VIGGIANO v. KOHL'S DEPARTMENT STORES, INC.

Filing 20

OPINION filed. Signed by Judge Brian R. Martinotti on 11/27/2017. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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KOHL’S DEPARTMENT STORES, INC.
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Defendant.
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AMY VIGGIANO, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS
SIMILARLY SITUATED

Civ. Action No. 17-0243-BRM-TJB

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are: (1) Defendant Kohl’s Department Stores, Inc.’s (“Defendant”)
Motion to Dismiss Plaintiff Amy Viggiano’s (“Plaintiff”) claims against it pursuant to Federal
Rule of Civil Procedure 12(b)(6) (ECF No. 8); and (2) Plaintiff’s Motion for Leave to File a Sur
Reply (ECF No. 18). Plaintiff opposes Defendant’s Motion to Dismiss. (ECF No. 11.) Defendant
does not object to Plaintiff’s proposed sur reply. 1 (ECF No. 19.) Pursuant to Federal Rule of Civil
Procedure 78(b), the Court did not hear oral argument. For the reasons set forth herein, Plaintiff’s

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Defendant also filed a Notice of Supplemental Authority (ECF No. 14) to which Plaintiff filed a
response (ECF No. 15). Plaintiff, in turn, submitted a Notice of Supplemental Authority (ECF No.
16) and a Supplemental Request for Judicial Notice (ECF No. 17). Defendant addresses Plaintiff’s
supplemental submissions in its Response to Plaintiff’s Motion File a Sur Reply. (ECF No. 19.)
Although the Court has discretion to decline these submissions, the Court has considered all of the
documents submitted by the parties. L. Civ. R. 7.1(d)(6).

Motion for Leave to File a Sur Reply is GRANTED. Defendant’s Motion to Dismiss is
GRANTED.
I. BACKGROUND
For the purposes of this Motion to Dismiss, the Court accepts the factual allegations in the
Complaint as true, considers any document “integral to or explicitly relied upon in the complaint,”
and draws all inferences in the light most favorable to Plaintiffs. In re Burlington Coat Factory
Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see Phillips v. Cty. of Allegheny, 515 F.3d 224,
228 (3d Cir. 2008).
In this action, Plaintiff asserts claims against Defendant for alleged violations Telephone
Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Plaintiff is a consumer and resident of
Ocean County, New Jersey. (Compl. (ECF No. 1) ¶¶ 2.) Defendant is a Delaware corporation with
its principal place of business in Menomonee Falls, Wisconsin. (Id. ¶ 3.) The case arises from text
messages Plaintiff received from Defendant on her cellular phone in 2016. (Id. ¶¶ 12-14.) Plaintiff
initially consented to receive the texts, but she later withdrew her consent by replying to the
automated texts with a variety of messages including: (1) “I’ve changed my mind and don’t want
to receive these anymore.”; (2) Please do not send any further messages.”; and (3) “I don’t want
these messages anymore. This is your last warning!” (Id. ¶ 13.) Defendant continued to send texts
to Plaintiff that indicated the only way Plaintiff could opt out of the texts would be to text “STOP”
to Defendant. (Id. ¶ 14.)
On January 12, 2017, Plaintiff filed the Complaint. (ECF No. 1.) Plaintiff asserts two
claims on behalf of herself and a purported class she believes to number in the tens of thousands:
(1) a claim against Defendant for negligent violations of the TCPA (Count One); and (2) a claim

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against Defendant for knowing and/or willful violations of the TCPA (Count Two). (Id. ¶¶ 28-37.)
Plaintiff’s purported class includes:
All 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.)
On March 29, 2017, filed its Motion to Dismiss. (ECF No. 8.) On May 1, 2017, Plaintiff
filed her opposition to Defendant’s Motion. (ECF No. 11.) On August 22, 2017, Defendant filed a
Notice of Supplemental Authority (ECF No. 14), and Plaintiff responded to that submission on
August 24, 2017 (ECF No. 15). On August 24, 2017, Plaintiff filed a Notice of Supplemental
Authority (ECF No. 16), a Supplemental Request for Judicial Notice (ECF No. 17), and her Motion
for Leave to File a Sur Reply (ECF No. 18). On August 29, 2017, Defendant filed a brief in
response to Plaintiff’s Notice of Supplemental Authority, her Supplemental Request for Judicial
Notice, and her Motion for Leave to File a Sur Reply. (ECF No. 19.)
II. LEGAL STANDARD
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a district court is “required to
accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in
the light most favorable to the [plaintiff].” Phillips, 515 F.3d at 228. “[A] complaint attacked by a
. . . motion to dismiss does not need detailed factual allegations.” Bell Atlantic v. Twombly, 550
U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). A court is “not bound to accept as true a legal conclusion couched as a factual allegation.”

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Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the complaint are true, those
“[f]actual allegations must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—’that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
III. DECISION
Defendant argues Plaintiff’s Complaint should be dismissed for failure to state a claim,
and, alternatively, Plaintiff’s class allegations should be stricken.

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A.

