RANDO v. EDIBLE ARRANGEMENTS INTERNATIONAL, LLC.
Filing
20
OPINION. Signed by Judge Jerome B. Simandle on 3/28/2018. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NICOLE RANDO, individually and
on behalf of all others
similarly situated,
Plaintiff,
HONORABLE JEROME B. SIMANDLE
Civil Action
No. 17-701(JBS/AMD)
v.
OPINION
EDIBLE ARRANGEMENTS
INTERNATIONAL, LLC,
Defendant.
APPEARANCES:
Mark W. Morris, Esq.
CLARK LAW FIRM
811 16th Ave.
Belmar, NJ 07719
Attorney for Plaintiff
James S. Richter, Esq.
Keiyana B. Fordham, Esq.
WINSTON & STRAWN, LLP
200 Park Ave.
New York, NY 10166
Attorneys for Defendants
SIMANDLE, District Judge:
INTRODUCTION
Plaintiff Nicole Rando brings this putative class action
against Defendant Edible Arrangements International, LLC1 (“EA”),
1
While this is the name that appears in the caption, Defendant
points out that the correct name is Edible International, LLC.
[Docket Item 5-1 at 6 n.1.] Defendant also refers to itself,
alleging violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, et seq., based on commercial text
messages EA allegedly sent to Plaintiff after, she claims, she
revoked her consent to receive such text messages. [Docket Item
1.] Before the Court is Defendant’s motion to dismiss. [Docket
Item 5.] Plaintiff has filed a Response [Docket Item 10],
Defendant has filed a Reply [Docket Item 15], and both parties
have submitted letters containing supplemental authority [Docket
Items 16-19].
Defendant argues, in the main, that Plaintiff lacks
standing and that Plaintiff cannot maintain a claim that
Defendant sent her text messages after she revoked her consent
because Plaintiff does not plausibly allege that her method of
revocation was reasonable, thereby rendering it ineffective.
[Docket Item 15 at 12.] For the reasons that follow, the Court
finds Plaintiff has Article III standing but will grant
Defendant’s motion to dismiss for failure to state a claim under
the TCPA.
however, as Edible Arrangements, the name under which it
operates its retail business. Id. The Court therefore finds it
expedient to refer to it herein as “Defendant” or “EA.”
2
BACKGROUND2
Plaintiff Nicole Rando, a New Jersey resident, consented to
receive text messages from Defendant, a corporation
headquartered in Connecticut, in December of 2016. [Docket Item
1, Complaint, ¶ 12.] Plaintiff alleges that “Defendant placed
these text messages using an ‘automatic telephone dialing
system’ (‘ATDS’) as defined by 47 U.S.C. § 227(a)(1).” Id.
Plaintiff later “withdrew consent to receive further
commercial texts and notified Defendant to stop sending her
commercial text messages – multiple times – each time using a
reasonable method. For example, Plaintiff instructed Defendant
by text: (1) ‘Take my contact info off please’; (2) ‘I want to
confirm that I have been removed off your contacts’; (3) ‘I
asked to be removed from this service a few times. Stop the
messages.’ and (4) ‘Again I want to stop this service thank
you.’” Id. at ¶ 13.
Plaintiff alleges that Defendant nevertheless continued to
send her text messages, and claims that these text messages
violated the TCPA because they occurred after EA impermissibly
designated an exclusive means for the revocation of consent to
receive such text messages. Id. at ¶¶ 13-16. Plaintiff also
2
For purposes of the pending motion, the Court accepts as true
the version of events set forth in the complaint, documents
explicitly relied upon in the complaint, and matters of public
record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
3
makes class action allegations against Defendant. Id. at ¶¶ 1627. Plaintiff pleads two claims for relief: the first for
negligent violations of TCPA, id. at ¶¶ 28-32, and the second
for knowing and/or willful violations of TCPA, id. at ¶¶ 33-37.
Defendant, citing the declaration of Drew Sirico, Senior
Director of Marketing at EA [Docket Item 5-2], and the related
records of the text messages between Plaintiff and Defendant
[Docket Item 5-3]3, notes that every text message Defendant sent
to Plaintiff--after Plaintiff’s initial consent--ended with the
words, “Reply HELP for help. STOP to cancel.” [Docket Item 5-3
at 2.] It is undisputed that Plaintiff did not reply using the
single word “STOP,” but rather sent ten separate messages
containing natural language stating her desire to stop receiving
text messages instead (including, eventually, sentence-long
messages containing the word “stop,” in lowercase) on and
between December 8, 2016 to January 12, 2017. Id.
