Yashtinsky v. Walmart, Inc.
| Decision Date | 12 November 2019 |
| Docket Number | CASE NO. 5:19-CV-5105 |
| Parties | KEVIN YASHTINSKY on behalf of himself and all others similarly situated PLAINTIFF v. WALMART, INC. DEFENDANT |
| Court | U.S. District Court — Western District of Arkansas |
Before the Court is Defendant Walmart, Inc.'s ("Walmart") Motion to Dismiss or, in the Alternative, to Stay the Action. (Doc. 23). For the reasons set forth below, the Court DENIES Walmart's Motion.
The following facts are taken from Mr. Yashtinsky's Complaint. (Doc. 3). On April 10, 2019, Mr. Yashtinsky received a two-part text message1 on his wireless phone from Walmart without giving prior consent to Walmart to call or text him. The text messages stated:
Walmart sent the text messages from the short code number 455-00. Mr. Yashtinsky is not a Walmart Pharmacy customer, has never received prescriptions from a Walmart Pharmacy, and has never enrolled in Walmart's prescription messaging program. Mr.Yashtinsky has included his cellular number on the Do Not Call Registry since March 31, 2013. Mr. Yashtinsky further asserts that these text messages were sent "en masse." (Doc. 3, at ¶ 45).
Following receipt of these text messages, Mr. Yashtinsky filed a class action complaint and demand for jury trial against Walmart on May 29, 2019, under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA") seeking damages, injunctive relief, and any other available legal or equitable remedies. The Complaint alleges two causes of action: (1) negligent violations of the TCPA; and (2) knowing and/or willful violations of the TCPA. Subsequently, Walmart filed its present motion, in which it argues that Mr. Yashtinsky failed to plausibly allege Walmart's use of an automatic telephone dialing system ("ATDS"), a required element of Mr. Yashtinsky's TCPA claims, or, alternatively, that the Court should issue a stay under the primary jurisdiction doctrine or pursuant to its inherent authority and defer resolution until the Federal Communications Commission ("FCC") issues a ruling on the scope of the statutory definition of an ATDS. (Doc. 23).
Mr. Yashtinsky filed a Response, contending that the Court should not dismiss or stay this action because his allegations are sufficient to state a plausible claim for relief and because the majority of district courts have declined to stay proceedings in anticipation of the FCC's guidance on the definition of an ATDS. (Doc. 32). Thereafter, Walmart filed its Reply, claiming that Mr. Yashtinsky lacks standing under Article III to bring the present claims because he did not suffer a concrete injury, that the targeted text messages received by Mr. Yashtinsky could not support an inference that they were sent using an ATDS, and maintaining that the Court should issue a stay of the proceedings.(Doc. 33). Mr. Yashtinsky then filed a Notice of Filing Supplemental Authority, which argues that he has made sufficient allegations and that Walmart's Article III standing argument is barred by precedent. (Doc. 36). Walmart responded to this filing, arguing that the authority cited by Yashtinsky is distinguishable from the facts at hand. (Doc. 37).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. The Court must accept the plaintiff's factual allegations as true and grant all reasonable inferences in the plaintiff's favor. Phipps v. F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005). However, this tenet "is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal, 556 U.S. at 665.
Walmart argues that Mr. Yashtinsky has not sufficiently pleaded an injury in fact to establish Article III standing. It is black letter law that Article III standing requires that "the plaintiff must have suffered an 'injury in fact.'" Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). In Spokeo Inc. v. Robins, the Supreme Court clarified that an "injury in fact" must be "concrete" and "particularized." 136 S. Ct. 1540, 1549 (2016). The Supreme Court held that a "bare procedural violation, divorced from any concrete harm" may notsatisfy the injury in fact requirement, but it noted that even "intangible injuries can nevertheless be concrete." Id. at 1549. In Golan v. FreeEats.com, Inc. the Eighth Circuit held that the recipient of two unsolicited answering machine messages suffered "a concrete injury" sufficient to establish Article III standing. 930 F.3d 950, 958 (8th Cir. 2019). In Golan, the Eighth Circuit noted that Congress, by passing the TCPA, elevated "to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." Id. (citing Spokeo, 136 S. Ct. at 1549). The TCPA prohibits sending text message solicitations using an automatic telephone dialing system without the express written consent of the called party. Gould v. Farmers Ins. Exchange, 288 F. Supp. 3d 963, 967 (E.D. Mo. 2018) (citing Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016)). Walmart, however, urges the Court to adopt the rationale put forth in Salcedo v. Hanna, where the Eleventh Circuit found that the receipt of one unsolicited text message did not create a concrete injury sufficient to establish standing. 936 F.3d 1162, 1172 (11th Cir. 2019).
The Court finds that the Eighth Circuit's rationale in Golan supports the conclusion that Mr. Yashtinsky has sufficiently alleged a plausible injury-in-fact. In Golan, the Eighth Circuit found that the receipt of two answering machine messages bore "a close relationship to the types of harms traditionally remedied by tort law, particularly the law of nuisance." 930 F.3d at 959. Unwanted text messages are, if anything, more intrusive than unanswered messages left on an answering machine, especially since individuals are more likely to have their cell phones in close proximity at all times. See Gould, 288 F. Supp. 3d at 968 (); see also Riley v. California, 573 U.S. 373, 385 (2014) (). Here, Mr. Yashtinsky asserts that the unsolicited text messages he received were an aggravation, a nuisance, and invaded his privacy. (Doc. 3, at ¶ 17). He also alleges that the receipt of unsolicited text messages "wastes a quantifiable amount of available data on the recipient's cellular device[,] . . . temporarily reduces the available computing power and application processing speed on the recipient's device; . . . and requires expending a quantifiable amount of energy (electricity) to recoup the battery power lost as a result of receiving such a message." Id.
The Court has reservations that Mr. Yashtinsky's factual allegations regarding the waste of his data and electricity are enough by themselves to establish Article III standing. Taking all of his factual allegations together, however, the Court concludes that Mr. Yashtinsky pleaded facts that plausibly establish that he suffered a particularized and concrete injury-in-fact which is adequate to establish Article III standing.
"To state a plausible cause of action under the TCPA, [a plaintiff] must allege that: (1) a call was made; (2) the caller used an ATDS or artificial or prerecorded voice; (3) the telephone number called was assigned to a cellular telephone service; and (4) the caller did not have any prior express consent of the recipient." Ueckert v. State Farm Bank, F.S.B., 2017 WL 3981136, at *1 (W.D. Ark. Sept. 11, 2017). Walmart contends that Mr. Yashtinsky has failed to allege that an ATDS was used to send him the offending text messages.
The TCPA defines an ATDS as "equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). This definition has been the subject of considerable controversy: in 2015, the FCC held that any call made with equipment having the capacity to store and call numbers using a random or sequential number generator is a violation of the TCPA. In re Rules & Regs. Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961 (2015) () [hereinafter "2015 FCC Order"]. The 2015 FCC Order also held that equipment without a "present capacity" to use a random or sequential number generator can still qualify as an ATDS if it has "potential capacity" to so do. Id. at 7971-77.
The D.C. Circuit Court of Appeals struck down the "potential capacity" portion of the 2015 FCC Order. See ACA Int'l v. F.C.C., 885 F.3d 687, 691 (D.C. Cir. 2018). The D.C. Circuit held that the FCC's "potential capacity" definition would cover any smart phone that has the "potential capacity" to become an ATDS via the use of certain...
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