1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICHARD ROGERS, Case No. 19-cv-05619-TSH

8 Plaintiff, ORDER RE: MOTION TO DISMISS 9 v. Re: Dkt. No. 36 10 POSTMATES INC., 11 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff Richard Rogers brought this putative class action under the Telephone Consumer 15 Protection Act (“TCPA”) after receiving an unsolicited text message on his cellular phone with a 16 hyperlink directing him to a job board on Defendant Postmates, Inc.’s website. Pending before the 17 Court is Postmates’ Motion to Dismiss Second Amended Complaint pursuant to Federal Rule of 18 Civil Procedure 12(b)(6). ECF No. 36. Plaintiff filed an Opposition, ECF No. 38, and Defendant 19 filed a Reply, ECF No. 39. The Court finds this matter suitable for disposition without oral 20 argument and VACATES the July 16, 2020 hearing. See Civ. L.R. 7-1(b). Having considered the 21 parties’ positions, relevant legal authority, and the record in this case, the Court GRANTS 22 Defendant’s motion for the following reasons. 23 II. BACKGROUND 24 Rogers is a resident of the State of Florida. Sec. Amend. Class Action Compl. (“SAC”) ¶ 25 4. Postmates, a corporation headquartered in San Francisco, operates a mobile application “Urban 26 Logistics platform” that connects its customers to thousands of delivery drivers who are signed-up 27 in its network to provide deliveries of food, groceries, and other items. Id. ¶ 5 (quoting “About 1 SAC ¥ 11. The SAC alleges that “in an effort to advertise its delivery service and encourage 2 [Rogers] and other class members to sign-up to become delivery drivers, Postmates contracted 3 with Bird Dog Media, LLC [], one of its marketing agents, to promote its mobile application and 4 || driver opportunities to as many individuals as possible.” Id. 4] 12. As part of these efforts, Bird 5 || Dog sent thousands of text messages to individuals encouraging them to sign up for Postmates’ 6 || delivery-driver network. Jd. ¥ 13. 7 On or about April 8, 2019, Bird Dog sent the following automated text message □□□□□□□□ to 8 || Rogers’ cellular telephone number: 9 ail T-Mobile > 5:41AM 100% = 10 < +1 (724) 394-0835 11 g 5 13 Richard, PostMates needs you. Make 25 hourly delivering in Fort JA Lauderdale. http;//delivrpublic.us/ 35ecb24c. Reply stop to cancel.

16 || Id. § 14. Rogers alleges that the text was sent on Postmates’ behalf, that the dedicated number, 2 17 (724) 394-0835, is owned and operated by Bird Dog and is regularly used to transmit text Z 18 || advertisements on Postmates’ behalf and for Postmates’ benefit. Jd. 14, 15. According to 19 || Rogers, the hyperlink in the text (http://delivrpublic.us/35ecb24c) directed recipients to the 20 || following URL, which was a webpage owned, operated, and maintained by Postmates: 21 https://fleet.postmates.com/?utm_source=birddogmedia&utm_medium=jobboardé&utm_campaign 22 |) =Birddogmedia_Supply_JB_Postings_nj_Desktop_CPL_AIl_All_Core&city_id=54&z=08854&ut 23 m_term=588582319&utm_content=. /d. | 16. Rogers alleges that this webpage was specifically 24 || created for the purposes of the Bird Dog marketing campaign, and that Postmates was aware that 25 individuals were directed to the webpage and its services pursuant to this marketing campaign and 26 as □ result of text messages sent by Bird Dog. Id. 417. Rogers asserts that Postmates 27 “specifically oversaw, monitored, tracked, [] realized and appreciated the results” of Bird Dog’s 28 |) marketing campaign, including through use of campaign parameters embedded within the URLs to

1 which individuals were directed by Bird Dog’s texts. See id. ¶ 18 (noting that the source 2 parameter in the URLs specifically identified “birddogmedia” as the source of the traffic). Rogers 3 contends that Postmates has information in its possession reflecting that the hyperlink contained in 4 Bird Dog’s texts to individuals originated traffic to Postmates’ website as a result of individuals 5 clicking the hyperlink. Id. 6 According to Rogers, Bird Dog’s text constituted “advertising” and “telemarketing” 7 material within the meaning of the TCPA and its implementing regulations because the text 8 promoted Postmates’ delivery-driver network, and Postmates offered for Rogers to perform the 9 services promoted in the text for the purpose of deriving commercial profit. Id. ¶ 19. Bird Dog, 10 Rogers contends, was at all times acting on behalf of Postmates pursuant to a marketing campaign 11 that Postmates authorized, contracted for with Bird Dog, and paid Bird Dog to conduct. Id. ¶ 20. 12 For its part, Postmates “was aware, or should have been aware, that Bird Dog was sending such 13 text messages on its behalf, and [] knowingly allowed and permitted Bird Dog to conduct such 14 marketing at least until the time that [Rogers] filed [] suit.” Id. 15 Rogers asserts one claim for relief, a violation of the TCPA,