3
While the record of the text messages is not part of the
Complaint, “the Court may consider any document ‘integral to or
explicitly replied upon in the complaint.” Viggiano v. Kohl’s
Dep’t Stores, Inc., No. 17-243-BRM-TJB, 2017 WL 5668000, at *3
n.2 (D.N.J. Nov. 27, 2017)(citing In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) and relying on
Terms and Conditions of Mobile Sales Alert program where they
“form[ed] the basis of the agreement giving rise to [the]
litigation” and were therefore “integral to the
Complaint”)(emphasis in original).
4
STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need
only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted).
While a complaint is not required to contain detailed
factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
grounds upon which it rests. Id.
A complaint will survive a
motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
Although a court
must accept as true all factual allegations in a complaint, that
tenet is “inapplicable to legal conclusions,” and “[a] pleading
5
that offers labels and conclusions or a formulaic recitation of
the elements of a cause of action will not do.” Id. at 678.
ANALYSIS
Defendant moves to dismiss on a variety of grounds. First,
Defendant claims that the Complaint fails to state a claim,
either because Plaintiff does not plausibly allege that she
revoked her consent to receive automated text messages [Docket
Item 5-1 at 13-17], or because she failed to plausibly allege
that Defendant used an ATDS. Id. at 17-19. Second, Defendant
argues that Plaintiff lacks Article III standing. Id. at 10-13.
Finally, Defendant argues that the class allegations should be
stricken from the Complaint. Id. at 19-22.
The Court turns to these arguments, beginning with Article
III standing.
A. Standing
Defendant argues that Plaintiff lacks standing under
Article III of the United States Constitution because she does
not plead a sufficient injury in fact (having not suffered a
“cognizable concrete harm”), thereby divesting this Court of
jurisdiction. [Docket Item 5-1 at 10.] The Court disagrees.
A plaintiff must, in order to have standing to bring a case
within the meaning of Article III’s “case or controversy”
6
requirement, “have (1) suffered an injury in fact, (2) that is
fairly traceable to the challenged conduct of the defendant, and
(3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016),
citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992).
Defendant cites several cases for the proposition that
alleging merely the receipt of unwanted text messages does not
sufficiently allege a concrete and particularized injury beyond
the bare statutory violation outlined in the TCPA, arguing that
“courts around the country have also found no standing to bring
TCPA claims after Spokeo,” e.g., Zemel v. CSC Holdings LLC, No.
16-4064, 2017 WL 1503995 (D.N.J. Apr. 26, 2017); Susinno v. Work
Out World, Inc., No. 3:15-cv-05881 (D.N.J. Aug. 1, 2016)4; Sartin
v. EKF Diagnostics, Inc., No. 16-1816, 2016 WL 3598297, at *3
(E.D.La. July 5, 2016); Stoops v. Wells Fargo Bank, N.A., No.
3:15-83, 2016 WL 3566266, at *8-*13 (W.D.Pa. June 24, 2016).
Defendant argues that the Complaint alleges only the bare
statutory violation and “is exactly the kind of case the Supreme
Court had in mind when it made clear in Spokeo that bare
statutory violations do not equal an injury-in-fact and thus
cannot confer Article III standing.” [Docket Item 5-1 at 13.]
4
The decision in Susinno has subsequently been reversed and
remanded, 862 F.3d 346 (3d Cir. 2017).
7
This Court notes that the Third Circuit has stated that
“[i]n the absence of any indication to the contrary, we
understand that the Spokeo Court meant to reiterate traditional
notions of standing[.]” In re Horizon Healthcare Servs. Inc.
Data Breach Litig., 846 F.3d 625, 638 (3d Cir. 2017). Thus, to
the extent that Defendant marks Spokeo as representing a turning
point for putative-TCPA-plaintiffs who will no longer be able to
adequately allege an injury-in-fact based on an invasion of
privacy due to the violation of the TCPA, this Court cannot
agree.
