United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
Marketron Broadcast Solutions, Inc. moves to dismiss
plaintiff Renee Reese's complaint for lack of standing
and for failure to state a claim. Plaintiff moves to remand
the case to state court. For the following reasons, the Court
grants Marketron's motion to dismiss and denies
plaintiff's motion to remand.
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).
alleges that she received unwanted text messages from
Marketron after entering a contest to win free tickets to a
performance by the artist Tinashe. Plaintiff allegedly heard
about this contest on a radio broadcast. To enter the
contest, plaintiff sent a text message containing a keyword
(“joyride”) to an SMS short code used by
Marketron. Marketron then sent the following message
Power1029: Ur entered 2 win TINASHE@HOB tix! More txts=more
chances! Reply POWER to join Buy tix:
link “bit.ly/tinasheKKND” led to a website that
allegedly sold tickets to concerts in the New Orleans
area. Plaintiff replied with the message
“POWER.” 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
replied with the message “Y, ” and later received
a number of additional text messages from
Marketron. Many of these messages allegedly lacked
instructions on how to opt out of receiving further
messages. 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.
the second case in which plaintiff has made these
allegations. Plaintiff first sued Marketron and other
defendants in this Court on September 28, 2017. 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,  and now moves to dismiss for failure to
state a claim and for lack of standing.Plaintiff
moves to remand the case to state court.
moves to remand this case to state court on the ground that
defendant has failed to establish subject-matter
jurisdiction. Plaintiff argues that defendant cannot
both assert federal question jurisdiction under the TCPA and
seek dismissal for lack of standing under the TCPA.
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
contends that plaintiff lacks standing because she fails to
show any concrete invasion of a legally protected
interest. 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
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)).
argues that plaintiff cannot satisfy the injury-in-fact
requirement of standing because she consented to receive
marketing messages. 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. 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.
Motion to Dismiss Under Rule 12(b)(6)
also moves to dismiss plaintiff's complaint for failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6). 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.
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)).
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. The alleged advertisement
was a link to a website that sold tickets to concerts in the
New Orleans area. Second, ...