. He seeks to 16 represent a class of:

17 All persons in the United States:

18 (1) who, at any time between September 6, 2015 and the present, were sent at least one text message to a number 19 assigned to a cellular telephone service that contained a hyperlink which, if accessed, would have redirected to 20 a URL that included (inter alia) the following text in its address: “postmates.com/?utm_source=birddogmedia”; 21 and 22 2) for whom Postmates, Inc. and Bird Dog Media, LLC 23 lack any record of such recipient, prior to being sent such text message, having provided to Postmates, Inc. 24 or Bird Dog Media, LLC (as a disclosed agent of Postmates, Inc.) the telephone number to which such 25 message was sent. 26

. According to Rogers, neither he nor any other Class member provided express consent to 27 Postmates or Bird Dog to send the subject texts,

, and all the texts were sent using an 1 In its Motion to Dismiss (“MTD”), Postmates does not challenge that the text constituted a 2 communication in violation of the TCPA. Instead, it argues that Rogers fails to allege facts 3 sufficient to show that Postmates is vicariously liable for Bird Dog violating the TCPA. 4 III. LEGAL STANDARD 5 Federal Rule of Civil Procedure 12(b)(6) provides that a party may seek dismissal of a suit 6 for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive 7 a Rule 12(b)(6) motion to dismiss, a complaint must plead “sufficient factual matter, accepted as 8 true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

, 678 9 (2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). Plausibility does not 10 mean probability, but it requires “more than a sheer possibility that a defendant has acted 11 unlawfully.” Iqbal,

. In considering a motion to dismiss, the court accepts factual 12 allegations in the complaint as true and construes the pleadings in the light most favorable to the 13 nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co.,

(9th Cir. 14 2008); Erickson v. Pardus,

(2007). However, “the tenet that a court must 15 accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s 16 elements, supported by mere conclusory statements.” Iqbal,

. 17 If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no 18 request to amend the pleading was made, unless it determines that the pleading could not possibly 19 be cured by the allegation of other facts.” Lopez v. Smith,

(9th Cir. 2000) (en 20 banc) (citations and quotations omitted). However, a court “may exercise its discretion to deny 21 leave to amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated 22 failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing 23 party . . . [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC,

, 24 892-93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis,

(1962)). 25 IV. DISCUSSION 26 The TCPA makes it “unlawful for any person within the United States, or any person 27 outside the United States if the recipient is within the United States . . . to make any call . . . using 1 telephone number assigned to a . . . cellular telephone service . . . or any service for which the 2 called party is charged for the call . . . .”

(b)(1)(A)(iii). An ATDS is “equipment 3 which has the capacity to store or produce telephone numbers to be called, using a random or 4 sequential number generator and to dial such numbers.”

§ 227(a)(1). To properly plead a 5 TCPA claim, a plaintiff must allege that (1) the defendant called or text messaged a cellular 6 telephone number; (2) using an ATDS; (3) without the recipient’s prior express consent. See 7 Meyer v. Portfolio Recovery Assocs., LLC,

(9th Cir. 2012) (citing 47 U.S.C. 8 § 227(b)(1)); Satterfield v. Simon & Schuster, Inc.,

(9th Cir. 2009) (“[A] text 9 message is a ‘call’ within the TCPA.”). 10 There are two potential theories of liability under the TCPA: (1) direct liability; and (2) 11 vicarious liability. Thomas v. Taco Bell Corp.,

(9th Cir. 2014). Direct 12 liability is inapplicable here as the parties do not dispute that the actual sender of the text was not 13 Postmates, but Bird Dog, a third party. See

Thus, for Rogers’ SAC to survive dismissal, he 14 has to have alleged facts plausibly suggesting that Postmates was vicariously liable for the 15 messages sent by Bird Dog. Gomez v. Campbell-Ewald Co.,

(9th Cir. 2014) 16 (“Although [defendant] did not send any text messages, it might be vicariously liable for the 17 messages sent by [a third party].”). “[A] defendant may be held vicariously liable for TCPA 18 violations where the plaintiff establishes an agency relationship . . . between the defendant and a 19 third-party caller.”