The Third Circuit, building off its decision in In re
Horizon, recently found that “in asserting ‘nuisance and
invasion of privacy’ resulting from a single prerecorded
telephone call, [the plaintiff’s] complaint asserts ‘the very
harm that Congress sought to prevent,’ arising from prototypical
conduct proscribed by the TCPA.” Susinno v. Work Out World,
Inc., 862 F.3d 346, 351 (3d Cir. 2017). The court also cited Van
Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th
Cir. 2017), to support its finding that the plaintiff “alleged a
concrete, albeit intangible, harm under the Supreme Court’s
decision in Spokeo and our decision in Horizon.” Susinno, 862
F.3d at 352.
This Court understands Plaintiff to allege the same
“concrete, albeit intangible, harm” sufficient to grant her
8
Article III standing under these precedents. While Defendant
submits that the critical difference is that here, Plaintiff
solicited these text messages, the Court reads her Complaint to
clearly allege that, at least once Plaintiff attempted to
withdraw her consent (discussed at length, infra), the text
messages she continued to receive were now unwanted, unwelcome,
and effectively unsolicited. Plaintiff alleges that she is a
person directly aggrieved by the statutory violation she
alleges, and the Court therefore concludes that she has Article
III standing. See also Epps v. Earth Fare, 2017 WL 1424637, at
*3-*4 (plaintiff adequately asserts concrete injury for standing
purposes, though her complaint fails to state a TCPA claim).
B. Failure to State a Claim: Revocation of Consent
The primary question before this Court appears to be the
legal effect of replying to an unwanted commercial text message
using language that would, if read by a human being, clearly
indicate a desire to revoke consent to receive text messages,
but not using the required (and clearly-stated to the consumer)
language that the computerized texting service would recognize
as effecting such a revocation. If such a method is sufficient
to revoke consent, then Defendant may be liable for continuing
to send text messages to Plaintiff after such a revocation. If
that method is not sufficient, then Plaintiff does not state a
9
claim that Defendant continued to send text messages after she
revoked her consent and thereby violated the TCPA.
Plaintiff submits that her text messages should be held to
constitute effective revocation because they were reasonable,
and because a defendant may not designate an exclusive means of
revocation. [Docket Item 10 at 21-30.] Plaintiff’s claim, in
fact, is that Defendant violated the TCPA not only by continuing
to contact her after she revoked her consent, but also by
designating an exclusive means by which consumers could revoke
consent [Docket Item 1 ¶¶ 11, 16, 22(b), 25, 34]; the class she
purports to represent consists of “[a]ll persons in the United
States to whom Defendant has sent any automated commercial text
message during the applicable statute of limitations period
after designating an exclusive means by which consumers may
revoke consent to receive text messages from Defendant.” Id.
¶ 16.
Defendant urges the Court to find, however, that
Plaintiff’s method of revocation was no more than a legally
invalid, attempted revocation because it was unreasonable under
the circumstances. [Docket Item 5-1 at 13-17.]
The TCPA “prohibits any person, absent the prior express
consent of a telephone-call recipient, from ‘mak[ing] any call .
. . using any automatic telephone dialing system . . . to any
telephone number assigned to a paging service [or] cellular
10
telephone service.’” Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663,
666-67 (2016)(citing 47 U.S.C. § 227(b)(1)(A)(iii)). “A text
message to a cellular telephone, it is undisputed, qualifies as
a ‘call’ within the compass of § 227(b)(1)(A)(iii). For damages
occasioned by conduct violating the TCPA, § 227(b)(3) authorizes
a private right of action. A plaintiff successful in such an
action may recover her actual monetary loss or $500 for each
violation, whichever is greater. Damages may be trebled if the
defendant willfully or knowingly violated” the TCPA. CampbellEwald Co., 136 S.Ct. at 667 (internal citations and quotations
omitted). The TCPA “allows consumers to revoke their prior
express consent[.]” Gager v. Dell Fin. Servs., LLC, 727 F.3d
265, 270 (3d Cir. 2013).
