Serban v. Cargurus, Inc.

Filing 40

OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 9/8/2016. Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IARINA SERBAN, individually and on behalf )
of a class of similarly situated individuals,
)
)
Plaintiff,
)
)
v.
)
)
CARGURUS, INC., a Delaware Corporation, )
)
Defendant.
)

No. 16 C 2531
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Iarina Serban, on behalf of herself and all others similarly situated, filed this
class action lawsuit alleging that Defendant CarGurus, Inc. (“CarGurus”) violated the Telephone
Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227 et seq., by sending text messages to
Serban and other putative class members without their consent via an automatic telephone
dialing system (“ATDS”). CarGurus filed a motion to dismiss [26] pursuant to Federal Rule of
Civil Procedure 12(b)(6), arguing that Serban has not plausibly alleged that (1) CarGurus, as
opposed to a user of its website, sent the text message, and (2) that the text message was sent
using an ATDS. Because Serban has plausibly alleged that CarGurus used an ATDS to send text
messages to Serban, the Court denies the motion to dismiss.
BACKGROUND 1
At 1:49 a.m. on July 30, 2015, Serban received a text message on her cell phone from a
telephone number identified as 641-42. The text message read:
CarGurus Listing
Request. 2006 Jaguar
1

The facts in the background section are taken from Serban’s first amended class action complaint and
are presumed true for the purpose of resolving the pending motion to dismiss. See Virnich v. Vorwald,
664 F.3d 206, 212 (7th Cir. 2011).

XK-Series XK8
Convertible- $16,595
(Fair Deal): http://
cargur.us/3K5kx
Doc. 22 ¶ 14. The message contained a link to CarGurus’ website, which advertises vehicles for
sale. Before receiving this text message, Serban had never visited CarGurus’ website, provided
CarGurus with her cell phone number, or given express consent to be contacted on her cell phone
by CarGurus, its agents, or partner entities.
CarGurus or its agents operate the telephone number from which the text message Serban
received was sent. That number is known as a short messaging service shortcode (“SMS
shortcode”). The use of SMS shortcodes allows CarGurus to transmit such generic text
messages to individual cell phone numbers en masse. According to a text messaging service
provider used by CarGurus to deliver the text messages, CarGurus has used SMS shortcodes to
transmit at least hundreds of thousands of text messages similar to the one Serban received on
July 30, 2015 to other individuals.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads
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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.
ANALYSIS
The TCPA prohibits the use of an ATDS to call or send text messages to cellular
telephones without the recipient’s prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii); see In Re
Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014,
14115 (2003) (TCPA applies to both “voice calls and text calls to wireless numbers”); Lozano v.
Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1009 (N.D. Ill. 2010) (“[T]he Court
agrees with the FCC’s interpretation that § 227 of the TCPA applies to text messages.”).
CarGurus argues that Serban’s TCPA claim fails because she has not plausibly alleged that
(1) CarGurus itself sent the text message, and (2) CarGurus used an ATDS to send the message.
The Court will consider each of these issues in turn.
I.

The Sender of the Text Message
Serban alleges that CarGurus “controlled, designed, and determined the content of the

text message” sent to her cell phone on July 30, 2015, and that CarGurus sent thousands of
similar messages using an ATDS. Doc. 22 ¶¶ 16, 18. CarGurus, however, contends that Serban
has not properly alleged that CarGurus sent her the text message, arguing that she must plead
facts to demonstrate that CarGurus and not a user of its website sent the message. These details
could include, according to CarGurus, “the specific platform used to send the text, the level of
automation contained in that platform, or the extent to which a user of that platform (rather than
CarGurus), could take affirmative action to send a text.” Doc. 27 at 9. CarGurus claims such
detail is necessary because its website allows individual users to have car listings texted to their
cell phones. Its theory is that Serban received the text message on July 30, 2015 because a user

