Reese v. Marketron Broadcast Solutions, Inc.
Filing
18
ORDER AND REASONS granting 4 Motion to Dismiss; denying 5 Motion to Remand to State Court. Plaintiff's complaint is DISMISSED. Signed by Judge Sarah S. Vance on 5/8/2018. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RENEE REESE
CIVIL ACTION
VERSUS
NO. 18-1982
MARKETRON BROADCAST
SOLUTIONS, INC.
SECTION “R” (1)
ORDER AND REASONS
Defendant Marketron Broadcast Solutions, Inc. moves to dismiss
plaintiff Renee Reese’s complaint for lack of standing and for failure to state
a claim. 1 Plaintiff moves to remand the case to state court.2 For the following
reasons, the Court grants Marketron’s motion to dismiss and denies
plaintiff’s motion to remand.
I.
BACKGROUND
Plaintiff Renee Reese filed this putative class action seeking damages
and equitable relief under the Telephone Consumer Protection Act (TCPA),
47 U.S.C. § 227. The TCPA makes it unlawful to make a call using an
automatic telephone dialing system “to any telephone number assigned to a
. . . cellular telephone service,” without the recipient’s express consent. Id.
1
2
R. Doc. 4.
R. Doc. 5.
§ 227(b)(1)(A)(iii). It also provides a private right of action to seek injunctive
relief and damages. Id. § 227(b)(3). A text message is a “call” within the
meaning of the statute. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667,
193 L. Ed. 2d 571 (2016).
Plaintiff alleges that she received unwanted text messages from
Marketron after entering a contest to win free tickets to a performance by the
artist Tinashe. 3
Plaintiff allegedly heard about this contest on a radio
broadcast.4 To enter the contest, plaintiff sent a text message containing a
keyword (“joyride”) to an SMS short code used by Marketron. 5 Marketron
then sent the following message to plaintiff:
Power1029: Ur entered 2 win TINASHE@HOB tix! More
txts=more chances! Reply POWER to join Buy tix:
bit.ly/tinasheKKND 6
The link “bit.ly/tinasheKKND” led to a website that allegedly sold tickets to
concerts in the New Orleans area.7
Plaintiff replied with the message
“POWER.”8 Marketron then sent another message:
Marketron Mobile Alerts on 68255: Reply Y to consent to rcv
mktg msgs from POWER. 5 msgs/mo. Reply STOP=stop,
3
4
5
6
7
8
R. Doc. 1-2 at 6.
Id. ¶ 25.
Id. ¶¶ 28-29.
Id. ¶ 29.
Id. ¶ 30.
Id. ¶ 31.
2
HELP=help. Msg&DataRatesMayApply. Consent not required to
buy goods/svcs.9
Plaintiff replied with the message “Y,” and later received a number of
additional text messages from Marketron.10
Many of these messages
allegedly lacked instructions on how to opt out of receiving further
messages. 11 The complaint lists several injuries allegedly suffered by plaintiff
as a result of Marketron’s conduct, including time spent answering and
fielding unwanted telemarketing text messages, charges for receiving the
messages, wear and tear on her telephone, and loss of battery life. 12
This is the second case in which plaintiff has made these allegations.
Plaintiff first sued Marketron and other defendants in this Court on
September 28, 2017. 13 Plaintiff voluntarily dismissed the case on February
5, 2018. On the same day, plaintiff filed her second suit against Marketron—
this time in state court. Marketron removed the case to this Court, 14 and now
moves to dismiss for failure to state a claim and for lack of standing. 15
Plaintiff moves to remand the case to state court. 16
9
10
11
12
13
14
15
16
Id. ¶ 32; R. Doc. 4-4 at 4.
R. Doc. 1-2 at 6 ¶¶ 33-34.
Id. at 8 ¶ 45.
Id. at 7-8 ¶¶ 42-43.
Case No. 17-9772.
R. Doc. 1.
R. Doc. 4.
R. Doc. 5.
3
II.
DISCUSSION
A.
Removal Jurisdiction
Plaintiff moves to remand this case to state court on the ground that
defendant has failed to establish subject-matter jurisdiction. 17
Plaintiff
argues that defendant cannot both assert federal question jurisdiction under
the TCPA and seek dismissal for lack of standing under the TCPA.
