Jenkins v. Opera Night Club

Filing 62

OPINION AND ORDER that mGage, LLC's Motion to Stay, contained in its Motion to Dismiss 24 , and LL Atlanta, LLC, doing business as Opera Nightclub's Motion to Stay 28 , are DENIED AS MOOT. IT IS FURTHER ORDERED that mGage, LLC's Motion to Dismiss 24 is DENIED. Signed by Judge William S. Duffey, Jr on 3/9/2016. (anc)

telephone for other than for emergency purposes or without the recipient’s prior
express consent. See 47 U.S.C. § 227(b)(1)(A)(iii).
Plaintiff Colette Jenkins (“Plaintiff”) asserts that, from September 2013
through April 2014, Defendants used an ATDS to send Plaintiff approximately
seventy-five (75) text messages promoting events at a nightclub operated by
Opera. (Am. Compl. [15] ¶ 22). Plaintiff claims that mGage is Opera’s “digital
marketing vendor,” and that the text messages “were sent by Defendant, OPERA,
or by its authorized agent and vendor, Defendant, mGage [], acting on behalf of
Defendant, OPERA.” (Id. ¶¶ 15, 17).2 Plaintiff claims that she has never visited
Opera’s nightclub or requested information from Opera, and that she has no
business affiliation with mGage. (Id. ¶¶ 10-11). Plaintiff alleges that she did not
consent to receiving the text messages and that she continued to receive them even
after she told Defendants more than ten (10) times to stop sending her text
messages. (Id. ¶¶ 18-21).
On August 28, 2014, Plaintiff filed her Complaint [1] against “Opera Night
Club,” asserting a single count for violation of the TCPA. On January 2, 2015,
2

In the parties’ Joint Preliminary Report and Discovery Plan, Opera
“contends that, to the extent Plaintiff has received unauthorized marketing text
messages send from or on behalf of [Opera], the digital marketing vendor known
as mGage, LLC, may be liable for some or all of the acts and/or omissions set forth
in the Plaintiff’s Complaint.” (Joint Prelim. Report & Discovery Plan [8] at 5).
2

Plaintiff amended her Complaint to correctly identify the entity that operates Opera
Night Club, and to add mGage as a defendant in this action.
On March 2, 2015, mGage moved to dismiss Plaintiff’s Amended Complaint
for failure to state a claim for which relief can be granted. In the alternative,
mGage moves to stay this litigation pending the Federal Communications
Commission’s (“FCC”) decision on the Petition for Expedited Declaratory Ruling
on the Autodialer Issue, filed by Milton H. Fried, Jr. and Richard Evans, In the
Matter of Rules and Regulations Implementing the Telephone Consumer
Protection Act of 1991, CG Docket No. 02-278 (the “FCC Petition”). mGage
contends that the issue raised in the FCC Petition is whether a “mobile-messaging
aggregator”—a combination of equipment used by separate entities to send text
messages—“had liability under the TCPA for providing a conduit or pipeline to the
public that a customer allegedly uses to send unsolicited text messages.” (mGage’s
Br. in Supp. [24.1] at 19). mGage appears to argue that it employs technology
similar to the technology at issue in the FCC Petition, and thus the FCC’s decision
would impact mGage’s liability in this case.
On March 16, 2015, Opera filed its Motion to Stay, also based on the FCC
Petition. Opera did not move to dismiss Plaintiff’s Amended Complaint.

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On July 10, 2015, the FCC released its Declaratory Ruling and Order on the
FCC Petition. See In re Rules & Regs. Impl. the Tel. Cons. Prot. Act of 1991,
Declaratory Ruling & Order, 30 FCC Rcd. 7961 (FCC 15-7) (2015). The FCC
concluded that “various pieces of equipment and software can be combined to
form an autodialer, as contemplated by the TCPA. The fact that these individual
pieces of equipment and software might be separately owned does not change this
analysis.” (Id. at 7978).3 Defendants’ motions to stay are thus denied as moot.
The Court now turns to mGage’s Motion to Dismiss.
II.

DISCUSSION
A.

Legal Standard

Dismissal of a complaint, pursuant to Rule 12(b)(6), is appropriate “when,
on the basis of a dispositive issue of law, no construction of the factual allegations
will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty.
Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). In considering a motion to
dismiss, the Court accepts the plaintiff’s allegations as true and considers the
allegations in the complaint in the light most favorable to the plaintiff. See
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007); see also Bryant v. Avado Brands, Inc.,
3

The Court does not express an opinion on how the FCC’s conclusion may
apply, if at all, in this case.
4

