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Reese v. Marketron Broadcast Solutions, Inc.

United States District Court, E.D. Louisiana

May 8, 2018


         SECTION “R” (1)



         Defendant Marketron Broadcast Solutions, Inc. moves to dismiss plaintiff Renee Reese's complaint for lack of standing and for failure to state a claim.[1] Plaintiff moves to remand the case to state court.[2] For the following reasons, the Court grants Marketron's motion to dismiss and denies plaintiff's motion to remand.

         I. BACKGROUND

         Plaintiff Renee Reese filed this putative class action seeking damages and equitable relief under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. The TCPA makes it unlawful to make a call using an automatic telephone dialing system “to any telephone number assigned to a . . . cellular telephone service, ” without the recipient's express consent. Id. § 227(b)(1)(A)(iii). It also provides a private right of action to seek injunctive relief and damages. Id. § 227(b)(3). A text message is a “call” within the meaning of the statute. Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 667, 193 L.Ed.2d 571 (2016).

         Plaintiff alleges that she received unwanted text messages from Marketron after entering a contest to win free tickets to a performance by the artist Tinashe.[3] Plaintiff allegedly heard about this contest on a radio broadcast.[4] To enter the contest, plaintiff sent a text message containing a keyword (“joyride”) to an SMS short code used by Marketron.[5] Marketron then sent the following message to plaintiff:

Power1029: Ur entered 2 win TINASHE@HOB tix! More txts=more chances! Reply POWER to join Buy tix:[6]

         The link “” led to a website that allegedly sold tickets to concerts in the New Orleans area.[7] Plaintiff replied with the message “POWER.”[8] Marketron then sent another message:

Marketron Mobile Alerts on 68255: Reply Y to consent to rcv mktg msgs from POWER. 5 msgs/mo. Reply STOP'stop, HELP=help. Msg&DataRatesMayApply. Consent not required to buy goods/svcs.[9]

         Plaintiff replied with the message “Y, ” and later received a number of additional text messages from Marketron.[10] Many of these messages allegedly lacked instructions on how to opt out of receiving further messages.[11] The complaint lists several injuries allegedly suffered by plaintiff as a result of Marketron's conduct, including time spent answering and fielding unwanted telemarketing text messages, charges for receiving the messages, wear and tear on her telephone, and loss of battery life.[12]

         This is the second case in which plaintiff has made these allegations. Plaintiff first sued Marketron and other defendants in this Court on September 28, 2017.[13] Plaintiff voluntarily dismissed the case on February 5, 2018. On the same day, plaintiff filed her second suit against Marketron- this time in state court. Marketron removed the case to this Court, [14] and now moves to dismiss for failure to state a claim and for lack of standing.[15]Plaintiff moves to remand the case to state court.[16]


         A. Removal Jurisdiction

         Plaintiff moves to remand this case to state court on the ground that defendant has failed to establish subject-matter jurisdiction.[17] Plaintiff argues that defendant cannot both assert federal question jurisdiction under the TCPA and seek dismissal for lack of standing under the TCPA.

         This argument is unavailing. A case may be removed under 28 U.S.C. §§ 1331 and 1441 “when a federal question is presented on the face of the plaintiff's properly pleaded complaint.” Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)). The TCPA claim in plaintiff's complaint plainly presents such a federal question. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 377 (2012) (holding that a TCPA claim “plainly arises under the laws of the United States” (internal quotation marks and alterations omitted)). Accordingly, defendant properly removed this case to federal court, and plaintiff's motion to remand must be denied.

         B. Standing

         Marketron contends that plaintiff lacks standing because she fails to show any concrete invasion of a legally protected interest.[18] In any suit in federal court, the issue of standing presents a “threshold jurisdictional question.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998). The requirement that a party have standing to bring suit flows from Article III of the Constitution, which limits the scope of the federal judicial power to the adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2. Standing consists of three elements: (1) the plaintiff must have suffered an “injury in fact, ” which is an invasion of a legally protected interest that is “concrete and particularized” and “actual or imminent”; (2) the injury must be “fairly traceable” to the challenged conduct of the defendant; and (3) it must be likely that plaintiff's injury will be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted).