. 20 “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests 21 assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to 22 the principal’s control, and the agent manifests assent or otherwise consents to so act.” Jones v. 23 Royal Admin. Servs.,

(9th Cir. 2008) (discussing agency in the context of a 24 TCPA lawsuit) (quoting Mavrix Photographs, LLC v. LiveJournal, Inc.,

(9th 25 Cir. 2017) (quoting Restatement (Third) Of Agency § 1.01 (Am. Law Inst. 2006) (the 26 “Restatement”))). “For an agency relationship to exist, an agent must have authority to act on 27 behalf of the principal and ‘[t]he person represented [must have] a right to control the actions of 1 determining whether vicarious liability may be imposed, the extent of control exercised by the 2 principal is the essential ingredient.” Jones,

(citation and internal quotation 3 marks omitted). 4 “A plaintiff can establish an agency relationship, and therefore vicarious liability under the 5 TCPA, using the ‘bedrock theories of agency,’ actual authority, apparent authority, and 6 ratification.” Abante Rooter & Plumbing, Inc. v. Alarm.com Inc.,

, at *3 (N.D. 7 Cal. Aug. 3, 2018) (citing Jones v. Royal Admin. Servs., Inc.,

(9th Cir. 2018); In 8 re Joint Petition filed by Dish Network, LLC 28 FCC Rcd. 6574, 6586-87 (2013)). The Court will 9 discuss each of these in turn. 10 1. Actual Authority 11 Actual authority may be express or implied. Express actual authority derives from an act 12 specifically mentioned to be done in a written or oral communication. NLRB v. Dist. Council of 13 Iron Workers,

, 1098 (9th Cir. 1997) (“Iron Workers”) (citing Hawaiian Paradise 14 Park Corp. v. Friendly Broadcasting Co.,

(9th Cir. 1969)). “Implied actual 15 authority comes from a general statement of what the agent is supposed to do; an agent is said to 16 have the implied authority to do acts consistent with that direction.”

at 1098 (citing Hawaiian 17 Paradise Park,

). 18 Here, Rogers does not allege that Postmates exercised the control over Bird Dog necessary 19 to establish Bird Dog as Postmates’ agent. Rogers alleges that Postmates contracted with Bird 20 Dog “to promote its mobile application and driver opportunities to as many individuals as 21 possible” through a marketing campaign. SAC ¶ 12. He also alleges that Postmates “specifically 22 oversaw, monitored, tracked, and realized and appreciated the results of” the campaign.

¶ 18 23 (emphasis added). However, he alleges that it was Bird Dog that “conducted” and “performed” 24 the campaign. Id. ¶ 17, 20. And he does not dispute that Bird Dog was the party who sent the 25 text. Id. ¶¶ 17, 18. Absent from the SAC are allegations that Postmates exercised any control 26 over the “manner and means” in which Bird Dog executed the campaign on its behalf (the SAC in 27 fact makes no allegations of “control”). A plaintiff must allege facts which, if true, would show 1 Naiman v. TranzVia LLC,

, at *6 (N.D. Cal. Dec. 4, 2017 (citing Thomas, 583 2 Fed. Appx at 679-80). There are no allegations here that Postmates directed Bird Dog to send text 3 messages as part of the marketing campaigns; that it dictated the content of any message or other 4 communication sent by Bird Dog; that it identified or otherwise controlled to whom or how or 5 when Bird Dog sent such communications; that it equipped Bird Dog with any technological 6 capability or other insider information necessary for executing the marketing campaign; or even 7 that it “controlled” or “directed” Bird Dog in any way. There is no allegation that Postmates 8 communicated to Bird Dog that text messages could or should be part of the marketing campaign. 9 The most substantive allegation concerning the contours of the relationship between Postmates 10 and Bird Dog is the allegation that Postmates contracted with Bird Dog, but “[a]n allegation of a 11 beneficial contractual relationship alone is insufficient to establish agency.” Trenz v. Sirius XM 12 Radio, Inc.,

