United States District Court, E.D. Washington
ROBERTA FRANK, an individual, and all others similarly situated, Plaintiff,
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.
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.
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
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,
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
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
Id. (quotations omitted).
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
Consumer Protection Act (“TCPA”)
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
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 ...