FILED
NOT FOR PUBLICATION JAN 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
APRIL-LEE WILLIAMS, No. 08-36042
Plaintiff - Appellant, D.C. No. 2:08-cv-00082-TSZ
v.
MEMORANDUM *
MCIMETRO ACCESS TRANSMISSION
SERVICES INC; MCI
COMMUNICATIONS SERVICES INC,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted December 8, 2009
Seattle, Washington
Before: GOULD and TALLMAN, Circuit Judges, and BENITEZ, ** District Judge.
The parties are familiar with the facts of the case and we do not repeat them
here. Plaintiff-Appellant April-Lee Williams (“Williams”) appeals a district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
court’s oral order granting Defendant-Appellee MCIMetro Access Transmission
Services, Inc.’s (“MCI’s”) motion to dismiss under Federal Rule of Civil
Procedure (“Rule”) 12(b)(6). The district court ruled Williams failed to state a
cognizable legal theory under Revised Code of Washington (“RCW”) 80.36.400
and alternatively, RCW 80.36.400 was preempted by 47 U.S.C. § 227, the
Telephone Consumer Protection Act. We affirm on the first ground and
accordingly decline to reach the alternative basis for dismissal.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a dismissal
for failure to state a claim pursuant to Rule 12(b)(6) de novo. Madison v. Graham,
316 F.3d 867, 869 (9th Cir. 2002). A Rule 12(b)(6) dismissal may be based on
either the “lack of a cognizable legal theory” or “the absence of sufficient facts
alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901
F.2d 696, 699 (9th Cir. 1990). We conclude the district court did not err in
dismissing Williams’ claim for failure to state a cognizable legal theory.
RCW 80.36.400(2) provides, “No person may use an automatic dialing and
announcing device for purposes of commercial solicitation.” RCW
80.36.400(1)(a) defines an automatic dialing and announcing device as “a device
which automatically dials telephone numbers and plays a recorded message once a
connection is made.” Despite this definition, Williams proceeded on the legal
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theory that a device need not play a recorded message to qualify as an automatic
dialing and announcing device under RCW 80.36.400.
Such a theory does not give plain meaning to the statutory definition of the
term. The definition is simple. The device “automatically dials telephone numbers
and plays a recorded message once a connection is made.” RCW 80.36.400(1)(a)
(emphasis added). Thus, the use of a device that merely automatically dials
telephone numbers—but does not play a recorded message once a connection is
made—does not violate RCW 80.36.400.
By proceeding on the legal theory that a recorded message need not be
played in order to violate RCW 80.36.400, Williams failed to state a cognizable
legal theory.
Accordingly, the judgment of the district court is AFFIRMED.
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