Hickey v. Voxernet LLC

• Decision Date: 13 August 2012
• Docket Number: Case No. C12–373 MJP.
• Citation: 887 F.Supp.2d 1125
• Parties: Stephen HICKEY, Plaintiff, v. VOXERNET LLC, a Delaware corporation; Tom Katis, an individual; John Doe, an unknown person, Defendants.
• Court: U.S. District Court — Western District of Washington

887 F.Supp.2d 1125

Stephen HICKEY, Plaintiff,

v.VOXERNET LLC, a Delaware corporation; Tom Katis, an individual; John Doe, an unknown person, Defendants.

Case No. C12–373 MJP.

United States District Court,

W.D. Washington,

at Seattle.

Aug. 13, 2012.

Albert H. Kirby, Kirby Law Group, Cindy M. Lin, Donald W. Heyrich, Heyrich Kalish McGuigan PLLC, Seattle, WA, for Plaintiff.

Bradley T. Meissner, Brian D. Buckley, Jeffrey A. Ware, Fenwick & West, Seattle, WA, for Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS

MARSHA J. PECHMAN, District Judge.

This matter comes before the Court on Defendant's motion to dismiss (Dkt. No. 14.) Having reviewed the motion, the response (Dkt. No. 16), the reply (Dkt. No. 18), and all related filings, the Court DENIES in part and GRANTS in part Defendant's motion to dismiss Plaintiff's federal and state law causes of action with leave to amend.

Background

“Voxernet” is a software application that transforms a user's cellular phone into a walkietalkie. (Dkt. No. 14 at 7.) Plaintiff pursues federal and state consumer protection claims against Defendant Voxernet arising out of its alleged use of Voxer subscribers' cell phone contact lists to send text messages advertising Voxer. (Dkt. No. 11 at 3.) The proposed class action was filed in state court and removed to this Court pursuant to the Class Action Fairness Act.

Plaintiff alleges that in December 2011, he received an unsolicited text message transmitted by or on behalf of Voxernet using an automatic telephone dialing system (“ATDS”). (Dkt. No. 11 at 5.) The message told Plaintiff to “Get on Voxer” and provided him a link to where he could download Voxer. ( Id. at 5.) Plaintiff believed that the message was from one of his contacts trying to contact him. ( Id.) Plaintiff argues that Voxer is similar to a predictive dialer and that Voxer will send advertisements in an automated manner to cell phone numbers. ( Id. at 3.)

Plaintiff alleges that the text messages are commercial solicitations that are meant to elicit valuable consideration from consumers. ( Id.) Plaintiff claims that he was injured as a result of the text message due to associated phone charges, the depletion of his cell phone data capacity, invasion of privacy and the annoyance of receiving unsolicited text messages. ( Id. at 6.)

Plaintiff seeks to represent on behalf of a national class under federal law and a Washington State subclass under Washington law anyone who has received “at least one unsolicited text message which marketed Voxer on behalf of Defendant.” ( Id. at 7.) Plaintiff pursues one cause of action under the Telephone Consumer Protection Act (“TCPA”), one under the Washington State Commercial Electronic Mail Act (“CEMA”) as a per se violation of the Washington Consumer Protection Act (“CPA”), and requests damages and injunctive relief. Defendant moves to dismiss both causes of action.

Analysis

A. Standard

A court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). On a motion to dismiss, the Court accepts all well-pleaded allegations of material fact as true and draws all reasonable inferences in favor of the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys., 135 F.3d 658, 661 (9th Cir.1998). The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

B. TCPA Claim

Defendant seeks dismissal of Plaintiff's TCPA claim, arguing that (1) Plaintiff failed to allege Voxer sent the disputed text message, and (2) Plaintiff failed to adequately plead the use of an ATDS as defined under the TCPA. The Court finds neither argument persuasive.

1. Voxer's Transmission of the Text Message

Plaintiff sufficiently alleges that Voxer sent a text message to his cell phone. The TCPA prohibits making “any call ... using any automatic telephone dialing system ... to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A). A text message is a call under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009). Courts have found a “[Defendant] can be held liable even if it did not physically send the messages at issue” as long as Plaintiff plausibly alleges Defendant ultimately controlled sending the message. In re Jiffy Lube Int., Inc. Text Spam Litigation, 847 F.Supp.2d 1253, 1258–59 (S.D.Cal.2012).

