David Moshe Rahmany, individually v. T-Mobile USA Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MOSHE RAHMANY, individually
and on behalf of all others similarly situated
and YEHUDA RAHMANY, individually
and on behalf of all others similarly situated,
Plaintiffs-Appellants,
v.
T-MOBILE USA INC.,
Defendant,
and
SUBWAY SANDWICH SHOPS, INC.,
Defendant-Appellee.
No. 17-35094
D.C. No. 2:16-cv-01416-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted March 16, 2018**
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
APR 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: PAEZ and IKUTA, Circuit Judges, and ADELMAN,*** District Judge.
David and Yehuda Rahmany (collectively, “Rahmany”) appeal the district
court’s order granting Subway Sandwich Shops, Inc. (“Subway”)’s motion to
compel arbitration and dismissing the case. Applying California law as stipulated
by the parties, we reverse.
The district court erred in concluding that Subway, a non-signatory to the
Wireless Agreement between Rahmany and T-Mobile USA, Inc. (“T-Mobile”),
could equitably estop Rahmany from avoiding the Wireless Agreement’s
arbitration clauses.1 Equitable estoppel is “inapplicable” because Rahmany’s
“allegations reveal no claim of any violation of any duty, obligation, term or
condition imposed by the [Wireless Agreement].” In re Henson, 869 F.3d 1052,
1060 (9th Cir. 2017) (quoting Murphy v. DirecTV, Inc., 724 F.3d 1218, 1230 (9th
Cir. 2013)). Rahmany brings two claims alleging that Subway violated the
Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by encouraging
T-Mobile to spam message its cellular customers with an advertisement for a “T-
Mobile Tuesday” sandwich deal at Subway. Although Rahmany’s complaint
*** The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
1 We use the term “Wireless Agreement” to refer to the collection of relevant
agreements between Rahmany and T-Mobile, including the T-Mobile Terms &
Conditions, a service agreement, and an iPhone lease agreement.

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alleges that he did not provide “prior express written consent” to receive the text
messages at issue, such an allegation does not constitute a “claim of [a] violation”
of the Wireless Agreement. Id. The TCPA, not the Wireless Agreement, creates
and defines any alleged duty to refrain from sending an unwanted text message.
Furthermore, “[e]xpress consent is not an element of a plaintiff’s prima facie
[TCPA] case but is an affirmative defense for which the defendant bears the
burden of proof.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044
(9th Cir. 2017). Thus, although Subway’s affirmative defense of express consent
may require the district court to analyze the Wireless Agreement, Rahmany’s
claims do not “rely on the terms of the [Wireless Agreement],” nor does Rahmany
allege “substantially interdependent and concerted misconduct” between Subway
and T-Mobile that is “founded in or intimately connected with the obligations of
the [Wireless Agreement].” Murphy, 724 F.3d at 1229 (quoting Kramer v. Toyota
Motor Corp., 705 F.3d 1122, 1128–29 (9th Cir. 2013)); see also In re Henson, 869
F.3d at 1060–62. Accordingly, the district court erred in enforcing the Wireless
Agreement’s arbitration clauses against Rahmany.
REVERSED.

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