This argument is unavailing. A case may be removed under 28 U.S.C.
§§ 1331 and 1441 “when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Rivet v. Regions Bank of La., 522
U.S. 470, 475 (1998) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392
(1987)). The TCPA claim in plaintiff’s complaint plainly presents such a
federal question. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 377
(2012) (holding that a TCPA claim “plainly arises under the laws of the
United States” (internal quotation marks and alterations omitted)).
Accordingly, defendant properly removed this case to federal court, and
plaintiff’s motion to remand must be denied.
17
R. Doc. 5-1 at 5.
4
B.
Standing
Marketron contends that plaintiff lacks standing because she fails to
show any concrete invasion of a legally protected interest. 18 In any suit in
federal court, the issue of standing presents a “threshold jurisdictional
question.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998).
The requirement that a party have standing to bring suit flows from Article
III of the Constitution, which limits the scope of the federal judicial power to
the adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2.
Standing consists of three elements: (1) the plaintiff must have suffered an
“injury in fact,” which is an invasion of a legally protected interest that is
“concrete and particularized” and “actual or imminent”; (2) the injury must
be “fairly traceable” to the challenged conduct of the defendant; and (3) it
must be likely that plaintiff’s injury will be redressed by a favorable judicial
decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations
omitted).
Because a motion to dismiss for lack of standing challenges the Court’s
subject matter jurisdiction, it is governed by Federal Rule of Civil Procedure
12(b)(1). Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017). A court may
dismiss a claim for lack of constitutional standing based on “(1) the
18
R. Doc. 4-1 at 18.
5
complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed
facts plus the court’s resolution of disputed facts.” Id. (quoting BarreraMontenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).
Marketron argues that plaintiff cannot satisfy the injury-in-fact
requirement of standing because she consented to receive marketing
messages. 19 In a TCPA case, consent is an affirmative defense. See Lee v.
Credit Mgmt., LP, 846 F. Supp. 2d 716, 730 (S.D. Tex. 2012). Most courts
address consent as a merits issue rather than as an issue of constitutional
standing. See, e.g., Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037
(9th Cir. 2017) (holding that plaintiff had standing to sue, but that defendant
was entitled summary judgment because of plaintiff’s consent); Smith v. Blue
Shield of Cal. Life & Health Ins. Co., 228 F. Supp. 3d 1056 (C.D. Cal. 2017)
(same); Connelly v. Hilton Grant Vacations Co., LLC, No. 12-599, 2012 WL
2129364, at *3 (S.D. Cal. June 11, 2012) (denying motion to dismiss for lack
of standing based on consent because “consent is an affirmative defense to
be raised and proved by a TCPA defendant”). Moreover, the injuries plaintiff
allegedly suffered—including invasion of privacy, time spent answering and
fielding unwanted telemarketing text messages, charges for receiving the
19
R. Doc. 4-1 at 19.
6
messages, wear and tear on her telephone, and loss of battery life—have been
held sufficient to satisfy Article III’s requirements.20 See, e.g., Van Patten,
847 F.3d at 1043 (holding that a TCPA plaintiff satisfies Article III standing
by alleging that “[u]nsolicited telemarketing phone calls or text messages . .
. invade [her] privacy and disturb [her] solitude”); Arnold Chapman & Paldo
Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 491 (7th Cir.
2014) (noting that a TCPA plaintiff “may be annoyed, distracted, or
otherwise inconvenienced if his use of the [fax] machine is interrupted by
unsolicited faxes to it, or if the machine wears out prematurely because of
overuse attributable to junk faxes”); Sartin v. EKF Diagnostics, Inc., No. 161816, 2016 WL 7450471, at *4 (E.D. La. Dec. 28, 2016) (noting that “a
number of district courts have found that the wasted time associated with
receipt of an unlawful fax or telephone call suffices to confer standing to sue
under the TCPA”); Jamison v. Esurance Ins. Servs., Inc., No. 15-2484, 2016
WL 320646, at *3 (N.D. Tex. Jan. 27, 2016) (finding that plaintiff satisfied
injury-in-fact requirement by alleging that defendant’s unsolicited telephone
calls caused plaintiff to incur charges). Thus, plaintiff has standing, and the
Court has jurisdiction over this matter.
