Moss et al v. Twitter, Inc.

Filing 1

COMPLAINT with Jury Demand against Twitter, Inc. ( Filing fee $ 350 receipt number 0974-3517847.), filed by Drew Moss, Sahar Maleksaeedi.The new case number is 3:11-cv-906-LAB-JMA. Judge Larry Alan Burns and Magistrate Judge Jan M. Adler are assigned to the case. (Swigart, Joshua)(yeb)(mam). (Entered: 04/28/2011)

1
2
3
4
5
6
7
8
9
10
12
Riverside, California

HYDE & SWIGART

11
13

Joshua B. Swigart, Esq. (SBN: 225557)
[e-mail]
Robert L. Hyde, Esq. (SBN: 227183)
[e-mail]
Hyde & Swigart
411 Camino Del Rio South, Suite 301
San Diego, CA 92108-3551
Telephone: [phone]
Facsimile: [phone]
Abbas Kazerounian, Esq. (SBN: 249203)
[e-mail]
S. Mohammad Kazerouni, Esq. (SBN: 252835)
[e-mail]
Kazerouni Law Group, APC
2700 North Main Street, Ste. 1050
Santa Ana, CA 92866
Telephone: [phone]
Facsimile: [phone]

14
15

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

16
17
18
19
20

Drew Moss, and Sahar
Maleksaeedi, Individually and on
Behalf of All Others Similarly
Situated,

21

Plaintiffss,

22

v.

23

'11CV0906 LAB
Case No.: _____________JMA
CLASS ACTION
Complaint for Damages and
Injunctive Relief Pursuant To The
Telephone Consumer Protection
Act, 47 U.S.C § 227 et seq.

Twitter, Inc.,

24
25

Defendant.

Jury Trial Demanded

26
27
28
______________________________________________________________________________________________________
Complaint for Damages
- 1 of 8 -

1
2

INTRODUCTION
1.

Drew Moss and Sahar Maleksaeedi (“Plaintiffs”) bring this Class Action

3

Complaint for damages, injunctive relief, and any other available legal or

4

equitable remedies, resulting from the illegal actions of Twitter, Inc.

5

(“Defendant”), in negligently, and/or willfully contacting Plaintiffs on

6

Plaintiffs’ cellular telephones, in violation of the Telephone Consumer

7

Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), thereby invading

8

Plaintiffs’ privacy. Plaintiffs allege as follows upon personal knowledge as to

9

their own acts and experiences, and, as to all other matters, upon information

10

and belief, including investigation conducted by their attorneys.

12
Riverside, California

HYDE & SWIGART

11

JURISDICTION AND VENUE
2.

Jurisdiction is proper under 28 U.S.C. § 1332(d)(2) because Plaintiffs seek up

13

to $1,500 in damages for each call in violation of the TCPA, which, when

14

aggregated among a proposed class number in the tens of thousands, exceeds

15

the $5,000,000 threshold for federal court jurisdiction.

16

allege a national class, which will result in at least one class member

17

belonging to a different state than that of Defendant, providing jurisdiction

18

under 28 U.S.C. Section 1332(d)(2)(A). Therefore, both elements of diversity

19

jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”) are

20

present, and this Court has jurisdiction.

21

3.

Further, Plaintiffs

Venue is proper in the United States District Court for the Southern District of

22

California pursuant to 18 U.S.C. § 1391(b) and 1441(a) because the events

23

giving rise to Plaintiffs’ causes of action against Defendant occurred within

24

the State of California and the County of San Diego, within this judicial

25

district.

26
27
28
______________________________________________________________________________________________________
Complaint for Damages
- 2 of 8 -

1
2

PARTIES
4.

Plaintiffs are, and at all times mentioned herein were, citizens and residents of

3

the State of California. Plaintiffs are, and at all times mentioned herein were,

4

“persons” as defined by 47 U.S.C. § 153 (10).

5

5.

Plaintiffs are informed and believe, and thereon allege, that Defendant is, and
address is in San Francisco, California. Defendant, is a citizen of this state.

8

Defendant is, and at all times mentioned herein was, a corporation and a

9

“person,” as defined by 47 U.S.C. § 153 (10). Defendant provides a social

10

networking service through the use of text messages with more than 100

11

million active users.

12
Riverside, California

at all times mentioned herein was, a corporation whose primary corporate

7

HYDE & SWIGART

6

Defendant conducted business in the State of California and in the County of

13

San Diego, and within this judicial district.

14
15

Plaintiffs allege that at all times relevant herein

FACTUAL ALLEGATIONS
6.

At all times relevant, Plaintiffs were a citizens of the State of California.