Here, Defendant argues that because the text message may have been sent from Plaintiff's contact's phone, he has not sufficiently pled that Defendant sent him the text message. (Dkt. No. 14 at 12.) The Court disagrees. While Plaintiff's allegation does not raise questions of vicarious liability, the reasoning in In re Jiffy Lube applies since it considers a situation where a third party sends the actual text messages. The relationship between Defendant and Plaintiff's contact is currently unclear. That ambiguity is not fatal to Plaintiff's complaint, indeed it goes to the heart of the dispute. Plaintiff alleges that Voxer transmits automated text messages to lists of cell phone numbers that Voxer is given access to. ( Id. at 3.) Plaintiff alleges sufficient details, such as the generic form of the message, which indicate that discovery will reveal evidence of Defendant's actual transmission or control of the message. Furthermore, other courts' willingness to expand liability under the TCPA despite the involvement of third parties in the transmission of prohibited communications indicates that potential third party involvement in sending the message in this case is not dispositive of Defendant's liability under the TCPA. Plaintiff has adequately stated his allegation that Defendant transmitted the disputed text Plaintiff has adequately stated his allegation that Defendant transmitted the disputed text message even if the details of the relationship between his contact and Defendant are currently unclear.

2. Voxer as an ATDS

Plaintiff has adequately pled that Voxer uses an ATDS as defined under the TCPA. The TCPA defines “automatic telephone dialing system” as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). A predictive dialer is considered an ATDS under the TCPA. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act. of 1991, 18 F.C.C.R. 14014, 14093 (2003). “A predictive dialer is ... hardware, when paired with certain software, [which] has the capacity to store or produce numbers and dial those numbers ... from a database of numbers.” Id. at 14091. The FCC states that “the basic function of such equipment ... [is] the capacity to dial numbers without human intervention.” In the Matter of Rules & Regulations Implementing the Te. Consumer Prot. Act of 1991, 23 F.C.C.R. 559, 566 (2008). The FCC also noted that it expects “automated dialing technology to continue to develop.” Id. Other courts have noted “the difficulty a plaintiff faces in knowing the type of callingsystem used without the benefit of discovery” and found that courts can rely on details about the call to infer the use of an ATDS. Knutson v. Reply!, Inc., 2011 WL 1447756 at *1 (S.D.Cal. Apr. 13, 2011).

Here, Plaintiff has pled with sufficient specificity how the Voxer application uses “equipment” or “hardware” under the statutory definition of an ATDS or predictive dialer. Voxer is a software application, but software operates in conjunction with some kind of “equipment.” Plaintiff sufficiently alleges the involvement of cell phones in sending the disputed text messages. (Dkt. No. 11 at 3.) Plaintiff's allegation regarding the generic content and automatic generation of the message is sufficient to infer the use of an ATDS. Although the precise relationship between software and hardware is unclear at this stage of litigation, the Court recognizes the difficulty of alleging details about an ATDS before discovery. Plaintiff has, however, provided sufficient detail to make a plausible claim under the TCPA and to allow for discovery of further evidence related to Voxer's ATDS functionality.

C. CEMA Claim

Plaintiff pursues a claim under CEMA, RCW 19.190.060, which is a per se violation of Washington's CPA, RCW 19.86.010. Defendant argues the CEMA claim is preempted by the TCPA and alternatively that it is inadequately pled. The Court finds the claim under CEMA is not preempted by the TCPA but agrees Plaintiff fails to state a claim.

1. Preemption

Defendant argues that (1) the TCPA preempts CEMA by conflicting with the TCPA's regulatory scheme and (2) does not fall within the TCPA savings clause to the extent CEMA applies to interstate communications. (Dkt. No. 14 at 26.)

Congress may preempt state law either explicitly or implicitly. Whistler Invs., Inc. v. Depository Trust & Clearing Corp., 539 F.3d 1159, 1168 (9th Cir.2008). The two forms of implied preemption are field preemption and conflict preemption. Id. Defendant does not argue that the TCPA expressly preempts CEMA or implicitly preempts it through field preemption. Unless federal law clearly intends otherwise, the Court should presume that state law is not preempted. Wyeth v. Levine, 555 U.S. 555, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). Consumer protection is an area of traditional state authority creating a presumption against federal preemption. Meilleur v. AT & T Inc., No. 11–1025 MJP, 2011 WL 5592647 at *3 (W.D....