The FCC has spoken to the determination of effective
revocation of consent, and the Third Circuit has “afford[ed]
some deference to the FCC’s decision” regarding the TCPA on an
analogous case. Id. at 271 n.5 (citing United States v. Mead
Corp., 533 U.S. 218, 234 (2001)(“An agency interpretation may
merit some deference whatever its form, given the specialized
experience and broader investigations and information available
to the agency and given the value of uniformity in its
administrative and judicial understandings of what a national
law requires.”)(internal citations omitted)).
11
The parties submit that two FCC records that speak to the
question at hand.
In 2014, the FCC approved an exemption for a caller sending
automated text messages where, among other conditions, those
“text notifications . . . include[d] the ability for the
recipient to opt out by replying ‘STOP.’” 29 FCC Rcd. 3432, 3438
¶ 18(7) (Mar. 27, 2014)(“Cargo Airline Order”). Defendant
submits that this shows the FCC’s approval of such a system as
“a valid means for marketers to receive and process revocations
of prior express consent to receive marketing texts.” [Docket
Item 5-1 at 14.] Plaintiff notes several limitations on the
FCC’s grant of that exemption and submits that, because
Defendant’s messages did not comply with all those limitations
(e.g., its messages contained commercial or advertising content,
and were not free to the consumer-recipient), the Court should
not view the sanctioning of the “STOP” opt-out method as a more
general seal of approval of that method. [Docket Item 10 at 2325.]
The FCC has, though, recently spoken to the more general
question, and the Court finds its statements instructive. The
FCC stated, in response to the question “whether a caller can
designate the exclusive means by which consumers must revoke
consent,” that “callers may not control consumers’ ability to
revoke consent[,]” “consumers may revoke consent in any manner
12
that clearly expresses a desire not to receive further messages,
and . . . callers may not infringe on that ability by
designating an exclusive means to revoke.” 30 FCC Rcd. 7961,
7996 ¶ 63. However, the FCC continued:
Consumers have a right to revoke consent, using any
reasonable method including orally or in writing.
Consumers generally may revoke, for example, by way of
a consumer-initiated call, directly in response to a
call initiated or made by a caller, or at an in-store
bill payment location, among other possibilities. We
find that in these situations, callers typically will
not find it overly burdensome to implement mechanisms
to record and effectuate a consumer request to revoke
his or her consent.
Id. ¶ 64. The FCC noted:
When assessing whether any particular means of
revocation used by a consumer was reasonable, we will
look to the totality of the facts and circumstances
surrounding that specific situation, including, for
example, whether the consumer had a reasonable
expectation that he or she could effectively
communicate his or her request for revocation to the
caller in that circumstance, and whether the caller
could have implemented mechanisms to effectuate a
requested revocation without incurring undue burdens.
We caution that callers may not deliberately design
systems or operations in ways that make it difficult
or impossible to effectuate revocation.
Id. n.233. The FCC noted several examples, including the Cargo
Airline Order, and stated that the “common thread linking these
cases is that consumers must be able to respond to an unwanted
call--using either a reasonable oral method or a reasonable
method in writing--to prevent future calls.” Id. at ¶ 64.
13
The specific statement that a caller may not “infringe on
[a consumer’s] ability” to “revoke consent in any manner that
clearly expresses a desire not to receive further messages” “by
designating an exclusive means to revoke[,]” 2015 Order ¶ 63,
seems to be in some tension with the immediately-following
statements that “[c]onsumers have a right to revoke consent,
using any reasonable method” and that the assessment of whether
a valid revocation occurred will be whether a “particular means
of revocation used by a consumer was reasonable” while looking
to the “totality of the facts and circumstances[.]” Id. at ¶ 64,
64 n.233.
The latter statements imply that a consumer may not validly
revoke if their method of revocation is held to be, under the
totality of the circumstances, unreasonable; if such a
revocation was invalid, then the consumer’s prior express
consent controls and the caller would not be liable for
violating the TCPA. The former statement implies that a caller
is liable for violating the TCPA when it designates an exclusive
means of revocation, regardless of whether it forecloses a
reasonable method of revocation or not, because it states that a
caller is responsible for honoring a revocation made “in any
manner that clearly expresses a desire not to receive further
messages” (but is nevertheless not reasonable). Of course, this
is precisely the scenario at issue in this case: Plaintiff’s
14
attempted method of revocation, notwithstanding that it “clearly
express[ed] a desire not to receive further messages,” is
nevertheless claimed to be unreasonable.
