LESLIE G. FOSCHIO, Magistrate Judge.
This case was referred to the undersigned for all pretrial matters by Hon. Lawrence J. Vilardo on December 10, 2018 (Dkt. 6) and is presently before the court on Defendant's motion to dismiss, filed December 7, 2018 (Dkt. 5), and Defendant's motion to stay discovery, filed March 6, 2019 (Dkt. 15).
Plaintiff's complaint alleging a class action pursuant to Fed.R.Civ.P. 23(b)(2) based on Defendant's violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. ("the TCPA" or "the Act")) was filed September 20, 2018. Plaintiff seeks statutory damages and injunctive relief on behalf of two nation-wide classes, the first constituting persons receiving Defendant's text messages on their cellular telephones without their consent, the second constituting persons who also received such messages after requesting Defendant cease sending the messages. In lieu of answer, Defendant moved on December 7, 2018, to dismiss the Complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)") (Dkt. 5) together with Defendant's Memorandum of Law In Support of its Motion to Dismiss the Complaint (Dkt. 5-1) ("Defendant's motion to dismiss"). The Complaint references (Complaint ¶ 10 n. 2) an August 30, 2012 press release in support of Plaintiff's claims describing a software product, SmartSearch®, used by Defendant in conducting its job recruitment business ("the press release"). Plaintiff's Response To Defendant's Motion To Dismiss was filed January 14, 2019 (Dkt. 9) ("Plaintiff's Response"); Defendant's Reply Memorandum of Law In Support of Defendant's Motion to Dismiss the Complaint was filed January 31, 2019 (Dkt. 13) ("Defendant's Reply") attaching a copy of the press release.
On March 6, 2019, Defendant moved for a protective order staying discovery pending the court's determination of Defendant's motion to dismiss (Dkt. 15) ("Defendant's motion to stay discovery"). On March 13, 2019, Plaintiff filed Plaintiff's Response to Defendant's Motion to Stay (Dkt. 18) (Plaintiff's Response to Motion To Stay"); on March 15, 2019, Defendant filed Defendant's Reply Memorandum of Law In Support of its Motion to Dismiss [sic] to Stay (Dkt. 19) ("Defendant's Reply in Support of Motion to Stay Discovery").
Defendant is an international staffing and recruiting company headquartered in this district, formally named Superior Talent Resources, Inc., d/b/a The Superior Group. Plaintiff is a resident of Palatine, Illinois. Plaintiff claims that commencing in early 2018 Defendant sent numerous, 240, text messages to Plaintiff's cellular telephone number without Plaintiff's consent informing Plaintiff of a potential job opportunity, viz., "material handler/production operator," with an unidentified company, ostensibly one of Defendant's business clients, located, according to Defendant (Dkt. 5-1 at 8), in Buffalo Grove, Illinois ("Buffalo Grove") which Defendant states was located within 10 miles of Plaintiff's residence. Id. On July 10, 2018, Plaintiff, who had no prior relationship with Defendant and had, as Plaintiff alleged, Complaint ¶¶ 14, 22, never consented to receive Defendant's messages, responded to Defendant's text messages at 12:43 p.m. by requesting Defendant cease sending them to her. Complaint ¶ 19. Plaintiff further alleges that thereafter on July 10, 2018, Defendant sent more than 201 similar messages using an autodialer despite Plaintiff's text response informing Defendant that Plaintiff was not interested in the described job with the putative employer located in Buffalo Grove. Complaint ¶ 18. The Complaint includes copies of nine screenshots
After Plaintiff's demand sent on July 10, 2018 to the 844 number at 12:43 p.m. that Defendant cease sending her the messages, numerous additional messages were received, notwithstanding Plaintiff's request to stop, by Plaintiff from Defendant which included the 844 number and an additional phone number for Amy Jones, 952-955-7145, for Plaintiff to call or text if she were "interested" in the job described in Defendant's messages. Complaint ¶ 20. According to Plaintiff, on information and belief, Defendant also sent "substantively identical unsolicited text messages en masse to the cellular telephone numbers of thousands of consumers." Complaint ¶ 23. Plaintiff further alleges that Defendant, or a third-party acting on behalf of Defendant (presumably APS using the SmartSearch software), used "an automatic telephone dialing system ("ATDS"), hardware and/or software with the capacity to store or produce cellular telephone number[sic] to be called, using a random or sequential number generator," to send the alleged unwanted text messages. Complaint ¶ 24. Plaintiff asserts that Defendant's use of an ATDS is shown by "the circumstances surrounding the [Defendant's]
A complaint, to survive a motion to dismiss pursuant to Fec.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)"), "must contain sufficient factual matter, accepted as true, `to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). "A claim will have `facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."" Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 678); see Twombly, 550 U.S. at 570 (the complaint must plead "enough facts to state a claim to relief that is plausible on its face"). The complaint's factual allegations "must be enough to raise above the speculative level on the assumption that all the allegations in the complaint are true." Twombly, 550 U.S. at 570. See Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015) (reviewing motion to dismiss under 12(b)(6), "accepting as true the factual allegations in the complaint and drawing all references in the plaintiff's favor").
The "plausibility standard" applicable to a Rule 12(b)(6) motion to dismiss "is guided by `[t]wo working principles.'" Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citing Twombly, 550 U.S. at 544 (2007), and quoting Iqbal, 566 U.S. at 678). "First, although `a court must accept as true all of the allegations contained in a complaint,' that `tenet' is inapplicable to legal conclusions,' and `[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Id. at 72 (quoting Iqbal, 556 U.S. at 678). "`Second, only a complaint that states a plausible claim for relief survives a motion to dismiss,' and `[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (quoting Iqbal, 556 U.S. at 679). Unless the plaintiff pleads "enough facts to state a claim that is plausible on its face" so as to "nudge[] their claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.
