District Court (Colo.) Tosses TCPA Case Because No ATDS Was Used

In Mina v. Red Robin Int’l, Inc., Civil Action No. 20-cv-00612-RM-NYW, 2022 U.S. Dist. LEXIS 104423, at *10-16 (D. Colo. June 10, 2022), Judge Wang dismissed a TCPA case at the pleadings stage for absence of an ATDS under Duguid.

[Defendant] maintains that Duguid does not foreclose a conclusion that the text messaging program used by Defendants constitutes an autodialer under the TCPA because he has alleged that Defendants’ program has the capacity to randomly or sequentially decide which numbers to dial from a stored list. [Doc. 111 at 15-16]. Asserting that “very few” attorneys “understand what a random or sequential number generator actually is,” [id. at 16], Mr. Mina suggests that the term “number generator” as used in the TCPA refers to a term of art in the software engineering field; however, Plaintiff does not provide any precise definition that he believes should be ascribed to a “number generator.” See generally [id.]. As the court understands Plaintiff’s argument, Plaintiff suggests that an autodialer under the TCPA need not have the capacity to store or produce telephone numbers using a telephone number generator, but rather, the device must only have the capacity to randomly or sequentially choose which numbers to dial using some sort of automated dialing system. See [id. (Plaintiff asserting that “[n]umber generators do not generate telephone numbers” but rather “stor[e] the lists of telephone numbers to be called[] and produc[e] those telephone numbers from the list to the dialing system”)]. Plaintiff’s argument is thus akin to an assertion that the TCPA’s definition of “automatic telephone dialing system” includes a device or program that merely randomly or sequentially selects which number to dial, even if such a selection is made from a predetermined list of telephone numbers. Applying Duguid, the plain language of the TCPA, and post-Duguid case law interpreting the TCPA, the court concludes that a device’s capacity to randomly or sequentially select, from a prepopulated list, which number to communicate with does not render it an autodialer under the TCPA. First, the court is respectfully not persuaded by Mr. Mina’s suggestion that the use of the term “number generator” in the TCPA does not refer to a telephone number generator, but instead refers to a not-yet-defined term of art in the software-engineering field concerning the random selection of items from a predetermined list. Nothing in the Supreme Court’s determination in Duguid directs this court to reach that conclusion. As a Northern District of California court succinctly explained, “as a textual matter, the ‘number generator’ (whether random or sequential) specified in § 227(a)(1)(A) implicitly refers back to a ‘telephone number[]’ — i.e., the preceding phrase.” Tehrani v. Joie de Vivre Hosp., LLC, No. 19-cv-08168-EMC, 2021 WL 3886043, at *4 (N.D. Cal. Aug. 31, 2021). “This implicit reference is confirmed by subsection (B) which refers to the capacity to dial ‘such numbers.'” Id. It follows, then, that “throughout § 227(a)(1),” the terms “number” or “numbers” refer to telephone numbers. Id.   Other courts have reached the same conclusion. See, e.g., Beal v. Outfield Brew House, LLC, 29 F.4th 391, 394 (8th Cir. 2022) (“[A] random number generator produces by generating a random number. Because [defendant] does not generate phone numbers to be called, it does not ‘produce telephone numbers to be called’ for purposes of § 227(a)(1) of the TCPA.”) (emphasis added); Eggleston, 2022 WL 886094, at *4 (an autodialer must use a number generator to generate the phone numbers themselves); Austria v. Alorica, Inc., No. 2:20-cv-05019-ODW-PVCX, 2021 WL 5968404, at *4 (C.D. Cal. Dec. 16, 2021) (same). Mr. Mina cites no legal authority demonstrating that it is appropriate to look to the field of software engineering to extend the definition of a statutory term beyond its clear meaning. See generally [Doc. 111 at 16]. If Congress intended to define “number generator” using a meaning other than its plain and ordinary meaning—let alone ascribe to the term a meaning encompassing a “very specific type of automation from a programming perspective,” see [Doc. 111 at 16]—Congress could have defined that term within the statute to inform the public, attorneys, and courts—who Plaintiff suggests “do not understand what a random or sequential number generator is,” see [id.]—of such a particularized meaning. It did not do so. See 47 U.S.C. § 227(a)(1).  