20
R. Doc. 4 at 4 ¶ 12.
7
C.
Motion to Dismiss Under Rule 12(b)(6)
Marketron also moves to dismiss plaintiff’s complaint for failure to
state a claim under Federal Rule of Civil Procedure 12(b)(6).21 To survive a
Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts to “state
a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)).
A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded
facts as true and must draw all reasonable inferences in favor of the plaintiff.
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But
the Court is not bound to accept as true legal conclusions couched as factual
allegations. Iqbal, 556 U.S. at 678.
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
21
R. Doc. 4-1 at 7.
8
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there
are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed. Dismissal based on an affirmative defense
“may be appropriate” on a Rule 12(b)(6) motion, but only if the “affirmative
defense appears on the face of the pleadings.” Miller v. BAC Home Loans
Servicing, L.P., 726 F.3d 717, 726 (5th Cir. 2013) (quoting Kansa Reins. Co.
v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994)).
In her opposition to Marketron’s motion to dismiss, plaintiff
articulates two bases for her TCPA claim. First, she argues that Marketron’s
first text message to her violated the TCPA because it included advertising or
telemarketing without her prior express written consent. 22 The alleged
advertisement was a link to a website that sold tickets to concerts in the New
Orleans area.23 Second, plaintiff argues that many of Marketron’s messages
violated the TCPA because they lacked opt-out instructions.24
R. Doc. 11 at 4. Plaintiff refers to this allegation as “the crux” of her
case. Id.
23
R. Doc. 1-2 at 6 ¶ 30.
24
R. Doc. 11 at 8.
9
22
1.
Advertising in Marketron’s First Message
Plaintiff’s argument that Marketron’s first message violates the TCPA
relies primarily on a regulation promulgated by the FCC. That regulation
prohibits any telephone call to a cellphone “that includes or introduces an
advertisement or constitutes telemarketing, using an automatic telephone
dialing system . . . , other than a call made with the prior express written
consent of the called party.” 47 C.F.R. § 64.1200(a)(2).
The regulation defines “advertisement” as “any material advertising
the commercial availability or quality of any property, goods, or services,”
and “telemarketing” as “the initiation of a telephone call or message for the
purpose of encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.” Id. § 64.1200(f)(1),
(12). “Prior express written consent” is defined as
an agreement, in writing, bearing the signature of the person
called that clearly authorizes the seller to deliver or cause to be
delivered to the person called advertisements or telemarketing
messages using an automatic telephone dialing system . . . , and
the telephone number to which the signatory authorizes such
advertisements or telemarketing messages to be delivered.
Id. § 64.1200(f)(8).
This agreement must also “include a clear and
conspicuous disclosure” of two things: (1) that the seller will deliver
“telemarketing calls using an automatic telephone dialing system or an
artificial or prerecorded voice,” and (2) that the called party need not sign
10
the agreement nor enter into the agreement “as a condition of purchasing
any property, goods, or services.” Id. § 64.1200(f)(8)(i).
This
prior-express-written-consent
telemarketing was adopted in 2012.
rule
for
advertising
and
See In the Matter of Rules &
Regulations Implementing the TCPA, 27 FCC Rcd. 1830 (2012) (2012
Order). Previously, the regulation—like the statute—required only prior
express consent, and did not distinguish between advertising messages and
other types of messages received by cellphones. See In the Matter of Rules
& Regulations Implementing the TCPA, 7 FCC Rcd. 8752 (1992) (1992
Order); see also Van Patten, 847 F.3d at 1044-45. In its 1992 Order, the FCC
established a relatively low bar for prior express consent, finding that
“persons who knowingly release their phone numbers have in effect given
their invitation or permission to be called at the number which they have
given, absent instructions to the contrary.” 1992 Order, 7 FCC Rcd. at 8769
(citing H.R. Rep. 102-317, at 13 (1991)).
According to plaintiff’s allegations, Marketron failed to obtain prior
express written consent before it sent the first text message. But Marketron
argues that it needed only prior express consent, the requirement for
messages without advertising or telemarketing. Marketron further argues
11
that plaintiff provided that consent.25 Thus, the sufficiency of plaintiff’s
TCPA claim based on the first text message turns on whether that message
constitutes advertising or telemarketing within the meaning of 47 C.F.R.
