Trim v. Mayvenn, Inc.

Background

Lucine Trim alleged that she received two marketing text messages from Mayvenn, Inc. on her cellular telephone in April and May 2020. She alleged that her number had been listed on the National Do Not Call Registry since December 3, 2019, that she had not given Mayvenn prior written consent to send her text messages, and that the messages were sent using an automated telephone dialing system. Trim asserted two claims under the Telephone Consumer Protection Act on behalf of herself and two proposed classes.

Motion to dismiss

Mayvenn moved to dismiss under Rule 12(b)(1), arguing that Trim lacked Article III standing because she did not allege that she actually read, reviewed, or spent time on the messages. The court explained that standing requires a concrete and particularized injury connected to the challenged conduct and capable of being remedied by a court decision. Relying on Ninth Circuit precedent holding that an unsolicited communication covered by the Telephone Consumer Protection Act can itself be a concrete injury, the court held that Trim’s allegations were not subject to dismissal for lack of standing. The court distinguished decisions involving telephone calls, debt-collection calls, or Eleventh Circuit law concerning a single text message.

Stay pending the Supreme Court’s decision

Mayvenn alternatively sought a stay while the Supreme Court considered whether the Telephone Consumer Protection Act’s definition of an automated telephone dialing system includes equipment that can store and automatically dial telephone numbers without using a random or sequential number generator. The court applied the factors governing stays: possible harm from delay, hardship to a party required to proceed, and whether a stay would promote the orderly resolution of the case.

The court found that all three factors favored a stay pending the Supreme Court’s decision in Facebook v. Duguid. It viewed Trim’s concerns about lost evidence as speculative, found that Mayvenn had identified legitimate burdens from litigating an issue whose governing legal standard might soon change, and concluded that the Supreme Court’s decision would provide valuable assistance in resolving the automated-dialing-system claim. The court therefore granted a stay pending that decision.

Stay pending FCC action

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 expertise. The court declined to grant that stay. It found that the automated-dialing-system issue was neither a matter of first impression nor unusually complicated in light of the Ninth Circuit’s decisions addressing it. It also concluded that an FCC stay could be indefinite and would unnecessarily delay the case.

Disposition

Judge Maxine M. Chesney ordered that Mayvenn’s motion to dismiss or, alternatively, stay the action was granted in part and denied in part. The motion was granted to the extent Mayvenn sought a stay pending the Supreme Court’s decision in Facebook. In all other respects, including the request for dismissal and the request for a stay pending an FCC ruling, the motion was denied. The parties were directed to submit a status report within 14 days after the Supreme Court’s decision, and the case management conference was continued to July 17, 2021.