Plaintiff’s Motion for Leave to File a Sur Reply

As a preliminary matter, the Court notes Defendant does not object to Plaintiff’s proposed
sur reply. (ECF No. 19 at 4.) Therefore, Plaintiff’s Motion for Leave to File a Sur Reply (ECF No.
18) is GRANTED.
B.

Whether Plaintiff States a Plausible Claim Under the TCPA

The TCPA prohibits a party from sending a text message for a commercial purpose to a
cellular phone using an automated telephone dialing system (“ATDS”) without the prior express
consent of the person called. 47 U.S.C. § 227(b); 47 U.S.C. § 227(b); 47 C.F.R. § 64.1200(a)(2).
The FCC “require[s] that callers give consumers a direct opt-out mechanism such as a keyactivated opt-out mechanism for live calls . . . and a reply of ‘STOP’ for text messages.” In the
Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd.
7961, 7996 ¶ 64 (July 10, 2015) The opt-out method must allow consumers “to respond to an
unwanted call—using either a reasonable oral method or a reasonable method in writing—to
prevent future calls.” Id. “[C]allers may not infringe on that ability [to opt out] by designating an
exclusive means to revoke.” Id. ¶ 63.
Here, Plaintiff admits she “consented to receive automated commercial text messages from
Defendant.” (ECF No. 1 ¶ 12.) Defendant does not deny it used an ATDS to send texts to Plaintiff
for a commercial purpose. (See Def.’s Br. in Supp. of its Mot. to Dismiss (ECF No. 8-1) at 4.) The
only issue, therefore, is whether Plaintiff has pled facts that support a finding she revoked consent
in a reasonable manner such that Defendant’s continued texts violated the TCPA.

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The Terms and Conditions to Kohl’s Mobile Sales Alerts (“Terms and Conditions”)
include instructions for how consumers can opt out of the messages. 2 (Ex. A to Decl. of Aaron
Johnson in Supp. of Def.’s Mot. to Dismiss (ECF No. 8-3) at 2.) The Terms and Conditions read
in pertinent part:

(Id.) Plaintiff did not text any of the single-word commands the Terms and Conditions indicated
would terminate the text alerts, but instead sent several sentence-long messages to inform
Defendant she was opting out. (ECF No. 1 ¶ 13.) Plaintiff received an automated text in reply to
her opt-out messages, each of which stated “Sorry we don’t understand the request! Text SAVE
to join mobile alerts . . . Reply HELP for help, STOP to cancel.” (Id. ¶ 14; Decl. of Aaron Johnson
in Supp. of Def.’s Mot. to Dismiss (ECF No. 8-2) ¶¶ 23-29.)
Plaintiff argues she has plausibly alleged she revoked consent in a manner consistent with
the FCC’s rulings. (ECF No. 11 at 4-5.) Plaintiff emphasizes the FCC’s prohibition on callers
“designating an exclusive means to revoke [consent].” (Id. at 8 (quoting 30 FCC Rcd. at 7996 ¶
64).) Plaintiff notes the FCC has ruled “[c]onsumers have a right to revoke consent, using any

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While the Terms and Conditions are not part of the Complaint, the Court may consider any
document “integral to or explicitly relied upon in the complaint.” In re Burlington Coat Factory
Sec. Litig., 114 F.3d at 1426. The Terms and Conditions, which form the basis of the agreement
giving rise to this litigation, are integral to the Complaint.

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reasonable method including orally or in writing.” (Id. at 1-2 (quoting 30 FCC Rcd. at 7996 ¶ 63).)
Plaintiff argues she has pled a plausible TCPA claim because her texts to Defendant were
unequivocal written withdrawals of consent. (Id. at 4-5.)
The Court finds Plaintiff’s argument is unpersuasive. The FCC has also ruled:
[w]hen 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 revocations.
30 FCC Rcd. at 7996 ¶ 64 n.233. Here, Plaintiff has pled she received replies to her efforts to opt
out instructing her to text “STOP” to opt out of future texts. (ECF No. 1 ¶ 14.) Accepting the facts
in the Complaint as true, the Court finds Plaintiff has not pled a claim for a TCPA violation.
Plaintiff cannot plausibly assert she “had a reasonable expectation that . . . she could effectively
communicate . . . her request for revocation to [Defendant].” See 30 FCC Rcd. at 7996 ¶ 64 n.233.
Indeed, the only reasonable expectation Plaintiff could have had is the opposite—her request for
revocation would not be successful. Further, Plaintiff has not alleged Defendant has “deliberately
design[ed] systems or operations in ways that make it difficult or impossible to effectuate
revocations.” See id. To the contrary, 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.
In a case with nearly identical facts, the Central District of California dismissed the
complaint with prejudice. Epps v. Earth Fare, Inc., No. 16-8221, 2017 WL 1424637, at *6 (C.D.
Cal. Feb. 27, 2017). The Epps court found the plaintiff had failed to state a valid TCPA claim
because “heeding Defendant’s opt-out instruction would not have plausibly been more