These two premises seem to be in some tension with each
other, but another court within this district has found that the
latter statements better state the rule: “Plaintiff bases her
claim on the fact that Defendant specified a means of opting
out. The FCC’s ruling[s] are clear--a caller may not designate a
method of opting out ‘in ways that make it difficult or
impossible to effectuate revocations[.]’ 30 FCC Rcd. at 7996
¶ 64 n.233[.] Plaintiff’s arguments to the contrary defy both
the FCC’s rulings and common sense.” Viggiano, 2017 WL 5668000,
at *4.
The Court agrees. The relevant provision of the TCPA is
violated not when a caller has certain internal policies, but
when it calls a cell phone, e.g., without a consumer’s prior
express consent. The FCC’s regulations outline when such prior
express consent can fairly be said to be vitiated by virtue of
the consumer’s revocation, and state that such revocation occurs
when the method of revocation is reasonable, under the totality
of the circumstances.
Accordingly, the Court cannot agree that Plaintiff states a
claim for a violation of the TCPA where she alleges only that a
caller designated an exclusive means of revoking consent;
15
Plaintiff must also allege that the designated exclusive means
for revoking consent made it difficult or impossible to
effectuate her actually-attempted revocation, and that her
chosen method of revocation was reasonable. This is so because
her method of revocation must be reasonable to be effective, and
without an effective revocation of consent, a plaintiff cannot
state a claim that she was called without her consent.
Restated differently, if Plaintiff seeks to hold Defendant
liable for sending messages after Plaintiff revoked consent, she
must allege that Defendant continued to contact her after she
revoked her consent to be contacted. In order to plead that she
successfully revoked that consent, she must put forth factual
allegations that would tend to show that her method of
revocation was reasonable, given the totality of the
circumstances. The Court therefore next addresses that question.
Other courts have held that responding to text messages
that include, as here, the clear directive “Reply STOP to
cancel” (or “Reply HELP for help, STOP to cancel[,]” Viggiano,
2017 WL 5668000 at *3, or “Text STOP to end, HELP for help +
T&C’s[,]” Epps v. Earth Fare, 2017 WL 1424637, at *2) fails to
state a claim for violation of the TCPA because a plaintiff who
does not reply “STOP” but instead texts back a verbose sentence
with the same sentiment does not use a reasonable method to
16
revoke consent. See Viggiano, 2017 WL 5668000 at *4; Epps v.
Earth Fare, 2017 WL 1424637 at *5.
Plaintiff argues that this Court should not afford
persuasive value to Viggiano in particular because “that court
inferred an intent requirement in the TCPA based on a fleeting
sentence in a particular FCC final order (‘We caution that
callers may not deliberately design systems or operations in
ways that make it difficult or impossible to effectuate
revocations.’).” [Docket Item 19 at 2-3, citing Viggiano, 2017
WL 5668000 at *7.] The Court does not understand the Viggiano
decision to infer such an intent requirement, but rather simply
holding that the plaintiff there did not state a claim under the
TCPA because she could not plausibly allege that she reasonably
revoked her consent to be contacted, under the totality of the
circumstances.
The Court finds that, for a consumer who previously gave
consent, a claim under the TCPA requires stating grounds for
these elements: (1) that she attempted to revoke consent by
reasonable means, under the totality of the circumstances; (2)
that the caller provided only means that were unduly burdensome
or overly restrictive (in that they did not effectuate her
reasonable attempts at revocation); and (3) that she continued
to receive calls. To the extent that Plaintiff’s claim here is
vulnerable to arguments that her means of revocation was not
17
reasonable, the Court allows that Plaintiff may be able to cure
that defect by alleging factual grounds to support the
proposition that her means of revocation was, under the totality
of the circumstances, reasonable.
The Court hastens to add that it seems possible that a
consumer could, under the totality of the circumstances, text
back a non-compliant text message in an attempt at revocation
that was, despite that non-compliance, reasonable.5 But this
Court is not presented with that question. Instead, the Court is
to determine whether this Plaintiff properly states a claim that
she was contacted in violation of the TCPA, which she can only
5
See, e.g., Lanteri v. Credit Protection Association L.P., No.
