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Picton v. Greenway Chrysler-Jeep-Dodge, Inc.

United States District Court, M.D. Florida, Orlando Division

June 21, 2019

CLIFTON PICTON, Plaintiff,
v.
GREENWAY CHRYSLER-JEEP-DODGE, INC., Defendant.

          ORDER

          GREGORY A. PRESNELL DISTRICT JUDGE.

         This matter comes before the Court without a hearing on the Motion to Dismiss (Doc. 22) filed by the Defendant, Greenway Chrysler-Jeep-Dodge, Inc. (henceforth, “Greenway”), and the response in opposition (Doc. 23) filed by the Plaintiff, Clifton Picton (“Picton”).

         I. Background

         So-called “ringless” voicemail technology allows advertisers to transmit recorded messages via the Internet directly to the voicemail box associated with a cellular telephone without causing the phone itself to ring. According to the allegations of the Amended Complaint (Doc. 20) in this putative class action, which are accepted in pertinent part as true for purposes of resolving the instant motion, Greenway used this technology to contact Picton on two occasions in February 2018, leaving messages in his voicemail box promoting an “inventory elimination” sale at its dealership. (Doc. 20 at 12-13). Picton contends that ringless voicemails are subject to the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227, and because Greenway did not have his express consent to contact him, the two voicemails violated that act.

         II. Legal Standards

         Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief” so as to give the defendant fair notice of what the claim is and the grounds upon which it rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), overruled on other grounds, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule 12(b)(6) motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on a motion to dismiss, the Court must accept the factual allegations as true and construe the complaint in the light most favorable to the plaintiff. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must also limit its consideration to the pleadings and any exhibits attached thereto. Fed.R.Civ.P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).

         The plaintiff must provide enough factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to indicate the presence of the required elements, Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). Conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

         In Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the Supreme Court explained that a complaint need not contain detailed factual allegations, “but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. at 1949 (internal citations and quotations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the plaintiff is entitled to relief.'” Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

         III. Analysis

         A. Voicemail and the TCPA

         The TCPA prohibits the making of “any call” other than an emergency call “using an “automatic telephone dialing system” to “any telephone number assigned to a … cellular telephone service” without the “prior express consent of the called party”.[1] 47 U.S.C. § 227(b)(1)(A)(iii). Greenway's primary argument is that ringless voicemails are “information service technologies” that are not subject to regulation by the TCPA. Greenway points to case law and FCC decisions holding that “voice and data storage services” are “enhanced services, ” which the FCC has consistently refused to regulate. (Doc. 22 at 6-7). Greenway also points to case law and FCC decisions holding that voice mail services are “information services” rather than “telecommunications services” and are therefore not subject to the common carrier regulations of Title II of the Communications Act of 1934, 47 U.S.C. § 151 et seq. (Doc. 22 at 7-8). Based on this, Greenway asserts that “the TCPA simply cannot apply to Plaintiff's claim as pled.” (Doc. 22 at 8). But the issue is not whether voicemail services are subject to common carrier regulations under the Communications Act (or any other act, for that matter). The issue is whether the act of inserting a message into someone's voicemail box without their permission might run afoul of the TCPA. None of the authority cited by Greenway sheds any light on this question.

         On the other hand, courts have consistently held that calls resulting in voicemail messages are subject to the TCPA. See, e.g., Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012) (stating that the TCPA “curtails the use of automated dialers and prerecorded messages to cell phones … and routing a call to voicemail counts as answering a call”) and Castro v. Green Tree Servicing LLC, 959 F.Supp.2d 698, 720 (S.D.N.Y. 2013) (holding that for purposes of liability under the TCPA, it was immaterial whether the calls at issue had been answered by the plaintiff or had gone to voicemail). Greenway does not argue that the “ringless” quality of the voicemails here should lead to them being treated differently than other voicemails under the TCPA. Accordingly, the Court rejects the argument that voicemails, or ringless voicemails, are not subject to the TCPA.[2]

         B. Future harm

         In the prayers for relief of both counts of the Amended Complaint, Picton seeks, inter alia, a declaration that Greenway's practices violate the TCPA and an injunction prohibiting it from committing such violations in the future. (Doc. 20 at 17, 18). Greenway contends that Picton lacks standing to obtain declaratory or injunctive relief because the allegations of the Amended Complaint do not establish a sufficient likelihood that Greenway will cause additional ringless voicemails to be transmitted to his voicemail box. Picton responds that (1) that the proper way to attack a prayer for relief is via a motion to strike rather than a motion to ...


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