Courts in the Southern District of California and District of Arizona recently added to the line of decisions addressing ATDS pleading requirements in the wake of the Supreme Court’s landmark ruling in Facebook v. Duguid. Declining to infer that targeted text messages warranted an inference that the sender used an ATDS, the courts in Wilson v. rater8, LLC, et al., No. 20-cv-1515, 2021 WL 4865930 (S.D. Cal. Oct. 18, 2021), and DeClements v. Americana Holdings LLC, No. CV-20-00166-PHX-DLR, 2021 WL 5138279 (D. Ariz. Nov. 4, 2021), dismissed plaintiffs’ complaints for failure to sufficiently allege the use of an ATDS.
In Wilson v. rater8, the plaintiff filed a class action alleging that defendants violated the TCPA by sending him, after a medical examination, a text asking him to provide feedback regarding his examining physician. 2021 WL 4865930. The plaintiff alleged that the text was sent using an ATDS. The court granted defendants’ motion to stay pending the outcome of the Supreme Court’s decision in Facebook. Following that ruling, defendants moved to dismiss, arguing that plaintiff did not allege sufficient facts to support the claim that an ATDS was used.
The court agreed. Employing a multi-step plausibility analysis, the court first found that plaintiff’s allegation that “‘[t]he systems utilized by Defendants have the capacity to store telephone numbers using a random or sequential generator; and to dial such numbers from a list without human intervention’” merely parroted the language of the TCPA. Id. at *2. The court held that “[s]uch conclusory allegations alone are insufficient to state a claim under Section 227(b)(1)(A).” Id.
The court then examined the few “facts” that were alleged, and held that these were not “sufficient to support an inference that the text message at issue was sent using an ATDS.” Id. The court recognized that plaintiff alleged that the message “was sent using a short code” and “gave [p]laintiff the ability to unsubscribe from receiving future messages by clicking a link,” and that “[t]hese two factors support [p]laintiff’s ATDS claims.” Id. The court found, however, that the complaint contained “no allegations as to whether identical messages were sent to other cell phones simultaneously,” and determined that the “solitary…nature” of the “text and the relationship between the parties indicate the text was not sent using an ATDS.” Id. at *2-3. The court also reasoned that plaintiff’s assertions that the message was received immediately after plaintiff’s medical examination and that it asked plaintiff to provide feedback on his experience with a particular doctor “indicate that [p]laintiff was targeted with the text message.” Id. at *3. Ultimately, the court weighed plaintiff’s allegations against one another, and concluded that it was not plausible that an ATDS was used in this instance: “Plaintiff invites the Court to find it plausible that minutes after undergoing his examination with Dr. Dodge, a device happened to randomly generate his cellular phone number and send a text about that examination. The Court declines to credit this speculative possibility over the much more plausible scenario that the text message was targeted at Plaintiff’s cellular telephone number.” Id.
Accordingly, the Wilson court dismissed plaintiff’s TCPA claim with leave to file another amended complaint, id. at *3, *5; however, the parties settled the matter following the entry of the court’s order.
In DeClements, plaintiff Daniel DeClements brought a putative class action based on the following text message, which he received a day after he removed the listing of a property he had for sale:
Hey DANIEL, this is Steven with Berkshire Hathaway! I noticed your property on Axle Ave recently been taken off the market. I would like to interview with you for the job of getting it SOLD! When would be a good time for me to call and discuss this further with you?
2021 WL 5138279 at *1. Plaintiff replied “Stop,” and received the response, “You have successfully been unsubscribed. You will not receive any more messages from this number. Reply START to resubscribe.” Id. Plaintiff then filed a putative class action, alleging that by sending these texts, defendants sent autodialed texts in violation of the TCPA.
Defendants moved for judgment on the pleadings on the basis that plaintiff failed to plead that the texts were sent with an ATDS. In response, plaintiff moved for leave to amend his complaint.
The court noted that the complaint did not allege any facts showing that plaintiff was texted as a result of an ATDS sequentially or randomly generating the digits of his phone number. Rather, it merely alleged that plaintiff “‘believes the text message was autodialed due to the unsolicited, commercial, and generic nature of the text message, and because replying “Stop” to [the message] results in an immediate automated response.’” Id. at *2.
The court determined that these factual allegations did not support the conclusion that an ATDS was used, reasoning that not all unsolicited and commercial texts are autodialed, and that the text was targeted rather than generic. Indeed, the initial text was sent one day after plaintiff took his property off the market, and offered to help him sell the property. As the court found, “[i]t would be quite unusual for such a timely and relevant text message to appear by sheer stochasticity, and the Court decline[d] to infer otherwise.” Id. For those reasons, the court concluded “Plaintiff has not pled that he was texted using an autodialer. As such, his TCPA claim fails. And, because he cannot show an injury, he cannot serve as a class representative.” Id.
The court then rejected plaintiff’s request to amend the complaint to add the allegation that the texts were sent using “LionDesk software,” reasoning that the “proposed amendment never asserts that LionDesk can randomly or sequentially generate the phone numbers themselves; instead, it would merely allege that LionDesk can ‘import lists of leads’ and generate sequential numbers to determine the order in which those imported phone numbers are called.” For that reason, the court concluded that plaintiff’s complaint—even with his proposed amendment—failed to plead that an ATDS was used. The court similarly rejected plaintiff’s argument that, under Facebook, a “device is an autodialer if it randomly or sequentially picks phone numbers from a ‘preproduced list,’ which he interprets to mean any list of phone numbers, including a list of established leads.” Id. In rejecting that argument, the DeClements court joined the line of lower courts interpreting Facebook as requiring that “an autodialer must randomly or sequentially generate the digits of a phone number, not merely determine the order by which phone numbers are picked from a list.” Id. The court therefore determined plaintiff’s proposed amendment was futile, denied his request to amend, and granted defendants’ motion for judgment on the pleadings.
In the wake of Facebook, we expect to see an increasing number of opinions addressing and shaping the important threshold issue of whether an ATDS was used.