Suttles v. Facebook, Inc.

• Decision Date: 20 May 2020
• Docket Number: CAUSE NO. 1:18-CV-1004-LY
• Citation: 461 F.Supp.3d 479
• Parties: Colin SUTTLES, Plaintiff, v. FACEBOOK, INC., Defendant.
• Court: U.S. District Court — Western District of Texas

461 F.Supp.3d 479

Colin SUTTLES, Plaintiff,

v.FACEBOOK, INC., Defendant.

CAUSE NO. 1:18-CV-1004-LY

United States District Court, W.D. Texas, Austin Division.

Signed May 20, 2020

Jarrett Lee Ellzey, W. Craft Hughes, Hughes Ellzey, LLP, Houston, TX, for Plaintiff.

Andrew Clubok, Andrew D. Prins, Gregory B. in den Berken, Nicholas L. Schlossman, Latham & Watkins LLP, Washington, DC, Giri Pathmanaban, Latham & Watkins LLP, Menlo Park, CA, Marcus Curtis, Patrick C. Justman, Latham & Watkins LLP, San Diego, CA, for Defendant.

ORDER

LEE YEAKEL, UNITED STATES DISTRICT JUDGE

This case arises out of Plaintiff Colin Suttles's allegations that Defendant Facebook, Inc. violated the Telephone Consumer Protection Act by sending him several unsolicited text messages.

Before the court are Plaintiff Colin Suttles's Second Amended Complaint filed June 20, 2019 (Doc. # 30), Defendant Facebook, Inc.'s ("Facebook") Motion to Dismiss Plaintiff's Second Amended Complaint filed July 5, 2019 (Doc. #33), Suttles's Response filed July 24, 2019 (Doc. #39), Facebook's Reply filed August 16, 2019 (Doc. #43), United States of America's Memorandum of Law in Support of the Constitutionality of the Telephone Consumer Protection Act Of 1991 filed November 4, 2019 (Doc. #49), Facebook's Reply to the United States' Brief in Intervention in Support of the Constitutionality of the TCPA filed December 4, 2019 (Doc. #52), Facebook's Notice of Supplemental Authority and Developments filed January 29, 2020 (Doc. #55), Suttles's Response to Facebook's Notice of Supplemental Authority and Developments filed February 3, 2020 (Doc. #56), and Facebook's Notice of Supplemental Authority filed March 4, 2020 (Doc. #57).

Having reviewed the parties' pleadings and applicable law, the court now renders the following opinion and orders.

I. BACKGROUND

On or about January 17, 2006, Suttles registered his cell-phone number ending in 6767 with the National Do Not Call Registry. Suttles alleges that beginning in 2014, Facebook sent 32 unsolicited text messages to Suttles from the numbers 320-99 and 326-65 that encouraged him and unknown third parties named "Hannah," "Abel," and "Sandra" to log on to facebook.com or provided verification codes assigned to those unknown third parties. Suttles asserts that Facebook used automated systems that ignored his text response to "STOP" after receiving the first text.

Suttles has a Facebook account but claims to have never provided his phone number or prior express consent to contact him via a text message or phone call. Suttles describes the text messages as "not personalized, contain[ing] random names, and always contain[ing] the same basic solicitation language, indicating a computer blasted advertisements to cell phone owners."

Suttles asserts that by sending the texts at issue, Facebook caused him actual harm, including the aggravation, nuisance, and invasion of privacy that necessarily accompanies the receipt of unsolicited and harassing text messages. Suttles also claims to have had to spend additional money to his phone service provider for receiving the texts.

Specifically, Suttles prays for the following relief: (a) an award of actual and statutory damages for each negligent violation of the Telephone Consumer Protection Act ("the Act"), see 47 U.S.C. § 227(b)(3)(B) ; (b) an award of actual and statutory damages for each knowing or willful violation of the Act, see id. ; (c) an injunction requiring Facebook and its agents to cease all unsolicited telephone calling activities, see 47 U.S.C. § 227(b)(3)(A) ; (d) pre-judgment and postjudgment interest; (e) an award of reasonable attorney's fees and court costs; and (f) any other relief the court deems necessary, just, and proper.

II. LEGAL STANDARD

A party may move to dismiss an action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In evaluating a motion to dismiss, the court must construe the complaint liberally and accept all of the plaintiff's factual allegations in the complaint as true. See In re Katrina Canal Breaches Litig. , 495 F.3d 191, 205 (5th Cir. 2007).

