Pinkard v. Wal-Mart Stores, Inc.

Filing 16

MEMORANDUM OPINION AND ORDER DISMISSING CASE the court GRANTS defendant's motion to dismiss for failure to state a claim upon which relief can be granted; the court DENIES plaintiff's motion for leave to file an amended complaint; plaintiff's claim is DISMISSED with prejudice; costs are taxed to plaintiff. Signed by Judge C Lynwood Smith, Jr on 11/9/2012. (AHI)

FILED
2012 Nov-09 AM 11:17
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
STEPHANIE PINKARD,
Plaintiff,
vs.
WAL-MART STORES, INC.,
Defendant.

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Case No. 3:12-cv-02902-CLS

MEMORANDUM OPINION AND ORDER
This case is before the court on defendant’s motion to dismiss for failure to state
a claim upon which relief can be granted.1 Plaintiff, Stephanie Pinkard, commenced
this action in the Circuit Court of Franklin County, Alabama on July 26, 2012.2
Defendant, Wal-Mart Stores, Inc. (Wal-Mart), was served with the complaint on
August 7, 2012,3 and timely removed the case to federal court on September 6, 2012,4
at which time it also filed the subject motion to dismiss.5
Plaintiff’s putative class action complaint asserts a single cause of action under
the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”).

1

Doc. no. 2 (Motion to Dismiss).

2

See doc. no. 1-1 (Complaint); doc. no. 1-2 (Complaint). There is only one complaint, but
it was divided between doc. no. 1-1 and doc. no. 1-2 when filed with this court.
3

Doc. no. 1-1, at 5-6 (Notice of Service).

4

Doc. no. 1 (Notice of Removal)

5

Doc. no. 2 (Motion to Dismiss).

Specifically, plaintiff claims that defendant “violated the TCPA by sending unsolicited
and unauthorized text messages[6] to plaintiff and class members’ cell phones and
mobile devices.”7 Defendant bases its motion to dismiss on two grounds: (1) plaintiff
consented to the messages by providing her telephone number to defendant; (2)
plaintiff did not plead that the text messages were sent by an “automatic telephone
dialing system,” which is an element of a TCPA violation.8 Upon consideration, the
court will dismiss plaintiff’s claim on the first of the foregoing grounds.
I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

6

“Text-messaging, usually shortened to texting, is the act of communicating by sending a
written message or photograph using a cellular phone.” Bryan A. Garner, Dictionary of Legal
Usage 886 (3d ed.) (2011) (emphases in original).
7

Doc. no. 1-2 (Complaint) ¶ 17.

8

Doc. no. 2 (Motion to Dismiss), at 6-13.
2

(2009) (citations omitted).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” [Bell Atlantic Corp., 550 U.S.] at 570. A claim
has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id., at 556. The plausibility standard
is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied). Moreover, a court need not accept a
complaint’s legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
As always is the case in the context of ruling upon a motion to dismiss, the
district court is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal
Steel Supply Corp.], 547 U.S. 451, [453,] 126 S. Ct.[1991,] 1994
[(2006)] (stating that on a motion to dismiss, the court must “accept as
true the factual allegations in the amended complaint”); Marsh v. Butler
County, 268 F.3d 1014, 1023 (11th Cir. 2001) (en banc) (setting forth
the facts in the case by “[a]ccepting all well-pleaded factual allegations
(with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”). Because we must accept the allegations of
plaintiff’s complaint as true, what we set out in this opinion as “the
facts” for Rule 12(b)(6) purposes may not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006)
(alterations supplied).
II. FACTS AS ALLEGED
3

Defendant, Wal-Mart, operates pharmacies in its retail stores.9 One such
pharmacy is located within the Wal-Mart store at 13675 Highway 43, Russellville,
Alabama 35653.10 Plaintiff, Stephanie Pinkard, dropped off a prescription with the
Russellville Wal-Mart pharmacy at some unspecified date and time prior to initiating
this suit.11 Wal-Mart employees asked plaintiff for several pieces of personal
information, including her cellular telephone number.12 Plaintiff provided that
information.13 The employees noted that plaintiff’s telephone number was needed “in
case there were any questions that came up.”14
None of the defendant’s employees explicitly sought permission to send
plaintiff text messages.15 Nevertheless, plaintiff received an undisclosed number of
text messages on her cellular telephone from defendant within hours of leaving her
prescription at defendant’s pharmacy.16 The content of those text messages is not
known.17
9

Doc. no. 1-1 (Complaint) ¶ 7.

