Davis v. Safe Streets USA LLC

• Decision Date: 18 September 2020
• Docket Number: No. 5:19-CV-455-D,5:19-CV-455-D
• Citation: 497 F.Supp.3d 47
• Parties: Lauren DAVIS, Plaintiff, v. SAFE STREETS USA LLC, and ADT, LLC, Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

497 F.Supp.3d 47

Lauren DAVIS, Plaintiff,

v.SAFE STREETS USA LLC, and ADT, LLC, Defendants.

No. 5:19-CV-455-D

United States District Court, E.D. North Carolina, Western Division.

Signed September 18, 2020

Scott C. Harris, Whitfield Bryson LLP, Raleigh, NC, for Plaintiff.

Christopher J. Derrenbacher, Eric G. Sauls, Lewis Brisbois Bisgaard & Smith LLP, Raleigh, NC, David M. Hawthorne, Lewis Brisbois Bisgaard & Smith, LLP, Fort Lauderdale, FL, for Defendant Safe Streets USA LLC.

Daniel S. Blynn, Venable LLP, Washington, DC, Elizabeth C. Rinehart, Venable LLP, Baltimore, MD, David M. Hawthorne, Lewis Brisbois Bisgaard & Smith, LLP, Fort Lauderdale, FL, VI Edward Avery Wyatt, Wyatt Law, PLLC, Eric G. Sauls, Lewis Brisbois Bisgaard & Smith, LLP, Raleigh, NC, for Defendant ADT, LLC.

ORDER

JAMES C. DEVER III, United States District Judge On October 15, 2019, Lauren Davis ("Davis" or "plaintiff") filed a complaint on behalf of herself and others similarly situated against Safe Streets USA LLC ("Safe Streets") and Always Protected Security, LLC ("Always Protected") alleging a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. [D.E. 1]. On January 6, 2020, Always Protected moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) [D.E. 19]. On February 17, 2020, Davis amended her complaint [D.E. 25]. The amended complaint removed Always Protected as a defendant and added ADT, LLC ("ADT"; collectively, with Safe Streets, "defendants"), and alleges a TCPA claim against defendants. See id. On March 2, 2020, Safe Streets moved to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6) [D.E. 27]. On March 16, 2020, Safe Streets amended its motion to dismiss [D.E. 29] and filed a memorandum in support [D.E. 30]. On April 13, 2020, ADT moved to dismiss the amended complaint [D.E. 37] and filed a memorandum in support [D.E. 38]. On May 20, 2020, Davis responded in opposition [D.E. 41]. On June 17, 2020, defendants replied [D.E. 43]. On July 27, 2020, Davis moved to strike ADT's response [D.E. 46] and defendants' response [D.E. 48] to Davis's notices of subsequent authority [D.E. 49] and filed a memorandum in support [D.E. 50]. On August 14, 2020, defendants responded in opposition [D.E. 52]. On August 25, 2020, Davis replied [D.E. 55].

As explained below, the court dismisses Always Protected's motion as moot, denies defendants' motions to dismiss the amended complaint, and denies Davis's motion to strike.

I.

Davis is a realtor in Dallas, Texas. See Am. Compl. [D.E. 25] ¶¶ 8, 19–20.¹ ADT provides alarm monitoring services and sells its alarm products through third-party dealers. See id. at ¶¶ 11–12. Safe Streets is an authorized third-party dealer for ADT that sells and installs ADT products. See id. at ¶¶ 13–14. On April 15, 2019, Davis received a text message either from defendants or sent on defendants' behalf. See id. at ¶¶ 21–22. The text message addressed Davis by name, congratulated her on a recent home sale, and offered to provide ADT equipment to the buyer free of charge if the buyer consented to Davis completing an ADT referral form. See id. at ¶¶ 21–23. The referral form asked for information concerning Davis and the buyer. See id. If the buyer consented and Davis completed the form, defendants would give Davis $200. See id. The text provided a link to the website that hosted the referral form. See id. The text did not allow Davis to opt out of receiving future text messages. See id.

Defendants sent the text message to Davis using a "dedicated, vanity short code" that a third-party text message marketing company, CallFire, Inc. ("CallFire"), owns. Id. at ¶¶ 25–31. A dedicated, vanity short code is a 5- or 6-digit number exclusive to a brand (like ADT) that the brand selects and uses to send digital advertising text messages. See id. CallFire states on its website that its text message advertising platform "is scalable to hundreds of thousands of messages." Id. at ¶ 31.