In ruling on a motion to dismiss pursuant to Rule 12(b)(6), "a court may consider the complaint as well as `any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference. Kalyanaram v. American Ass'n of University Professors at New York Institute of Technology, Inc., 742 F.3d 42, 44 n. 1 (2d Cir. 2014) (quoting Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001)). A court may also consider "matters of which judicial notice may be taken, [and] documents either in plaintiff's possession or of which plaintiffs had knowledge and relied on in bringing suit.'" Id. (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
In order to protect consumers from the then proliferation of nuisance telemarketing phone calls seeking to "`market goods and services to the home and other businesses,'" Congress enacted in 1991 the TCPA. ACA Int'l v. FCC, 885 F.3d 687, 692 (D.C.Cir. 2018) (quoting Pub.L. No. 102-243 §§ 2(1), (6)-(7)). As relevant to the instant case, the TCPA prohibits "any person from "mak[ing]
Defendant asserts two grounds in support of Defendant's motion to dismiss: (A) Plaintiff's allegations demonstrate the subject of Defendant's text messages concerned an "informational employment opportunity," not telemarketing or a commercial advertisement, and therefore cannot constitute a violation of the TCPA, Dkt. 5-1 at 11; Dkt. 13 at 6-8, and (B) Plaintiff's allegations, including those based on the press release, do not support an inference Defendant's text messages were sent to Plaintiff using an ATDS. Dkt. 5-1 at 14-18; Dkt. 13 at 8-14.
Defendant cites to no caselaw within the Second Circuit supporting Defendant's contention that job recruiting or employment opportunity calls such as those at issue in this case are exempt from the requirements of the TCPA, and the court's research reveals none to date. Moreover, based on the court's review, Defendant's reliance, Dkt. 5-1 at 10, 12; Dkt. 13 at 6-8, on caselaw holding that text messages from employment recruiters like Defendant describing potential job opportunities are exempt from liability under TCPA, see, e.g. Dolemba v. Illinois Farmer Ins. Co., 2015 WL 4727331, at *2 (N.D. Ill. Aug. 10, 2015) (Durkin, J.), cited by Defendant, Dkt. 5-1 at 12, because they are neither advertising nor a form of telemarketing, is misplaced as neither the TCPA itself nor the FCC's implementing regulations provide for any such exemption. First, no such exemption appears on the face of the TCPA itself. See King, 894 F.3d at 477 ("`Every exercise in statutory construction must begin with the words of the text [of the statute].'") (quoting Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003)). Instead, 47 U.S.C. § 227(b)(1)(iii) broadly prohibits "
In Dolemba I, 2015 WL 4727331, at *2, relied on by Defendant, Dkt. 5-1 at 12, 4, in dismissing the complaint alleging a TCPA violation based on defendant's unsolicited telephone message to plaintiff's cell phone proposing plaintiff's attendance at a business opportunity, i.e., working as an insurance agent for defendant to be explained at an informational meeting, the court, in holding a job recruitment call not actionable under the TCPA relied on 47 C.F.R. § 64.1200(a)(2). This regulation, however, does not, contrary to the Dolemba I court's suggestion, exempt such calls from the prohibition as stated in both the TCPA, § 227(b)(1)(A) and the cited regulation, 47 C.F.R. § 64.1200(a)(1)(iii) which generally prohibits
Significantly, the only FCC regulations authorized by the TCPA to "exempt" certain non-commercial calls from the TCPA are limited to calls made to a "
Defendant's further reliance, Dkt. 5-1 at 10, 12, Dkt. 13 at 7, on Gary v. TrueBlue Inc., 2018 WL 3647046, at *9 (E.D.Mich. Aug. 1, 2018) ("Gary"), as also supporting Defendant's contention that "employment opportunity messages are generally not actionable under the TCPA" is based on a misunderstanding of the court's decision in Gary as a careful reading of the court's decision shows the court in Gary did not so state. Rather, contrary to Defendant's assertion, the court in Gary, as the court's holding in Dolemba II demonstrates, Discussion, supra, at 10-11, 12, held only that the FCC's requirement of an "express written consent" to avoid TCPA liability applies only to telemarketing calls, not informational calls which the court found nevertheless require prior consent. Gary, 2018 WL 3647046 at *9. Defendant's quotation from Gary, Dkt. 13 at 7, that "employment opportunity texts . . . do not qualify as telemarketing as a matter of law," in support of Defendant's opening contention that such calls fall outside the requirements of the TCPA, represents a wholly unsupported interpretation of the Gary decision as the court in Gary addressed this issue — whether the defendant's calls constituted telemarketing — only in relation to whether plaintiff's express prior
Defendant's reliance on the other cases cited by Defendant in support of Defendant's contention that as job recruitment related communications Defendant's text messages are exempt from TCPA liability, Dkt. 5-1 at 12, is equally unavailing. In Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772, at **9-10 (M.D.Fla. Dec. 31, 2013) the court relied on 47 C.F.R. § 64.1200(f)(14) (defining a "telephone solicitation") ("§ 1200(f)(14)") to conclude that defendant's text messages soliciting plaintiff to sell his blood to defendant did not constitute a "telephone solicitation," as defined in § 1200(f)(14), because it was not for the purpose of encouraging "the purchase or rental of, or investment in property, goods, or services." § 64.1200(f)(14). However, the term "telephone solicitation," as it appears in § 1200(f)(14), relates only to the FCC's rule-making authority, granted by the TCPA, to "protect
