887 F.Supp.2d 1125 (W.D.Wash. 2012), C12-373 MJP, Hickey v. Voxernet LLC

Docket Nº:C12-373 MJP.
Citation:887 F.Supp.2d 1125
Opinion Judge:MARSHA J. PECHMAN, District Judge.
Party Name:Stephen HICKEY, Plaintiff, v. VOXERNET LLC, a Delaware corporation; Tom Katis, an individual; John Doe, an unknown person, Defendants.
Attorney:Albert H. Kirby, Kirby Law Group, Cindy M. Lin, Donald W. Heyrich, Heyrich KalishMcGuigan PLLC, Seattle, WA, for Plaintiff. Bradley T. Meissner, Brian D. Buckley, Jeffrey A. Ware, Fenwick & West, Seattle, WA, for Defendant.
Case Date:August 13, 2012
Court:United States District Courts, 9th Circuit, Western District of Washington
 
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Page 1125

887 F.Supp.2d 1125 (W.D.Wash. 2012)

Stephen HICKEY, Plaintiff,

v.

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

No. C12-373 MJP.

United States District Court, W.D. Washington, Seattle.

August 13, 2012

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[Copyrighted Material Omitted]

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

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

Page 1128

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.

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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...

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