Davis alleges that defendants "are sending unsolicited text messages to realtors to get the realtors to provide contact information for new homebuyers [sic] so that they can, in turn, send unsolicited marketing messages to them ...." Id. at ¶ 24; see id. at ¶ 38. Davis did not consent to defendants sending her a text message, and alleges that "the nature and character of the text message at issue—standardized and consistent in structure and format—as well as CallFire's public statements regarding its users' ability to send thousands of messages instantly" demonstrates that defendants used an automatic telephone dialing system ("ATDS"). See id. at ¶¶ 32–34. Davis alleges that she "suffered an invasion of privacy, an intrusion into her life[,] and a private nuisance." Id. at ¶ 39. Davis also alleges that she and the purported class she represents "suffered lost utility of their phones—through diminished battery life and capacity incurred by receiving the text messages—lost time responding to the calls, and, where applicable, lost money or paid-for text-message allocations." Id. at ¶ 63.

Davis alleges that defendants knowingly or negligently sent the single, unsolicited text message to Davis using an ATDS without Davis's consent in violation of 47 U.S.C. § 227(b)(1)(A)(iii) and 47 C.F.R. § 64.1200(a)(2). See id. at ¶¶ 92–98. She seeks to represent a class that includes:

All persons to whom, on or after four years prior to filing of this complaint in this action, (1) received a text message, (2) made by or on behalf of Defendants, (3) regarding ADT home security services, and for whom (4) Defendants do not claim to have obtained prior express written consent, or claims to have obtained prior express written consent in the same manner it claims to have obtained prior express written consent from Plaintiff.

Id. at ¶ 66. Davis seeks injunctive relief and monetary damages. See id. at 19.

II.

A motion to dismiss under Rule 12(b)(1) for lack of standing tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (emphasis omitted). A federal court "must determine that it has subject-matter jurisdiction over [a claim] before it can pass on the merits of that [claim]." Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 479–80 (4th Cir. 2005). When considering a Rule 12(b)(1) motion, the court "may consider evidence outside the pleadings without converting the proceeding into one for summary judgment."

White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (quotation omitted); see Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A plaintiff must establish that this court has subject-matter jurisdiction over her claims. See, e.g., Steel Co., 523 U.S. at 103–04, 118 S.Ct. 1003 ; Evans, 166 F.3d at 647 ; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). However, "when a defendant asserts that the complaint fails to allege sufficient facts to support subject[-]matter jurisdiction, the ... court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged [in the complaint and any additional materials]." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

A plaintiff establishes standing by showing: (1) that the plaintiff has " ‘suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical’ "; (2) " ‘a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court’ "; and (3) that it is " ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision’ " from the court. Chambers Med. Techs. of S.C., Inc. v. Bryant, 52 F.3d 1252, 1265 (4th Cir. 1995) (alterations omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ); see Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). These requirements are "the irreducible constitutional minimum of standing." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ; see Spokeo, Inc., 136 S. Ct. at 1547. If a plaintiff does not have standing, the court does not have subject-matter jurisdiction to hear the plaintiff's claims. See, e.g., Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 ; White Tail, 413 F.3d at 459 ; Payne v. Sears, Roebuck & Co., No. 5:11-CV-614-D, 2012 WL 1965389, at *2–3 (E.D.N.C. May 31, 2012) (unpublished).

Defendants argue that the intangible harms that Davis alleges are not a "concrete injury" sufficient to support Article III standing in light of Spokeo. See [D.E. 30] 5–10; [D.E. 38] 1–3.² In discussing Spokeo, the Fourth Circuit identified three propositions from Spokeo concerning standing. First, a mere statutory violation is not synonymous with Article III standing. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 652 (4th Cir. 2019) ; see also Frank v. Gaos, ––– U.S. ––––, 139 S. Ct. 1041, 1046, 203 L.Ed.2d 404 (2019) ; Spokeo, 136 S. Ct. at 1549. Rather, a plaintiff alleging that a defendant violated her statutory rights must have "a personal stake in the litigation," which is "the traditional core of standing." Krakauer, 925 F.3d at 653. Second, injury-in-fact requires that plaintiff demonstrate a harm "both concrete and particularized." Id.; see Spokeo, 136 S. Ct. at 1548–49. As for concreteness, the injury must be "real, and not abstract," even if the harm is intangible. Spokeo, 136 S. Ct. at 1548–49 (quotation omitted); Curtis v. Propel Prop. Tax Funding, L.L.C., 915 F.3d 234, 240–41 (4th Cir. 2019). Third, "in determining whether a given injury meets the constitutional...