Dominguez v. Yahoo!, Inc.
| Decision Date | 20 March 2014 |
| Docket Number | Civil Case No. 13–1887. |
| Citation | 8 F.Supp.3d 637 |
| Parties | Bill H. DOMINGUEZ, on behalf of himself and others similarly situated, Plaintiff, v. YAHOO!, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
David A. Searles, Geoffrey H. Baskerville, John Soumilas, Mark D. Mailman, James A. Francis, Francis & Mailman, PC, Philadelphia, PA, for Plaintiff.
Ian C. Ballon, Greenberg Traurig LLP, Los Angeles, CA, Brian T. Feeney, Greenberg Traurig, LLP, Philadelphia, PA, Lori Chang, Wendy Mantell, for Defendant.
MEMORANDUM RE: MOTION FOR SUMMARY JUDGMENT
Surely, one of the unwelcome consequences of the digital age are unsolicited messages, telephone calls, and emails. However, this phenomenon is not new. Unwelcome circumstances have faced characters in literature and opera for centuries. Victims of circumstance are often portrayed by Shakespeare—Hamlet, Othello, Shylock; and in opera, Verdi's Don Carlos, who without fault, loses his fiancée, Elisabeth of Valois, to his own father, King Phillip of Spain, who marries Elisabeth to ensure peace with France.
In this case, Plaintiff Bill Dominguez is also a victim of circumstance. Plaintiff purchased a cellular telephone and was assigned a phone number. The previous owner of the telephone number had enrolled the number in a text message system of Defendant, Yahoo!, Inc. (“Yahoo”). Plaintiff, on behalf of himself and other similarly situated consumers, initiated this class action lawsuit against Defendant, Yahoo!, Inc. (“Yahoo”) to challenge Yahoo's practice of sending unsolicited text messages to cellular telephone numbers owned by individuals who never consented to receive such text messages. He seeks statutory damages, treble damages, costs, fees, a declaratory judgment, and an injunction on behalf of his claim. Is Yahoo responsible for Plaintiff's damages?
Plaintiff filed his Complaint against Yahoo on April 10, 2013. ECF 1. Plaintiff alleges that Yahoo violated the Telephone Consumer Protection Act (“TCPA”), enacted by Congress in 1991. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”
Yahoo served its Answer to the Complaint on June 10, 2013. On June 18, 2013, Yahoo filed this Motion for Summary Judgment, ECF 14, and a Statement of Undisputed Facts, ECF 15. Plaintiff filed a Response in Opposition to the Motion for Summary Judgment on June 26, 2013. ECF 19. Yahoo submitted its Reply in Support of its Motion for Summary Judgment on July 3, 2013, which it amended the same day. ECF 22–23.
On August 16, 2013, this Court issued an Order instructing Yahoo to produce certain categories of documents and setting a schedule for supplemental briefing in response to Yahoo's Motion for Summary Judgment. ECF 28. On December 20, 2013, following discovery, Plaintiff filed his Opposition to Yahoo's Motion for Summary Judgment. ECF 39. Plaintiff also included a Response to Yahoo's Statement of Undisputed Facts. ECF 39–2. Yahoo filed its Reply to Plaintiff's Opposition on February 27, 2014. ECF 47. On March 4, 2014, Plaintiff filed a Sur Reply in Support of his Opposition. ECF 53.
This Court held oral argument on the Motion for Summary Judgment and related briefing on March 11, 2014.
Yahoo does not dispute that Plaintiff received text messages solely because a Yahoo subscriber, who previously used the same mobile phone number that was subsequently assigned to Plaintiff, affirmatively signed up to receive text messages each time he received an email in his Yahoo email inbox. Yahoo argues that the TCPA only prohibits unsolicited automated telemarketing and bulk communications sent via an Automatic Telephone Dialing System (“ATDS”), which means a system that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and dials those numbers. 47 U.S.C. § 227(b)(3).
Yahoo contends that its system is not an ATDS because the system lacks the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.
Yahoo also disputes that the messages it sent fall within the purview of the TCPA, which was intended to regulate the sending of unsolicited advertisements or bulk communication, not messages forwarded at the request of a user. Yahoo asks this court to conclude that the TCPA does not apply to the present facts because the notifications were specifically requested, and sent to the mobile phone number provided by a Yahoo email account user at the user's request and only once the user had received an email.
To begin, Plaintiff points out that Yahoo does not dispute that Plaintiff himself never solicited the text messages that he received from Yahoo, and he argues that consent must be given from the current subscriber, not a previous owner of the telephone number.
Plaintiff then disputes Yahoo's contention that its system is not an ATDS. Plaintiff argues that courts must look to the system's capacities, not the way in which it is actually used, and argues that the capacities of Yahoo's system fall within the statutory definition. ECF 39 (Pl.'s Opp'n to Def.'s Mot. for Summ. J.) at 13 (citing Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009) ).
In support of his position, Plaintiff relies on the Declaration of Randall Snyder, a purported expert in the fields of wireline and wireless telecommunications networking technology,1 and the deposition testimony of Yahoo's corporate representative, Mr. Gopalkrishna. ECF 39 (Pl.'s Opp'n to Def.'s Mot. for Summ. J.) (citing Snyder Decl.; Gopalkrishna Dep. 52:8–15, 53:4–54:8, 70:14–73:17, 94:20–95:13).
In Reply, Yahoo contends that Mr. Snyder's opinion does not create a material factual dispute because he merely states a legal conclusion that the Email SMS Service is an ATDS, and that conclusion is based on an illogical interpretation of the statute. Yahoo specifically takes issue with Mr. Snyder's interpretation of the term “sequential” (Mr. Synder defines the term to mean that messages are sent “one at a time” as opposed to all at once), his misunderstanding that the statute concerns sequential sending of text messages as opposed to the generation of telephone numbers, and his acknowledgement, in deposition testimony, that, based on his interpretation of the statutory language, every text message system currently in existence sends messages sequentially. Moreover, Yahoo argues, Mr. Snyder has not reviewed any of the messages sent via the Email SMS2 Service or the software or programming used by the Email SMS Service, but only reviewed the written specifications that Mr. Snyder admitted may differ from the way in which the system actually works.
Yahoo also argues that this Court should not credit Mr. Snyder's opinions because they are driven by his own personal interest, since his wife is the named plaintiff in a class action lawsuit related to his son's receipt of a single, unsolicited text message from a recycled phone number. ECF 47 () at 12 (citing Snyder Tr. 45:12–50:15). Yahoo contends that his wife's class action would be directly undermined if this Court rejects Mr. Snyder's conclusions here. Lastly, Yahoo argues that Mr. Snyder lacks credibility because he is personally interested in fighting against “spam” text messages and earns 80–90% of his income from testifying in TCPA cases. Id. at 13 (citing Snyder Tr. 52–:14–53:17, 75:4–8, 83:20–84:5).
Plaintiff submitted a short Sur Reply arguing that the testimony from Yahoo's own witness shows that the Email SMS Service is an ATDS, responding to Yahoo's arguments regarding the definition of the term “sequential,” and defending the validity of the Snyder Declaration.
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “material” if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the moving party's initial burden can be met simply by “pointing out to the district court that there is an absence of evidence to support the non-moving party's case.” Id. at 325, 106 S.Ct. 2548. After the moving party has met its initial burden, the adverse party's response must, “by affidavits or as otherwise provided in this rule [ ] set out specific facts showing a genuine issue for trial.”Fed.R.Civ.P. 56(e). Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing “sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
The TCPA prohibits any...
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