16

Plaintiffs are, and at all times mentioned herein were, “persons” as defined by

17

47 U.S.C. § 153 (10).

18

7.

19
20

Defendant is, and at all times mentioned herein was, a corporation and a
“person,” as defined by 47 U.S.C. § 153 (10).

8.

21

At all times relevant Defendant conducted business in the State of California
and in the County of San Diego, within this judicial district.

22

9.

Plaintiffs have been members of Twitter for a considerable period of time.

23

10.

Plaintiffs activated one or more options in their Twitter accounts, online, to

24

receive notifications concerning their account via text messages on April 6,

25

2011.

26

11.

Plaintiffs continued to receive text message notifications from Defendant

27

thereafter. At some point Plaintiffs decided that they no longer wanted to

28

receive text message notifications on their cellular telephone from Defendant.
______________________________________________________________________________________________________
Complaint for Damages
- 3 of 8 -

1

12.

2
3

Plaintiffs then responded to Defendant’s last text message notification by
replying “stop,” as instructed by Twitter.

13.

At this point, Plaintiffs withdrew any express or implied consent to receive

4

text message notification to their cellular telephone that they may have

5

previous given Twitter.

6

14.

In response to receiving this revocation of consent, Defendant then

7

immediately sent another, unsolicited, confirmatory text message to

8

Plaintiffs’ cellular telephones.

9

15.

This unsolicited text message placed to Plaintiffs’ cellular telephone was
placed via an “automatic telephone dialing system,” (“ATDS”) as defined by

11

47 U.S.C. § 227 (a)(1) as prohibited by 47 U.S.C. § 227 (b)(1)(A).

12
Riverside, California

HYDE & SWIGART

10
16.

The telephone number that the defendant, or its agents, called was assigned to

13

a cellular telephone service for which Plaintiffs incured a charge for incoming

14

calls pursuant to 47 U.S.C. § 227 (b)(1).

15

17.

16
17

as defined by 47 U.S.C. § 227 (b)(1)(A)(i).
18.

18
19

19.

These telephone calls by Defendant or its agents violated 47 U.S.C. § 227(b)
(1).

21

CLASS ACTION ALLEGATIONS
20.

23
24

Plaintiffs did not provide Defendant or its agents prior express consent to
receive unsolicited text messages, pursuant to 47 U.S.C. § 227 (b)(1)(A).

20
22

These telephone calls constituted calls that were not for emergency purposes

Plaintiffs bring this action on behalf of themselves and on behalf of and all
others similarly situated (“the Class”).

21.

Plaintiffs represent, and are members of the Class, consisting of all persons

25

within the United States who received any unsolicited confirmatory text

26

messages and/or any other unsolicited text messages from Defendant after

27

any class member sent a reply text message, “stop,” to Defendant in response

28

to a text message sent by Defendant, which text message was not made for
______________________________________________________________________________________________________
Complaint for Damages
- 4 of 8 -

1

emergency purposes or with the recipient’s prior express consent, within the

2

four years prior to the filing of this Complaint.

3

22.

Defendant and its employees or agents are excluded from the Class. Plaintiffs

4

do not know the number of members in the Class, but believe the Class

5

members number in the hundreds of thousands, if not more. Thus, this matter

6

should be certified as a Class action to assist in the expeditious litigation of

7

this matter.

8

23.

Plaintiffs and members of the Class were harmed by the acts of Defendant in
illegally contacted Plaintiffs and the Class members via their cellular

11

telephones by using an unsolicited and/or confirmatory text message, thereby

12
Riverside, California

at least the following ways: Defendant, either directly or through its agents,

10

HYDE & SWIGART

9

causing Plaintiffs and the Class members to incur certain cellular telephone

13

charges or reduce cellular telephone time for which Plaintiffs and the Class

14

members previously paid, and invading the privacy of said Plaintiffs and the

15

Class members. Plaintiffs and the Class members were damaged thereby.

16

24.

This suit seeks only damages and injunctive relief for recovery of economic

17

injury on behalf of the Class and it expressly is not intended to request any

18

recovery for personal injury and claims related thereto. Plaintiffs reserve the

19

right to expand the Class definition to seek recovery on behalf of additional

20

persons as warranted as facts are learned in further investigation and

21

discovery.

22

25.

The joinder of the Class members is impractical and the disposition of their

23

claims in the Class action will provide substantial benefits both to the parties

24

and to the court. The Class can be identified through Defendant’s records or

25

Defendant’s agents’ records.

26
27

26.