         Because a motion to dismiss for lack of standing challenges the Court's subject matter jurisdiction, it is governed by Federal Rule of Civil Procedure 12(b)(1). Moore v. Bryant, 853 F.3d 245, 248 (5th Cir. 2017). A court may dismiss a claim for lack of constitutional standing based on “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Id. (quoting Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996)).

         Marketron argues that plaintiff cannot satisfy the injury-in-fact requirement of standing because she consented to receive marketing messages.[19] In a TCPA case, consent is an affirmative defense. See Lee v. Credit Mgmt., LP, 846 F.Supp.2d 716, 730 (S.D. Tex. 2012). Most courts address consent as a merits issue rather than as an issue of constitutional standing. See, e.g., Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (holding that plaintiff had standing to sue, but that defendant was entitled summary judgment because of plaintiff's consent); Smith v. Blue Shield of Cal. Life & Health Ins. Co., 228 F.Supp.3d 1056 (C.D. Cal. 2017) (same); Connelly v. Hilton Grant Vacations Co., LLC, No. 12-599, 2012 WL 2129364, at *3 (S.D. Cal. June 11, 2012) (denying motion to dismiss for lack of standing based on consent because “consent is an affirmative defense to be raised and proved by a TCPA defendant”). Moreover, the injuries plaintiff allegedly suffered-including invasion of privacy, time spent answering and fielding unwanted telemarketing text messages, charges for receiving the messages, wear and tear on her telephone, and loss of battery life-have been held sufficient to satisfy Article III's requirements.[20] See, e.g., Van Patten, 847 F.3d at 1043 (holding that a TCPA plaintiff satisfies Article III standing by alleging that “[u]nsolicited telemarketing phone calls or text messages . . . invade [her] privacy and disturb [her] solitude”); Arnold Chapman & Paldo Sign & Display Co. v. Wagener Equities Inc., 747 F.3d 489, 491 (7th Cir. 2014) (noting that a TCPA plaintiff “may be annoyed, distracted, or otherwise inconvenienced if his use of the [fax] machine is interrupted by unsolicited faxes to it, or if the machine wears out prematurely because of overuse attributable to junk faxes”); Sartin v. EKF Diagnostics, Inc., No. 16-1816, 2016 WL 7450471, at *4 (E.D. La. Dec. 28, 2016) (noting that “a number of district courts have found that the wasted time associated with receipt of an unlawful fax or telephone call suffices to confer standing to sue under the TCPA”); Jamison v. Esurance Ins. Servs., Inc., No. 15-2484, 2016 WL 320646, at *3 (N.D. Tex. Jan. 27, 2016) (finding that plaintiff satisfied injury-in-fact requirement by alleging that defendant's unsolicited telephone calls caused plaintiff to incur charges). Thus, plaintiff has standing, and the Court has jurisdiction over this matter.

         C. Motion to Dismiss Under Rule 12(b)(6)

         Marketron also moves to dismiss plaintiff's complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).[21] To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim is facially plausible “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 court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

         A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Id. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Twombly, 550 U.S. at 555. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007), the claim must be dismissed. Dismissal based on an affirmative defense “may be appropriate” on a Rule 12(b)(6) motion, but only if the “affirmative defense appears on the face of the pleadings.” Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 726 (5th Cir. 2013) (quoting Kansa Reins. Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994)).

         In her opposition to Marketron's motion to dismiss, plaintiff articulates two bases for her TCPA claim. First, she argues that Marketron's first text message to her violated the TCPA because it included advertising or telemarketing without her prior express written consent.[22] The alleged advertisement was a link to a website that sold tickets to concerts in the New Orleans area.[23] Second, ...

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