Thomas v. Peterson's Harley Davidson of Miami, L. L.C.
Thomas v. Peterson's Harley Davidson of Miami, L. L.C.
Opinion of the Court
THIS CAUSE is before the Court upon Defendant Peterson's Harley Davidson of *1370Miami, L.L.C.'s Motion to Dismiss, ECF No. [6], (the "Motion"). The Court has carefully reviewed the record, the parties' briefs, and the applicable law. For the reasons that follow, the Motion is denied.
I. BACKGROUND
Plaintiff Derrick Thomas ("Plaintiff") initiated this putative class action on July 26, 2018 against Defendant for violation of the Telephone Consumer Protection Act ("TCPA").
According to Plaintiff's Complaint, between November 2, 2017 and April 5, 2018, Peterson's Harley Davidson of Miami, L.L.C. ("Defendant") sent Plaintiff at least five unsolicited text messages to his cellular telephone number, from short code 599-25. ECF No. [1] at ¶ 11. The Complaint includes screenshots of text messages from 599-25 on November 2nd, December 7th, and April 5th indicating that the messages were from "Petersons [sic] Harley Davidson of Miami." Id. The text messages solicited enrollment in Peterson's "VIP Club," which the recipient could do by "Reply[ing] Y." Id. The text messages also promoted Defendant's motorcycles, apparel, and other merchandise. Id. Plaintiff alleges that the text messages were sent utilizing an automatic telephone dialing system, based on the circumstances surrounding the text messages, including the ability to trigger an automated response by replying "Y," the text messages' commercial and generic content, that substantively identical texts were sent to multiple recipients, and that they were sent from a short code. Id. at ¶ 14.
Defendant filed the instant Motion on July 26, 2018.
II. LEGAL STANDARD
Rule 8 of the Federal Rules requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly ,
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See *1371Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance ,
III. DISCUSSION
Plaintiff brings his claim under a provision of the TCPA which prohibits the use of an automatic telephone dialing system ("ATDS") to call a cellular telephone without the recipient's consent. The TCPA provides in pertinent part: It shall be unlawful for any person within the United States ... to make any call ... using any [ATDS] ... to any telephone number assigned to a ... cellular telephone service....
Defendant argues that Plaintiff's Complaint fails to state a claim under the TCPA because Plaintiff has not provided a sufficient factual basis for the assertion that Defendant used either an ATDS or prerecorded voice and sent solicitation text messages to Plaintiff's cellular phone without Plaintiff's consent. Specifically, Defendant contends that at a minimum Plaintiff should be required to provide the phone number at which he received the alleged messages. Additionally, Defendant maintains that Plaintiff's class allegations should be stricken because Plaintiff's allegations concerning the number of members in the proposed class are too speculative to satisfy the plausibility requirement under Twombly and Iqbal .
As Defendant appears to acknowledge in its Reply, see ECF No. [12] at 2, at the pleading stage, the TCPA does not require Plaintiff to "allege his specific cellular telephone number." Manfred v. Bennett Law, PLLC , No. 12-CV-61548,
Here, Plaintiff's Complaint includes a screenshot of the allegedly violative text messages, setting forth the content of the text messages. The screenshot shows the date (but not the year) that the five text messages were sent, which, together with Plaintiff's allegation that the messages were sent between November 2, 2017 and April 1, 2018, establishes the particular date that each message was allegedly sent to Plaintiff. Plaintiff also sufficiently alleges that the text messages were sent en masse using an ATDS. Plaintiff's allegations concerning the circumstances surrounding the text messages - the messages' ability to trigger an automated response by replying "Y," the messages' commercial and generic content, and that the messages were sent from a short code - create a plausible inference of autodialing. Keim v. ADF Midatlantic, LLC , No. 12-80577-CIV,
Turning to Plaintiff's class allegations, given the factual allegations identified in the preceding paragraph, it is entirely plausible that thousands of individuals may be entitled to relief from Defendant's alleged misconduct. Requiring Plaintiff to plead with greater particularity those facts concerning the size of the putative class is unnecessary at this early stage of the litigation. The issue of numerosity is more properly determined on a motion for class certification.
IV. CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Defendant Peterson's Harley Davidson of Miami, L.L.C.'s Motion to Dismiss, ECF No. [6] , is DENIED
2. Defendant shall file its response to Plaintiff's Complaint no later than November 2, 2018 .
DONE AND ORDERED in Chambers at Miami, Florida, this 25th day of October, 2018.
Although the Motion was filed one day after the August 20, 2018 deadline to respond to the Complaint, in the interest of resolving the Motion on the merits, the Court accepts the late-filed motion.
The only case involving a ruling at the motion to dismiss stage that Defendant cites to support its argument that Plaintiff's class allegations are insufficient is a New Jersey state court case holding that class action suits under the TCPA cannot meet the requirements of predominance and superiority. Local Baking Prod., Inc. v. Kosher Bagel Munch, Inc. ,
Reference
- Full Case Name
- Derrick THOMAS, Individually and on Behalf of All Others Similarly Situated v. PETERSON'S HARLEY DAVIDSON OF MIAMI, L.L.C.
- Cited By
- 2 cases
- Status
- Published