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Layden v. Adams Auto Corp.

United States District Court, W.D. Missouri, Western Division

May 11, 2018

JONATHON LAYDEN, individually and o/b/o all others similarly situated, Plaintiff,
v.
ADAMS AUTO CORP., Defendant.

          ORDER AND OPINION DENYING DEFENDANT'S MOTION TO DISMISS

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending is Defendant Adams Auto Corp. d/b/a Adams Toyota's Motion to Dismiss. Doc. #16. For the following reasons, Defendant's motion is denied.

         I. BACKGROUND

         Plaintiff, individually and on behalf of others similarly situated, alleges Defendant violated the Telephone Consumer Protection Act (“TCPA”) directly or through a third-party telemarketer by sending unsolicited text messages to Plaintiff and the putative class members. Plaintiff maintains Defendant or its agent used an automatic telephone dialing system (“ATDS”) to send these text messages. Plaintiff contends he did not provide express consent for Defendant to use an ATDS to send said text messages, or for Defendant to send advertising or telemarketing text messages to his cellular phone. Defendant moves to dismiss Plaintiff's Complaint for failure to state a claim, arguing (1) the text messages are neither advertisements nor telemarketing, and (2) Plaintiff consented to receipt of the text messages.

         II. STANDARD

         The liberal pleading standard created by the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Fed.R.Civ.P. 8(a)(2)). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the…claim is and the grounds upon which it rests.'" Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In ruling a motion to dismiss, the Court Amust accept as true all of the complaint's factual allegations and view them in the light most favorable to the Plaintiff[ ].” Stodghill v. Wellston Sch. Dist., 512 F.3d 472, 476 (8th Cir. 2008).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Id. at 679. A claim is facially plausible if it allows the reasonable inference that the defendant is liable for the conduct alleged. See Horras v. Am. Capital Strategies, Ltd., 729 F.3d 798, 801 (8th Cir. 2013); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).

         In briefing the pending motion, both parties submitted purported copies of the text messages as well as the screens and/or webpages to which those text messages were linked. The Court ordinarily does not consider matters outside the pleadings on a motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(d). But the Court may consider documents necessarily embraced by the pleadings. Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cr. 2003) (citation omitted). Plaintiff's Complaint discusses the text messages, and Plaintiff's TCPA claim is based solely upon the text messages. Thus, Plaintiff's Complaint embraces the text messages, and are considered by the Court in deciding the pending motion.

         III. DISCUSSION

         “Congress enacted the TCPA to protect consumers from the ‘proliferation of intrusive [telemarketing] calls to their homes.” Golan v. Veritas Entm't, LLC, 788 F.3d 814, 819 (8th Cir. 2015) (quoting Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372 (2012)). Among other things, the TCPA makes “it unlawful to use an automatic telephone dialing system or an artificial or prerecorded voice message, without the prior express consent of the called party, to call any…cellular telephone…for which the receiver is charged for the call.” Mims, 565 U.S. at 373 (citing 47 U.S.C. § 227(b)(1)(A)). “A text message to a cellular telephone…qualifies as a ‘call….'” Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 667 (2016) (citation omitted).

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