10

Id.
Doc. no. 1-2 (Complaint) ¶ 12.
12
Id.
13
Id.
14
Id.
15
Id. ¶ 13.
11

16

Id. ¶ 14.

17

See generally doc. no. 1-1 (Complaint); doc. no. 1-2 (Complaint). Plaintiff’s briefs
attempted to supplement the facts regarding the content of the text messages, see, e.g., doc. no. 6
(Plaintiff’s Response Brief), at 9; doc. no. 12 (Plaintiff’s Sur-Reply Brief), at 6, but for purposes of
4

Plaintiff inquired with the pharmacy’s staff why she was receiving text
messages from defendant.18 One of Wal-Mart’s employees informed plaintiff that
Wal-Mart automatically enrolls individuals who fill prescriptions at its pharmacies
into a program that provides the enrollees with “Wal-Mart related” text messages on
their cellular telephones.19 In fact, it is Wal-Mart’s business practice to send
unsolicited text messages to consumers’ cellular telephones through “auto dialers and
computerized equipment” after obtaining their personal information.20
III. DISCUSSION
A.

The Telephone Consumer Protection Act
The Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227 et

seq., prohibits certain telephonic communications made by, or directed to, individuals
within the United States. See 47 U.S.C. § 227(b)(1). In particular, the TCPA makes
it illegal
(A) to make any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using any
automatic telephone dialing system or an artificial or prerecorded
voice—
...
a motion to dismiss the court must consider only the contents of the complaint.
18

Doc. no. 1-2 (Complaint) ¶ 14.

19

Id.
Doc. no. 1-1 (Complaint) ¶ 8.

20

5

(iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio
common carrier service, or any service for which the called party
is charged for the call[.]
47 U.S.C. § 227(b)(1)(A)(iii) (emphases and alterations supplied).

Congress

authorized a private right of action to enforce the Act. See 27 U.S.C. § 227(b)(3).
Additionally, Congress directed the Federal Communications Commission (FCC) to
“prescribe regulations to implement the requirements of” the TCPA. See 27 U.S.C.
§ 227(b)(2).
The TCPA defines an “automatic telephone dialing system” as “equipment
which has the capacity (A) to store or produce telephone numbers to be called, using
a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C.
§ 227(a)(1). The TCPA does not define a “call.” Nevertheless, the FCC has noted
that the term “encompasses both voice calls and text calls to wireless numbers
including, for example, short message service (SMS) calls”: i.e., text messages. In re
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,
18 FCC Rcd. 14014, 14115 ¶ 165 (July 3, 2003).

Courts have upheld that

interpretation under the deferential standard articulated in Chevron v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). E.g., Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 949, 951-54 (9th Cir. 2009) (discussing and applying
“Chevron deference” to the FCC’s interpretation). This court agrees with other courts
6

that have upheld the FCC’s interpretation that a “call” under the TCPA includes a text
message.
B.

Express Consent To Receive A Call
“The TCPA allows autodialed and prerecorded message calls if the called party

expressly consents to their use.” In re Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 29 (Oct. 16,
1992); see 27 U.S.C. § 227(b)(1)(A). “[U]nder the prohibitions set forth in §
227(b)(1) . . . persons who knowingly release their phone number have in effect given
their invitation or permission to be called at the number which they have given, absent
instructions to the contrary.” In re Rules and Regulations, 7 FCC Rcd. at 8769, ¶ 31
(alterations supplied).
Defendant argues that plaintiff expressly consented to receiving text messages
by providing her telephone number to defendant upon defendant’s request.21 Prior
express consent is an affirmative defense, meaning that the defendant bears the burden
of proving it. See In re Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, 23 FCC Rcd. 559, 565 ¶ 10 (Jan. 4, 2008); Breslow v. Wells
Fargo Bank, N.A., 867 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012); Scott v. Merchants
Ass’n Collection Division, Inc., No. 12-23018-CIV, 2012 WL 4896175, at *2 (S.D.