§ 64.1200, and if not, whether she provided prior express consent.
a.
Marketron’s first text message did not
constitute advertising or telemarketing
Marketron’s first text message was sent in response to plaintiff’s
request to enter a contest for free concert tickets. Marketron’s response
included confirmation of plaintiff’s entry, and the following language: “Buy
tix: bit.ly/tinasheKKND.” The linked website allegedly sold tickets to the
concert.26
Not all text messages containing promotional information constitute
advertising or telemarketing. In 2015, the FCC issued an order finding that
“a one-time text message sent immediately after a consumer’s request for the
text does not violate the TCPA and our rules.” In the Matter of Rules &
Regulations Implementing the TCPA, 30 FCC Rcd. 7961, 8015 (2015) (2015
Order). “For example, a consumer might see an advertisement or another
form of call-to-action display and respond by texting ‘discount’ to the
R. Doc. 4-1 at 9-13.
R. Doc. 1-2 at 6 ¶¶ 29-30; see also R. Doc. 11 at 5 (plaintiff’s brief stating
that “the link was to a webpage where one could buy tickets to the concert”).
12
25
26
retailer, who replies by texting a coupon to the consumer.” Id. The retailer’s
reply message is not telemarketing, the FCC noted, because the consumer
“requests and expects to receive the on-demand text message promptly in
response.” Id. The FCC concluded that “a one-time text sent in response to
a consumer’s request for information does not violate the TCPA or the
Commission’s rules so long as it: (1) is requested by the consumer; (2) is a
one-time only message sent immediately in response to a specific consumer
request; and (3) contains only the information requested by the consumer
with no other marketing or advertising information.” Id. at 8016.
Additionally, a number of district courts have held that informational
messages do not rise to the level of advertising or telemarketing merely
because the messages contain some commercial information. See, e.g.,
Smith, 228 F. Supp. 3d 1056; Wick v. Twilio Inc., No. 16-914, 2016 WL
6460316 (W.D. Wash. Nov. 1, 2016). In Smith, for example, the court
distinguished telemarketing calls from the defendant’s messages based on
the “informative nature of [the] messages.” 228 F. Supp. 3d at 1066. The
defendant’s messages “notified recipients that they should have received
information about changes to their insurance plan, encouraged them to seek
out information about their plan by examining the information packet and
visiting [the defendant’s] website, and directed them to call the member
13
service number (as opposed to the sales department) to resolve any questions
or issues.” Id. Although the defendant’s “website contains the capability of
allowing consumers to engage in commerce,” the Court held that this “does
not transform any message including its homepage into telemarketing or
advertising.” Id. at 1067.
In Wick, the plaintiff provided his cellphone number and other
information in order to obtain a free sample from a website. 2016 WL
6460316, at *1. “Immediately after submitting his information, plaintiff
received a text message stating: ‘Noah, Your order at Crevalor is incomplete
and
about
to
expire.
Complete
your
order
by
visiting
http://hlth.co/xDoXEZ.’” Id. In holding that this message did not constitute
telemarketing, the court noted that the message “related solely to the
consumer transaction [plaintiff] had initiated,” and did not “offer[] or
encourage[] the purchase of any product other than the free sample for which
plaintiff submitted his information.” Id. at *3.
Under some circumstances, Marketron’s first message could be
construed as “advertising the commercial availability . . . of [a] service[].” 47
C.F.R. § 64.1200(f)(1). But plaintiff already knew about the availability of
tickets to the concert. Like the message in Wick, Marketron’s first text
message related solely to the concert for which plaintiff desired free tickets,
14
and did not encourage the purchase of tickets for any other concert.
Although the linked website allegedly offered tickets for other concerts in the
New Orleans area, this alone does not transform Marketron’s message into
telemarketing. See Smith, 228 F. Supp. 3d at 1067.
Moreover, Marketron’s first message was “a one-time text message
sent immediately after” plaintiff’s own initial text message. 2015 Order at
8015. This timing further supports the “informative nature” of Marketron’s
first text message.
Smith, 228 F. Supp. 3d at 1066.
