In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2019 U.S. Dist. LEXIS 141400 (N.D. Cal. Aug. 20, 2019), Judge Spero confirmed that the TCPA affords no right to attorneys fees.
It is undisputed that attorneys’ fees are unavailable under the TCPA and Plaintiff has pointed to no source of authority that would allow him to recover attorneys’ fees in this action. It [*11] is improper to strike a claim for damages under Rule 12(f) on the basis that such damages are unavailable. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d at 974-75. Rather, the Court dismisses Plaintiff’s claim for attorneys’ fees under Rule 12(b)(6). See Opperwall v. State Farm Fire and Casualty Co., No. 17-cv-7983, 2018 WL 1243085, at *5 (N.D. Cal. Mar. 9, 2018) (dismissing prayer for punitive damages under Rule 12(b)(6) on the basis that they were unavailable on facts pled).
Judge Spero also found that the class allegations survived Bristol-Myers.
Defendant contends that to the extent Plaintiff’s claim survives, the class allegations should be dismissed to the extent he seeks to include in the class individuals who are not California residents. In particular, Defendant argues that the Court does not have personal jurisdiction over the claims of non-California residents, citing Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773 (2017). The Court disagrees. . . . The undersigned finds the reasoning in Sloan to be persuasive and therefore concludes that Bristol-Myers does not apply in this case because Plaintiff asserts his claim in a federal court and under federal law. The Court further concludes that Bristol-Myers does not apply to class actions under Rule 23 for the reasons set forth in Allen v. ConAgra Foods, Inc., No. 3:13-CV-01279-WHO, 2018 WL 6460451 (N.D. Cal. Dec. 10, 2018). In that case, the court acknowledged that there is a split of authority as to whether Bristol-Myers applies to class actions, but found more persuasive the decisions of courts that have found that Bristol-Myers does not apply to class actions. Id. at *7. The court reasoned as follows: I . . . conclude that Bristol—Myers does not require a personal jurisdiction inquiry for absent class members. Most importantly, the Supreme Court noted in its decision that “settled principles regarding specific jurisdiction control[led].” Bristol—Myers, 137 S.Ct. at 1781. The decision overturned no Ninth Circuit law. See Sloan, 287 F.Supp.3d at 854 (“Defendant has not identified a single Ninth Circuit case overturned by Bristol—Myers.”). Prior to Bristol—Myers, there would have been no basis for ConAgra to mount a due process challenge against the nonresident absent class members as it does here. See Al Haj, 2018 WL 3707561 at *1, 338 F.Supp.3d 815. I agree with the court in Al Haj that the Court could not have intended, in a sideways manner, to so drastically alter class action plaintiffs’ ability to choose their forum. See id. at *2. In addition, functional differences set class actions apart; the plaintiffs here must meet the Rule 23 requirements of numerosity, commonality of law or fact, typicality of claims or defenses, and adequacy of representation in order to achieve certification. See Fed. R. Civ. P. 23; In re Chinese-Manufactured Drywall, 2017 WL 5971622, at *14 (noting that “a class action has different due process safeguards” than a mass action). Personal jurisdiction is rooted in fairness to the defendant, and Rule 23 provides significant safeguards to that end. Id. at *7. The undersigned finds the reasoning of Allen v. ConAgra Foods, Inc. to be persuasive. Therefore, because Plaintiff seeks to assert his claim on behalf of a Rule 23 class, Bristol-Myers does not apply in this case for this reason as well. Accordingly, the Court declines to dismiss the class allegations to the extent the class definition includes non-California members.