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Kalmbach v. National Rifle Association of America

United States District Court, W.D. Washington, Seattle

July 26, 2017

KATHARYN KALMBACH, individually and on behalf of all others similarly situated, Plaintiff,
v.
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

         I. INTRODUCTION

         This 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 Defendants' Motion.

         II. BACKGROUND[1]

         Defendant 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.

         Plaintiff 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.

         The NRA 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.

         On 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.

         III. DISCUSSION

         A. Legal Standard

         In 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.

         B. WADAD and CPA Claims

         1. Whether WADAD Claim provides a Private Right of Action

         Defendants' 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 ...


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