Roche v. Facebook, Inc.

Filing 1

COMPLAINT (with jury demand) against Facebook, Inc. (Filing fee $400, receipt number 0971-9979931). Filed by Deborah Roche. (Attachments: # 1 Civil Cover Sheet)(Kent, Trinette) (Filed on 11/9/2015) Modified on 11/12/2015 (cjlS, COURT STAFF).

1 TRINETTE G. KENT (State Bar No. 222020)
2 10645 North Tatum Blvd., Suite 200-192
Phoenix, AZ 85028
3 Telephone: [phone]
4 Facsimile: [phone]
E-mail: [e-mail]
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6 Of Counsel to
Lemberg Law, LLC
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A Connecticut Law Firm
8 1100 Summer Street
Stamford, CT 06905
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Telephone: [phone]
10 Facsimile: [phone]
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Attorneys for Plaintiff,
12 Deborah Roche
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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17 Deborah Roche,
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Plaintiff,

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Case No.: 3:15-cv-05147

vs.

FOR VIOLATIONS OF:
1. THE TELEPHONE CONSUMER
PROTECTION ACT

21 Facebook, Inc.,
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COMPLAINT FOR DAMAGES

Defendant.

JURY TRIAL DEMANDED

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Plaintiff, Deborah Roche (hereafter “Plaintiff”), by undersigned counsel, brings
the following complaint against Facebook, Inc. (hereafter “Defendant”) and alleges as

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JURISDICTION
1.

This action arises out of Defendant’s repeated violations of the

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8 Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).
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2.

Jurisdiction of this Court arises under 47 U.S.C. § 227(b)(3) and 28

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U.S.C. § 1331.
3.

Venue is proper before this Court pursuant to 28 U.S.C. § 1391(b), where

13 the acts and transactions giving rise to Plaintiff’s action occurred in this district and/or
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where Defendant transacts business in this district.
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PARTIES
4.

Plaintiff is an adult individual residing in Merritt Island, Florida, and is a

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“person” as defined by 47 U.S.C. § 153(39).
5.

Defendant is a business entity located in Menlo Park, California, and is a

“person” as the term is defined by 47 U.S.C. § 153(39).

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ALLEGATIONS APPLICABLE TO ALL COUNTS

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6.

At all times mentioned herein where Defendant communicated with any

26 person via telephone, such communication was done via Defendant’s agent,
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representative or employee.

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COMPLAINT FOR DAMAGES

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7.

At all times mentioned herein, Plaintiff utilized a cellular telephone

service and was assigned the following telephone number: 321-XXX-7255 (hereafter

4 “Number”).
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8.

Within the past two years, Defendant excessively sent text messages to

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Plaintiff’s Number in an attempt to solicit Plaintiff’s patronage.
9.

Upon information and belief, the aforementioned text messages were

placed using an automatic telephone dialing system (“ATDS”).

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10.

Defendant’s texts are seemingly intended to invite Plaintiff to visit

12 Defendant’s website and sign up for its service.
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11.

The texts were repetitive and similar in design, as the excepts below

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“There are 9 people you may know on Facebook. Send
them a friend request:”

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“Debbe, you have 1 new notification on Facebook:”

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“There are 8 people you may know on Facebook. Send
them a friend request:”

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“Over 150 million people have used the Facebook friend
finder. Find the people you care about:”

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“What are you up to? Reply with a status update to post
to Facebook or go to . . .”

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12.

Defendant bombarded Plaintiff’s Number with these unwanted and

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27 annoying texts at various times throughout any given day, sometimes as early as
28 3:20am.
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COMPLAINT FOR DAMAGES

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13.

On multiple occasions, Plaintiff replied to Defendant’s texts, requesting

the calls to stop.
14.

Despite Plaintiff’s multiple requests, Defendant continued texting

5 Plaintiff’s Number.
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15. On or about July 27, 2015, Plaintiff contacted Lemberg Law, LLC
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8 (“Lemberg”) and secured Lemberg’s representation of her in this matter.
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On or about August 27, 2015, Lemberg mailed, on Plaintiff’s behalf, a

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11 certified letter to Defendant demanding that the unwanted calls cease.
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Nevertheless, Defendant’s unwanted and annoying texts to Plaintiff’s

Number continued unabated.

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COUNT I

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VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47
U.S.C. § 227, et seq.

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Plaintiff incorporates by reference all of the above paragraphs of this

20 complaint as though fully stated herein.
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19.

The TCPA prohibits Defendant from using, other than for emergency

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23 purposes, an ATDS and/or Robocalls when text messages Plaintiff’s Number absent
24 Plaintiff’s prior express consent to do so. See 47 U.S.C. § 227(b)(1).
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20. FCC regulations promulgated under the TCPA specifically prohibit
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27 Defendant from using an ATDS and/or Robocalls to call or send text messages
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COMPLAINT FOR DAMAGES

1 Plaintiff’s Number for the purpose of advertising or telemarketing absent Plaintiff’s
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prior express written consent. See 47 C.F.R. § 64.1200(a)(2).
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21. FCC regulations promulgated under the TCPA require that Plaintiff’s
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5 consent be pursuant to a written agreement, signed by the Plaintiff, which contains
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Plaintiff’s unambiguous assent to receiving ATDS and/or Robocalls from Defendant.
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8 See 47 C.F.R. § 64.1200(f)(8).
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Defendant texted Plaintiff’s Number using an ATDS without Plaintiff’s

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11 consent in that Defendant either never had Plaintiff’s prior express consent to do so or
12 such consent was effectively revoked when Plaintiff requested that Defendant cease
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all further text messages.
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Defendant continued to willfully text Plaintiff’s Number using an ATDS

16 knowing that it lacked the requisite consent to do so in violation of the TCPA.
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24. Plaintiff was harmed and suffered damages as a result of Defendant’s
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25.

The TCPA creates a private right of action against persons who violate

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the Act. See 47 U.S.C. § 227(b)(3).
26.

As a result of each text made in violation of the TCPA, Plaintiff is

entitled to an award of $500.00 in statutory damages.

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27.

As a result of each text made knowingly and/or willingly in violation of

27 the TCPA, Plaintiff may be entitled to an award of treble damages.
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COMPLAINT FOR DAMAGES

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PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendant for:

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A. Statutory damages of $500.00 for each call determined to be in violation
of the TCPA pursuant to 47 U.S.C.§ 227(b)(3);
B. Treble damages for each violation determined to be willful and/or

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knowing under the TCPA pursuant to 47 U.S.C.§ 227(b)(3);
C. Such other and further relief as may be just and proper.

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TRIAL BY JURY DEMANDED ON ALL COUNTS

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14 DATED: November 9, 2015
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TRINETTE G. KENT
By: /s/ Trinette G. Kent
Trinette G. Kent, Esq.
Lemberg Law, LLC
Attorney for Plaintiff, Deborah Roche

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COMPLAINT FOR DAMAGES