Geraci v. Red Robin Int'l
| Decision Date | 28 February 2020 |
| Docket Number | Civil Action No. 19-cv-01826-RM-KLM |
| Parties | JOHN GERACI, on behalf of himself and all others similarly situated, Plaintiff, v. RED ROBIN INTERNATIONAL, INC., Defendant. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Class Action Complaint [#33]1 (the "Motion"). Plaintiff filed a Response [#44] in opposition to the Motion [#33], and Defendant filed a Reply [#45]. The Government filed a Brief [#60] in support of the constitutionality of the Telephone Consumer Protection Act ("TCPA"), to which Defendant filed a Reply [#64] in opposition. The Motion [#33] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.L.CivR 72.1. See [#43]. The Court has reviewed the briefs, the entire case file, and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Court RECOMMENDS that the Motion [#33] be DENIED.
Red Robin Gourmet Burgers, Inc. is "a casual dining restaurant chain founded in 1969 that operates through its wholly-owned subsidiary, [Defendant] Red Robin International, Inc., and under the trade name, Red Robin Gourmet Burgers and Brews." Compl. [#1] ¶ 2. Defendant operates a loyalty program called "Red Robin Royalty," which offers various promotions and sales at Red Robin retail locations. Id. ¶ 3. Defendant regularly sends out automated, template-based text messages to consumers advertising the Red Robin Royalty program itself and various promotions and sales offered via the Red Robin Royalty Program. Id. ¶ 4.
Plaintiff brings this suit under the TCPA, 47 U.S.C. § 227(b)(1)(A), because Defendant allegedly "sent unauthorized automated telemarketing text messages to Plaintiff's cellular phone." Id. ¶ 1. Defendant allegedly does not allow consumers to opt out of receiving future messages, resulting in consumers' repeated receipt of unwanted, unauthorized automated text messages. Id. ¶ 5. Defendant advises in its text messages that consumers can "Reply STOP to cancel," but when consumers respond "Stop" as instructed, Defendant allegedly continues to send them automated telemarketing text messages. Id. ¶ 6. Plaintiff asserts that Defendant's "disregard for consumers' opt-out requests constitutes willful and knowing violations of the TCPA." Id. ¶ 7.
Specifically as to Plaintiff, starting in 2018, Plaintiff began receiving automated telemarketing text messages on his cellular telephone regarding the Red Robin Royaltyprogram. Id. ¶ 20. The messages were composed of pre-written templates of text and were identical to text messages Defendant sent to other consumers. Id. ¶ 23. Plaintiff repeatedly received messages following this exact template, including on May 25, 2018, June 29, 2018, and October 25, 2018. Id. ¶ 24. The content of the text messages was allegedly automatically generated, with no human involvement in the drafting or directing of the message. Id. ¶ 25. To send the messages, Defendant stored Plaintiff's cellular telephone number in its text messaging system with thousands of other consumers' telephone numbers and then automatically sent identical messages en masse to Plaintiff and thousands of other consumers at the same time. Id. ¶ 26.
Plaintiff alleges that he was frustrated and inconvenienced by receipt of text messages he did not request or take any action to cause, so he responded "Stop" to Red Robin's text messages on May 25, 2018. Id. ¶ 29. In response, Defendant immediately acknowledged Plaintiff's opt-out request by responding Id. Regardless, Plaintiff received more text messages from Defendant on June 29, 2018, and October 25, 2018, promoting the Red Robin Royalty program and two different promotions available at Red Robin retail locations. Id. ¶ 30. Plaintiff asserts that his time was wasted tending to Defendant's text messages sent after he expressly requested that they stop. Id. ¶ 31. Plaintiff also alleges that receipt of Defendant's unauthorized messages caused Plaintiff to use limited data and text messaging capacity on his cellular telephone plan, drained Plaintiff's phone battery, and caused Plaintiff additional electricity expenses and wear and tear on his phone and battery. Id. ¶ 33.
As a result of Defendant's actions, Plaintiff seeks injunctive relief prohibiting suchviolations of the TCPA by Defendant in the future; statutory damages of $500.00 for each and every message in violation of the TCPA pursuant to 47 U.S.C. § 227(b)(3)(B); and treble damages of up to $1,500.00 for each and every message in knowing and willful violation of the TCPA pursuant to 47 U.S.C. § 227(b)(3)(C). In the present Motion [#33], Defendant seeks dismissal of this entire action pursuant to Fed. R. Civ. P. 12(b)(6).
Rule 12(b)(6) tests "the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[P]lausibility refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his] claims across the line from conceivable to plausible." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).
Similarly, "[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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, Id. (citation omitted). That said, "[s]pecific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim isand the grounds upon which it rests;" the 12(b)(6) standard does not "require that the complaint include all facts necessary to carry the plaintiff's burden." Khalik, 671 F.3d at 1192 (citation omitted).
Further, "[t]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 566 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (citation omitted).
To determine if a complaint survives a motion to dismiss, courts utilize Rule 8, instructing that "[a] plaintiff must provide a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Tuttamore v. Lappin, 429 F. App'x 687, 689 (10th Cir. 2011) (quoting Fed. R. Civ. P. 8(a)(2)). As with Rule 12(b)(6), "to overcome a motion to dismiss, a plaintiff's allegations must move from conceivable to plausible." Id. Indeed, "Rule 8(a)'s mandate. . . has been incorporated into the 12(b)(6) inquiry." United States ex rel. Lemmon v. Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir. 2010). Rule 8 enables "the court and the defendants to know what claims are being asserted and to determine how to respond to those claims." Tuttamore, 429 F. App'x at 689.
Defendant seeks dismissal of Plaintiff's lawsuit because the TCPA violates the First, Fifth, and Fourteenth Amendments, and because Plaintiff fails to state a claim. Motion [#33] at 2. As the Government points out, the Court is required to address any nonconstitutional arguments before reaching any issues regarding the constitutionality of a statute. Motion [#60] at 2, 4; Gulf Oil. Co. v. Bernard, 452 U.S. 89, 99 (1981); Hagans v. Lavine, 415 U.S. 528, 547 (1974); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). Accordingly, the Court begins by addressing whether Plaintiff has sufficiently stated a claim under Fed. R. Civ. P. 12(b)(6). See Duguid v. Facebook, Inc., 926 F.3d 1146, 1156-57 (9th Cir. 2019), petition for cert. filed, (U.S. Oct. 21, 2019) (No. 19-511) ().
In relevant part, 47 U.S.C. § 227(b)(1) provides:
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice— . . . (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call,...
To continue reading
Request your trial