Williams v. zZounds Music, L.L.C.

Filing 25

ORDER denying 7 motion to dismiss for lack of jurisdiction; granting 18 motion for leave to file supplemental authority and treating that authority as timely-filed. Signed on 02/28/2017 by District Judge Fernando J. Gaitan, Jr. (Powers, Jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RYAN M. WILLIAMS, individually and
on behalf of all others similarly situated,
Plaintiff,
vs.
ZZOUNDS MUSIC, L.L.C.,
Defendant.

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Case No.: 4:16-cv-00940-W-FJG

ORDER
Pending before the Court are (1) Defendant’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction (Doc. No. 7); and (2) Plaintiff’s Motion for Leave to File
Notice of Supplemental Authority (Doc. No. 18). As an initial matter, plaintiff’s motion
for leave to file supplemental authority (Doc. No. 18) will be GRANTED, and the
authority cited in that motion will be considered by the Court.
Defendant argues that plaintiff’s Complaint (Doc. No. 1), which alleges violations
of the Telephone Consumer Protection Act (“TCPA”), fails to demonstrate Article III
standing in light of the Supreme Court’s recent decision in Spokeo Inc. v. Robins, 136
S.Ct. 1540 (2016), wherein the Supreme Court found that in order to demonstrate an
injury in fact, a plaintiff must allege more than just a statutory violation and instead must
“show that he or she suffered ‘an invasion of a legally protected interest’ that is
‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”
Id. at 1548. Defendant argues that plaintiff cannot establish any concrete injury, as any
harm he suffered is not more than de minimis.

In response, plaintiff notes that his First Amended Complaint provides:

he

started receiving unsolicited autodialed calls from zZounds in late 2015 (FAC ¶ 47); he
never had heard of zZounds, done business with zZounds, or provided his contact
information to zZounds (FAC ¶ 48); after a month of receiving the automatic calls, he
became annoyed and frustrated and requested zZounds stop calling his personal cell
phone (FAC ¶¶ 49-50); the calls continued, with a frequency of “once a day to once a
week, sometimes as often as three to four times per week (FAC ¶¶ 50-51, 57); plaintiff
received at least 14 calls in June and July 2016, specifying the dates and times for each
call (FAC ¶¶ 58); and plaintiff registered his number with the national do-not-call
registry. Plaintiff further alleges that his privacy was invaded, that he was annoyed and
outraged, and that he was charged out-of-pocket airtime minutes and cellular data for
dealing with the phone calls and voicemails. Plaintiff notes that these types of harms
are closely related to common law tort claims, such as invasion of privacy, intrusion
upon seclusion, and trespass to chattels. See Doc. No. 11, p. 12 (citing Mey v. Got
Warranty, Inc., No. 15-cv-101, 2016 WL 3645195 (N.D. W.Va. June 30, 2016) (finding
that an alleged violation of TCPA constitutes a concrete injury under Article III).
Defendant, in reply, argues that plaintiff is only citing to district court decisions to
support his opinion that an alleged invasion of privacy and loss of mobile phone
resources is sufficient to show standing.

The Court notes, however, that after this

motion was fully briefed, the Ninth Circuit held under similar allegations as here that the
recipient of unwanted telephone text messages satisfied the injury-in-fact requirement
for Article III standing for a TCPA claim. Van Patten v. Vertical Fitness Group, LLC, --F.3d ---, No. 14-55980, 2017 WL 460663 (9th Cir. Jan.30, 2017). In Van Patten, the

Ninth Circuit noted that, in enacting the TCPA, Congress made specific findings that
telemarketing can be an intrusive invasion of privacy and a nuisance. Id. at *4 (citations
omitted).

The Ninth Circuit further found that in the TCPA, “Congress identified

unsolicited contact as a concrete harm, and gave consumers a means to redress this
harm.” Id.

The Ninth Circuit concluded, “Unsolicited telemarketing phone calls or text

messages, by their nature, invade the privacy and disturb the solitude of their
recipients.” Id. This, the Ninth Circuit found, is a sufficient concrete injury to confer
Article III standing. Id. at *5. This Court finds the reasoning of the Ninth Circuit to be
persuasive, and finds that plaintiff Williams has also sufficiently alleged a concrete
injury. Defendant’s motion to dismiss is DENIED on this issue.
Defendant further argues that plaintiff has failed to allege a causal connection
between his alleged injuries and defendant’s conduct. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992)(finding “the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent action of some third party
not before the court”). Defendant argues that all the subject calls involved a wrong
number, and suggest that the mistake in calling plaintiff was not fairly traceable to
unlawful conduct by defendant. Defendant further argues that using a robo-caller made
no difference, as plaintiff would have spent the same amount of time answering and
addressing defendant’s manually dialed phone call which would not have violated the
TCPA. Plaintiff in response notes that in Ung v. Universal Acceptance Corp., No. 15127, 2016 WL 4132244 (D. Minn. Aug. 3, 2016), the Court found when addressing the
same argument that defendant’s argument “conflates the means through which it
(allegedly) violated the TCPA with the harm resulting from that alleged violation.” Id. *2

(noting that the manner in which the call was placed had no bearing on the existence of
an injury, but that use of an autodialer might increase the possibility of a plaintiff
receiving hundreds or thousands of phone calls).

The Court finds that, given the

allegations of this matter, plaintiff has sufficiently alleged that the injury in this case is
fairly traceable to the challenged conduct of the defendant (particularly considering that
defendant is alleged to have continued to call plaintiff long after plaintiff told it to stop
and that plaintiff had no prior business relationship with defendant). Defendant’s motion
to dismiss on this basis is DENIED.
Additionally, in a footnote, defendant argues that its phone calls were for debt
collection purposes and are therefore exempt from the TCPA.

The Court will not

consider this argument at the motion to dismiss stage, as questions of fact exist as to
the purpose of defendant’s phone calls. Furthermore, plaintiff has raised significant
questions in response to the motion to dismiss as to whether this affirmative defense
would be appropriately applied to him. To the extent defendant seeks dismissal on this
basis, defendant’s motion is DENIED.
Accordingly, for all the above stated reasons, defendant’s motion to dismiss
(Doc. No. 7) is DENIED IN FULL.
IT IS SO ORDERED.
/S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
Dated: February 28, 2017
Kansas City, Missouri