Trim v. Mayvenn, Inc.

Background

Lucine Trim alleged that she received two unsolicited marketing text messages from Mayvenn, Inc., on April 24 and May 4, 2020. She alleged that her cellular number had been listed on the National Do Not Call Registry since December 3, 2019, and that she had never given Mayvenn prior express written consent to send her text messages. Trim further alleged that the messages were sent using an automated telephone dialing system, or ATDS, and that they invaded her privacy, wasted her time, annoyed and harassed her, and used her phone’s battery and memory.

Trim asserted two claims under the Telephone Consumer Protection Act (TCPA) on behalf of herself and two proposed classes: an Automated Call Class and a National Do Not Call Registry Class.

Motion to dismiss

Mayvenn moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that Trim lacked standing because she had not adequately alleged an injury in fact. The court explained that standing requires a concrete and particularized injury that is fairly traceable to the challenged conduct and likely to be remedied by a favorable decision.

The court relied on Ninth Circuit precedent holding that receiving unsolicited contact in violation of the TCPA is a concrete injury. It rejected Mayvenn’s argument that Trim needed to allege that she actually read, reviewed, or spent time on the messages. The court also distinguished decisions involving unanswered calls, debt-collection calls, or Eleventh Circuit law concerning receipt of a single text message. The court held that Trim’s TCPA claims were not subject to dismissal for lack of standing.

Stay pending the Supreme Court’s Facebook decision

Mayvenn alternatively sought a stay, meaning a temporary pause in the case, until the Supreme Court decided Facebook v. Duguid. That case concerned whether the TCPA’s definition of an ATDS covers a device that can store and automatically dial telephone numbers even when it does not use a random or sequential number generator.

The court considered the possible harm from a stay, the hardship or unfairness of proceeding without one, and whether a stay would promote the orderly resolution of the case. It found all three factors favored a stay. In particular, the court found Trim’s concern about lost evidence speculative, determined that Mayvenn could face substantial litigation costs under a legal standard that might change, and concluded that the Supreme Court’s decision would assist in resolving the ATDS claim even if it would not resolve the entire case.

The court therefore granted the stay pending the Supreme Court’s decision in Facebook. It directed the parties to submit a joint or separate status report within 14 days after that decision addressing its effect on the case.

Stay pending an FCC ruling

Mayvenn also sought a stay under the primary-jurisdiction doctrine, which can allow a court to pause a case while an administrative agency resolves an issue within the agency’s special competence. The court declined to grant that request. It found that the ATDS issue was neither a matter of first impression nor unusually complicated in the Ninth Circuit, which had addressed the issue without waiting for FCC guidance. The court also found that an FCC-based stay could be indefinite and could unnecessarily delay the claims.

Disposition

Judge Maxine M. Chesney’s order granted in part and denied in part Mayvenn’s motion to dismiss or, alternatively, stay the action. The motion was granted to the extent Mayvenn sought a stay pending the Supreme Court’s decision in Facebook and denied in all other respects, including the request to dismiss for lack of standing and the request for a stay pending an FCC declaratory ruling. The court continued the case-management conference from November 20, 2020, to July 16, 2021, and required a joint case-management statement by July 9, 2021.