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mistakenly transposed two digits in her mobile number, accidentally sending the message to
Serban instead. See, e.g., Doc. 27 at 7 n.1, 9 n.2; Doc. 32 at 1–4. To demonstrate how its userdirected messaging process works, CarGurus has attached printouts of its website to its reply in
support of its motion to dismiss. See Docs. 32-1, 32-2, 32-3. The Court, however, will not
consider these exhibits at this stage of the case, as they were only attached to CarGurus’ reply
and the website itself is not critical to Serban’s claims but rather to a factual defense CarGurus
raises, which is better left for resolution at the summary judgment stage. 2 See Geinosky v. City
of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012) (in deciding Rule 12(b)(6) motion, a court
should only consider materials outside the complaint if they are “critical to the complaint and
referred to in it”); Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998) (noting district
court’s discretion to decide whether to convert motion to dismiss into summary judgment motion
when defendant attaches documents to motion to dismiss or to continue to treat motion as one to
dismiss and disregard attached documents); Hepp v. Ultra Green Energy Servs. LLC, No. 13 C
4692, 2014 WL 2154097, at *3 n.4 (N.D. Ill. May 22, 2014) (refusing to consider exhibits
attached to reply brief).
According to CarGurus, Serban must have included allegations in her complaint to
demonstrate that CarGurus, and not another website user, sent her the text message because
sending automated text messages does not violate the TCPA where users of websites or cell
phone applications make “affirmative choices” to send invitational messages to third parties. See
McKenna v. WhisperText, No. 5:14-cv-00424-PSG, 2015 WL 5264750, at *4–5 (N.D. Cal. Sept.
9, 2015) (“[A]n application that required human intervention to send invitational messages was

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Because the Court finds that the exhibits are not properly before the Court at this stage, the Court grants
Serban’s motion to strike those exhibits [36].

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not the ‘maker or initiator’ of the calls for TCPA purposes.” (citation omitted)) 3; Huricks v.
Shopkick, Inc., No. C-14-2464 MMC, 2015 WL 5013299, at *3–5 (N.D. Cal. Aug. 24, 2015)
(defendant that operated a cell phone shopping application did not violate the TCPA where users
took steps to send invitational text messages including “tapping a button stating ‘invite your
friends,’ choosing which contacts to invite, and choosing to send the text messages by tapping
another button”). But CarGurus asks too much of Serban at the pleading stage, where all Serban
must allege is a plausible right to relief. See Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th
Cir. 2010) (under Twombly and Iqbal, “the plaintiff must give enough details about the subjectmatter of the case to present a story that holds together,” with the court “ask[ing] itself could
these things have happened, not did they happen”). That Serban has done by alleging that
CarGurus sent the text message using SMS shortcode; she need not have included additional
details concerning the platform used or the level of automation contained in that platform. Such
details are left for discovery and summary judgment. See Izsak v. Draftkings, Inc., No. 14-CV07952, 2016 WL 3227299, at *5 (N.D. Ill. June 13, 2016) (noting that cases that have held that
text messages sent with human intervention do not violate TCPA have generally been decided
after fact discovery and at the summary judgment stage); Huricks, 2015 WL 5013299, at *3–5
(deciding that plaintiff could not prevail on TCPA claim on motion for summary judgment based
on evidence of human intervention).
At this stage of the case, CarGurus’ presentation of “an alternative explanation for the
facts alleged in the complaint is insufficient to demonstrate that the complaint fails to plausibly
suggest a right to relief.” Izsak, 2016 WL 3227299, at *3 (quoting Astor Prof’l Search, LLC v.
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Although McKenna was decided on a motion to dismiss, the court’s opinion addressed the plaintiff’s
fourth amended complaint and noted that the plaintiff had previously foreclosed the possibility that the
defendant sent messages without human intervention. 2015 WL 5264750, at *3. Serban has not included
any allegations in her complaint that would suggest human intervention nor does she concede human
intervention.

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MegaPath Corp., No. 1:12-cv-02313, 2013 WL 1283810, at *5 (N.D. Ill. Mar. 27, 2013)). In
response to a similar argument to that made by CarGurus here, the Izsak court found that the
plaintiff plausibly alleged that the defendant sent him a text message using an ATDS under
circumstances much more indicative of human intervention than those alleged here, as the text
message specified that it was sent from “[e-mail].” Id. In contrast, the text message
Serban received contained no such personalized information identifying the sender of the
message. It may be the case that someone besides CarGurus or its agents sent Serban the text
message from CarGurus’ website; that, however, is a question best resolved through discovery.
Drawing all reasonable inferences in Serban’s favor, she has plausibly alleged that CarGurus sent
her the text message without human intervention.
II.