The other cases relied upon by Defendant, Dkt. 5-1 at 12, for Defendant's erroneous proposition that Defendant's job recruitment messages are not subject to the TCPA are consistent with the court's foregoing analysis and accordingly provide no support to Defendant's motion to dismiss. Specifically, in AL and PO Corporation v. Med-Care Diabetic & Med. Supplies, Inc., 2014 WL 6999593, at *2 (N.D.Ill. Dec. 10, 2014) the court dismissed plaintiff's TCPA complaint brought under § 227(b)(1)(C) (prohibiting facsimile ("fax") messages which include unsolicited advertisements), finding that the defendant's messages proposing a job opportunity nevertheless constituted commercial advertisement because defendant's proposal sought to sell its products sufficient to sustain the complaint in that case. Such determination was required in AL and PO Corporation, 2014 WL 6999593, at *2, because in that case, unlike the instant case, the complaint involved a fax for an unsolicited advertisement prohibited by § 227(b)(1)(C) unless exempted from the TCPA, for example, by virtue of a prior business relationship as provided by § 227(b)(1)(C)(i). Thus, this case is also inapposite to Plaintiff's claim alleging a violation of § 227(b)(1)(A)(iii) under which TCPA liability does not depend on whether the unconsented text message involved an "unsolicited advertisement," sent by fax, as required by § 227(b)(1)(C). Similarly, in Friedman v. Torchmark Corp., 2013 WL 4102201, at *5 (S.D.Cal. Aug. 13, 2013) ("Friedman") plaintiff alleged defendant called plaintiff on plaintiff's residential home telephone with a pre-recorded message to solicit plaintiff's attendance at a "webinar" which could develop into a job opportunity selling defendant's insurance products. Because the complaint in Friedman alleged a violation of § 227(b)(1)(B) (prohibiting a prerecorded phone call
Nor is there any merit in Defendant's contention, propounded as a rebuttal to Plaintiff's analysis of this issue, see Dkt. 9 at 4 (arguing that whether a message constitutes an advertisement or telemarketing is relevant for TCPA purposes only to the degree of prior consent (express written or unwritten) required to avoid TCPA liability), that the Complaint fails to "introduce" the issue of consent, Dkt. 13 at 7, and, therefore, notwithstanding Plaintiff's opposition, Dkt. 9 at 4, on this basis the Complaint fails to plausibly state a claim. In this circuit, "to prove that a defendant violated the TCPA in a case involving a cell phone, a plaintiff must establish that (1) the defendant called his or her cell phone, and (2) the defendant did so using an ATDS or an artificial or prerecorded voice." Krady, 2017 WL 6541443, at *2 (quoting Levy v. Receivable Performance Mgmt., LLC, 972 F.Supp.2d 409, 417 (E.D.N.Y. 2013)). "`Prior express consent' [of the called party] to receive the calls is `an affirmative defense to an alleged TCPA violation, for which the defendant bears the burden of proof.'" Id. (quoting Levy, 972 F.Supp.2d at 417 and referencing In the Matter of Rule & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 565 (2008), 2008 WL 65485). It is familiar law that affirmative defenses are to be pleaded in the answer, not the complaint. See Fed.R.Civ.P. 12(b) ("Every defense to a claim for relief must be asserted in the responsive pleading if one is required.") See Sompo Japan Ins. Co. of America v. Norfolk Southern Ry. Co., 762 F.3d 165, 176 (2d Cir. 2014) (generally, failure to plead an affirmative defense in the answer waives the defense which is then excluded from the case). Here, Plaintiff has alleged the disputed text messages were sent by Defendant without Plaintiff's consent and despite Plaintiff's requests to stop. Complaint §§ 3, 4, 16, 17, 22. Although Plaintiff alleged, unnecessarily, the text messages were sent without Plaintiff's "prior express consent," Complaint ¶ 22, Plaintiff has not included sufficient facts in support of such allegations permitting the court to consider the merits of Plaintiff's allegations, McKenna v. Wright, 386 F.3d 432, 435-36 (2d Cir. 2004) (citing, inter alia, Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) (an affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if the defense appears on the face of the complaint.")). Here, Plaintiff's bare allegations, Complaint ¶¶ 14, 22, that Defendant, prior to sending the messages, did not obtain Plaintiff's prior express consent, do not provide a sufficient basis upon which, absent discovery as to actual facts and circumstances of Defendant's failure to obtain such prior consent, the court cannot properly determine the merits of such potential defense based on the generalized allegations set forth on the face of the Complaint. See McKenna, 386 F.3d at 435-36 (permitting defendant to assert affirmative defense, not raised in answer, on motion to dismiss pursuant to 12(b)(6) provided the defense is based on facts appearing on face of complaint). Defendant will therefore be required to include in its answer that Plaintiff authorized the text messages, and thus potentially consented to receipt of the messages, by Plaintiff's participation in a job seekers' website not related to Defendant as Defendant has asserted, Dkt. 5-1 at 5, 7, 18; Dkt. 13 at 8, 12-13, in Defendant's answer should Defendant's motion to dismiss be denied as recommended. See Fed.R.Civ.P. 12(b) (listing defenses which may be raised by motion). Thus, as the advertising or telemarketing character of the call is relevant only to the level of the consent — express prior or express prior written — required to authorize such a call, it was not necessary for Plaintiff to plead more specific facts to address the nature of Defendant's text messages (advertisement or telemarketing) to support Plaintiff's argument, in opposition to Defendant's motion to dismiss, that the TCPA provides no `safe harbor' from TCPA liability for Defendant's text messages even assuming they were in fact for job recruitment purposes only and that whether such messages constitute advertisement or telemarketing is relevant only to whether the caller had obtained the recipient's express prior written consent as § 64.1200(a)(2) provides. Accordingly, Defendant's contention that dismissal is required because the messages at issue are not telemarketing or advertising, as defined in the TCPA and applicable FCC regulations and thus outside the scope of § 227(b)(1)(A)(iii), is without merit.