There is a well-defined community of interest in the questions of law and fact
involved affecting the parties to be represented. The questions of law and fact

28
______________________________________________________________________________________________________
Complaint for Damages
- 5 of 8 -

1

to the Class predominate over questions which may affect individual Class

2

members, including the following:

3

a)

Whether, within the four years prior to the filing of this Complaint,

4

Defendant placed any confirmatory text messages (other than a text

5

message made for emergency purposes or made with the prior express

6

consent of the called party) to a Class member using any automatic

7

telephone dialing and/or texting system to any telephone number

8

assigned to a cellular telephone service;

9

b)

10

the extent of damages for such violation; and
c)

12
Riverside, California

HYDE & SWIGART

11
13

Whether Plaintiffs and the Class members were damaged thereby, and
Whether Defendant should be enjoined from engaging in such conduct
in the future.

28.

As a person that received at least one confirmatory text message without

14

Plaintiffs’ prior express consent, Plaintiffs are asserting claims that are typical

15

of the Class. Plaintiffs will fairly and adequately represent and protect the

16

interests of the Class in that Plaintiffs have no interests antagonistic to any

17

member of the Class.

18

29.

Plaintiffs and the members of the Class have all suffered irreparable harm as a

19

result of the Defendant’s unlawful and wrongful conduct.

20

action, the Class will continue to face the potential for irreparable harm. In

21

addition, these violations of law will be allowed to proceed without remedy

22

and Defendant will likely continue such illegal conduct. Because of the size

23

of the individual Class member’s claims, few, if any, Class members could

24

afford to seek legal redress for the wrongs complained of herein.

25

30.

26
27
28

Absent a class

Plaintiffs have retained counsel experienced in handling class action claims
and claims involving violations of the Telephone Consumer Protection Act.

31.

A class action is a superior method for the fair and efficient adjudication of
this controversy. Class-wide damages are essential to induce Defendant to

______________________________________________________________________________________________________
Complaint for Damages
- 6 of 8 -

1

comply with federal and California law. The interest of Class members in

2

individually controlling the prosecution of separate claims against Defendant

3

is small because the maximum statutory damages in an individual action for

4

violation of privacy are minimal. Management of these claims is likely to

5

present significantly fewer difficulties than those presented in many class

6

claims.

7

32.

Defendant has acted on grounds generally applicable to the Class, thereby

8

making appropriate final injunctive relief and corresponding declaratory relief

9

with respect to the Class as a whole.
NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT

12
Riverside, California

FIRST CAUSE OF ACTION

11
HYDE & SWIGART

10

47 U.S.C. § 227 ET SEQ.

13

33.

14
15

Plaintiffs incorporate by reference all of the above paragraphs of this
Complaint as though fully stated herein.

34.

The foregoing acts and omissions of Defendant constitute numerous and

16

multiple negligent violations of the TCPA, including but not limited to each

17

and every one of the above-cited provisions of 47 U.S.C. § 227 et seq.

18

35.

As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et seq,

19

Plaintiffs and The Class are entitled to an award of $500.00 in statutory

20

damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B).

21
22

36.

Plaintiffs and the The Class are also entitled to and seek injunctive relief
prohibiting such conduct in the future.

23

PRAYER FOR RELIEF

24

Wherefore, Plaintiffs respectfully request the Court grant Plaintiffs and The Class

25

members the following relief against Defendant:

26
27
28
______________________________________________________________________________________________________
Complaint for Damages
- 7 of 8 -

1

FIRST CAUSE OF ACTION FOR NEGLIGENT VIOLATION OF

2

THE TCPA, 47 U.S.C. § 227 ET SEQ.

3

37.

As a result of Defendant’s negligent violations of 47 U.S.C. § 227(b)(1),

4

Plaintiffs seek for themselves and each Class member $500.00 in statutory

5

damages, for each and every violation, pursuant to 47 U.S.C. § 227(b)(3)(B).

6

38.

7
8

Pursuant to 47 U.S.C. § 227(b)(3)(A), injunctive relief prohibiting such
conduct in the future.

39.

Any other relief the Court may deem just and proper.

9
10

40.

Pursuant to the seventh amendment to the Constitution of the United States of
America, Plaintiffs are entitled to, and demand, a trial by jury.

12
Riverside, California

HYDE & SWIGART

11

TRIAL BY JURY

13
14
15
16

Date: April 27, 2011

HYDE & SWIGART
By: _/s Joshua B. Swigart____
Joshua B. Swigart
Attorneys for Plaintiffs

17
18
19
20
21
22
23
24
25
26
27
28
______________________________________________________________________________________________________
Complaint for Damages
- 8 of 8 -

'11CV09060
LAB JMA

X
-------yeb

---yeb
---yeb

28:1331 yeb