United States District Court, W.D. Washington, Seattle
C. Coughenour United States District Judge.
matter comes before the Court on Defendant's motion to
dismiss (Dkt. No. 23). Having considered the parties'
briefing and the relevant record, the Court hereby GRANTS the
motion for the reasons explained herein.
January 2019, Defendant Howard Schultz commenced a book
tour to promote his book, “From the Ground Up.”
(Dkt. No. 20 at 2.) Defendant said that he “planned to
crisscross the count[r]y for the next three months as part of
a book tour before deciding whether to enter the presidential
race.” (Id.) During his book tour, Defendant
visited different cities and talked about his book.
(Id. at 3-10.) The book tour stops all looked
substantially similar: an interviewer and Defendant discussed
Defendant's book and politics; the talks were called
“From the Ground Up”; the book was viewable to
the audience from the stage; and the book was made available
for purchase at the event. (See id.) Some of the
book tour events cost money for viewers to attend. (See
example, on March 11, 2019, Defendant held a book tour event
in Atlanta, Georgia. (See Id. at 9.) This Atlanta
event was called “From the Ground Up, ” it was
moderated by Van Jones, and the book was viewable to the
audience from the stage. (Id. at 9-10.) Tickets to
the event were sold for $28, which “reflect[ed] the
price of a first edition copy of the book plus tax.”
(Id. at 9.)
March 13, 2019, Defendant sent out two text messages to
people whose numbers he collected in voter records and who
were registered as “No Party Affiliation.”
(Id. at 12.) Plaintiffs Cassandra Vallianos, Stacey
Karney, and Mike Barker were three such people. (Id.
at 12-15.) Prior to Defendant texting Plaintiffs, Plaintiffs
had all registered their cell phone numbers on the Do Not
Call (“DNC”) Registry. (Id.)
first text message Defendant sent said, “Howard Schultz
will be speaking in Miami at 12:30! Watch live:
https://hs.media.mi-a030[.]” (Id. at 13.) The
second text message said, “Howard Schultz will be
speaking about his vision for America in Miami at 12:30!
Watch live: https://hs.media/mia030[.]” (Id.
at 14.) If Plaintiffs followed the link, it took them to the
homepage of Defendant's website (“Defendant's
homepage”), which included a livestream of the Miami
speech (“Defendant's Miami speech”), video
clips of people expressing their thoughts about the United
States' two-party political system, and a link to order
Defendant's book. (Id. at 11; Dkt. No. 24.)
While the link to order Defendant's book was at the
bottom of the homepage, it appears that the homepage was not
so big that the link to order the book was drowned out by the
rest of the homepage. (Dkt. No. 24.)
Defendant's Miami speech, Defendant is standing at a
podium by himself with no interviewer. Defendant's
book is not viewable to the audience from the stage; rather,
American and Floridian flags are behind Defendant.
See Speech Video. The speech is not referred to as
“From the Ground Up, ” as Defendant's book
tour stops were titled. See Id. And not once does
Defendant mention his book in the Miami speech. See
Id. Instead, Defendant talks extensively about his views
on politics and his plans if he ran for president. See
Id. At the end of the speech, Defendant does not take
questions from the audience, see id., and he steps
down into the audience and signs copies of his book. (Dkt.
No. 20 at 10.)
are a putative class who bring two claims against Defendant.
(Dkt. No. 20.) The first is based on Defendant sending
unwanted text messages to Plaintiffs without their consent
and with the use of an auto-dialer, in violation of the
Telephone Consumer Protection Act (TCPA), 47 U.S.C. §
227(b)(1)(A)(iii) (the “TCPA Auto-Dialer claim”).
(Id. at 17-18.) The second cause of action is based
on Defendant sending telephone solicitations to Plaintiffs,
despite their numbers being registered on the DNC Registry,
in violation of the TCPA, 47 U.S.C. § 227(c)(5) and 47
C.F.R. § 64.1200(c) (the “TCPA Do Not Call
claim”). (Id. at 18-19.) Defendant now moves
to dismiss the TCPA Do Not Call claim. (Dkt. No. 23.)
Federal Rule of Civil Procedure 12(b)(6) Legal
Court may dismiss a complaint that “fail[s] to state a
claim upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). 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. Id. at 678.
plaintiff is obligated to provide grounds for his or her
entitlement to relief that amount to more than labels and
conclusions or a formulaic recitation of the elements of a
cause of action. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 545 (2007). “[T]he pleading standard Rule 8
announces does not require ‘detailed factual
allegations,' but it demands more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
Court finds that the complaint fails to state a plausible
claim for relief, then it must dismiss the action with leave
to amend “unless it is clear . . . that the complaint
could not be saved by any amendment.” Thinket Ink