The court thus turns to whether Plaintiff has plausibly pleaded that the text messages were sent to Plaintiff's cell phone by an ATDS as required by § 227(b)(1)(A). Defendant contends Plaintiff has failed to do so "because the content and context of the alleged messages support only one plausible inference: direct targeting [of Plaintiff] following human intervention." Dkt. 5-1 at 14; Dkt. 13 at 8 ("[t]he content and context of the allegedly infringing text message do not provide a plausible basis or reasonable inference that an ATDS was used"), which, Defendant contends, precludes use of an autodialer. Id. More specifically, according to Defendant, the press release as referenced and relied on by Plaintiff in the Complaint, Complaint ¶ 10 n. 2, and thus constitutes a document that may be considered by the court on Defendant's motion to dismiss, see Kalyanaram, 742 F.3d at 44, n.1, and provides no indicia that the software package it describes, SmartSearch®, which Defendant appears to concede, Dkt. 5-1 at 5 ("Plaintiff is aware . . . [Defendant] uses `SmartSearch'"), was utilized by Defendant in sending Plaintiff the text message as Plaintiff alleges, has, in addition to its other functionalities as described in the press release, the capacity to also function as an ATDS as that term is defined by the TCPA, or that it was actually used by Defendant as an autodialer in sending the alleged text messages to Plaintiff. Dkt. 5-1 at 16-17; Dkt. 13 at 8, 12. First, Defendant asserts the press release shows that the Defendant's use of the SmartSearch platform resulted in the text messages sent to Plaintiff that were "individually and manually inputted into the SmartSearch platform by a Superior employee." Dkt. 13 at 12-13. Defendant therefore contends that the press release's description of SmartSearch and its alleged use by Defendant demonstrates the text messages were not generic in content, a characteristic of an unwanted text message which is accepted by courts as an indication of use of an ATDS, see Flores, 685 Fed.Appx. at 534 (sending of "
A fair reading of the press release, however, reveals no definitive indication that Defendant used, or did not use, an autodialer to send text messages to Plaintiff, as part of or in addition to the SmartSearch software, regarding the functions it performs to support the conduct of Superior's business. First, according to the press release, the SmartSearch software program provides "integration [connectivity] with leading job boards . . . which enables Superior to post jobs to many external sites such as Monster.com and CareerBuilder — [the one ostensibly used, according to Defendant, by Plaintiff]
Based on the court's review of the press release, while it is possible that SmartSearch includes an autodialer function that can be used by Defendant to communicate the job possibility at issue, in a text message prepared by Defendant, to the job-seeker recipient of the message, once the SmartSearch platform has identified the potential job-seeker, as Plaintiff alleges occurred with respect to the job opportunity described in the screenshots, such possibility is not apparent on the face of the press release. Rather, the press release's description of Defendant's involvement with SmartSearch suggests SmartSearch enables Defendant to efficiently survey Internet postings by job seekers as to their work experience or training, and the geographic proximity of the putative job opportunity to the job seeker's residence as Defendant asserts occurred as to Plaintiff. Nor does the press release support Defendant's assertion, Dkt. 13 at 12, that Superior personnel "individually and manually inputted into the SmartSearch platform the telephone number to which the employment opportunity messages are to be sent." Instead, the press release indicates the platform allows "the flow of critical information
In answering this question, courts "require plaintiffs to allege facts that would allow for a reasonable inference that an ATDS was used . . . including that text messages were sent from a `short code' phone number [of] generic impersonal content and the
Here, several allegations in the Complaint are relevant to whether Plaintiff has demonstrated a reasonable, i.e., plausible, inference that the text messages were sent via an autodialer as required by the TCPA. First, the substance of the messages describing a "material handler/production operator" job in a specific location, Buffalo Grove, contradicts the idea that the messages represent a personalized, as asserted by Defendant, Dkt. 5-1 at 16; Dkt. 13 at 9-10, rather than a generic or scripted message as Plaintiff contends, Dkt. 9 at 5 ("Defendant's text messages were impersonal and generic"). Here, the message is not addressed to any person and certainly not to Plaintiff as indicated by the absence in the first message's salutation, "Hi," to Plaintiff's name, such as "Hi Samantha." Thus, on its face, the text could easily have been sent to a wide range of individuals whom Defendant had identified, through SmartSearch's search of outside on-line job sites, to solicit with some proximity to the potential job. Significantly, Plaintiff's allegations, particularly that Plaintiff received in excess of 240 text messages since the beginning of 2018, over a six-month period, regarding the Buffalo Grove job, Complaint ¶ 4, with 210 being received in one day, July 10, 2018, Complaint ¶ 18, despite Plaintiff's sending to Defendant two text messages requesting Defendant stop, Complaint ¶ 19, a likely futile response given that, as Plaintiff alleges, Complaint ¶ 11 n. 3, Defendant had then designated the only response number, the 844 number, Defendant imposed a text only restriction as to use of this line, preventing Defendant from receiving Plaintiff's requests to cease sending her the messages, that Plaintiff continued to receive the same message, now including an additional, specific telephone number for Ms. Jones at Superior to call should Plaintiff have an interest, Complaint ¶ 20, are also consistent with use of an autodialer and a basis upon which to reasonably infer Defendant's use of an autodialer. See Flores, 685 Fed.Appx. at 533 (continued sending of text messages after plaintiff requested defendant cease from doing so evidences use of an autodialer); Krady, 2017 WL 6541443, at *5 (plaintiff's asserted 36 text messages received from defendant supports sufficiency of plaintiff's ATDS allegation). That, as Plaintiff also alleged, the calls continued in large numbers over the course of the day, July 11, 2018, is a further indication of use of an autodialer based on the "regularity and persistence" of such calls. Krady, 2017 WL 6541443, at *4. Defendant's effort to establish that the job opportunity which was the subject of the text messages was tailored to Plaintiff's "purported skill set," Dkt. 5-1 at 12, and "within her geographic location," id., as well as Defendant's assertion, Dkt. 5-1 at 5, that Plaintiff "uploaded a copy of her resume, with her phone number, to www.careerbuilder.com, are all factual assertions not including in the Complaint, and thus outside the scope of the court's review of Defendant's Rule 12(b)(6) motion to dismiss. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) ("a ruling on a motion for dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings of fact") (citing Leonard F.V. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (court's consideration of defendant's Rule 12(b)(6) motion to dismiss limited to consideration of facts stated on face of complaint and may not credit assertion in defendant's moving papers unless motion is converted to summary judgment with plaintiff given the opportunity to contest asserted facts)).