Use of an ATDS
CarGurus also contends that Serban has not plausibly alleged that CarGurus used an

ATDS to send the text message at issue to Serban’s cell phone, arguing again that Serban must
have alleged that the system used had the capacity to dial without human intervention. See In re
Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961,
7975 (2015) (the FCC “has also long held that the basic functions of an autodialer are to ‘dial
numbers without human intervention’”). The TCPA defines an ATDS 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). In order to
plausibly allege that a defendant used an ATDS, a plaintiff need not “elaborate on the specific
technical details of a defendant’s alleged ATDS, such as what type of machines were used to
make a call or how those machines functioned.” Johansen v. Vivant, Inc., No. 12 C 7159, 2012
WL 6590551, at *3 (N.D. Ill. Dec. 18, 2012); see also Izsak, 2016 WL 3227299, at *3 (“[A]

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TCPA plaintiff should not be expected to plead details regarding the technical functionality of
the alleged ATDS[.]”). Because it would be nearly impossible for plaintiffs to obtain evidence to
determine these specific details absent discovery, requiring them to allege such details at the
pleading stage would make defendants like CarGurus “virtually immune to TCPA claims, which
clearly is not what was intended by Congress in creating the TCPA.” Torres v. Nat’l Enter. Sys.,
Inc., No. 12 C 2267, 2012 WL 3245520, at *3 (N.D. Ill. Aug. 7, 2012).
This does not excuse Serban from at least alleging some facts related to the text message
she received or the circumstances surrounding it to support the conclusion that CarGurus used an
ATDS. Izsak, 2016 WL 3227299, at *3; Oliver v. DirecTV, LLC, No. 14-cv-7794, 2015 WL
1727251, at *2 (N.D. Ill. Apr. 13, 2015). Conclusory allegations that the text message was sent
using an ATDS, without supporting details, do not suffice. See Ananthapadmanabhan v. BSI
Fin. Servs., Inc., No. 15 C 5412, 2015 WL 8780579, at *4 (N.D. Ill. Dec. 15, 2015) (finding
plaintiff’s failure to provide details beyond merely receiving calls from defendant did not
sufficiently allege use of ATDS, as it merely parroted “language already available in the
statute”). Details supporting use of an ATDS may include “the promotional content or the
generic, impersonal nature of the text message,” Izsak, 2016 WL 3227299, at *3; that the
message was sent from an SMS shortcode, Abbas v. Selling Source, LLC, No. 09 CV 3413, 2009
WL 4884471, at *3 (N.D. Ill. Dec. 14, 2009); that “members of the putative class received the
same messages,” Sojka v. DirectBuy, Inc., 35 F. Supp. 3d 996, 1003 (N.D. Ill. 2014); and
“anything else about the circumstances of a . . . message contributing to [the plaintiff’s] belief it
was . . . delivered via an ATDS,” Johansen, 2012 WL 6590551, at *3.
CarGurus argues that Serban has failed to plausibly allege that it used an ATDS because
the complaint merely recites the language of the TCPA and does not include allegations that the

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system used could function without human intervention. While the complaint does use
§ 227(a)(1)’s language, it also includes additional details supporting the inference that CarGurus
used an ATDS to send text messages to Serban and other members of the putative class. Serban
reproduces the exact language of the text message, which was both promotional and generic in
nature. See Izsak, 2016 WL 3227299, at *3. Like the plaintiff in Abbas, Serban also alleges that
the use of an SMS shortcode allowed CarGurus to contact her and other members of the class via
an ATDS. See Abbas, 2009 WL 4884471, at *3. She also alleges that CarGurus’ text messaging
service provider reported that CarGurus has used SMS shortcodes to transmit anywhere from
hundreds of thousands to millions of text messages similar to the one Serban received to other
individuals. See Sojka, 35 F. Supp. 3d at 1003; Abbas, 2009 WL 4884471, at *3. Moreover,
even the FCC order on which CarGurus relies to argue that Serban must allege that the ATDS
could function without human intervention recognizes that “[h]ow the human intervention
element applies to a particular piece of equipment is specific to each individual piece of
equipment . . . and is therefore a case-by-case determination.” 30 F.C.C. Rec. 7961, 7975. And
as already noted, such details need not be pleaded at this stage but instead are left for discovery.
See Izsak, 2016 WL 3227299, at *3, 5 (collecting cases); Johansen, 2012 WL 6590551, at *3.
Serban has included sufficient factual allegations to suggest an ATDS was used to send the text
message, allowing her to proceed to discovery to explore the issue further. See Izsak, 2016 WL
3227299, at *3–4.

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CONCLUSION
For the foregoing reasons, the Court denies CarGurus’ motion to dismiss [26]. The Court
grants Serban’s motion to strike exhibits attached to CarGurus’ reply [36]. CarGurus is given
until September 30, 2016 to answer the First Amended Class Action Complaint.

Dated: September 8, 2016

______________________
SARA L. ELLIS
United States District Judge

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