Dismissal is proper when the facts alleged fail "to raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), or when "the complaint lacks an allegation regarding a required element necessary to obtain relief." Rios v. City of Del Rio, Tex. , 444 F.3d 417, 421 (5th Cir. 2006). A plausible claim to relief must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

A complaint must contain sufficient factual matter "to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). "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." Id.

III. ANALYSIS

Suttles complains of two distinct violations of the Act. See 47 U.S.C. § 227. First, Suttles claims that Facebook repeatedly sent unsolicited "telephone solicitations" to Suttles's cell phone, whose number appears on the National Do Not Call Registry. See 47 C.F.R. § 64.1200(c) (" Section 64.1200(c)"). Second, Suttles claims that Facebook sent text messages to Suttles's cell phone without prior consent using an automated-telephone-dialing system, after Suttles told Facebook to "STOP." See 47 U.S.C. § 227(b)(1)(A)(iii).

Though the Act does not explicitly reference text messaging, "a text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii)." Campbell-Ewald Co. v. Gomez , 577 U.S. 153, 136 S.Ct. 663, 667, 193 L.Ed.2d 571 (2016).

a. Suttles's First Claim Fails Because He Does Not Allege That Facebook Sent A "Telephone Solicitation" Under the Act

Suttles alleges that Facebook sent him "telephone solicitations" in the form of text messages in violation of the Act. The starting point for interpreting a statute or regulation is its plain language. United States v. Fafalios , 817 F.3d 155, 159 (5th Cir. 2016). The statutory definition of a "telephone solicitation" is "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." 47 U.S.C. § 227(a)(4) ; 47 C.F.R. § 64.1200(f)(14). Therefore, to survive a motion to dismiss, Suttles must allege facts that indicate the text messages at issue were for that purpose. See § 64.1200(c). Suttles lacks this required element and consequently fails to state a claim upon which relief may be granted.

Suttles contends "that Facebook would want to recruit and encourage consumers like [him] to use the website and see advertisements, so Facebook can sell more ad space." By focusing on Facebook's advertising revenue, however, Suttles is effectively alleging that Facebook sent him text messages not to encourage him to purchase anything, but to affect Facebook's ability to encourage others to buy ads. But the Act does not prohibit Facebook from soliciting others to buy ad space; it prohibits encouraging the "telephone subscriber" to purchase property, goods, or services. Id. By alleging that Facebook sent Suttles text messages merely to help the company engage in commercial transactions with others who might purchase advertisements on the website's platform, he admits that Facebook was not soliciting him , as is required by the plain language of the Act.

Suttles responds that just because a sale is not completed during the text message does not mean the message is not a telephone solicitation. In the Matter of Rules & Regulations Implementing the TCPA of 1991 , 20 FCC Rcd. 3788, 3804 ¶ 39 (F.C.C. 2005). But the invitations to visit facebook.com are insufficient to place the text messages within the plain-language definition of a "telephone solicitation" because they are not made "for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services." See § 64.1200(c). Suttles's conclusory assertions about Facebook's business model lack the "specific factual allegations" needed to avoid dismissal. Kan v. OneWest Bank, FSB , 823 F. Supp. 2d 464, 468 (W.D. Tex. 2011). Suttles has provided no caselaw, and the court is unaware of any, that has held that an invitation to visit a website—even one whose business model is centered around user data—may be converted into a telephone solicitation within the meaning of Section 64.1200(c).

A message does not qualify as a "telephone solicitation" just because it may help a company sell advertisements to third-party businesses. See, e.g., Alleman v. Yellowbook , No. 12-CV-1300, 2013 WL 4782217, at *3, *6 (S.D. Ill. 2013). In Yellowbook , John Alleman alleged to have received the following unsolicited, prerecorded phone message on three separate occasions over the span of a year:

Hi this is Yellowbook calling to verify that you received your Yellowbook phone directory. If you have not received the new directory or you'd like to request additional books, please contact Yellowbook at 1–888–492–8721 to speak to one of our customer service representatives again that number is 1–888–492–8721. Thank you for your time. Good bye.

Id. at *1. Similar to Suttles's argument, Alleman claimed the message violated the Act "because defendants sell ads to businesses [and] delivery of the directories results in defendants' direct financial benefit." Id. at *3. The Yellowbook court explained that "on its face," such messages do not "attempt to persuade or entice plaintiff to buy or invest in any commercially available product, good, or service." Id. at *4, *6. Under both the plain language of the Act and the logic of Yellowbook , Suttles has failed to allege that Facebook's text...