Common sense also supports a reasonable inference that if Defendant's system did not include use of an autodialer, a Superior employee responsible for making the calls, upon receiving (assuming Defendant's 844 number could even receive an in-coming text message from Plaintiff) Plaintiff's negative response and requests to stop sending, as alleged, the messages through the SmartSource telephone number provided by Defendant, would have stopped sending the messages rather than to incur Plaintiff's displeasure prompting Plaintiff to invoke the TCPA. In this case, that such termination of the calls to Plaintiff did not occur, allegations the court is required on Defendant's motion to dismiss to treat as true, Biro, 807 F.3d at 544, is another plausible indicator that an autodialer was employed by Defendant in effecting transmission of the multiple messages to Plaintiff. Further, it is also unrealistic to conclude that for this job solicitation, Defendant's responsible employee (Amy Jones) or other employees were directed to physically initiate, without use of an autodialer, over 210 calls to Plaintiff in one day as the Plaintiff's screenshots indicate, in fact occurred, Complaint ¶¶ 18-20, again supporting a reasonable inference that an autodialer was used by Defendant in sending Plaintiff the unwanted voluminous solicitations. See Flores, 685 Fed.Appx. at 533 (upholding TCPA complaint alleging four (4) unwanted text messages and at least three (3) additional messages after requesting defendant cease sending them); Krady, 2017 WL 6541443, at *4 (TCPA complaint alleging thirty-six (36) text messages of a commercial nature without plaintiff's consent over three-day period supports inference of ATDS use).
Although the definition of an ATDS includes the "capacity to store or produce telephone numbers to be called, using a random or sequential number generator," 27 U.S.C. § 227(a)(1)(A), for a valid TCPA claim under § 227(b)(1)(A)(iii) it is unnecessary to allege that such capacity was in fact utilized by the accused equipment. See King, 894 F.3d at 480 & n. 7 (acknowledging the legislative history of the TCPA "confirms what the language of the statute makes clear in any event: that the TCPA applies to calls from a device that can perform the functions of an autodialer, regardless of whether it has actually done so in a particular case," and citing cases); Flores, 985 Fed.Appx. at 543 (for TCPA liability it is not necessary that the autodialer "deal numbers or send them `randomly'"); Keim v. ADF Midatlantic, LLC, 2015 WL 11713593, at *3 (S.D.Fla. Nov. 10, 2015) ("Keim") (stating "equipment that has the capacity to store or dial random or sequential numbers falls within the TCPA's scope
Another indicator supporting an inference of an autodialer use is that the sender's phone number, this one associated with SmartSearch as Plaintiff alleges, Complaint ¶ 11 n. 2, is a so-called "short-code."
Defendant's unsupported assertion that the multiple unwanted messages received by Plaintiff after Plaintiff requested they cease could be attributed to "carrier error" or "other technical defect," Dkt. 5-1 at 16, or was "likely the result of her own phone carrier issue," Dkt. 13 at 8, is a matter for an affirmative defense, and thus irrelevant to the consideration of Defendant's motion to dismiss which limits the scope of the court's consideration to the allegations of the Complaint. Leonard F., 199 F.3d at 107. Moreover, whether the carrier's or Defendant's message logs reveal the voluminous calls received by Plaintiff resulted from a technical error by Plaintiff's carrier, as Defendant claims, or not, is a question that should be left to pretrial discovery. Thus, Plaintiff's allegations support a reasonable inference that the voluminous, non-personal text messages for Defendant's recruitment business sent repeatedly and persistently over a single-day, and prior thereto, to Plaintiff, using a long-code telephone number for outgoing text messages only, despite Plaintiff's attempts to get Defendant to stop them, plausibly demonstrates Defendant's use of ATDS in violation of the TCPA.
