In Gragg v. Orange Cab Co., Inc., — F.Supp.2d —-, 2013 WL 1788479 (W.D.Wash. 2013), Judge Lasnik found that a TCPA Plaintiff, on his second time around, pleaded enough facts to demonstrate use of an ATDS with sufficiency to state a claim under the TCPA in a text message case.
Contrary to plaintiff’s arguments about the pleading standard for alleging the use of an ATDS, a bare allegation that defendants used an ATDS is not enough. Instead, well-pled allegations of an ATDS “rely on indirect allegations, such as the content of the message, the context in which it was received, and the existence of similar messages to raise an inference” that an ATDS was used. Dkt. # 42, at 5 n. 3. Thus, the question is whether any indirect allegation, such as the factors discussed in the Court’s prior Order, supports a plausible inference that defendants used an ATDS. ¶ 1. Prior Business Relationship and Plaintiff’s Provision of His Phone Number to Defendants ¶ As in the first complaint, plaintiff still does not disavow a prior business relationship with defendants. Also, as in the first complaint, Dkt. # 24, ¶ 9, plaintiff still “carefully avoids stating that he did not provide his wireless number to defendants,” Dkt. # 42, at 4. Instead, plaintiff only states he did not provide his number “for marketing purposes,” Dkt. # 44, ¶ 22. ¶ Plaintiff argues, however, that these are irrelevant facts because they relate to plaintiff’s consent to receive a text message, not to defendants’ use of an ATDS. Dkt. # 46, at 16. The Court disagrees insofar as these facts support the inference that the text message was a “personal and individual” response through “human agency.” Dkt. # 42, at 4. Although they certainly do not prove that an ATDS was not used, the existence of a business relationship and plaintiff’s provision of his phone number when requesting services raise an inference of personal, rather than automated, interactions. ¶ 2. Plaintiff’s Allegations of the Volume of Similar Text Messages Defendants Sent ¶ Unlike in the first complaint, plaintiff’s amended complaint substantiates with specific facts the volume of similar text messages defendants sent. The Court in its prior Order suggested plaintiff could cure its deficient pleading by alleging “the number of texts defendants sent containing substantially the same message regarding Taxi Magic.” Dkt. # 42, at 4–5. Plaintiff accordingly pleads in his amended complaint that defendants used equipment that had the capability of sending millions of texts per month, Dkt. # 44, ¶ 16, and that defendants used this equipment to send at least tens of thousands of text messages to Washington consumers containing substantially the same marketing message that plaintiff received, id. ¶¶ 14, 25. The allegation that defendants sent at least tens of thousands of text messages containing substantially the same marketing message, taken as true, supports the inference that defendants used an ATDS because the large number of sent text messages is plausibly beyond what “human agency” could produce. ¶ Defendants argue that these new allegations regarding text message volume are no less conclusory than the prior complaint’s allegations. The initial complaint alleged only that defendants’ equipment sent “numerous” texts. By contrast, the current allegation that defendants’ equipment sent at least tens of thousands of similar text messages, and had the capacity to send millions, provides specific, quantitative values that give rise to a plausible inference of the use of an ATDS. The previous vague allegation that defendants sent “numerous” text messages did not create an inference beyond a mere hypothetical possibility that an ATDS was used. ¶ Defendants also argue that because plaintiff never pleads that defendants sent text messages with generic content (i.e., free from personalized information), the Court must necessarily reject an inference that defendants used an ATDS. For this proposition, defendants rely on numerous district court opinions. All of these opinions, however, held that generic message content may be sufficient to support an inference that an ATDS was used. Contrary to defendants’ misreading, none of these opinions held that generic message content is necessary to infer that an ATDS was used. That plaintiff did not allege that the text message had generic content is not necessarily fatal to his claim; such an allegation is merely one of many ways to sufficiently support an inference that an ATDS was used. ¶ 3. Plaintiff’s Allegations of a Temporal Disconnection between Plaintiff’s Use of the Taxi Service and Receipt of the Text Message ¶ In granting leave to amend its complaint, the Court suggested that an allegation of a temporal disconnect between when plaintiff used the cab services and when he received the text would support an inference that an ATDS was used. Dkt. # 42, at 4–5. The amended complaint alleges the text message, which states a taxi was dispatched at 5:20 p.m., was received on a Sunday night after 9:00 p .m., Dkt. # 44, ¶ 23, and that plaintiff “had not booked a taxi cab for that day,” id. ¶ 24. From this, plaintiff argues that there was “no temporal connection whatsoever” between plaintiff’s use of the cab service and receiving the text message, and that a human would not have made the mistake of sending the message when a taxi was not in fact being dispatched. Defendants, by contrast, contend that the complaint is a tacit admission that a taxi was dispatched the prior day, and the text message was an individual response to the request for a taxi that was delayed from delivery to plaintiff’s cell phone due to “any number of reasons,” such as a poor cell phone signal. Dkt. # 45, at 10. ¶ On this factor, the amended complaint supports an inference that an ATDS was used. Even assuming that plaintiff’s complaint is a “tacit admission” that he used a taxi on the prior day at 5:20 p.m ., a delay of more than 24 hours to send a text notification that was already outdated and obsolete supports an inference that human agency was not involved in sending the text message. While the alternative explanations that defendants posit, such as cell phone network congestion, are theoretically possible, the Court cannot draw these inferences against plaintiff on a motion to dismiss. The delay between plaintiff’s use of the taxi service and receipt of the text message therefore supports the plausible inference that the defendants used an ATDS. ¶ 4. Plaintiff’s Allegation of the Web Link’s Data Tracking Capabilities ¶ Plaintiff’s amended complaint alleges that the web link in the text message he received would, if the link was used, allow defendants to track his app usage and to direct all future bookings through the app to one company. Plaintiff argues this supports an inference of an ATDS, but the Court rejects this argument because the use of the link and its tracking would have been a subsequent event to plaintiff receiving the text message. The link’s tracking ability thus has nothing to do with whether there is a plausible inference that an ATDS was used to generate the text message plaintiff received. ¶ 5. Summary of the Sufficiency of Plaintiff’s TCPA Claim ¶ Three facts do not support a plausible inference that defendants used an ATDS. Plaintiff still does not disavow a business relationship with defendants; plaintiff still carefully avoids stating he did not provide his phone number to defendants; and the data tracking capabilities of the web link in defendants’ text message are irrelevant. However, plaintiff plausibly supports an inference that defendants used an ATDS by alleging that defendants’ equipment sent tens of thousands of substantially similar messages, and by alleging a temporal disconnection between using defendants’ taxi services and receiving the text message. Considering the totality of the amended complaint, the Court DENIES defendants’ motion to dismiss plaintiff’s TCPA claim.