United States District Court, W.D. Missouri, Western Division
JONATHON LAYDEN, individually and o/b/o all others similarly situated, Plaintiff,
ADAMS AUTO CORP., Defendant.
ORDER AND OPINION DENYING DEFENDANT'S MOTION TO
D. SMITH, SENIOR JUDGE
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.
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
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
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).
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.
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).