21

Doc. no. 2 (Motion to Dismiss), at 6-7; doc. no. 9 (Defendant’s Reply Brief), at 1-3.
7

Fla. Oct. 15, 2012); Buslepp v. B&B Entertainment, LLC, No. 12-60089-CIV, 2012
WL 4761509, at *4 (S.D. Fla. Oct. 5, 2012).
“An affirmative defense may be considered in resolving a motion to dismiss
when the complaint affirmatively and clearly shows the conclusive applicability of the
defense to bar the action.” Scott, 2012 WL 489175, at *2 (quoting Jackson v.
BellSouth Telecommunications, 372 F.3d 1250, 1274-75 (11th Cir. 2004)) (internal
quotation marks omitted). The court will consider defendant’s “prior express consent”
defense, because the face of plaintiff’s complaint clearly indicates she voluntarily
provided her telephone number to employees of the defendant’s pharmacy.22
1.

Express written consent not yet required

“[T]he TCPA is silent on the issue of what form of express consent — oral,
written, or some other kind — is required.” In re Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, 27 FCC Rcd. 1830, 1838 ¶ 21 (Feb.
15, 2012); see 47 U.S.C. §227(a) (TCPA definitions). Plaintiff insists that she did not
expressly consent to receiving a call within the meaning of the TCPA, because such
consent must be in writing.23 In support of her argument, plaintiff cites the FCC’s
recent decision to “require prior express written consent for all telephone calls using

22

See doc. no. 1-2 (Complaint) ¶ 12.

23

Doc. no. 6 (Plaintiff’s Response Brief), at 8; doc. no. 12 (Plaintiff’s Sur-reply Brief), at

5.
8

an automatic telephone dialing system[.]”24 In re Rules and Regulations, 27 FCC Rcd.
at 1838 ¶ 20.
As defendant points out,25 the FCC established a twelve-month waiting period
for the implementation of its new rule; that period “commence[d] upon publication of
[Office of Management and Budget] approval of [the FCC’s] written consent rules in
the Federal Registrar.” In re Rules and Regulations, 27 FCC Rcd. at 1857 ¶ 20. The
FCC published the written consent rule on June 11, 2012, see 77 Fed. Reg. 34233, and
the Office of Management and Budget approved the rule on October 16, 2012. See
77 Fed. Reg. 63340. Therefore, express written consent will not be required until
October 16, 2013.
2.

Plaintiff expressly consented to receiving a “call” by providing her
telephone number

“[A] call made . . . with the prior express consent of the called party” does not
violate the TCPA. 47 U.S.C. § 227(b)(1)(A) (alterations supplied). Moreover,
express consent exists when an individual voluntarily provides her telephone number
to another. See In re Rules and Regulations, 7 FCC Rcd. at 8769, ¶ 31. Plaintiff
attempts to distinguish her consent to receive a voice telephone call from her consent
to receive a text message. She argues that providing her telephone number to
24

Plaintiff also cites a consumer guide published by the FCC on its website, see doc. no. 12,
at 5; doc. no. 12-1 (Consumer Guide), but that document does not represent binding legal authority.
25

See doc. no. 9 (Defendant’s Reply Brief), at 4-5.
9

defendant evinced only “limited consent to receive a voice phone call” that, “in no
way[,] can be considered express consent to receive text messages[.]”26 She claims
that “[t]ext messages and voice phone calls have always been treated differently under
the TCPA and FCC rules. The right to call does not give you the right to send text
messages to the other.”27 Plaintiff’s distinction does not comport with common sense
and everyday experience. More importantly, the FCC and the courts have rejected the
argument that the TCPA treats traditional, voice telephone calls differently from text
messages.
As noted earlier, a “call” under the TCPA includes not only a traditional, voice
telephone call, but also a text message. See In re Rules and Regulation, 18 FCC Rcd.
at 14115 ¶ 165; Satterfield, 569 F.3d at 949, 951-54. Thus, 47 U.S.C. § 227(b)(1)(A)
effectively reads “a [text message] made . . . with the prior express consent of the
[texted]28 party . . .”. In short, there is no distinction between traditional, voice
telephone calls and text messages for the purposes of § 227(b)(1)(A).

