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Hastings v. Triumph Property Management Corp.

United States District Court, D. Nevada

January 26, 2017

John Hastings, et al., Plaintiffs
Triumph Property Management Corporation, Defendant



         John and Jill Hastings bring this class-action complaint under the Telephone Consumer Protection Act to seek redress for a text message. Triumph Property Management Corporation moves to dismiss and to strike the class allegations, arguing that the Hastingses' claims fails a matter of law. The Hastingses oppose Triumph's motions, seek leave to amend their complaint, and move for sanctions under 28 U.S.C. § 1927. Because the proposed amendments are not futile, I deny Triumph's dismissal motion and motion to strike, grant the Hastingses' motion for leave to amend, and deny their motion for sanctions.[1]


         A. The initial complaint

         The Hastingses allege that they received a text message shortly after placing a call to Triumph in January 2015 that read:

ힽ㛯굷 Your recent call to us is much appreciated. We want to hear of your opinion. Plz text back any comments. (702)7999999.[2]

         The Hastingses claim that they did not consent to receiving this message and that the text was sent to their cell phone via an automated telephone dialing system (ATDS). They also allege that they are members of the class “consisting of all persons within the United States who received any unsolicited text messages from Defendant without prior express consent.”[3] They plead claims for negligent and willful violations of the TCPA and seek monetary and injunctive relief.

         B. The proposed amended complaint

         The Hastingses seek leave to add Kixie Online, Inc. as a defendant, include vicarious-liability allegations against Triumph, and “further clarify certain other allegations in the original Complaint.”[4]They allege that Kixie specializes in electronic telemarketing, including text messaging consumer telephone numbers.[5] In September 2014, Triumph allegedly began using Kixie's services to “send out pre-typed SMS text messages to consumers” designated by Triumph “on Triumph's behalf using special computer equipment and dialers.”[6] In Kixie's terms-of-use agreement, Triumph agreed to warrant to Kixie that “the owners of the phone numbers you provide to Kixie, to which outbound messages and broadcasts are transmitted through the Services, have consented or otherwise opted-in to the receipt of such messages and broadcasts.”[7] The Hastingses assert that they called Triumph on January 20, 2015, and Triumph “trapped” their cell-phone number via caller ID, and provided the number to Kixie, and then Kixie sent them the offending text message at 1:30 p.m. that day via its ATDS system.[8]

         The Hastingses also clarify their class-action allegations. They now define their proposed class as “[a]ll persons within the state of Nevada who received any text message from Defendants or their agent/s and/or employee/s, not sent for emergency purposes, to the person's cellular telephone made through the use of any automatic telephone dialing system within the four years prior to the filing of the Complaint in this case.”[9]

         Triumph moves to dismiss the initial complaint and opposes the Hastingses' motion for leave to amend, arguing that dismissal is proper and the proposed amendments are futile because the text did not violate the TCPA: it was not sent from an ATDS and “was a responsive communication intended for quality assurance and/or customer service purposes, ” not a solicitation.[10] Triumph also argues that the Hastingses fail to adequately allege that Triumph knowingly or willfully violated the TCPA. The Hastingses respond that the TCPA applies regardless of the content of the text, so the proposed amendments are not futile, and that they sufficiently allege that Triumph sent the message using an ATDS system and knowingly and willfully violated the Act.


         A. Standards for leave to amend

         Rule 15(a)(2) of the Federal Rules of Civil Procedure directs that “[t]he court should freely give leave when justice so requires, ” but leave to amend may be denied if the proposed amendment is futile.[11] In determining whether to grant leave to amend, I consider five factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the plaintiff has previously amended the complaint.[12] “Futility alone can justify the denial of a motion to amend.”[13]

         Rule 8 of the Federal Rules of Civil Procedure requires every complaint to contain “[a] short and plain statement of the claim showing that the pleader is entitled to relief.”[14] While Rule 8 does not require detailed factual allegations, the properly pled claim must contain enough facts to “state a claim to relief that is plausible on its face.”[15] This “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”; the facts alleged must raise the claim “above the speculative level.”[16] In other words, a complaint must make direct or inferential allegations about “all the material elements necessary to sustain recovery under some viable legal theory.”[17] A claim is facially plausible when the complaint alleges facts that allow the court to draw a reasonable inference that the defendant is liable for the alleged misconduct.[18] A complaint that does not permit the court to infer more than the mere possibility of misconduct has “alleged-but not shown-that the pleader is entitled to relief, ” and it must be dismissed.

         B. The Hastingses plead colorable claims under the Telephone Consumer Protection Act, and the proposed amendments are not futile.

         The TCPA makes it unlawful “to make any call” using an ATDS without the recipient's prior express consent.[19] An ATDS is equipment that “has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (2) to dial such numbers.”[20]The Ninth Circuit has held that a text message is “a call” within the meaning of the Act.[21]

         At the outset, I reject Triumph's argument that the text cannot be actionable because it is not a solicitation. The content of the message or call to a cellular phone affects only the type of consent required for the text to be lawful: “if a text message ‘includes or introduces an advertisement' or ‘constitutes telemarketing, ' it may only be sent with the recipient's prior express written consent, whereas other texts”-like the one here[22]-“require only prior express consent to be legal.”[23] The Hastingses allege that they never gave prior express consent to Triumph, and they clarify in their proposed amended ...

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