, *6 (citing Batzel v. Smith,

(9th 13 Cir. 2003) (noting that defendant’s receipt of a financial benefit from provided customer 14 information was insufficient to establish ratification), superseded by statute on other grounds as 15 stated by Breazeale v. Victim Servs.,

(9th Cir. 2017); Chemtool Inc. v. 16 Lubrication Techs., Inc.,

(7th Cir. 1998) (“While an agency relationship can be 17 created by contract or conduct, not all contracts create agency relationships and not all conduct 18 creates agency relationships.”)). There must also be control, the “essential ingredient” in the 19 make-up of vicarious liability. Jones,

. Rogers’ allegation that Postmates 20 “oversaw,” “monitored,” and “tracked” the “results” of the marketing campaign does not amount 21 to an allegation that it “controlled” Bird Dog in executing that campaign. Postmates and Bird Dog 22 were in a commercial relationship; the former was paying the latter for its marketing services. It is 23 only natural that Postmates would want to keep an eye on the marketing campaign results to know 24 whether it was paying off; that doesn’t mean it was directing things. (If Rogers believed 25 Postmates was, he could have alleged that.) 26 Naiman is instructive here. There, the plaintiff alleged he had received a call from a 27 telemarketer which violated the TCPA.

. The plaintiff alleged that the 1 services. He alleged that the defendant “had control over [the third-party’s] actions on its behalf,” 2 “limited the types of business [the telemarketer] could solicit,” “restricted the geography within 3 which [the telemarketer] could promote [the defendant’s business],” “decided whether . . . it would 4 accept a customer from [the telemarketer],” “instructed [the telemarketer] with respect to the 5 volume of calling,” and “had day-to-day control over [the telemarketer’s] actions.”

. 6 The court found these allegations, which the plaintiff asserted showed that defendant had control 7 over the telemarketer’s actions on its behalf, were insufficient to demonstrate that the plaintiff had 8 “‘had control over’” the telemarketer’s actions and thus were insufficient to demonstrate a 9 plausible claim for relief based on vicarious liability.

The court reasoned that the allegations, 10 “without any facts showing how [defendant] did those things or how it knew those things, or what 11 facts the allegations are based on — are not facts that allow the court to draw the reasonable 12 inference that [defendant] is vicariously liable for [the telemarketer’s] alleged misconduct.” Id.; 13 see also

(“plaintiff does not point to any facts that support the conclusory allegations”) 14 (emphasis in original). Here, Rogers similarly has not alleged any facts that support the inference 15 that Postmates exercised any control over Bird Dog or Bird Dog’s marketing campaign. Yet 16 Rogers complaint is even more lacking: he doesn’t even make the conclusory allegation of control. 17 Furthermore, even if Rogers had alleged that Postmates exercised some degree of control 18 over Bird Dog, to state a plausible claim based on actual authority, a plaintiff must also allege 19 facts showing that the defendant had the right to control “the manner and means of the calls [] 20 made.

at *10 (citing Thomas,

); Thomas v. Taco Bell Corp.,

Supp. 2d 1079, 1084 (C.D. Cal. 2012) (no vicarious liability where plaintiff failed to show 22 defendant “controlled the manner and means by which the text message was created and 23 distributed”). Rogers has not alleged that Postmates controlled the manner and means by which 24 Bird Dog sent the text; he makes no allegation that Postmates was involved at all in Bird Dog’s 25 preparation and transmission of the text or any other communication. 26 Rogers argues in opposition that “the Complaint specifically alleges that [Postmates] acted 27 with express actual authority over Bird Dog.” Opp’n at 4. He cites to paragraphs 12 and 13 of the 1 exercised over Bird Dog:

2 12. In an effort to advertise its delivery service and encourage Plaintiff and the other members of the putative Class to sign-up to 3 become a part of its driver network to provide food deliveries, Defendant contracted with Bird Dog[], one of its marketing agents, to 4 promote its mobile application and driver opportunities to as many individuals as possible. 5 13. As part of these efforts, Bird Dog blasted several thousands if not 6 millions of automated text messages encouraging individuals to sign up for Defendant’s delivery-driver network. 7 8 Neither is of any consequence Rogers’ allegation that, “[i]n sending the automated text messages 9 at issue[], Bird Dog was at all times acting on behalf of [Postmates] and solely for [Postmates’] 10 benefit pursuant to a marketing campaign.” Opp’n a 5 (quoting SAC ¶ 20). To the extent Rogers 11 means to allege that Bird Dog was acting on Postmates’ behalf as an agent, that allegation is 12 conclusory and unsupported by factual allegations, and is entitled to no weight. To the extent 13 Rogers alleges that Bird Dog acted “solely for” Postmates’ benefit, that shows nothing more than 14 that Bird Dog was doing the job which Postmates purportedly hired it to do. But again, “[a]n 15 allegation of a beneficial contractual relationship alone is insufficient to establish agency.” Trenz, 16

