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Vallianos v. Schultz

United States District Court, W.D. Washington, Seattle

October 8, 2019

CASSANDRA VALLIANOS et al., Plaintiffs,


          John C. Coughenour United States District Judge.

         This 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.

         I. BACKGROUND

         In January 2019, Defendant Howard Schultz[1] 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 id.)

         For 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.)

         On 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.)

         The first text message Defendant sent said, “Howard Schultz will be speaking in Miami at 12:30! Watch live:[.]” (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:[.]” (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.)

         During Defendant's Miami speech, Defendant is standing at a podium by himself with no interviewer.[2] 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.)

         Plaintiffs 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.)


         A. Federal Rule of Civil Procedure 12(b)(6) Legal Standard

         The 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.

         A 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, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         If the 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 Info. ...

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