Defendant's argument, Dkt. 5-1 at 15-17; Dkt. 13 at 9-11, that individual targeting of a message recipient negates any inference that an ATDS was used by Defendant is also without merit. Defendant's reliance for this proposition on Duguid v. Facebook, Inc., 2016 WL 1169365, at **4-5 (N.D.Cal. Mar. 24, 2016) ("Duguid I'), Dkt. 5-1 at 15-16; Dkt. 13 at 10-11, is misplaced. In Duguid I, the court found that where the "content" and "context" of the message indicate the message, which notified recipients, including plaintiff, of a "login" to their respective Facebook accounts, was the result of defendant's "individual" or "direct targeting," of the plaintiff, or, as Defendant asserts, "suggesting targeted or customized messages," Dkt. 13, plaintiff's allegation that the message was sent by an ADTS was found insufficient and accordingly the court dismissed the complaint. In reaching its conclusion in Duguid I the court mainly relied on Flores v. Adir Int'l, LLC, 2015 WL 4340020, at *3 (C.D.Cal. July 15, 2015) ("Flores"), which found that defendant's text messages to plaintiff for the purpose of collecting a debt, which did not include plaintiff's name but stated specific reference numbers suggestive of overdue accounts, indicated the defendant had "`expressly targeted'" plaintiff such that the defendant's calls were therefore not random but were "directed specifically toward [p]laintiffs," and thus failed to plausibly infer use of an autodialer. Duguid I, 2016 WL 1169365, at *5 (internal citation and quotation marks omitted). However, in Flores, on appeal, the Court of Appeals rejected the Flores trial court's reasoning. See Flores, 685 Fed.Appx. at 534 (the TCPA does not require the alleged unwanted calls be randomly dialed, only that the defendant "
For the same reason, the erroneous supposition that non-random, i.e., "targeted" or "customer-specific" text messages, which Defendant maintains are the type of calls alleged in this case, cannot support use of an autodialer, Defendant's reliance, Dkt. 5-1 at 16; Dkt. 13 at 10, on Gragg v. Orange Cab Co. Inc., 2013 WL 195466, at *2 (W.D.Wash. Jan. 17, 2013) ("Gragg I") (dismissing TCPA complaint for failure to reasonably allege defendant's use of an ATDS based on plaintiff's request for defendant's taxi services which resulted in defendant's "customized" solicitation for a free "app" to facilitate plaintiff's requests for future taxi services that court found were sent by "customer-specific text" . . . through human agency, rather an ATDS") is unavailing. By the same token, Defendant's reliance (Dkt. 5-1 at 18) on the second, later, decision in the Gragg case, Gragg v. Orange Cab Co. Inc., 2014 WL 494862, at *3 ("Gragg II") (W.D.Wash. Feb. 7, 2014) (granting partial summary judgment, based on the court's finding that defendant's modem was not a ATDS) is also mistaken, as the solicitation messages at issue — an invitation to plaintiff to download a "TaxiMagic smartphone app" — in Gragg I and II could only be sent to plaintiff if plaintiff activated the "accept" prompt on defendant's system, thereby triggering the sending of the message and thus negating, through plaintiff's human intervention, any use of defendant's system so as to constitute use of an autodialer for purposes of plaintiff's TCPA claim, and no evidence supported that defendant's modem had any present capacity to generate random or sequential numbers to be called. Here, in contrast, Plaintiff's allegations do not suggest Plaintiff, prior to Defendant's decision to send messages to Plaintiff, interacted with Defendant in any way to trigger Defendant's sending of the messages at issue; further, accepting, as required, Plaintiff's allegations as true, Biro, 807 F.3d at 544, after Plaintiff's request that Defendant cease sending viz. "spamming," Complaint ¶ 19, the messages at issue continued with the many, if not most, of the 210 unwanted messages being sent after Plaintiff's request that Defendant cease and desist sending them at 12:43 p.m. on July 8, 2018. Id. That because Defendant had designated the 844 number for outgoing text messages only thus potentially rendering Plaintiff's attempt to get Defendant to cease sending the messages, see Discussion, supra, at 27, futile does not weigh against Plaintiff as Plaintiff alleged she attempted to contact Defendant using the 844 number, the only number provided by Defendant at that point. Additionally, the court's grant of summary judgment in Gragg II followed, in contrast to the present case, plaintiff's discovery of the exact technical operation of defendant's text messaging equipment.
Defendant's additional reliance (Dkt. 5-1 at 15) on Weisberg v. Stripe, Inc., 2016 WL 3971296, at *4 (N.D.Cal. July 25, 2016), and Knutson v. Reply!, Inc., 2011 WL 291076, at *2 (S.D.Cal. Jan 27, 2010 ("Knutson") (Dkt. 5-1 at 16) is also misplaced. In Weisberg, the court dismissed plaintiff's TCPA complaint on the ground the plaintiff's allegations failed to plausibly show the defendant's text messages were "sent randomly to him by an ATDS." Weisberg, 2016 WL 3971296, at *4 (N.D.Cal. July 25, 2016) ("Weisberg") (defendant's messages were "targeted response" to plaintiff's "voluntary release of a user's [plaintiff's] phone number," not the product of use of an autodialer) (citing Duguid II, 2017 WL 635117, at *6). However, as discussed, Discussion, supra, at 37-38, in Weisberg, the court's rationale was, like that of Duguid II, based on an incorrect construction of the requirements for a TCPA claim under controlling Ninth Circuit law as later enunciated in Flores and Marks. As such, Weisberg also provides no support for Defendant's contention that the Complaint fails to plausibly allege Defendant's recruitment messages were sent using an autodialer because Plaintiff's allegations do not plausibly demonstrate they were random, i.e. non-personal, in nature. Similarly, in Knutson, the court dismissed the plaintiff's TCPA complaint based on a lack of pleaded facts concerning the nature of the calls, which related to plaintiff's real estate business, alleged to violate the TCPA thus failing to plausibly establish the calls were generated by an ATDS or were "randomly generated or impersonal"). Knutson, 2011 WL 291076, at *2. As explained, Discussion, supra, at 27-29, courts correctly hold the TCPA does not require a showing that the alleged calls were randomly generated in order to sufficiently allege the calls emanated from Defendant's use of an ATDS. Further, Plaintiff's allegations, including Plaintiff's screenshots of the calls, show none were addressed to Plaintiff personally, rather, they were merely sent to Plaintiff's cell phone number ostensibly (according to Defendant, not Plaintiff) obtained from a website job-board,
