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Hunsinger v. Gordmans, Inc.

United States District Court, E.D. Missouri, Eastern Division

December 5, 2016

JOE HUNSINGER, Plaintiff,
v.
GORDMANS, INC., Defendant.

          MEMORANDUM AND ORDER

          DAVID D. NOCE UNITED STATES MAGISTRATE JUDGE.

         This action is before the court upon the motion of defendant Gordmans, Inc., for summary judgment. (ECF No. 26). The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court heard oral argument on November 22, 2016.

         The court concludes that plaintiff has standing to bring this action and defers deciding defendant's motion for summary judgment until after further discovery.

         I. BACKGROUND

         The record indicates that, for the purposes of the pending matters, the following facts are not disputed. In October 2013, the user of telephone number (918) 261-4235 gave defendant consent to send that number marketing text messages. (ECF No. 26, Ex. 1, ¶ 5). Plaintiff has been a customer of Cricket Wireless since 2015, and one of his Cricket telephones was assigned (918) 261-4235. (Id. at ¶¶ 1, 3). The subscription for this number included unlimited nationwide talk and text. (Id. at ¶ 29). Between December 14, 2015, and February 27, 2016, plaintiff received a number of text messages advertising the sale of defendant's goods and offering coupons for such goods. (ECF No. 26, Ex. 2). In his complaint, plaintiff alleges that he did not consent to receive such text messages from defendant. (ECF No. 1, ¶ 13). According to plaintiff's deposition, he uses his phones to stream music and internet videos for personal leisure and entertainment. (ECF No. 26, Ex. 1, ¶ 36). He does not want to get any text messages because they interrupt his streaming of music and internet videos. (Id. at ¶ 37). He finds receiving text messages to be “aggravating.” (Id. at ¶ 38). Plaintiff was not offended by the content of the text messages from defendant nor did he lose sleep as a result of receiving the text messages. (Id. at ¶¶ 33, 35). He did not require medical or psychiatric treatment, suffer mental or emotional distress, or suffer any physical ailments as a result of receiving the text messages. (Id. at ¶¶ 31, 32, 34). Plaintiff was not charged for any text messages received by (918) 261-4235, including the text messages from defendant. (Id. at ¶ 30).

         Defendant alleges that it sent the text messages using the mGage platform. (Id. at ¶ 7). It states that it uploaded the telephone numbers it acquired through inbound campaigns, including plaintiff's number, to the platform. (Id. at ¶ 8). It states that a human must input phone numbers into the system, generate a text message, test the message, and then submit the message to identified recipients. (Id. at ¶¶ 8-21). The mGage platform is capable of being configured to send messages in the future on a particular date and time. (Id.)

         On February 8, 2016, plaintiff commenced this putative class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, alleging that his and the class members' privacy had “been improperly invaded and they were charged for the texts and they were annoyed.” (ECF No. 1, ¶ 15). More specifically, plaintiff alleges defendant violated § 227(b)(1)(A)(iii), which prohibits "any person . . . [from making] any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service . . ., unless such call is made solely to collect a debt owed to or guaranteed by the United States." See 47 U.S.C. § 227(b)(1)(A)(iii).

         II. MOTION FOR SUMMARY JUDGMENT

         Defendant argues it is entitled to summary judgment because (1) plaintiff lacks Article III standing and (2) defendant did not use an automatic telephone dialing system (ATDS) and so did not violate the TCPA. Plaintiff responds that he has Article III standing and that defendant's substantive motion for summary judgment is premature. Even when considered on the merits, plaintiff argues that genuine issues of material fact remain as to whether defendant used an ATDS and violated the TCPA.

         A. Legal Standard for Summary Judgment

         Summary judgment is appropriate “if there is no dispute of material fact and reasonable fact finders could not find in favor of the nonmoving party.” Shrable v. Eaton Corp., 695 F.3d 768, 770 (8th Cir. 2012); see also Fed. R. Civ. P. 56(a). The party moving for summary judgment must demonstrate the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Thereafter, the burden shifts to the non-moving party to demonstrate that disputes of fact exist. Id. If the party opposing the motion for summary judgment shows that "it cannot present facts essential to justify its opposition, the court may . . . allow time . . . to take discovery." Fed.R.Civ.P. 56(d).

         B. Article III Standing

         Article III, section 2, of the Constitution limits the federal judiciary to exercising jurisdiction to actual cases or controversies. Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016). The case or controversy requirement is expressed in the requirement that a claimant in federal court have standing to sue. Id. In order to have constitutional standing under Article III, a plaintiff must have suffered an injury in fact, the injury must be fairly traceable to the defendant's actions, and the injury must be able to be redressed by a favorable judicial decision. Id. The plaintiff bears the burden of establishing these elements. Id. Defendant argues that plaintiff does not have Article III standing because he did not suffer a legally sufficient injury and, if there was an injury, it is not traceable to a TCPA violation by defendant.

         “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 1548 (citations omitted). An injury is “concrete” when it actually exists and is “real” and not “abstract.” Id. An injury is ...


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