Risher v. Adecco Inc.

Background

Clarence Risher brought a proposed class action against Adecco Inc. and Locutus Inc., formerly Mya Systems Inc. He alleged that the defendants violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by sending text messages to his cellphone to solicit him for possible employment through Adecco’s job-placement service.

Risher alleged that he had submitted information to Adecco in 2008 while seeking employment. Nearly 11 years later, he received two text messages about employment opportunities. The messages appeared to come from “Mya,” but Mya was a chatbot—a computer program operated by Locutus that used artificial intelligence to recognize responses and conduct conversations in a way that mimicked a human.

The operative fourth amended complaint asserted three claims. The first alleged use of an automatic telephone dialing system. The second claim was not challenged by the defendants’ motion. The opinion identifies the third claim as alleging that the messages violated the TCPA’s prohibition on calls to cellphones using an “artificial or prerecorded voice.”

Motion to Dismiss

A motion under Federal Rule of Civil Procedure 12(b)(6) tests whether the complaint states a legally sufficient claim. The court must accept the complaint’s material factual allegations as true and view them favorably to the nonmoving party, but the allegations must make liability plausible rather than merely possible.

Risher conceded that his automatic-dialing-system claim could not proceed in light of the Supreme Court’s decision in Facebook, Inc. v. Duguid, which adopted a narrower interpretation of “automatic telephone dialing system.” The court therefore granted dismissal of the first claim.

The court also rejected Risher’s argument that the chatbot’s texts were an “artificial or prerecorded voice” in a metaphorical sense because they were designed to imitate an interactive human conversation. Although the court recognized that Risher’s position was not frivolous, it concluded that ordinary usage does not treat a text message as a voice. The court further reasoned that the TCPA’s reference to “prerecorded voices” fits the ordinary sound-based meaning of “voice,” not the metaphorical meaning proposed by Risher.

Because dismissal of the third claim rested on the legal conclusion that the text messages did not fall within the statutory language, the court found that additional factual allegations could not cure the problem. It granted the motion to dismiss the third claim and granted no leave to amend.

Discovery Objection

Risher also objected to a magistrate judge’s discovery ruling. He sought additional material, including representative dialing lists or logs, information concerning any consent defense, and documents showing differences among the text messages. He argued that discovery should extend beyond the campaign through which he received a text message to other campaigns or candidate lists involving Mya’s chatbot.

The magistrate judge had ruled that the defendants adequately complied with an earlier discovery order and directed the parties to continue discussing several issues, including Risher’s request for the total number of text recipients. The magistrate judge had not permanently barred further discovery.

A district court may modify a magistrate judge’s ruling on a nondispositive matter only if the ruling is clearly erroneous or contrary to law. Judge Seeborg concluded that the magistrate judge properly considered relevance and burden under Federal Rule of Civil Procedure 26 and appropriately declined to decide issues that the parties had not presented with enough information and clarity. The court therefore overruled Risher’s objection.

Disposition

The court granted the motion to dismiss the first and third claims of the fourth amended complaint. The defendants were ordered to file an answer to the remaining claim within 20 days of the order. The court also overruled Risher’s objection to the magistrate judge’s discovery order.