pizza, L.L.C.,
No. C10-1139-JCC, 2011 WL 11798573, at *4 (W.D. Wash. June
17, 2011)). In her Response, Plaintiff states that it is
undisputed that the WADAD “makes a violation of [the
WADAD] a violation of the WCPA, ” but argues that
previous cases in this District have not automatically
dismissed separate claims based on the underlying statute
whenever a WCPA claim is derivative. Dkt. #29 at 10 (citing
Taylor v. Universal Auto Grp. I, Inc., No.
3:13-CV-05245-KLS, 2014 WL 6654270, at *6 (W.D. Wash. Nov.
24, 2014); Hartman v. United Bank Card Inc., No.
C11-1753JLR, 2012 WL 4758052 (W.D. Wash. Oct. 4, 2012);
Gragg v. Orange Cab Co., No. C12-0576RSL, 2013 WL
195466 (W.D. Wash. Jan. 17, 2013) (rejecting motion for
summary judgment on claims under the WCPA that were wholly
derivative of the plaintiff's claims under
Washington's Commercial Electronic Mail Act
(“CEMA”) RCW 19.190.010 et seq.)). Although
Plaintiff admits she cannot have a double-recovery, she
argues that there is no basis for striking one set of
allegations or the other, as the Washington General Assembly
intended for both claims to provide avenues for relief. On
Reply, Defendants argue that Plaintiff “does not