Because of the
informative nature of the message, the Court holds that Marketron’s first text
message to plaintiff did not rise to the level of advertising or telemarketing
under 47 C.F.R. § 64.1200. Thus, Marketron need show only that it received
plaintiff’s prior express consent, not her prior express written consent.
b.
Plaintiff provided prior express consent to
receive Marketron’s first text message
Showing prior express consent is substantially less burdensome than
showing prior express written consent. Two circuit courts have held that
“when a consumer provides her cell phone number to the caller,” she
consents to receive messages from the caller so long as the messages are
“related to the reason the number was provided.” Blow v. Bijora, Inc., 855
F.3d 793, 804 (7th Cir. 2017) (characterizing the holding of Van Patten, 847
F.3d at 1046); see also id. at 804-05 (“Because the texts [the plaintiff]
15
received were reasonably related to the purpose for which she provided her
cell phone number, . . . [the plaintiff] provided prior express consent for the
text messages.”).
Plaintiff’s initial text message constitutes prior express consent to
receive Marketron’s first text message. Confirmation of plaintiff’s entry into
the contest for free concert tickets is clearly related to the purpose for which
plaintiff sent her initial message. As one court has noted, when an individual
sends a text message to enter into a contest or promotion, “it is difficult to
imagine how he could have been certain that the [recipient] received his
message without a confirmatory response.” Emanuel v. L.A. Lakers, Inc.,
No. 12-9936, 2013 WL 1719035, at *3 (C.D. Cal. Apr. 18, 2013). And the link
in Marketron’s first text message merely provided information about where
to buy tickets for the concert. This information is clearly related to the
purpose for which plaintiff sent her initial text message to Marketron: to try
to win free tickets for that same concert.
The two cases on which plaintiff relies, Meyer v. Bebe Stores, Inc., No.
14-267, 2015 WL 431148 (N.D. Cal. Feb. 2, 2015), and Sullivan v. All Web
Leads, Inc., No. 17-1307, 2017 WL 2378079 (N.D. Ill. June 1, 2017), are
distinguishable. Meyer held that a consumer stated a TCPA claim based on
unsolicited promotional text messages. 2015 WL 431148, at *1. And in
16
Sullivan, the consumer received calls advertising non-Obamacare-compliant
health insurance plans after requesting quotes for Obamacare-compliant
plans. 2017 WL 2378079, at *1. Neither case provides persuasive authority
for plaintiff’s position.
The Court therefore holds that when plaintiff sent her initial text
message to enter the contest for free concert tickets, she invited a one-time
confirmatory response containing information related to that concert. Thus,
Marketron’s first text message did not contain advertising or telemarketing
within the meaning of 47 C.F.R. § 64.1200, and plaintiff provided prior
express consent to receive the message. Plaintiff fails to state a TCPA claim
based on Marketron’s first text message.
2.
Lack of Opt-Out Instructions in Marketron’s
Messages
The second asserted basis for plaintiff’s TCPA claim is that some of
Marketron’s messages lacked opt-out instructions. Plaintiff cites 47 C.F.R.
§ 64.1200(b)(3), which states:
In every case where the artificial or prerecorded voice telephone
message includes or introduces an advertisement or constitutes
telemarketing and is delivered to a residential telephone line or
any of the lines or telephone numbers described in paragraphs
(a)(1)(i) through (iii), provide an automated, interactive voiceand/or key press-activated opt-out mechanism for the called
person to make a do-not-call request, including brief explanatory
instructions on how to use such mechanism, within two (2)
17
seconds of providing the identification information required in
paragraph (b)(1) of this section.
Plaintiff does not allege that she received any “artificial or prerecorded voice
telephone message” from Marketron.
Instead, she alleges only that
Marketron’s “text message promotions did not include instructions on how
[to] opt-out of the automated phone calls.”27 The opt-out requirement
therefore does not apply to Marketron’s messages, and plaintiff fails to state
a TCPA claim based on that requirement.
III. CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s motion to
remand, and GRANTS Marketron’s motion to dismiss under Rule 12(b)(6).
Plaintiff’s complaint is DISMISSED.
8th
New Orleans, Louisiana, this _____ day of May, 2018.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
27
R. Doc. 1-2 at 6 ¶ 35, 8 ¶ 45.
18
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