26

Doc. no. 6 (Plaintiff’s Response Brief), at 7.

27

Id.

28

“Texted” is simply the (recently recognized) term that describes the act of having sent or
received a text message. See http://www.merriam-webster.com/dictionary/text (last visited Nov. 8,
2012) (“She just texted me back.”); http://dictionary.reference.com/browse/texted (last visited Nov.
8, 2012) (“The only way I can ever reach her is to text her.”);
http://www.thefreedictionary.com/texted (last visited Nov. 8, 2012) (“She texted me when she
arrived.”).
10

That conclusion is also supported by the fact that both cellular telephone calls
and cellular text messages are effectuated by dialing the very same telephone number.
To provide one’s telephone number is to willingly give the recipient access to both
methods of communication.

No statutory, regulatory, or caselaw rationale to

distinguish the two methods presently exists. Consequently, under § 227(b)(1), a
person “who knowingly release[s] [her] phone number ha[s] in effect given [her]
invitation or permission” to be contacted at that number, including via text message.
In re Rules and Regulations, 7 FCC Rcd. at 8769, ¶ 31 (alterations supplied).
In opposition to defendant’s motion, plaintiff relies heavily on Satterfield and
its definition of express consent: “Express consent is consent that is clearly and
unmistakably stated.”29 Satterfield, 569 F.3d at 955 (quoting Black’s Law Dictionary
323 (8th ed. 2004)) (internal quotation marks and alteration omitted). By simply
reciting that definition while providing scant analysis, plaintiff overlooks the fact that
providing her cellular telephone number to defendant was “clear and unmistakable”
consent to be contacted at that number. To hold otherwise would contradict the
overwhelming weight of social practice:30 that is, distributing one’s telephone number
is an invitation to be called, especially when the number is given at another’s request.
29

Doc. no. 6 (Plaintiff’s Response Brief), at 6; doc. no. 12 (Plaintiff’s Sur-Reply Brief), at

1-2.
30

“[W]e [need not] be blind as judges to what we know as men.” Venn v. United States, 400
F.2d 207, 211 (5th Cir. 1968) (Wisdom, J.) (alternation supplied).
11

Moreover, although the TCPA does not define “express consent,” see 47 U.S.C.
§ 227(a), the FCC interprets that term to encompass a situation where an individual
voluntarily divulges her telephone number. See In re Rules and Regulations, 7 FCC
Rcd. at 8769, ¶ 31. Because that interpretation is eminently reasonable, it is entitled
to deference. See Poveda v. U.S. Attorney General, 692 F.3d 1168, 1176 (11th Cir.
2012); Chen v. U.S. Attorney General, 565 F.3d 805, 809 (11th Cir. 2009).
In fact, Satterfield actually hinders, rather than helps, plaintfff. The plaintiff in
Satterfield provided her telephone number to Nextones, who was not a party to the
suit. Satterfield, 569 F.3d at 949. The Court found that “no express consent was
given in this case,” because Ms. Satterfield “solely consented to receiving promotion
material from Nextones[,]” not from the defendants, Simon & Schuster and Ipsh!,
which were unaffiliated with Nextones. Id. at 955 (emphasis and alteration supplied).
Unlike Ms. Satterfield, plaintiff in this case sued the party to whom she gave her
telephone number. And in that situation, the Satterfield Court explicitly found that
express consent existed. Id.
Plaintiff also relies upon Buslepp v. B&B Entertainment, LLC, No. 12-60089CIV, 2012 WL 4761509 (S.D. Fla. Oct. 5, 2012).31 The plaintiff in that case filed a
TCPA action against B&B Entertainment for sending him unsolicited text messages.

31

Doc. no. 12 (Plaintiff’s Sur-Reply Brief), at 12.
12

Buslep, 2012 WL 4761509, at *1. The Court granted partial summary judgment
against B&B Entertainment’s “prior express consent” defense, because Buslepp’s
unchallenged affidavit swore that he had not provided B&B Entertainment with his
telephone number. Id. at *5. Of course, the opposite is true in this case: the face of
plaintiff’s complaint admits that she gave defendant her cellular telephone number.32
In sum, plaintiff pled herself out of court in this instance. A text message
counts as a “call” under the TCPA. But all “calls” made with “prior express consent”
of the “called party” do not violate the TCPA. “Prior express consent” to receive a
call is given when the “called party” voluntarily proffers her telephone number to the
calling party. By her complaint’s own admission, plaintiff provided her telephone
number to defendant at defendant’s request.33 Thus, defendant’s motion to dismiss is
due to be granted. The court need not consider defendant’s argument that plaintiff
insufficiently pled that the text messages were sent by an “automatic telephone dialing
system.”
C.