187 F.3d 1271, 1273 n.1 (11th Cir. 1999). The Court is not required to accept a
plaintiff’s legal conclusions as true. See Sinaltrainal v. Coca-Cola Co., 578 F.3d
1252, 1260 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)),
abrogated on other grounds by Mohamad v. Palestinian Auth., — U.S. —,
132 S. Ct. 1702 (2012). The Court also will not “accept as true a legal conclusion
couched as a factual allegation.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). The complaint, ultimately, is required to contain “enough facts to state
a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
To state a plausible claim for relief, the plaintiff must plead factual content
that “allows the Court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Plausibility” requires more
than a “sheer possibility that a defendant has acted unlawfully,” and a complaint
that alleges facts that are “merely consistent with” liability “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. (citing
Twombly, 550 U.S. at 557); see also Arthur v. JP Morgan Chase Bank, NA,
569 F. App’x 669, 680 (11th Cir. 2014) (noting that Conley’s “no set of facts”
standard has been overruled by Twombly, and a complaint must contain “sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its
face.”). “A complaint is insufficient if it ‘tenders naked assertions devoid of

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further factual enhancement.’” Tropic Ocean Airways, Inc. v. Floyd, 598 F. App’x
608, 609 (11th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
“To survive a motion to dismiss, plaintiffs must do more than merely state
legal conclusions; they are required to allege some specific factual bases for those
conclusions or face dismissal of their claims.” Jackson v. BellSouth Telecomms.,
372 F.3d 1250, 1263 (11th Cir. 2004); see also White v. Bank of America, NA,
597 F. App’x 1015, 1017 (11th Cir. 2014) (“[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will not prevent
dismissal.”) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002)).
B.

Analysis

The TCPA “prohibits the use of an [ATDS] to ‘make any call (other than a
call made for emergency purposes or made with the prior express consent of the
called party) . . . to any telephone number assigned to a . . . cellular telephone
service.’” Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1305
(11th Cir. 2015) (quoting 47 U.S.C. § 227(b)(1)(A)(iii)). “The prohibition against
auto dialed calls applies to text message calls as well as voice calls.” Id. (citing
In re Rules & Regs. Impl. the Tel. Cons. Prot. Act of 1991, 18 FCC Rcd. 14014,
14115 (2003) (affirming that prohibition against automatic telephone dialing in

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§ 227(b)(1) “encompasses both voice calls and text calls to wireless numbers
including, for example, short message service (SMS) calls”)); see also
Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 666-67 (2006) (“A text message to
a cellular . . . telephone qualifies as a ‘call’ within the compass of
§ 227(b)(1)(A)(iii).”). To state a claim for violation of the TCPA, a plaintiff must
show that a defendant called or texted a number assigned to a cellular telephone
service using an ATDS. See, e.g., Breslow v. Wells Fargo Bank, N.A.,
857 F. Supp. 2d 1316, 1320 (S.D. Fla. 2012).
mGage argues that Plaintiff fails to show that mGage sent, or can otherwise
be held responsible for, the text messages at issue in this action. mGage contends
that Plaintiff fails to identify each Defendant’s role in the conduct alleged, and that
Plaintiff fails to allege facts to support that mGage was Opera’s agent. The Court
disagrees.
In her Amended Complaint, Plaintiff asserts that Opera identified mGage as
Opera’s “digital marketing vendor” and that Opera “consented to and has
knowledge and control of the marketing activities of its agents and representatives,
including . . . agents, vendors . . . and/or contractors, specifically mGage.”
(Am. Compl. ¶¶ 9, 15). Plaintiff also alleges:
Defendant, OPERA retained, hired, and/or contracted with
mGage [], as its agent, for the purpose of sending, on behalf of
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Defendant, OPERA, unsolicitated [sic] text messages . . . to cellular
telephones, including Plaintiff’s cellular telephone number.
Defendant, mGage [] . . . agreed to act as [] OPERA’s agent for
the purpose of sending, on behalf of Defendant, OPERA, unsolicitated
[sic] text messages . . . to cellular telephones, including Plaintiff’s
cellular telephone number.
Defendant, mGage [], operates a website which advertises its
services of initiating, on behalf of its customers, a campaign
management tool to acress [sic] mobile touchpoints, including text
messages . . . and touts itself with [sic] the capability of delivering
billions on [sic] monthly mobile messages across the globe.
. . . Defendant, OPERA, later identified . . . mGage [], who was
Defendant, OPERA’s, digital marketing vendor, and which
Defendant, OPERA, contends may be liable for some or all of the acts
and/or omissions set forth in Plaintiff’s complaint.
...
All of the text messages complained of herein were sent by
Defendant, OPERA, or by its authorized agent and vendor, Defendant,
mGage [], acting on behalf of Defendant, OPERA.
(Id. ¶¶ 12-15, 17). At this stage of the litigation, the Court concludes that Plaintiff
has alleged sufficient facts to support that mGage sent the text messages at issue.
See Iqbal, 556 U.S. at 678. mGage’s Motion to Dismiss on this basis is denied.4
4

