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Suriano v. French Riviera Health Spa, Inc.

United States District Court, E.D. Louisiana

December 20, 2018


         SECTION: "S" (2)



         IT IS HEREBY ORDERED that the Motion to Dismiss Pursuant to Rule 12(b)(6) (Rec. Doc. 4) filed by defendant, French Riviera Health Spa, Inc., is GRANTED.

         Plaintiff has filed suit on behalf of himself and others similarly situated claiming that defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), by sending certain unsolicited text messages to him. Defendant has filed the instant motion pursuant to Federal Rule 12(b)(6) seeking to dismiss the complaint for failure to state a claim. Plaintiff opposes the motion. For the reasons which follow, the motion is granted.


         On October 25, 2017, plaintiff signed a six-month contract to join defendant's gym. The next day, in a separate agreement, he purchased a six-month membership in the defendant's personal training program. He renewed the membership contract twice (on April 12, 2018, and September 5, 2018), and the training program contract once (on August 16, 2018). While plaintiff did not expressly consent in writing to receive text messages from defendant, he provided his cell phone number in multiple places in the applications. He subsequently received text messages at the number he provided from the defendant, which he claims violated the TCPA.

         Plaintiffs TCPA claim is premised on the following five text messages, which he received between October 26, 2017 and February 22, 2018. The first text message, received the day after he joined the gym, reads: "Dear member, Welcome to Riviera Fitness! Where your fitness is our strength. We're excited to have you as a member. Have a great workout!" The second, sent on November 8, 2017, stated: "Dear member, We offer a variety of classes and small group training. Click here (, for class schedules," The third message, received on December 24, 2017 reads: "Dear member, Become your best self with-our Personal Trainers. Ask us for info on our PT program, ( /yc8zaep8)." The fourth message, on January 23, 2018, reads: "Follow us on social media! Facebook ( Y8m7okwe) lnstagram (" The fifth and final complained of message, received on February 22, 2018, stated: "Dear member, Did you know that we have a blog? Each month we post workout tips, testimonials and much more!"


         1. Federal Rule 12(b)(6) standard

         Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a motion to dismiss a complaint for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, enough facts to state a claim for relief that is plausible on its face must be pleaded. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. v. Twombly, 127 S.Ct. 1955, 1964-65 & 1973 n. 14 (2007)). A claim is plausible on its face when the plaintiff pleads facts from which the court can "draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 127 S.Ct. at 1965. The court "must accept all well-pleaded facts as true and view them in the light most favorable to the non-moving party." In re S. Scrap Material Co., LLC, 541 F.3d 584, 587 (5th Cir, 2008). However, the court need not accept legal conclusions couched as factual allegations as true. Iqbal, 129 S.Ct. at 1949-50.

         In considering a motion to dismiss for failure to state a claim, a district court may consider only the contents of the pleading and the attachments thereto. Collins v. Morgan Stanley Dean Witter. 224 F.3d 496, 498 (5th Cir. 2000) (citing Fed.R.Civ.P. 12(b)(6)). However, the district court "may also consider documents attached to either a motion to dismiss or an opposition to that motion when the documents are referred to in the pleadings and are central to a plaintiffs claims." Brand Coupon Network, L.L.C. v. Catalina Mktg. Corp., 748 F.3d 631, 635 (5th Cir. 2014).

         2. The Telephone Consumer Protection Act ("TCPA ")

         Under the TCPA, it is 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. 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA provides a private right of action for injunctive relief and damages. Id. § 227(b)(3). A text message to a cell phone is a "call" for purposes of the TCPA. Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 667 (2016).

         The TCPA does not define "express consent." However, the Federal Communications Commission ("FCC") has provided guidance on the interpretation of the act. Under the FCC's 1992 order, "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." In re Rules & Regulations Implementing the TCPA, 7 F.C.C. Red. 8752, 8769 at ¶ 31 (1992): see also. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017). Nevertheless, as the Van Patten court noted, it would be inaccurate to say that the FCC has established a rule that a consumer giving a phone number to a company has provided consent to be contacted for any reason. "Instead, FCC orders and rulings show that the transactional context matters in determining the scope of a ...

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