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)

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1 2 3 4 5 6 7 8 9 10 12 Riverside, California HYDE & SWIGART 11 13 Joshua B. Swigart, Esq. (SBN: 225557) Robert L. Hyde, Esq. (SBN: 227183) Hyde & Swigart 411 Camino Del Rio South, Suite 301 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Abbas Kazerounian, Esq. (SBN: 249203) S. Mohammad Kazerouni, Esq. (SBN: 252835) Kazerouni Law Group, APC 2700 North Main Street, Ste. 1050 Santa Ana, CA 92866 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 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

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