                                                                              FILED
                           NOT FOR PUBLICATION
                                                                              OCT 26 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JALEN EPPS,                                      No.   17-55413

              Plaintiff-Appellant,               D.C. No.
                                                 2:16-cv-08221-SJO-SS
 v.

EARTH FARE, INC., a North Carolina               MEMORANDUM*
corporation; DOES, 1-10, inclusive,

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                      Argued and Submitted October 12, 2018
                               Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and SIMON,** District
Judge.

      Jalen Epps appeals the district court’s judgment dismissing her First

Amended Complaint for failure to state a claim for violations of the Telephone


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.
Consumer Protections Act and California’s Unfair Competition Law. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Curry v. Yelp Inc., 875

F.3d 1219, 1224 (9th Cir. 2017).

       Epps alleged that although she revoked her previous consent to receive text

messages from Earth Fare, Earth Fare continued to text her in violation of the

TCPA. On appeal, she contends that the district court erred in holding that she

failed to allege that she made reasonable revocation requests as required by the

statute.

       The district court properly dismissed Epps’ complaint after assessing the

totality of the facts and circumstances surrounding Epps’ communications with

Earth Fare, including the messages detailed in the parties’ text message log. See In

re Rules & Regulations Implementing the Telephone Consumer Protection Act of

1991, 30 FCC Rcd. 7961, 7996 ¶ 64, n.233 (2015). In light of these facts and

circumstances, including (1) the availability of a one-word opt-out procedure; (2)

Epps’ unexplained failure to use the one-word opt-out; and (3) Earth Fare’s notice

to Epps that it did not understand her non-standard messages, we agree with the

district court that Epps failed plausibly to allege that she reasonably revoked her

consent. Because this determination is dispositive, we do not need to decide




                                           2
whether the district court erred in finding that Epps failed plausibly to allege use of

an automatic telephone dialing system.

      The district court also did not abuse its discretion in denying Epps leave to

amend, because any amendment would have been futile. See, e.g., Lockheed

Martin Corp. v. Network Sols., Inc., 194 F.3d 980, 986 (9th Cir. 1999).

      ACA International’s motion for leave to file an amicus curiae brief (Docket

Entry No. 22) is granted. The Clerk shall file the amicus brief submitted December

28, 2017.

      Epps’ motions for judicial notice (Docket Entry Nos. 9 and 29) are granted.

      AFFIRMED.




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