District Court (Cal.) Again Says that TCPA Plaintiff Failed to Plead Use of ATDS Against Facebook

In Duguid v. Facebook, Inc., 2017 WL 635117, at *5 (N.D.Cal., 2017), Judge Tygar dismissed a TCPA Plaintiff’s First Amended Complaint attempting to plead use of an ATDS.

Here, however, Plaintiff has again failed to allege the existence of such a system. At best, his allegations are conclusory, given that he merely asserts that Facebook “maintains a database of phone numbers on its computer” and “transmits alert text messages to selected numbers from its database using its automated protocol,” without offering any factual support for this claim. FAC ¶ 19. At worst, this claim contradicts the variety of other allegations offered by Plaintiff, which suggest that Facebook does not dial numbers randomly but rather directly targets selected numbers based on the input of users and when certain logins were attempted.  Duguid’s reliance on Nunes is also misplaced. See ECF No. 73 at 11. In Nunes, the court noted that “dismissal of the complaint would not be warranted” because the plaintiff plausibly alleged that the defendant’s “equipment ha[s] the “capacity to ‘generate’ numbers at random or sequentially” in addition to its ability to store and dial numbers without human intervention. 2014 WL 6708465, at *1–2. Here, no plausible inference can be made that Facebook’s equipment has the capacity to generate random or sequential numbers.  As such, this Court dismisses Plaintiff’s TCPA claims for failure to adequately allege that the text messages were sent using an ATDS. Because the Court dismisses the FAC on this basis, it need not address Facebook’s arguments that the allegations show human intervention triggered the messages and that the messages were sent for emergency purposes. Likewise, the Court does not reach the argument that the TCPA violates the First Amendment. See San Francisco Tech., Inc. v. GlaxoSmithKline LLC, No. 10-cv-03248-JF NJV, 2011 WL 941096, at *2 (N.D. Cal. Mar. 16, 2011) (“Because it concludes that SF Tech’s claims are subject to dismissal on other bases, the Court need not decide the constitutional issues presented here, at least at the present time.”).