1:13-cv-1501-WTL-MJD, 2017 WL 3621299, at *2-*4 (S.D. Ind. Aug.
22, 2017)(plaintiff proposed class of people who sent one of six
non-compliant text messages in effort to revoke consent to be
texted, including “STOP TEXT,” “STOP CALLIN,” “STOP SENDIN,”
“PLEASE STOP” “PLZ STOP,” or “the first two letters of the
message ‘RE’ followed by 2 non-alpha characters, followed by the
exact phrase ‘STOP’ (such as ‘RE:|STOP’),” although plaintiff
herself texted back “stop”; court, in finding a lack of
typicality, stated that “[b]ecause none of the messages comply
[perfectly] with the opt-out instruction [requesting that
individuals reply ‘STOP’ to opt out of receiving text messages],
whether an individual revoked consent to receive text messages
becomes an issue central to liability in this case,” and that
court would need to “determine whether each of the [six] text
messages . . . and the message sent by the Plaintiff constitute
revocations of consent. . . . [W]hether revocation occurred in
each instance depends on whether a particular text message is a
reasonable revocation. To make those determinations, the Court
would be required to examine facts related to the Plaintiff’s
reply message, as well as to each of the six text messages
individually, and the Court will not analyze the merits of the
case here”)(internal quotations and citations omitted).
18
claim if she properly revoked her consent. Thus, this Court is
not presented with the question of whether, e.g., texting back
“stop” or “PLEASE STOP” or “STOP.” or “STOP STOP” instead of
“STOP” would constitute a reasonable method of revocation.
Instead, this Court need only address whether this Plaintiff’s
method of revocation was reasonable, under the totality of the
circumstances.
The Court finds that Plaintiff has failed to allege facts
supporting a plausible claim that she revoked her consent “using
[a] reasonable method.” 30 FCC Rcd. at 7996 ¶ 64. When presented
with the direction “Reply HELP for help. STOP to cancel,”
Plaintiff instead replied: “Take my contact info off please.”
While she did not, as in Viggiano, 2017 WL 5668000 at *3 or Epps
v. Earth Fare, 2017 WL 1424637 at *2, receive a responsive text
message saying that her text was not understood, she
nevertheless continued to receive text messages ending with the
directive “Reply HELP for help. STOP to cancel[,]” and continued
to respond in the same unproductive manner: “Thank you. I’d like
my contact info to be removed”; “Checking in today to see if my
information is removed”; “Haven’t heard from this service”; “I
want to confirm I have been removed off your contacts”; “I’d
like to be removed from this”; “I asked to be removed from this
service[.]” [Docket Item 5-3 at 2.] Finally, Plaintiff responded
on December 21, 2016, using for the first time some permutation
19
of the word “stop”: “I asked to be removed from this service a
few times. Stop the messages” and, six days later, “I still want
to stop the service[.]” Id. She then received another text
message, again, ending in “Reply HELP for help. STOP to
cancel[,]” but again responded with a sentence: “Again I want to
stop this service thank you[.]” Id. It appears that Plaintiff
then received one more text message--yet again, ending with
“Reply HELP for help. STOP to cancel.” Id.
The Court finds that, in the totality of the circumstances,
a reasonable person seeking to revoke consent would have tried,
at least at some point during the back-and-forth, simply
replying “STOP” to cancel--as instructed, rather than ignoring
Defendant’s revocation method and sending ten long text messages
to that effect, most of which did not include the word “stop” at
all. There can be no question on these factual allegations but
that Plaintiff did not comply, nor even attempt to comply, with
the apparently simple directions repeatedly given to her: “Reply
. . . STOP to cancel.”