, at *6; see also Warciak v. Subway Restaurants, Inc.,

354, 357 (7th Cir. 2020) (rejecting claim that a commercial contractual relationship between two 18 businesses is tantamount to an agency relationship sufficient to plead vicarious liability under the 19 TCPA). 20 Rogers points to Abante Rooter in his Opposition.

. There, one of two 21 co-defendants moved for dismissal on the ground that it was the wrong party to be sued for a 22 TCPA violation. The court decided that the plaintiff had “plausibly alleged a basis for holding” 23 that the defendant was liable for the TCPA claims in the complaint.

. There, however, 24 the plaintiff had expressly alleged that the two defendants, similarly named (“First Standard 25 Financial Company, LLC” and “First Standard Finance Company, LLC”), were “affiliates, owned 26 and operated as a joint enterprise.”1

. That sort of allegation carries more weight because 27 1 mutual control is an element essential to a joint venture. Shell Oil Co. v. Prestidge,

, 2 415 (9th Cir. 1957) (“Thus a contract between the parties, a common purpose, a community of 3 interest, mutual control over the subject matter of the enterprise or over the property engaged 4 therein, have been held to be elements necessary to the existence of a joint venture.”). By 5 contrast, Rogers alleges that Postmates contracted with Bird Dog for Bird Dog to conduct its 6 marketing. 7 Because Rogers fails to allege that Postmates controlled Bird Dog or the manner and 8 means in which Bird Dog allegedly transmitted the unlawful text, he fails to plausibly allege that 9 Bird Dog was acting as Postmates’ agent. Thus, he has not plausibly alleged that Bird Dog had 10 actual authority. 11 2. Apparent Authority 12 “Apparent authority arises from the principal’s manifestations to a third party that supplies 13 a reasonable basis for that party to believe that the principal has authorized the alleged agent to do 14 the act in question.” Iron Workers, 124 F.3d at 1099 (citing NLRB v. Donkin’s Inn,

, 15 141 (9th Cir. 1976), cert. denied,

(1976)). 16 Rogers argues that the SAC plausibly alleges liability based on apparent authority because 17 it alleges that the text Bird Dog sent to him referenced Postmates by name, see SAC ¶ 14, and that 18 the link provided in the text message directed the visitor to Postmates’ webpage, see id. ¶¶ 16-18. 19 But “[a]pparent authority ‘must be established by proof of something said or done by the principal 20 on which a third party reasonably relied’; it ‘cannot be established merely by showing that the 21 purported agent claimed authority or purported to exercise it.’” Pascal v. Agentra, LLC,

5212961, at *4 (N.D. Cal. Oct. 16, 2019) (quoting Iron Workers, 124 F.3d at 1099). Apparent 23 authority here would need to be established by alleging that Postmates said or did something upon 24 which Rogers relied. But Rogers “does not [plausibly] allege that he ‘reasonably relied, much less 25 to his detriment, on any apparent authority with which [Postmates] allegedly cloaked’ [Bird Dog], 26 the entity responsible for creating and sending the text messages.” Linlor v. Five9, Inc.,

1 2972447, at *4 (S.D. Cal. July 12, 2017) (quoting Thomas,

). Thus, the 2 “principal’s manifestations” are lacking. 3 Rogers returns to the argument he made in opposition to the last motion to dismiss, that the 4 link in Bird Dog’s text and URL demonstrated that Bird Dog had access to the Postmates 5 “information and systems.” The FCC has found that “apparent authority may be supported by 6 evidence that the seller allows the outside sales entity access to information and systems that 7 normally would be within the seller’s exclusive control, including: access to detailed information 8 regarding the nature and pricing of the seller’s products and services or to the seller’s customer 9 information.” In re DISH Network, LLC,

