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Frank v. Cannabis & Glass LLC

United States District Court, E.D. Washington

October 1, 2019

ROBERTA FRANK, an individual, and all others similarly situated, Plaintiff,
v.
CANNABIS & GLASS, LLC, a Washington limited liability company; NXNW Retail, LLC, a Washington limited liability company; SPRINGBIG, INC., a Delaware Corporation; and TATE KAPPLE and his marital community, Defendants.

          ORDER GRANTING DEFENDANT SPRINGBIG'S MOTION TO DISMISS; GRANTING LEAVE TO AMEND

          Stanley A. Bastian United States District Judge.

         Before the Court is Defendant's Springbig's Motion to Dismiss Under Rule 12(b)(6), ECF No. 14. A hearing on the motion was held on September 26, 2019 in Spokane, Washington. Plaintiff was represented by Kirk D. Miller and Brian Cameron. Defendant Springbig was represented by Mark S. Eisen.

         Background Facts

         Plaintiff is bringing a putative class action against Defendants Cannabis & Glass, LLC, NXNW Retail, LLC, and Tate Kapple (“Retail Defendants”) and Defendant Springbig, Inc., for their various respective roles in sending unauthorized text messages to her cell phone. More specifically, in October of 2018, Plaintiff visited the Retail Defendants' store. At the point of sale, she gave the sales associate her cell phone number so she could be part of their loyalty program. She was not told that by giving her number she would start receiving text messages from the Retail Defendants that notified her of sales and discounts. Rather, she was told by the employee that her phone number and first name were required before she could enroll in the loyalty program. She visited a second store and was told that she did not have to enroll in a separate rewards program because the two were linked. The next day, she began to receive daily text messages from the Retail Defendants that were sent using Defendant Springbig's SMS short codes.

         Plaintiff is bringing claims under the federal Telephone Consumer Protection Act (TCPA), 47 U.C.S. 227, et seq. and the Washington Consumer Protection Act, RCW 19.86, et seq., which is based on an alleged violation of the Washington Commercial Electronic Mail Act (CEMA), RCW 19.190, et seq.

         Motion Standard

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of the Complaint. Navarro v. Block, 250 F.3d 729, 732 (2001). In order to survive a Rule 12(b)(6) Motion to Dismiss, the Complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twobly, 555 U.S. 544, 570 (2007). Thus, in deciding whether Plaintiff has set forth a “plausible” claim, the court must accept the factual allegations in the complaint as true. Id. This presumption, however, does not apply to legal conclusions. Id.

         The U.S. Supreme Court explained:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted lawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability¸ it stops short of the line between possibility and plausibility of entitlement to relief.

Id. (quotations omitted).

         Further, it instructed that “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. The Complaint must do more than tender “naked assertions devoid of further enhancement.” Id. (quotations omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         Telephone Consumer Protection Act (“TCPA”)

         Under the Telephone Consumer Protection Act, (“TCPA), it is 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 telephone number assigned to a . . . cellular telephone service, ” 47 U.S.C. § 227(b)(1)(A)(iii). A text message is a “call” under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951-52 (9th Cir. 2009). Prior express consent must be in writing if the message is telemarketing but can be either oral or written if the call is informational. In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1838-44 (2012).

         Congress has delegated to the Federal Communications Commission (FCC), the authority to make rules and regulations to implement the TCPA. 47 U.S.C. § 227(b)(2). Because of this, courts should defer to the FCC's interpretation of a term in the TCPA, so long as the term is not defined by the ...


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