Barr v. Macys.com, LLC

Background

Eitan Barr brought a proposed class action against Macys.com, LLC under the Telephone Consumer Protection Act (TCPA), its implementing regulation concerning internal do-not-call procedures, and the Florida Telephone Solicitation Act (FTSA). Barr alleged that he received marketing text messages from Macys.com in July 2022. On July 16, he replied “STOP” in accordance with the company’s instructions and received a message stating that he was unsubscribed. On July 19, Macys.com sent another marketing text inviting him to “Get Shopping” and including a shortened website link.

Barr alleged that Macys.com did not maintain the internal do-not-call registry and procedures required by the federal regulation. He sought injunctive relief, statutory damages for the proposed TCPA and FTSA classes, and costs. Macys.com moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. In the alternative, Macys.com asked the court to transfer the case to the United States District Court for the Middle District of Florida.

TCPA Claim

The court held that Barr’s allegations did not state a TCPA claim based on the internal do-not-call requirements. The complaint’s allegation that Macys.com failed to maintain the required procedures was conclusory. The court noted that Barr had not requested a copy of Macys.com’s internal do-not-call list or policies and had not otherwise adequately challenged their existence or sufficiency.

The court also rejected the theory that Macys.com violated the regulation merely by sending one text three days, and one business day, after Barr’s unsubscribe request. The regulation allows up to 30 days to honor a do-not-call request. The court stated that the mere fact that Barr received a text during that period did not establish a violation and concluded that the complaint did not sufficiently allege a violation of the TCPA’s timing requirement.

The court therefore GRANTED Macys.com’s motion to dismiss the TCPA claim for failure to state a claim.

FTSA Claim and Jurisdiction

The FTSA prohibits certain telephone calls, text messages, or voicemail transmissions after a consumer has communicated that the consumer does not wish to receive them. The opinion states that the statute allows a solicitor up to 15 days to stop sending text solicitations when the consumer seeks damages.

The court determined that Barr’s FTSA claim did not present a federal question and did not satisfy the $75,000 amount-in-controversy requirement for diversity jurisdiction. After dismissing the TCPA claim, the court also declined to exercise supplemental jurisdiction—the court’s authority to hear related state-law claims in the same case—over the FTSA claim. It relied on the early stage of the case and the considerations of judicial economy, convenience, fairness, and respect for state courts.

The court dismissed the FTSA claim for lack of jurisdiction.

Transfer Request and Disposition

Because the court had dismissed all claims, it did not reach Macys.com’s alternative motion to transfer the case. The court directed the clerk to close the case.

Judge Andrew L. Carter, Jr. thus granted the motion to dismiss the TCPA claim, dismissed the FTSA claim for lack of jurisdiction, and did not rule on the motion to transfer.