Plaintiff’s theory of liability appears to be that Opera contracted with mGage
to send text messages on Opera’s behalf. (See Am. Compl. ¶¶ 12-14, 17). To the
extent mGage argues that it is not liable under the TCPA because it was a
“common carrier” or mere conduit for the messages, there are no facts currently
before the Court to support mGage’s argument. See Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 323 (2007) (On a motion to dismiss, courts “consider
the complaint in its entirety, as well as . . . documents incorporated into the
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mGage next argues that Plaintiff fails to allege facts to support that
Defendants used an ATDS to send the text messages at issue in the Complaint.
The TCPA defines an ATDS as “equipment which has the capacity . . . to store or
produce telephone numbers to be called, using a random or sequential number
generator[;] and to dial such numbers.” 47 U.S.C. § 227(a)(1). The “defining
characteristic of an ATDS is ‘the capacity to dial numbers without human
intervention.’” Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1374
(S.D. Fla. 2014) (quoting In re Rules & Regs. Impl. the Tel. Cons. Prot. Act of
1991, 18 FCC Rcd. 14014, 14092 (2003)).
Plaintiff claims that “each text message the Defendants sent to the Plaintiff
was made using an [ATDS]” and she repeats the statutory definition in Section
227(a)(1). (Am. Compl. ¶ 25). Plaintiff alleges that the text message she received
were advertisements, such as: “Don’t miss the # do it for the Vine Party tonight @
Opera Wednesdays. Show txt for Ladies Free till 11, 18+ $10.00 till 11, & 21+ $5
till 11!” and “Tonight @ Opera Wednesdays Lust, Love and Latex Party! Arrive
early and show txt for Ladies Free til 11, Guys 18+ till 11 & 21+ $5.” (Id. ¶ 16).
complaint by reference, and matters of which a court may take judicial notice.”);
cf. Murphy, 797 F.3d at 1305 (“A court may dismiss a complaint for failure to state
a claim if an affirmative defense appears on the face of the complaint.”) (emphasis
added) (citing Fortner v. Thomas, 983 F.2d 1024, 1028 (11th Cir. 1993)).
mGage’s argument would be more appropriately raised at the summary judgment
stage. mGage’s Motion to Dismiss on this basis is denied.
9

Plaintiff asserts that the text messages she received were sent from “67372”—a
type of telephone number, sometimes called a “short code,” that companies use to
communicate with large numbers of consumers. (Id. at Ex. A).
Plaintiff alleges that she replied to the text messages and asked the sender to
stop sending her text messages, including because they were texting the wrong
number, but that the sender did not respond to Plaintiff’s text messages and she
continued to receive text messages from the same sender. (Id. ¶¶ 18-21, 39).
Plaintiff also asserts that mGage “advertises its services of initiating, on behalf of
its customers, a campaign management tool” “and touts itself with the capability of
delivering billions on [sic] mobile messages across the globe.” (Id. ¶ 14). These
assertions, combined with the generic, impersonal nature of the text message
advertisements and the use of a short code, support an inference that the text
messages were sent using an ATDS. See, e.g., Legg, 990 F. Supp. 2d at 1354
(plaintiff alleged facts sufficient to infer text messages were sent using ATDS; use
of a short code and volume of mass messaging alleged would be impractical
without use of an ATDS); Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165, 1171
(N.D. Cal. 2010) (finding it “plausible” that defendants used an ATDS where
messages were advertisements written in an impersonal manner and sent from
short code); Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125, 1130 (W.D. Wash.

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2012) (on motion to dismiss, “allegation[s] regarding the generic content and
automatic generation of the message [are] sufficient to infer the use of an ATDS”);
Robbins v. Coca-Cola Co., No. 13-CV-132-IEG NLS, 2013 WL 2252646, at *3
(S.D. Cal. May 22, 2013) (observing that mass messaging would be impracticable
without use of an ATDS).5 At this stage in the litigation, Plaintiff has alleged
sufficient facts—albeit barely—to support that mGage used an ATDS to send the
text messages at issue. See Iqbal, 556 U.S. at 678 (To state a plausible claim for
relief, the plaintiff must plead factual content that “allows the Court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”).
mGage’s Motion to Dismiss on this basis is denied.

5

See also Gragg v. Orange Cab Co., No. C12-0576RSL, 2013 WL 195466, at
*3 n.3 (W.D. Wash. Jan. 17, 2013) (“Plaintiffs alleging the use of a particular type
of equipment under the TCPA are generally required to rely on indirect allegations,
such as the content of the message, the context in which it was received, and the
existence of similar messages, to raise an inference that an automated dialer was
utilized. Prior to the initiation of discovery, courts cannot expect more.”); Torres
v. Nat’l Enter. Sys., Inc., No. 12 C 2267, 2012 WL 3245520, at *3 (N.D. Ill.
Aug. 7, 2012) (noting that, at the motion to dismiss stage, “it would be virtually
impossible, absent discovery, for any plaintiff to gather sufficient evidence
regarding the type of machine used for a communication left on a plaintiff’s
voicemail”).
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that mGage, LLC’s Motion to Stay, contained

in its Motion to Dismiss [24], and LL Atlanta, LLC, doing business as Opera
Nightclub’s Motion to Stay [28], are DENIED AS MOOT.
IT IS FURTHER ORDERED that mGage, LLC’s Motion to Dismiss [24]
is DENIED.

SO ORDERED this 9th day of March, 2016.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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