Nor is there any merit to Defendant's contention that in this case "human intervention" negates any reasonable inference that Defendant sent the messages to Plaintiff using an ATDS. Dkt. 5-1 at 17-18 (citing cases); Dkt. 13 at 5 ("press release shows high degree of human intervention"), 12-13 (citing 2015 Order, 30 FCC Rcd. at 7975, 2015 WL 4387780 ("the 2015 FCC Order") ("the basic function of an autodialer is the ability to `dial numbers without human intervention, and "`dial[ing] thousands of numbers in a short period of time'") (italics added by Defendant). This contention fails for several reasons. First, in its 2015 Order, the FCC while adhering to its past definition of an autodialer, also explained, "[h]ow the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention,
The caselaw on which Defendant relies (Dkt. 5-1 at 17-18) to support its contention that where human intervention is required to (1) select a cell number to be called, (2) draft the message to be sent, (3) select the time to send the message, and (4) initiate the actual transmittal of the message, the alleged use of an autodialer is thereby defeated, like Defendant's other authorities, are inapposite. In Luna v. Shac, LLC, 122 F.Supp.3d 936 (N.D.Cal. 2015) the court determined, after discovery and on summary judgment, that defendant's creation and sending of the messages at issue-an invitation to participate in activities at a "gentlemen's club" — were accomplished by a person, not an automated messaging device, and so did not constitute an ATDS. Luna, 122 F.Supp.3d at 941-42. Although the TCPA refers only to the "mak[ing] of a call," not the preparation of the underlying message or selection of the target cell number, see § 227(b)(1)(A)(iii), as the Act prohibits, nevertheless, in Luna, the court found the evidence sufficiently established the alleged calls were made by a person and thus not an autodialer as prohibited by § 227(b)(1)(A)(iii). In this case, the question before the court concerning the Complaint's sufficiency is raised by Defendant's Rule 12(b)(6) motion, without discovery, which prevents the court from assessing whether the sending of the message in fact resulted from an ATDS as Plaintiff alleges, or human, not machine, intervention, as Defendant asserts. As noted, Discussion, supra, at 41-42, Defendant's description of the "inputting" of telephone numbers fairly implies the targeted cell numbers, including Plaintiff's, to be called by Defendant were placed in the memory of a computer, rather than manually "dialed" directly by Defendant's employee on a cellular phone or land-line, thus making the eventual call itself amenable to autodialing available within the Defendant's computer system, as a result of interfacing with the data collected and downloaded to Defendant's computer system by SmartSource platform, the exact details of which cannot be readily deduced from the press release's description. Thus, the Luna case does not support Defendant's motion to dismiss on this issue. Likewise, in Glauser v. GroupMe, Inc., 2015 WL 475111, at *1 (N.D.Cal. Feb. 4, 2015), plaintiff complained that defendant had sent two unwanted text messages inviting his participation in on-line poker games. In granting summary judgment after discovery, the court found the text messages at issue were initiated by third-party group members who added plaintiff's cell number to the group's group "messaging application," Glauser, 2015 WL 475111, at *1, and "routed" to plaintiff the unwanted messages, formulated by an anonymous person described as the "group creator," using defendant's internet platform, and, because of the presence of significant human — the "group creator's" — involvement in initiating the calls at issue, therefore did not demonstrate the messages were sent by an autodialer. Glauser, 2015 WL 475111, at *6. In contrast, the present case as noted, is before the court on Defendant's Rule 12(b)(6) motion without the benefit of discovery into the technical details of Defendant's computer system including how the text messages at issue were formulated and sent by Defendant via cell phone text message calls. Further, Plaintiff's allegations do not suggest that even if Plaintiff had utilized a job seeker's website such usage was an open invitation to Defendant to inundate Plaintiff with hundreds of unwanted solicitations without Plaintiff's prior express consent or to persist in sending them despite Plaintiff's requests (perhaps futile) to stop. Defendant's contention that the press release shows that the messages were formulated and sent by one of Defendant's employees without any use of an ATDS accordingly stretches credulity beyond the breaking point. It is simply implausible that Defendant directed its assigned employee, Amy Jones, to manually dial Plaintiff over 200 times during a single work day, July 8, 2018, during business hours as Plaintiff alleges as documented by Plaintiff's screenshots which strongly infer that the voluminous calls were made by use of an autodialer albeit using a long-code telephone number. To the contrary, Plaintiff's allegations, as well as Defendant's asserted facts describing how the messages were in fact generated, are substantially consistent with Plaintiff's allegation of the plausible use by Defendants of an ATDS. As with the preceding cases, see Discussion, supra, at 36-37 in Gragg II, 2014 WL 494862, at *3, a case also decided on summary judgment, the court found no use of an autodialer because the customer, plaintiff, triggered the texted taxi dispatch notification message by pressing a cell button on his phone to accept the defendant's message demonstrating a degree of human intervention sufficient to negate the disputed call was sent by an autodialer. Id. Here, the case is before the court on a Rule 12(b)(6) motion and nothing in Plaintiff's allegations reasonably imply the calls were the result of some form of an affirmative action by Plaintiff, in directly interacting with Defendant, as Defendant's asserts, causing the messages to be sent by Defendant at the times they were in fact sent. Thus, the alleged facts by Plaintiff do not remotely resemble those in Luca, Glauser or Gragg I & II, or the substantive issues presented in such cases, as relied on by Defendant.