Moreover, in the court’s view, Duguid forecloses Plaintiff’s argument, as the Supreme Court plainly stated that “[t]o qualify as an ‘automatic telephone dialing system,’ a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator.” Duguid, 141 S. Ct. at 1167 (emphases added). Here, Mr. Mina concedes that Defendants’ program does not store numbers using a random or sequential generator, instead alleging that “Red Robin collected and stored all the phone numbers of Plaintiff and others similarly situated into a list” and that the numbers are “not themselves randomly or sequentially generated.” [Doc. 108 at ¶¶ 38-39]. Nor does Plaintiff allege in the Amended Complaint that Defendants produce numbers using a random or sequential number generator—instead, he asserts that Defendants’ software “selects which number to dial from the stored list of numbers, and sequences those numbers in order to automatically dial the numbers and send [out] text messages en masse.” [Id. at ¶ 39 (emphasis added)]. But “a random number generator does not produce by selecting a random number.” Beal, 29 F.4th at 395 (emphasis added). Rather, “a random number generator produces by generating a random number.” Id. at 394.  Courts interpreting the TCPA post-Duguid have rejected the argument that Plaintiff asserts here—that a device may be deemed an autodialer under the TCPA even if it uses a preprepared list of numbers, so long as the device randomly or sequentially chooses which numbers on that list to contact. In Hufnus v. DoNotPay, Inc., the United States District Court for the Northern District of California rejected the plaintiff’s argument that a platform which “uses a random number generator to determine the order in which to pick from the preproduced list of consumer phone numbers” qualifies as an autodialer under the TCPA. See No. 20-cv-08701-VC, 2021 WL 2585488, at *1 (N.D. Cal. June 24, 2021). In fact, the Hufnus court determined that such a platform “is akin to the systems deemed to not qualify as autodialers by the Courts of Appeals with which the Supreme Court sided, because [the defendant’s] system targets phone numbers that were obtained in a non-random way (specifically, from consumers who provided them).” Id.; see also Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 460 (7th Cir. 2020) (a system that “exclusively dials numbers stored in a customer database” is not an autodialer under the TCPA). Other courts have concluded similarly. See Beal, 29 F.4th at 394; Franco v. Alorica Inc, No. 2:20-cv-05035-DOC-KESX, 2021 WL 3812872, at *3 (C.D. Cal. July 27, 2021) (“When a defendant randomly makes calls from a curated list, it is not randomly or sequentially generating phone numbers.”); cf. Brickman v. Facebook, Inc., No. 16-cv-00751-WHO, 2021 WL 4198512, at *1 (N.D. Cal. Sept. 15, 2021) (rejecting an argument that a program that collected numbers and then used a random generator to “store” the numbers in a random or sequential order was an autodialer under the TCPA). In a similar vein, courts have rejected TCPA claims based on the alleged use of an autodialer where the plaintiff alleged that the contacted phone numbers were voluntarily provided to the defendant. See, e.g., Barry v. Ally Fin., Inc., No. 20-12378, 2021 WL 2936636, at *6 (E.D. Mich. July 13, 2021) (dismissing TCPA claim where the plaintiff alleged that “she, and purported class members, were called in connection with specific accounts held by Defendant for a specific purpose, and not through randomly or sequentially generated numbers”); Borden v. eFinancial, LLC, No. C19-1430JLR, 2021 WL 3602479, at *5 (W.D. Wash. Aug. 13, 2021) (the plaintiff failed to state a TCPA claim where he “expressly allege[d] that he provided his phone number to [the defendant]”); Cross v. State Farm Mut. Auto. Ins. Co., No. 1:20-cv-01047, 2022 WL 193016, at *8 (W.D. Ark. Jan. 20, 2022) (“Jones specifically provided her phone number to State Farm. As such, Jones’s phone number was never randomly or sequentially generated through any [autodialer] technology.”). Here, Mr. Mina admits that he provided his telephone number to Red Robin. [Doc. 108 at ¶ 19].  The court is persuaded by this consistent line of post-Duguid authority. Because Mr. Mina does not sufficiently allege that the phone numbers at issue were randomly or sequentially stored, see [Doc. 108 at ¶ 39], and because allegations that a program randomly or sequentially selects numbers to be called are insufficient to establish that the program randomly or sequentially produces those numbers, see Beal, 29 F.4th at 395, Mr. Mina fails to allege that Defendants used an autodialer to send him the subject text messages for purposes of the TCPA. The Duguid Court’s much-discussed “footnote 7” does not change this analysis.