                                                                           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                            NOT FOR PUBLICATION                             JAN 28 2010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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