Boger v. Citrix Sys.
| Decision Date | 03 March 2020 |
| Docket Number | Civil Action No. 8:19-cv-01234-PX |
| Parties | DAN L. BOGER, on behalf of himself and others similarly situated, Plaintiff, v. CITRIX SYSTEMS, INC., Defendant. |
| Court | U.S. District Court — District of Maryland |
Pending before the Court is Defendant Citrix Systems, Inc.'s ("Citrix") combined motion to dismiss and motion to strike (ECF No. 14-1). The motion is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the following reasons, the Court grants in part and denies in part Citrix's motion.
Citrix is a software company that sells products aimed at increasing workplace productivity. ECF No. 1 ¶ 18. Citrix uses telemarketing to generate sales. Id. ¶ 19.
Plaintiff Dan Boger received automated telemarketing calls from Citrix on three separate occasions during September and December 2015. Id. ¶¶ 25-27. On each call, a Citrix employee spoke with Boger and promoted Citrix products and services. Id. ¶¶ 26-27.
Boger received two more automated telemarketing calls from Citrix during May 2016. Id. ¶¶ 28-29. On the May 3, 2016 call, Boger told the Citrix caller specifically to add him to Citrix's "Do Not Call" list. Id. ¶ 28. He then asked to speak with a manager and was connected to Citrix employee, Trevor Jones. Id. Boger asked why he continued to receive calls from Citrix despite his previous requests for Citrix to stop calling him. Id. Jones responded that Boger may have previously talked with someone from a different Citrix team. Id.
On May 25, 2016, Boger received another call from Citrix. Id. ¶ 29. Again, he told the Citrix caller that he had repeatedly requested for Citrix to stop calling him and asked to speak with a manager. Id. ¶ 30. This time, Boger spoke with sales team manager, Sam Schlunz, who told Boger that Citrix has multiple Do Not Call lists and that Boger would be added to the list. Id. ¶ 31.
On June 16, 2016, Boger sent correspondence to Citrix, reaffirming that he did not wish to be contacted by the company. Id. ¶ 32. In the correspondence, Boger listed the calls he had received from Citrix, and requested that if Citrix believed Boger had agreed to be contacted, Citrix provide him proof of such assent. Id. ¶¶ 32-33. Brian Benfer, Senior Manager at Citrix, responded to Boger via email, confirming not only that Citrix had called Boger on the listed dates, but also that Citrix knew Boger had requested twice, prior to his May 25, 2016 request, to be added to Citrix's Do Not Call list. Id. ¶ 33. The correspondence further confirmed that Citrix had still not added Boger's number to Citrix's Do Not Call list. Id.
Boger describes that for each call, before a human representative came on the line, he heard a distinct pause. Id. 1 ¶ 34. He believes the pause is evidence that Citrix used an automatic telephone dialing system ("ATDS"). Id. Boger shared this belief with Citrix in the June 26 correspondence. Id. In response, Benfer noted that the Telephone Consumer Protection Act ("TCPA") prohibits the use of ATDS, that Citrix did not intend to call cellular phones, and that "it's not clear right now how a cell phone got through." Id.
On April 26, 2019, Boger filed suit on behalf of himself and others similarly situated, alleging that Citrix violated the TCPA's provisions prohibiting autodialer calls to cell phones (Count I); the TCPA's Do Not Call provisions (Count II); and the Maryland TelephoneConsumer Protection Act ("MTCPA") (Count III). ECF No. 1. In response, Citrix moved to dismiss for failure to state a claim and lack of personal jurisdiction and to strike Boger's nationwide class definitions. ECF No. 14-1.
A motion to dismiss brought pursuant to Rule 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Rule 8(a)(2) still requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or "naked assertion[s] devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555).
In ruling on a motion to dismiss, the well-pleaded allegations are accepted as true and viewed in the light most favorable to the party asserting the claim. Twombly, 550 U.S. at 555. However, "[f]actual allegations must be enough to raise a right to relief above a speculative level." Twombly, 550 U.S. at 555. "[C]onclusory statements or a 'formulaic recitation of the elements of a cause of action will not [suffice].'" EEOC v. Performance Food Grp., Inc., 16 F. Supp. 3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555). "'[N]aked assertions of wrongdoing necessitate some 'factual enhancement' within the complaint to cross 'the line between possibility and plausibility of entitlement to relief.'" Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557).
"Congress enacted the [TCPA] to prevent abusive telephone marketing practices." Krakauer v. Dish Network, LLC, 925 F.3d 643, 648 (2019); see 47 U.S.C. § 227.1 To accomplish this, the TCPA prohibits making "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . ." 47 U.S.C. § 227(b)(1)(A). Under the TCPA, an ATDS is defined 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).
Citrix argues that Boger has failed to allege use of an ATDS. More particularly, Citrix contends that the Complaint has "not alleged facts confirming the phone calls were made with equipment that 'us[ed] a random or sequential number generator'" such that it could be considered an ATDS. See ECF No. 14-1 at 5 (quoting Snow v. General Elec. Co., No. 5:18-CV-511-FL, 2019 WL 2500407, at *18 (E.D.N.C. 2019)) (emphasis in original). In response, Boger argues that the Complaint is sufficient because an ATDS is properly understood to apply to any system "that either store[s] or produce[s] telephone numbers to be called[,]" which covers systems that automatically dial telephone numbers, or have the present but latent capacity to generate telephone numbers. ECF No. 17 at 6, 6 n.1, 17.
The United States Court of Appeals for the Fourth Circuit has not yet defined what constitutes an ATDS, and other circuits do not speak with one voice. Some have taken a more restrictive approach, holding that unless the plaintiff demonstrates that defendant employs arandom or sequential number generator, then the defendant has not used an ATDS, and liability under the TCPA does not attach. See, e.g., Gadelhak v. AT&T Servs., Inc., No. 19-1738, 2020 WL 808270, at *1 (7th Cir. 2020) (); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301, 1306-07 (11th Cir. 2020) ().
Other circuits focus on whether the equipment "could" randomly or sequentially dial such numbers. See, e.g., Gary v. TrueBlue, Inc., 786 F. App'x 555, 557-58 (6th Cir. 2019) () (emphasis added); Dominguez ex rel. Himself v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018) (). Accordingly, where a calling system could function as an ATDS, the claim survives challenge.
Still other circuits have held that an "ATDS is not limited to devices with the capacity to call numbers produced by a 'random or sequential number generator,' but also includes devices with the capacity to dial stored numbers automatically." Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir. 2018). See also Breda v. Cellco Partnership, 934 F.3d 1, 13 n.3 (1stCir. 2019) (noting that the definition of ATDS is subject to ongoing debate and, while not a contested issue on appeal, "it suffices for present purposes to think of an automatic dialing system as a piece of equipment exhibiting 'the capacity to dial numbers without human intervention'" (quoting Maes v. Charter Commc'n, 345 F. Supp. 3d 1067, 1067 (W.D. Wis. 2018)) (emphasis added).
At the pleading stage, this Court need not join this debate because Boger has plausibly alleged a claim with sufficient specificity to survive challenge even under the most restrictive statutory interpretation. The Complaint avers the use of an ATDS.2 See ECF No. 1 ¶ 20 (); ¶ 21 (...
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