Schley v. One Planet Ops Inc

Background

Reeve Schley filed a class action against One Planet Ops Inc. and Buyerlink LLC doing business as contractors.com. He asserted three claims under the Telephone Consumer Protection Act (TCPA), a federal law regulating certain automated, prerecorded, and telemarketing calls and text messages.

Schley alleged that the defendants sent at least five promotional text messages to his cell phone between August 7 and August 21, 2019. He alleged that he had not consented to receive the messages and that they came from numbers used for mass texts. He also alleged that he received approximately 30 calls from the defendants between August and December 2019, despite not consenting to the calls. He further alleged that his cell phone had been registered with the National Do Not Call Registry.

Claims and Motion

The first claim alleged a violation of 47 U.S.C. § 227(b)(1)(A)(iii), which generally prohibits certain calls to cellular phones without emergency justification or prior express consent when made using an automatic telephone dialing system or an artificial or prerecorded voice. The second and third claims alleged violations involving calls to residential subscribers registered on the national do-not-call list and the defendants’ procedures for honoring requests not to receive telemarketing calls.

The defendants moved to dismiss all three claims under Federal Rule of Civil Procedure 12(b)(6). That rule permits dismissal when a complaint does not allege enough facts to make a claim legally plausible. The defendants argued, among other things, that Schley had not plausibly alleged the use of an automatic telephone dialing system for the texts or calls. They also asked the court to take judicial notice that the cell phone was associated with Seed Furniture, Inc., and argued that this defeated the second and third claims.

Court’s Analysis

Schley stated in his opposition that he was voluntarily dismissing the second and third claims, although not for the reasons offered by the defendants. Under Federal Rule of Civil Procedure 41(a)(1), the court concluded that those claims should be dismissed without prejudice. The court therefore found the motion to dismiss moot as to those claims.

As to the first claim, the court concluded that Schley alleged enough facts to make the use of an automatic telephone dialing system plausible. Regarding the text messages, the court relied on allegations that Schley received at least five messages with the same basic content, that they were promotional, and that they were sent over a relatively short period. The court stated that the use of a long-code number rather than a short-code number did not rule out the use of an automated system. It also concluded that the defendants’ possible relationship with Seed Furniture and the references to roofing jobs in Los Angeles did not make the messages sufficiently personal to defeat the claim at the pleading stage.

Regarding the calls, the court relied on the allegation that Schley received about 30 calls in a few months and that at least two calls contained several seconds of silence before a voice became audible. The court concluded that these allegations, considered together, supported a reasonable inference that an automated telephone dialing system had been used. The defendants’ alternative explanation—that the delays resulted from inattentive callers—did not defeat the claim because both explanations were plausible at this stage.

Disposition

The court denied the motion to dismiss with respect to the first TCPA cause of action. It dismissed the second and third causes of action without prejudice because Schley had voluntarily dismissed them, and it found the motion to dismiss moot as to those claims. The order disposed of Docket No. 19.