Finally, Defendant contends that Plaintiff's allegations fail to show that the number of calls to Plaintiff's cell phone were sufficiently large to plausibly support Defendant's use of an ATDS. Dkt. 13 at 11-12 (citing cases). There is, however, no minimum number of unwanted calls required by the TCPA necessary to sustain a plaintiff's alleged use of an autodialer as plausible and Defendant cites no authority in support of this further proposition. See, e.g., Flores, 685 Fed.Appx. at 533 (four text messages sent to plaintiff with other indicators sufficiently alleged use of an autodialer); Krady, 2017 WL 6541442, at *4 (allegation of more than 30 messages sent to plaintiff between January and October 2012 with screenshots of three text messages from defendant sent on January 19, 26 and 30, 2012 together with other indicia sufficient to reasonably infer defendant's use of an ATDS).
The cases upon which Defendant (Dkt. 13 at 11-12) additionally relies do not support Defendant's contention. In Curry v. Synchrony Bank, N.A., 2015 WL 7015311, at *2 (S.D.Miss. Nov. 12, 2015) ("Curry") the court found plaintiff's alleged receipt of 190 unconsented collection phone calls insufficient to allege use of an autodialer where plaintiff failed to also allege presence of "`dead air,'" i.e., a pause between when the person picks up the phone and a voice commences to speak, which the court found "generally indicative of the use of an autodialer." Here, Plaintiff alleges Defendant sent to Plaintiff throughout one day, beginning at 9:41 a.m. (Complaint ¶ 18) through 5:23 p.m. (Complaint ¶ 20) over 200 unwanted text messages, not telephone calls with a voice message, like in Curry, thus rendering the absence of "dead air" between the act of answering the phone call and hearing a human voice, i.e., a collection agent, as indicative to an autodialer, a distinction entirely at odds with the alleged facts in the instant case. Id. (citing Aikens v. Synchrony Fin. d/b/a Synchrony Bank, 2015 WL 5818911, at *4 (E.D.Mich. July 31, 2015) (noting that plaintiff had failed to provide any details regarding the 101 alleged phone calls received from defendant to infer use of an ATDS), report and recommendation adopted, 2015 WL 5818860 (E.D.Mich. Aug. 31, 2015). Similarly, in Jones v. NCO Fin. Services, 2014 WL 6390633, at *2 (D.Mass Nov. 14, 2014) the court dismissed plaintiff's TCPA complaint alleging defendant made 700 calls over two years as insufficient to plausibly suggest use of an autodialer where plaintiff failed to provide any other facts indicative of autodialing usage, again entirely unlike the instant case where the 210 calls were received during a single day over approximately an eight hour period, supporting plaintiff's allegations which include several screenshots of the offending text messages. Likewise, in McGinity v. Tracfone Wireless, Inc., 5 F.supp.3d 1337, 1340 (M.D.Fla. 2014) the court dismissed plaintiff's complaint alleging defendant called plaintiff 6,000 times in 45 days without use of a prerecorded debt collection message while speaking with a caller as insufficient to reasonably infer defendant's use of an autodialer. In contrast, in the instant case, the text messages appeared continuously on Plaintiff's cell phone despite Plaintiff's effort to stop them. In Dominguez v. Yahoo, Inc., 894 F.3d 116, 120 (3d Cir. 2018) the court affirmed summary judgment for defendant after expert discovery where plaintiff was unable to show with expert testimony that defendant sent 27,800 text messages to plaintiff over a 17-month period using an autodialer. Each of these cases is distinguishable from the instant case in that here Plaintiff received a large number of text messages, not voice telephone calls, in one day with a repetitive generic message to Plaintiff and included screenshots of such messages in the Complaint thus corroborating, unlike the cases cited by Defendant, the numerous messages in fact were received. Moreover, Plaintiff alleged that Plaintiff continued to receive the same message throughout the day, July 8, 2018, despite Plaintiff's requests sent to Defendant using Defendant's long-code number that they stop. Such factors represent materially different facts plausibly supporting Plaintiff's allegation that the text messages came from an autodialer used by Defendant. Thus, nothing in Defendant's cited cases demonstrates that courts require any particular minimum number of challenged calls to support an inference that an autodialer was used. In sum, Defendant's caselaw is inapposite on this issue. Accordingly, Defendant's contention that Plaintiff has failed to plausibly allege use of an autodialer is also without merit.
As noted, Background, supra, at 2, Defendant also moves to stay discovery pending disposition of Defendant's motion to dismiss. Under Fed.R.Civ.P. 26(d) discovery cannot commence before the parties have conducted the pre-scheduling conference required by Fed.R.Civ.P. 26(f) ("Rule 26(f)") unless authorized by the Federal Rules, court order or stipulation. As Defendant has not served an answer electing instead to proceed pursuant to Rule 12(b)(6), no scheduling conference in accordance with Fed.R.Civ.P. 16(b) has been calendared and thus no Rule 26(f) conference to develop a discovery plan or proposed case management order for the court has occurred. Defendant does not assert the parties stipulated to commence discovery. Thus, as required by Rule 26(d), in the absence of a stipulation or court order, both of which are inapplicable to the case at this time, there is no likelihood that any discovery requests by Plaintiff will be served until a decision on Defendant's motion to dismiss is rendered by the court. Accordingly, Defendant's motion is premature and as such should be DISMISSED.
Based on the foregoing, Defendant's motion to dismiss (Dkt. 5) should be DENIED; Defendant should be directed to file its answer and the matter remitted to the undersigned for further pretrial proceedings.
Decision and Order as to Defendant's Motion to Stay
Based on the Discussion, supra, at 48-49, Defendant's motion to stay discovery (Dkt. 15) is DISMISSED.
SO ORDERED.
Pursuant to 28 U.S.C. §636(b)(1), it is hereby
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
SO ORDERED.
