Eldridge v. Pet Supermarket Inc.

• Decision Date: 09 March 2020
• Docket Number: Case No. 18-22531-CIV-WILLIAMS
• Citation: 446 F.Supp.3d 1063
• Parties: Troy ELDRIDGE, Plaintiff, v. PET SUPERMARKET INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

446 F.Supp.3d 1063

Troy ELDRIDGE, Plaintiff,

v.PET SUPERMARKET INC., Defendant.

Case No. 18-22531-CIV-WILLIAMS

United States District Court, S.D. Florida.

Signed March 9, 2020

Entered March 10, 2020

David Philip Milian, Juan Jose Rodriguez, Ruben Conitzer, Carey Rodriguez Milian Gonya LLP, Miami, FL, for Plaintiff.

Irene Oria, FisherBroyles, LLP Miami, FL, Barry Goheen, Pro Hac Vice, FisherBroyles LLP, Atlanta, GA, for Defendant.

ORDER

KATHLEEN M. WILLIAMS, UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant Pet Supermarket Inc.'s motion to dismiss (DE 116) Plaintiff's Second Amended Complaint (DE 17) ("Complaint") for lack of standing, filed on September 24, 2019. On October 8, 2019, Plaintiff filed a response (DE 119) and on October 15, 2019, Defendant filed a reply (DE 120). For the reasons discussed below, the Defendant's motion to dismiss is GRANTED .

I. BACKGROUND

On June 22, 2018, Plaintiff Troy Eldridge initiated this putative class action against Pet Supermarket Inc. for alleged violations of the Telephone Consumer Protection Act ("TCPA"). Plaintiff asserts that Pet Supermarket transmitted telemarketing and advertising text messages to him and others similarly situated without consent by using an Automatic Telephone Dialing System ("ATDS"). (DE 17 at 1.)

Defendant owns and operates a pet care supply retail chain throughout the United States. (Id. at ¶¶ 19, 20.) Plaintiff claims that Pet Supermarket sent him seven unauthorized telemarketing and advertisement text messages between December 19, 2017 and June 8, 2018. On December 19, 2017, Plaintiff visited a Pet Supermarket store in Miami, Florida to purchase items for his dog. (Id. at ¶ 21.) During the visit, Plaintiff learned about a raffle for a yearlong supply of free pet food. (Id. at ¶ 22.) After finding that he could enter the raffle by texting the word "PETS" to "650-47," Plaintiff proceeded to do so. (Id. at ¶¶ 23, 24.) Defendant immediately replied with the following two messages:

PETS: Entry received! You're Incld in this month's drawing and to receive text offers. Msg&Data rates may apply. 4msgs/mo. Text HELP for help – Reply STOP to end

PETS: No purchase necessary. 1 winner/mo. Rules at http://mmrs.co/5pdf5F You consent to receive autodialed text messages from Pet Supermarket. -Reply STOP to end

(Id. at ¶ 25.) Plaintiff alleges that Pet Supermarket retained his cell phone number from the raffle and subsequently included him in its automated text advertising campaign without his consent. (Id. at ¶ 27.) On February 24, 2018, Defendant sent Plaintiff another text from the "650-47" number:

PET SUPERMARKET: We're updating our # to better serve you. Soon, your favorite pet deals will come from 37623. Save $5 w/code14136end 2/25 – Reply STOP to end

(Id. at ¶ 26.) From April 20, 2018 to June 8, 2018, he claims that Defendant sent him four additional telemarketing and advertising text messages from its "376-23" short-code number:

• April 20, 2018: PET SUPERMARKET: Welcome to our New #! Puppy Kisses & Purring Faces await your Embraces at our Adoption Event this Fri, Sat&Sun. See you there! Reply STOP to end. (Id. at ¶ 29.)

• May 11, 2018: PET SUPERMARKET: Happy Mother's Day! Celebrating all Pet Moms this weekend w/ $5 off $30 Coupon # 14245. Ends Sun 5/13 Reply STOP to end. (Id. at ¶ 32.)

• May 25, 2018: PET SUPERMARKET: Celebrate Memorial Day Weekend with Savings! Save $3 on your purchase of $15 or more 1/code 14235 Ends 5/28. Reply STOP to end. (Id. at ¶ 33.)

• June 8, 2018: PET SUPERMARKET: Looking to Add a pet to the family? Adoptions in-store Fri, Sat & Sun + FREE AdoptionsGuide w/ Coupons for new pet parents. Reply STOP to end. (Id. at ¶ 34.)

