Eagle v. GVG Capital, LLC
| Decision Date | 31 January 2023 |
| Docket Number | 22-cv-00638-SRB |
| Parties | ELIZABETH EAGLE, on behalf of herself and all others similarly situated, Plaintiff, v. GVG CAPITAL, LLC, d/b/a WeBuyHomes4Cash.org, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
Before the Court is Defendant GVG Capital, LLC's (“Defendant”) Motion to Dismiss for Failure to State a Claim. (Doc. #9.) For the reasons set forth below the motion is DENIED.
The following allegations are taken from Plaintiff Elizabeth Eagle's (“Plaintiff”) Class Action Complaint (Doc. #1) without further attribution, unless otherwise noted. Only those allegations necessary to resolve the pending motion are discussed below. Additional allegations relevant to the parties' arguments are set forth in Section III.
Plaintiff is a resident of Kansas City, Missouri, and has a cellular telephone number. Plaintiff uses her cellular telephone as her personal residential telephone number. On August 22, 2012, Plaintiff registered her cellular telephone number with the National Do-Not-Call Registry (“DNC Registry”). Defendant is a marketing and lead generation company located in Texas.
In May 2022, Plaintiff began receiving text messages on her cellular telephone from a series of different telephone numbers. In general, the text messages asked Plaintiff whether she was interested in selling her home. For example, one text message stated: (Doc. #1, p. 3.)[1]
The text messages directed Plaintiff to the website WeBuyHomes4Cash.org, which is a real estate website that purports to buy homes and/or provides home selling services. Plaintiff believes that Defendant also collects and sells consumer data to other individuals/entities as “motivated home seller” leads. (Doc. #1, ¶ 23.) Plaintiff alleges that “Defendant either (1) solicited Plaintiff to sell her home to it at a discount in order for Defendant to resell Plaintiff's home at a profit, or (2) solicited Plaintiff to submit her information to Defendant's lead generation service and use Defendant's lead generation services, which Defendant would then sell to other businesses for a profit.” (Doc. #1, ¶ 24.)
Plaintiff did not recognize the sender of the text messages, did not request any quotes for her home, and was not interested in Defendant's services or marketing. On several occasions, Plaintiff responded to the text messages with “STOP” or similar instructions. Nonetheless, Plaintiff received dozens of text messages from Defendant. Plaintiff alleges that “Defendant knew, or should have known, that Plaintiff registered her cellular telephone number with the DNC Registry.” (Doc. #1, ¶ 33.) Plaintiff further alleges that “because Defendant repeatedly failed to heed Plaintiff's instructions to stop delivering text messages to her telephone number, Defendant did not maintain or adhere to any internal or external do-not call lists.” (Doc. #1, ¶ 34.)
On October 7, 2022, Plaintiff filed this lawsuit against Defendant on behalf of herself and on behalf of all others similarly situated. Plaintiff alleges that Defendant's text messages violate the Telephone Consumer Protection Act (“TCPA”) and accompanying regulations. See 47 U.S.C. § 227(c)(5).
Plaintiff asserts the following claims: Count I-Violation of 47 U.S.C. § 227(c)(5) On Behalf of the Federal Do-Not-Call Registry Class; Count II-Violation of 47 U.S.C. § 227(c)(5) On Behalf of the Revocation Class; and Count III-Violation of 47 U.S.C. § 227(c)(5) On Behalf of the Sender Identification Class. The legal framework applicable to these claims is discussed in Section III.
Defendant now moves to dismiss each claim under Federal Rule of Civil Procedure 12(b)(6). Defendant argues that the Complaint does not adequately allege a violation of the TCPA. Plaintiff opposes the motion, and the parties' arguments are addressed below.
Rule 12(b)(6) provides that a defendant may move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a motion to dismiss [for failure to state a claim], a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ash v. Anderson Merchs., LLC, 799 F.3d 957, 960 (8th Cir. 2015) (quoting Iqbal, 556 U.S. at 678). “The factual allegations of a complaint are assumed true and construed in favor of the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable.” Data Mfg., Inc. v. United Parcel Serv., Inc., 557 F.3d 849, 851 (8th Cir. 2009) (citations and quotations omitted). A court should generally not consider materials outside the complaint when resolving a motion to dismiss. See Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007). However, a court may consider and take judicial notice of public records and information publicly announced on the moving party's website. WinRed, Inc. v. Ellison, 581 F.Supp.3d 1152, 1168 n.9 (D. Minn. 2022) (citing Levy, 477 F.3d at 991)).
In Count I, Plaintiff alleges that Defendant violated the TCPA by delivering, or causing to be delivered, “to Plaintiff and members of the Federal Do-Not-Call Registry Class, more than one solicitation call or text message in a 12-month period[.]” (Doc. #1, ¶ 71.)
Under 47 U.S.C. § 227(c)(5), an individual may file a civil action if she “received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the [applicable] regulations.” 47 U.S.C. § 227(c)(5).[2] The regulation applicable to Count I, 47 C.F.R. § 64.1200(c)(2), prohibits “any telephone solicitation to . . . a residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry[.]” 47 C.F.R. § 64.1200(c)(2). “Solicitation” and “telemarking” are defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. §§ 64.1200(f)(13), (15).
Defendant moves to dismiss Count I because Plaintiff “fails to allege a telephone solicitation.” (Doc. #9, p. 9.) Specifically, Defendant argues that it (Doc. #9, pp. 10-11) (citing cases).[3] As set forth below, the Court rejects this argument.
The FCC has provided guidance on the meaning of solicitation in the real estate context. According to the FCC, “a telephone solicitation would include calls by real estate agents to property owners for the purpose of offering their services to the owner, whether the property listing has lapsed or not.” In the Matter of Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 20 F.C.C. Rcd. 3788, 3793 (“2005 FCC Report”). In contrast, “calls by real estate agents who represent only the potential buyer to someone who has advertised their property for sale, do not constitute telephone solicitations, so long as the purpose of the call is to discuss a potential sale of the property to the represented buyer[.]” Id.
Based in part on this guidance, the Court finds that Count I adequately alleges a solicitation. Although Defendant may not technically be a real estate agent, the Complaint alleges that the text messages offered home selling services to Plaintiff. Plaintiff further alleges she had no interest in selling or advertising her home for sale. Plaintiff alleges that Defendant “solicited Plaintiff to submit her information to Defendant's lead generation service and use Defendant's lead generation services, which Defendant would then sell to other businesses for a profit.” (Doc. #1, ¶ 24.)
This allegation is supported by information on Defendant's website, WeBuyHomes4Cash.org. According to that website:
Information submitted on this site will be sent to a network which consists of real estate investors, real estate agents, and direct buyers[.] ....The purpose of webuyhomes4cash.org is to providing [sic] home selling services to it's [sic] users. To gain access to our services, you must submit certain information about yourself and the home you wish to sell, which information will be used by webuyhomes4cash.org and such affiliates of webuyhomes4cash.org to assist you in the home selling process.
(Doc. #19-1; Doc. #19-2.)
Under these circumstances, the Complaint plausibly alleges that Defendant sent Plaintiff text messages:
for the purpose of offering its ‘home selling services' to her and to provide her information to interested third party purchasers, for a profit. In essence, Defendant is soliciting Plaintiff to act akin to her agent and provide her ‘motivated home seller' information to interested third party buyers in exchange for payment.
(Doc. #19, p. 15) (citations omitted).
At the motion to dismiss stage, Plaintiff has adequately pled “factual content that allows the court to draw the reasonable inference that...
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