, 6592. Rogers disagrees with the 10 Court’s finding in the last order that “the fact that the link in the text directed to the Postmates 11 website [is not] proof that the sender had access to Postmates’ ‘information and systems.’” ECF 12 No. 33 at 7. Rogers asserts that “the only way someone could have been taken to” the specific 13 URL alleged in the SAC “was by clicking the link in the text message, and the only person who 14 was sent that text message was Plaintiff.” Opp’n at 8. Indeed, that appears to be the case. But 15 that fact does not mean that Bird Dog has access to unique and detailed information. Rogers 16 seems to conclude that because the URL contained campaign parameters tacked on to a destination 17 URL for a publicly-available Postmates’ webpage, Postmates either added the parameters itself or 18 the parameters necessarily consisted of some information that “normally would be within the 19 [Postmates’] exclusive control.” But the first proposition is not alleged and is not reasonably 20 inferable from what is alleged, and the second – also not alleged – is implausible. The destination 21 page in the URL is a public page on Postmates’ website; anybody can navigate to it. Source, 22 medium, campaign, and term parameters can then be added to the destination URL by anyone, and 23 no special information is required to do so. The parameters here could just as easily have been 24 added to the destination URL by Bird Dog, and Rogers has not plausibly alleged that Postmates 25 had any control in preparing the texts, and indeed to the contrary has alleged that Postmates hired 26 Bird Dog to conduct the marketing campaign. Rogers fails to explain how any of the information 27 in the parameters “would need to be retrieved from [Postmates’] systems,” Opp’n at 9, as it is all 1 utm_source, “birddogmedia”). Rogers also fails to explain how the utm_term, which is simply a 2 numeric value, indicates access to Postmates’ systems and information2; Bird Dog could have 3 assigned unique numeric values for each individual to whom it sent a text. 4 The SAC does not allege facts plausibly suggesting Bird Dog acted with apparent 5 authority. 6 3. Ratification 7 Ratification is “‘the affirmance of a prior act done by another, whereby the act is given 8 effect as if done by an agent acting with actual authority.’” Kristensen v. Credit Payment Servs. 9 Inc.,

(9th Cir. 2018) (quoting Restatement § 4.01(1)). It “may create an 10 agency relationship when none existed before if the acts are done by an actor . . . who is not an 11 agent but pretends to be.” Henderson v. United Student Aid Funds, Inc.,

(9th 12 Cir. 2019) (citation and quotation marks omitted).

13 “Ratification does not occur unless . . . the act is ratifiable as stated in § 4.03.” Id. § 4.01(3)(a). An act is ratifiable “if the actor acted or 14 purported to act as an agent on the person’s behalf.” Id. § 4.03. Therefore, “[w]hen an actor is not an agent and does not purport to be 15 one,” the doctrine of ratification does not apply. Id. § 4.03 cmt. b. 16 Kristensen,

. There are two ways a principal might ratify a third party’s acts: by a 17 “knowing acceptance of the benefit” or through “willful ignorance.” Henderson,

1073-74 (citing Restatement § 4.01 cmt. d). To prove knowing acceptance, there must be “an 19 objectively or externally observable indication . . . that the principal has exercised choice and has 20 consented” to the acts of the purported agent. Restatement § 4.01 cmt. d. Consenting to the act 21 requires the principal have “knowledge of material facts,” or “actual knowledge.” Restatement § 22 4.06. A principal that is “willfully ignorant” might not know the material facts, but ratifies “with 23 awareness that such knowledge was lacking.” Restatement § 4.01 cmt. b. “In effect, the principal 24

25 2 Rogers argues that “Bird Dog [] must have had access to Postmates’ ‘information and systems’ to obtain the code that correlated specifically to Plaintiff on Postmates’ system (in 26 order to then insert that code into the pertinent part of the postmates.com URL that Plaintiff would be directed to if he clicked the link).” It is not entirely clear whether Rogers means to argue that 27 the utm_term values came from Postmates’ systems, but even if that were the case, the SAC does 1 can ratify the act of a third party—thereby making the third party the principal's agent—even if it 2 does not know all the material facts, but it must be aware that it does not know the material facts 3 and ratify anyway.” Henderson,

. 4 In arguing Postmates’ ratification, Rogers argues that Postmates “has enjoyed the benefits 5 of the marketing campaign performed by Bird Dog, fully aware that particular individuals were 6 arriving at its website as a result of receiving the messages sent on its behalf by Bird Dog. Opp’n 7 at 6 (quoting SAC ¶ 20 (“Defendant was aware, or should have been aware, that Bird Dog was 8 sending such text messages on its behalf, and Defendant knowingly allowed and permitted Bird 9 Dog to conduct such marketing at least until the time that Plaintiff filed this suit.”);

