United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on Defendant's motion for judgment on the pleadings and Plaintiff's motion to strike. Although Plaintiff requested oral argument, the court finds oral argument unnecessary. For the reasons stated herein, the court GRANTS the motion for judgment on the pleadings (Dkt. #13), ruling that Plaintiff's pleadings establish Defendant's affirmative defense to Plaintiff's sole claim arising under federal law. The court DENIES Plaintiffs' motion to strike. Dkt. #35. In light of these rulings, along with the court's ruling from earlier today that Plaintiff's claim has not been mooted by Defendant's offer of judgment, the court declines to address Plaintiff's motion for class certification. The clerk shall TERMINATE that motion. Dkt. #23. This order concludes with instructions to the parties regarding Plaintiffs' efforts to certify a class with respect to his remaining claims, all of which invoke Washington law.
Mr. Aderhold, a Seattleite, applied to become a car2go member in December 2012. Car2go is a one-way local car-sharing service that Defendant car2go N.A., LLC provides. In Seattle, for example, car2go provides hundreds of cars parked on city streets. Any member can use a car to drive to any location within preset boundaries, paying car2go by the minute for the use of the car. Once the member arrives at her destination, she simply leaves the car there, where another car2go member will presumably use it to go to another destination. Car2go operates not just in Seattle, but in at least five other cities across the United States.
Within seconds after Mr. Aderhold submitted his registration form, he received an email at the address he had provided and a text message on the cellular phone whose number he had provided. The text message consisted of two sentences: "Please enter your car2go activation code 145858 into the emailed link. We look forward to welcoming you to car2go."
Then Mr. Aderhold sued. He asserts that car2go broke the law by sending him the text message. In particular, he relies on the automated dialing restrictions of the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b), as well as the ban on unsolicited commercial text messages found in the Washington Commercial Electronic Mail Act ("CEMA"), RCW 19.190.060. He also asserts a Washington Consumer Protection Act ("CPA") claim that derives at least in part from the alleged CEMA violation. Mr. Aderhold hopes to represent a class of all car2go members and prospective members who have been or might be injured as a result of car2go's text messages.
At the threshold, however, car2go contends that Mr. Aderhold's TCPA claim is a non-starter. The portion of the TCPA on which Mr. Aderhold relies does not prohibit calls "made with the prior express consent of the called party...." 47 U.S.C. § 227(b)(1)(B). Car2go has moved for judgment on the pleadings, contending that Mr. Aderhold's complaint establishes that he consented to receive the text message that car2go sent him. Mr. Aderhold has moved to strike the affirmative defense of consent from car2go's answer to his complaint. The court now considers both motions. After resolving them, it considers what claims remain in this suit and Mr. Aderhold's efforts to certify a class to pursue those claims.
A. Motion for Judgment on the Pleadings: Standard and Applicability to TCPA Affirmative Defense of "Prior Express Consent"
The court begins its analysis at car2go's motion for judgment on the pleadings. That motion, which Federal Rule of Civil Procedure 12(c) authorizes, is "functionally equivalent" to a Rule 12(b)(6) motion to dismiss for failure to state a claim. Harris v. County of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012). Rule 12(b)(6) requires the court to assume the truth of the complaint's factual allegations and credit all reasonable inferences arising from its allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The plaintiff must point to factual allegations that "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is "any set of facts consistent with the allegations in the complaint" that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) ("When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."). The court typically cannot consider evidence beyond the four corners of the complaint, although it may rely on a document to which the complaint refers if the document is central to the party's claims and its authenticity is not in question. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). The court may also consider evidence subject to judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
A motion for judgment on the pleadings may also serve as a vehicle for asserting an affirmative defense. When an affirmative defense "is obvious on the face of a complaint, " a defendant can assert that defense in a Rule 12(b)(6) motion or, presumably, in a motion for judgment on the pleadings. Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013).
Car2go's motion revolves around its affirmative defense that Mr. Aderhold consented to the text message he received. Consent, as the court has noted, is an escape route for a caller who might otherwise face TCPA liability. Mr. Aderhold asserts that car2go violated a portion of the TCPA making it unlawful "to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice" to any "cellular telephone service...." 47 U.S.C. § 227(b)(1)(A)(iii). Although the court knows of no federal appeals court that has addressed the issue, district courts deem "prior express consent" to be "an affirmative defense to be raised and proved by a TCPA defendant, " rather than "an element of Plaintiffs' TCPA claim." Connelly v. Hilton Grand Vacations Co., LLC, No. 12cv599 JLS (KSC), 2012 U.S. Dist. LEXIS 81332, at *9 (S.D. Cal. Jun. 11, 2012); see also Baird v. Sabre Inc., No. CV 13-999 SVW, 2014 U.S. Dist. LEXIS 11246, at *5 (C.D. Cal. Jan. 28, 2014); Kolinek v. Walgreen Co., No. 13 C 4806, 2014 U.S. Dist. LEXIS 15986, at *4 (N.D. Ill. Feb. 10, 2014).
The court now considers whether car2go is entitled to judgment on the pleadings that Mr. Aderhold gave his "prior express consent" to the text message he received.
B. "Prior Express Consent" in the Courts
If the number of recent decisions on the issue is any indication, the meaning of "prior express consent" in the TCPA is being litigated almost daily in the federal district courts. Few courts of appeals, however, have weighed in, or at ...