Plaintiff’s Motion to File an Amended Complaint
Perhaps sensing the fate of her complaint, plaintiff filed an opposed motion for

leave to file an amended complaint late on November 8, 2012, the day before the court

32
33

Doc. no. 1-2 (Complaint) ¶ 12.
Id.
13

was ready to enter its opinion on the fully briefed motion to dismiss.34 As plaintiff
notes in her motion, “[s]ince the removal of this case [on September 6, 2012], there
have been no less than five briefs filed by the parties relating to dismissal or nondismissal of this action”:35 a brief, a response brief, a reply brief, a sur-reply brief, and
a response brief to the sur-reply. Plaintiff believes that an amended complaint “will
render moot and lay to rest all of the argument advanced by defendant in their original
motion to dismiss[.]”36
Plaintiff is not correct. The court will deny the motion to file an amended
complaint, because the amendment would be futile. The motion to dismiss has been
fully briefed, and is due to be granted. Plaintiff was welcome to file her motion at any
time during the previous two months that the motion to dismiss was being litigated.
Instead, plaintiff waited until after the motion to dismiss was fully briefed and ready
for decision.
The court has reviewed plaintiff’s proposed amended complaint. While the
amended complaint adds much factual detail, it still admits the basic fact that plaintiff

34

Doc. no. 14 (Motion for Leave to File an Amended Complaint). Specifically, the motion
was filed on November 8, 2012 at 9:18 PM CST. See Notice of Electronic Filing from CM/ECF
Database (Nov. 8, 2012). The court was prepared to enter its order at the open of business on
November 9th.
35

Id. ¶ 2 (alternations supplied).

36

Id. ¶ 3.
14

voluntarily provided her telephone number to defendant upon request.37 Plaintiff’s
proposed amended complaint attempts to frame her consent as “limited,” “because no
one at Wal-Mart mentioned anything about using plaintiff’s private information that
they were able to get from her and then enrolling her into an automated service or
program whereby she would begin to receive text messages or solicitations from WalMart.”38 Plaintiff notes that
[a]t no time did anyone at the Wal-Mart pharmacy or any other employee
of Wal-Mart ask for plaintiff’s permission to enroll her into any
automatic program that would send plaintiff unsolicited text messages on
her cell phone. There was no literature about the program given to
plaintiff. There was no marketing materials or signs in the pharmacy
promoting or notifying customers of this [so-called] involuntary
program.39
Plaintiff inverts the burden of proof on the issue. Once she voluntarily provided
defendant with her telephone number (i.e., generally consented), it was her
responsibility to explicitly state the limited scope of her consent. As the FCC has said,
“persons who knowingly release their phone number have in effect given their
invitation or permission to be called at the number which they have given, absent
instructions to the contrary.” In re Rules and Regulations, 7 FCC Rcd. at 8769, ¶ 31
(emphasis supplied). Once plaintiff handed over her telephone number, the matter

37

See doc. no. 14-1 (Proposed Amended Complaint) ¶ 12.

38

Id.(emphasis supplied)

39

Id. ¶ 13 (alterations supplied).
15

was settled, unless she instructed Wal-Mart otherwise, which she does not allege she
did.
Thus, because plaintiff voluntarily provided her telephone number to defendant
without informing defendant of the limited scope of her consent, plaintiff’s motion to
file an amended complaint is due to be denied.
IV. CONCLUSION
For all of the reasons stated above, the court GRANTS defendant’s motion to
dismiss for failure to state a claim upon which relief can be granted. The court
DENIES plaintiff’s motion for leave to file an amended complaint. Plaintiff’s claim
is DISMISSED with prejudice. Costs are taxed to plaintiff. The Clerk is directed to
close this file.
DONE and ORDERED this 9th day of November, 2012.

______________________________
United States District Judge

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