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burdensome on Plaintiff than sending verbose requests to terminate the messages.” Id. at *5. The
Epps court also found the plaintiff failed to allege the defendant made it “difficult or impossible
to effectuate revocations.” Id. (quoting FCC Rcd. at 7996 ¶ 64). Plaintiff argues the Court should
not consider Defendant’s reliance on Epps, because Defendant cited the case for the first time in
its reply brief. (Pl. Sur Reply (ECF No. 18-2) at 1.) Alternatively, Plaintiff argues the Epps court
misapplied the FCC’s ruling, because the court considered the consumer’s burden in revoking
consent, rather than the caller’s burden. (Id. at 3-4 (citing 30 FCC Rcd. at 7996 ¶ 64 n.233).)
The Court finds the Epps’ court analysis and reasoning persuasive. Plaintiff ignores the
Epps court’s reasoning that Epps failed to allege the defendant deliberately designed a system that
made it difficult or impossible to opt out. Epps, 2017 WL 1424637, at *5 (citing 30 FCC Rcd. at
7996 ¶ 64 n.233).) The Epps court’s remark about the comparative ease of texting “STOP” versus
replying with several sentences was not essential to its ruling. See id. This Court reaches the same
conclusion in this matter. Plaintiff does not allege Defendant’s 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 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.
1.

Plaintiff’s Supplemental Authorities and Submissions

The Court considered Plaintiff’s supplemental submissions and found them similarly
unpersuasive. Plaintiff asks the Court to consider the Eleventh Circuit’s recent decision in
Schweitzer v. Comenity Bank, 866 F.3d 1273 (11th Cir. 2017). Plaintiff maintains the case refutes
“Defendant’s conclusory argument about logistical or technical challenges” to accepting opt-out
messages like those from Plaintiff. (ECF No. 16 at 1.) As the Court has not based its decision on

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Defendant’s purported arguments about such challenges, Schweitzer has no relevance to this case.
Further, the issue in Schweitzer was whether a plaintiff could partially revoke consent to be
contacted at certain times of the day. 866 F.3d at 1275. This issue is distinct from the revocation
of consent in this case.
Plaintiff requests the Court take judicial notice of the fact that “the Eastern District of
California recently denied a similar motion to dismiss that asserted the identical revocation of
consent argument raised herein.” (ECF Nos. 17-2 at 4; 18-2 at 5 (citing Johnson v. Redbox
Automated Retail, LLC, No. 16-2895 (E.D. Cal. May 2, 2017)).) The Court takes notice of that
fact, but notes the Johnson court, unlike the Epps court, denied the motion to dismiss without
issuing a written decision. The Court is therefore unable to draw any conclusion from the ruling.
Plaintiff asks the Court to take judicial notice of the First Amended Complaint in Winner
v. Kohl’s Department Stores, Inc., No. 2:16-cv-1541 (E.D. Pa.). Plaintiff argues the Winner court,
which granted a motion to dismiss in a case in which a plaintiff sought to opt out of texts by way
of an in-person oral message at a retail store, failed to consider relevant FCC authority. (ECF No.
15 at 12-13.) As the Court did not rely on the Winner decision due to its factual distinction from
this case, Plaintiff’s arguments concerning the pleadings in Winner are not relevant.
Finally, Plaintiff requests the Court to take judicial notice of settlement documents in
Vergara v. Uber Techs., Inc., No. 1:15-cv-6942 (N.D. Ill.). (ECF Nos. 15 at 7; 17-5.) Litigants
resolve lawsuits and settle matters for a plethora of reasons, many of which are not articulated.
The court finds this settlement is of no moment. The Court further finds the documents include
facts distinct from those in this case and are therefore irrelevant. Plaintiff argues the Vergara
settlement “provid[es] for prospective relief whereby the word ‘stop’ was included among a list of
words and phrases that shall trigger the removal of consumers from receiving text messages from

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the well-known ride sharing company, Uber.” (ECF No. 15 at 7.) The Court notes Plaintiff’s own
allegations reveal Defendant already had in place a protocol “whereby the word ‘stop’ was
included among a list of words and phrases that [] trigger[ed] the removal of consumers from
receiving text messages.” (See ECF Nos. 1 ¶ 14; 8-3 at 2.)
The Court has reviewed and taken notice of Plaintiff’s supplemental submissions, as well
as her sur reply. Nevertheless, the Court finds Plaintiff has not plausibly pled a TCPA violation.
Therefore, Defendant’s Motion to Dismiss is GRANTED. Plaintiff’s Complaint is DISMISSED
WITH PREJUDICE.
C.

Class Action

As the Court finds Plaintiff has not plausibly pled a TCPA violation, the Court need not
reach Defendant’s arguments regarding the class allegations.
IV. CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Leave to File a Sur Reply (ECF No.
18) is GRANTED. Defendant’s Motion to Dismiss (ECF No. 8) is GRANTED. The Complaint
(ECF No. 1) is DISMISSED WITH PREJUDICE. An appropriate Order will follow.

Date: November 27, 2017

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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