The Court concludes that, given the factual circumstances
alleged by Plaintiff, she does not plausibly state a claim that
she used a reasonable means of revoking her consent, in part
because it cannot be fairly said that she “had a reasonable
expectation that . . . she could effectively communicate . . .
her request for revocation to the caller in that
20
circumstance[.]” 30 FCC Recd. at ¶ 64 n.233. Her failure to
follow the apparently clear and apparently non-burdensome optout instructions remains unexplained. See also Viggiano, 2017 WL
5668000, at *4 (“the facts in the Complaint suggest Plaintiff
herself adopted a method of opting out that made it difficult or
impossible for Defendant to honor her request. . . . Plaintiff
does not allege Defendant[] purposefully made opting out
difficult or impossible. Rather, Plaintiff bases her claim on
the fact that Defendant specified a means of opting out. The
FCC’s ruling[s] are clear--a caller may not designate a method
of opting out ‘in ways that make it difficult or impossible to
effectuate revocations[.]’ Plaintiff’s arguments to the contrary
defy both the FCC’s rulings and common sense.”); Epps v. Earth
Fare, 2017 WL 1424637 at *5 (“The totality of the plausibly
alleged facts, even when viewed in Plaintiff’s favor, militate
against finding that Plaintiff’s revocation method was
reasonable. Without explanation, Plaintiff ignored Defendant’s
clear instruction to stop the messages. Furthermore, although
Plaintiff is correct that Defendant ‘may not abridge
[Plaintiff’s] right to revoke consent using any reasonable
method’ and ‘may not deliberately design systems or operations
in ways that make it difficult or impossible to effectuate
revocations,’ Plaintiff has not plausibly alleged any such
burden here. In fact, heeding Defendant’s opt-out instruction
21
would not have plausibly been more burdensome on Plaintiff than
sending verbose requests to terminate the messages. In sum,
Plaintiff has not plausibly alleged that her revocation was
effective.”)(internal citations omitted).6
Because the Court has found that Plaintiff does not
plausibly state a claim for relief under the TCPA pursuant to
Fed. R. Civ. P. 12(b)(6), the Court need not address whether
Plaintiff has failed to adequately plead that Defendant used an
ATDS. The Court similarly need not address Defendant’s argument
in the alternative that the class allegation be stricken.
The Court has given serious consideration to Defendant’s
request that the motion be granted and the complaint be
dismissed with prejudice [Docket Item 17 at 2-3, citing Epps v.
The Gap, Inc., No. 17-3424-MWF (PLAx), at *1, *5 (C.D. Cal. June
27, 2017)(granting motion to dismiss with prejudice because
“Plaintiff’s purported means of requesting the messages to stop
was unreasonable as a matter of law, for the reasons set forth
in Epps v. Earth Fare, Inc.,” and noting that while it “may be
6
The Court has reviewed the supplemental authority propounded by
Plaintiff [Docket Item 16] and does not find that it materially
alters the Court’s analysis. While the Court notes with interest
the denial of the motion to dismiss in Johnson v. Redbox
Automated Retail, LLC, Case No. 2:16-cv-02895-JAM-DB (E.D. Cal.
May 2, 2017), the Court cannot grant that decision persuasive
power without some explication for the basis of the ruling,
which was made via text order to the docket and without further
explanation.
22
true” that “FCC rule prohibits a caller from limiting the means
by which a consumer revokes consent[,]” “it does not change the
Court’s conclusion that under the totality of the circumstances
Plaintiff’s method of revocation was not reasonable” under [30]
FCC Rcd. at 79[96] ¶ 64 n.233)].
The Court will nevertheless dismiss without prejudice
because such amendment does not appear to be futile in its
ability to address the above deficiencies of the present
pleading. Plaintiff may file a motion for leave to file an
amended complaint that plausibly alleges that she revoked her
consent to be contacted using a reasonable method, under the
totality of the circumstances, taking into account Defendant’s
prescribed revocation method. In preparing such a proposed
amended complaint, Plaintiff is advised to be mindful of the
question of “whether [she] had a reasonable expectation that. .
. she could effectively communicate . . . her request for
revocation to [EA]” via her chosen method of revocation, instead
of the sender’s method of revocation.
While the Court does not express an opinion on the merits
of Defendant’s argument that the Complaint only alleged the use
of an ATDS in a conclusory fashion, Plaintiff may wish to
address such allegations as well in any proposed Amended
Complaint.
23
CONCLUSION
For the foregoing reasons, the Court will grant Defendant’s
motion to dismiss without prejudice. Plaintiff may file a motion
for leave to amend the complaint to address the deficiencies
noted herein within thirty (30) days from the entry of this
Opinion and Order upon the docket. The accompanying Order will
be entered.
March 28, 2018
DATE
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
24
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