¶ 17 10 (“Defendant was at all times made aware that individuals, including Plaintiff and the other 11 members of the Class, were directed to its website and its services pursuant to this marketing 12 campaign and as a result of text messages sent by Bird Dog on its behalf”). Even if that is true, for 13 ratification purposes Rogers must plausibly allege that Postmates knew or should have known that 14 Bird Dog was referring people through texts in violation of the TCPA for liability to attach under 15 the TCPA. See Kristensen,

(“Although AC Referral was an agent of Click 16 Media, Kristensen presented no evidence that Click Media had actual knowledge that AC Referral 17 was sending text messages in violation of TCPA.”);

(knowledge that an agent is engaged is a 18 “commonplace marketing activity” like text messaging not enough for ratification). Rogers does 19 not make even the conclusory allegation that Postmates knew that that Bird Dog was sending such 20 text messages on its behalf in violation of the TCPA. He does not allege that Postmates knew that 21 Bird Dog had not obtained consent from Rogers to send the text. Thus, Rogers’ “knowing 22 acceptance” argument is unpersuasive. 23 Kristensen is fatal to Rogers’ “willful ignorance” argument. While trying to argue 24 ratification, the plaintiff there pointed out that a defendant’s contract with a publisher stated that 25 the publisher could use text message marketing and required the publisher to comply with the 26 TCPA. According to the plaintiff, “this was sufficient to trigger [the defendant’s] duty to 27 investigate whether [the publisher] was acting in compliance with law.”

. The Ninth 1 commonplace marketing activity is not the sort of red flag that would lead a reasonable person to 2 investigate whether the agent was engaging in unlawful activities.”

It concluded that because 3 the defendant had no “knowledge of facts that would have led a reasonable person to investigate 4 further,” it could not be deemed to have ratified the publisher’s actions and therefore was not 5 vicariously liable. Here, Rogers has only alleged that Postmates was aware that Bird Dog was 6 “sending [] text messages on its behalf.” He has not alleged any other “red flags” which would 7 have led a reasonable person to investigate whether Bird Dog was violating the TCPA. Hence, 8 Rogers does not allege facts plausibly suggesting that Postmates ratified Bird Dog’s sending of 9 texts in violation of the TCPA. 10 4. Leave to Amend 11 Postmates argues that the Court may deny leave to amend for Rogers’ repeated failure to 12 cure deficiencies, futility of amendment, and bad faith. A court may exercise discretion to deny 13 leave to amend due to any of those reasons. Rogers makes no argument concerning whether leave 14 to amend is appropriate should his SAC be dismissed. The SAC is Rogers’ third attempt before 15 this Court at plausibly pleading that Postmates and not some other party was liable for the alleged 16 violation of the TCPA.3 Postmates raised the issues of vicarious liability and control in its motion 17 to dismiss the original complaint. See Dkt No. 14 at 7-8. And in its order dismissing the First 18 Amended Complaint (“FAC”), the Court made it abundantly clear that, in order to plausibly allege 19 that Postmates was vicariously liable for the text, Rogers had to allege that Postmates had some 20 degree of control over who sent the text and the manner and means by which it was sent. Rogers 21 has not alleged that, despite the Court’s clear direction. He has also not pleaded facts plausibly 22 suggesting that Postmates exercised any direction over the content of the text or the manner and 23 means by which it was sent. This was Rogers’ third attempt to get it right, but he was unable to. 24 The Court is left with the impression that amendment would be futile. Accordingly, the Court will 25 3 Plaintiff originally filed this putative class action against Postmates in the United States District 26 Court for the Southern District of Florida on July 25, 2019. Case No. 0:19-cv-61877-CMA. On September 6, 2019, he voluntarily dismissed that complaint after the Eleventh Circuit issued a 27 ruling that the receipt of a single text message constituted nothing more than “a brief, 1 exercise its discretion and dismiss without leave to amend. 2 V. CONCLUSION 3 For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss. The 4 SAC is dismissed with prejudice. 5 IT IS SO ORDERED. 6 7 Dated: July 9, 2020 8 TAA. | THOMAS S. HIXSON 9 United States Magistrate Judge 10 ll a 12

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