Plaintiff asserts that Defendant's texts "invaded [his] privacy, intruded upon his seclusion and solitude, wasted his time by requiring him to open and read the messages, depleted his cellular telephone battery, and caused him to incur a usage allocation deduction to his text messaging or data plan." (Id. at ¶ 40.)

II. LEGAL STANDARD

A. Article III Standing

To bring a suit in federal court, a party must meet the standing requirements of Article III of the Constitution. Standing "limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The "irreducible constitutional minimum" of standing consists of three elements. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo , 136 S.Ct. at 1547. "The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements." Id.

B. Motion to Dismiss for Lack of Standing

Because standing is jurisdictional, a defendant can move to dismiss a complaint for lack of standing under Rule 12(b)(1). See Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc. , 524 F.3d 1229, 1232 (11th Cir. 2008). "A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject matter jurisdiction by either facial or factual attack." Id. "A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis for subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion." Id. (citation omitted). "By contrast, a factual attack on a complaint challenges the existence of subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits or testimony." Id. "In the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists" by a preponderance of the evidence. OSI Inc. v. United States , 285 F.3d 947, 951 (11th Cir. 2002) ; Harris v. Bd. of Trustees Univ. of Alabama , 846 F. Supp. 2d 1223, 1232 (N.D. Ala. 2012). When subject matter jurisdiction is faced with a factual attack, "the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990).

III. DISCUSSION

On September 24, 2019, Pet Supermarket filed a motion to dismiss asserting a facial and factual attack for lack of standing. Defendant contends that Plaintiff has failed to adequately plead facts demonstrating a concrete injury-in-fact, an essential element for Article III standing. Defendant relies on Salcedo v. Hanna , 936 F.3d 1162 (11th Cir. 2019), a recent decision in which the Eleventh Circuit found that the plaintiff's alleged injuries from a single telemarketing text message were insufficient to state a concrete injury. Alternatively, Defendant asserts that to the extent that Plaintiff has adequately stated a concrete injury, Plaintiff cannot withstand a factual attack by establishing that he suffered such an injury by a preponderance of the evidence.

A. How Many Text Messages Violate the TCPA?

The Court first considers the threshold issue of the number of text messages Plaintiff has plausibly alleged are in violation of the TCPA. The number of texts that constitute unconsented "advertisement" and "telemarketing" is relevant to the standing analysis because only conduct that violates the TCPA confers standing. See Spokeo , 136 S.Ct. at 1547. Pet Supermarket argues that only two of the text messages constitute unconsented "advertisement" and "telemarketing," while Plaintiff contends that all seven violate the TCPA.

The TCPA prohibits the use of ATDS to "make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) ... to any telephone number assigned to a ... cellular telephone service." 47 U.S.C. § 227 (b)(1)(A)(iii). A text message to a cell phone qualifies as a "call" under the TCPA. See Campbell-Ewald Co. v. Gomez , ––– U.S. ––––, 136 S. Ct. 663, 667, 193 L.Ed.2d 571 (2016) ("A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of [the TCPA]"). FCC regulations prohibit the use of an ATDS to make an "advertisement" or "telemarketing" call without the "prior express written consent" of the party. Edelsberg v. Vroom, Inc. , 2018 WL 1509135, at *3 (S.D. Fla. Mar. 27, 2018) (quoting 47 C.F.R. § 64.1200(a)(2) ) (emphasis added). The TCPA regulations define "advertisement" as "any material advertising the commercial availability or quality of any property, goods, or services," and "telemarketing" 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). Other texts require only prior express consent to be legal under the TCPA. See Edelsberg , 2018 WL 1509135, at *3.

1. The December 19, 2017 Messages

Plaintiff has failed to sufficiently demonstrate that the December 19, 2017 texts violate the TCPA because they simply confirm a "registration process initiated by the plaintiff in response to a marketing communication." Newhart v. Quicken Loans Inc. , 2016 WL 7118998, at *3 (S.D. Fla. Oct. 12, 2016). Specifically, the December 19, 2017 texts are not "telemarketing" or "advertisement" because Defendant sent them in direct response to Plaintiff's voluntary registration in the raffle and for "confirmatory" purposes. See Daniel v. Five Stars Loyalty, Inc. , 2015 WL 7454260, at *4 (N.D. Cal. Nov. 24, 2015) ("a confirmatory text as part of the process of registering for [a promotional program is] not a telemarketing message."); Wick v. Twilio Inc. , 2016 WL 6460316 (W.D. Wash. Nov. 1, 2016). The content of the texts relates solely to Plaintiff's registration; the first message merely verified Plaintiff's registration, stating "Entry received! ...