1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAIME CARRANZA, individually and on Case No.: 20-cv-1819-DMS-WVG behalf of all others similarly situated, 12

ORDER (1) DENYING

Plaintiff, 13 DEFENDANT’S MOTION TO v. STRIKE, (2) DENYING 14

DEFENDANT’S MOTION TO

THE TERMINIX INTERNATIONAL

15 DISMISS

COMPANY LIMITED PARTNERSHIP,

16 Defendant. 17 18 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 14 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. 16

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 28 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 25

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 28 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. 23

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. 28 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). 26

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. 28 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 22 23

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 26 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). 28 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. 8 9 || Dated: March 29, 2021 gf p 10 a Yn: Hon. Dana M. Sabraw, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28