United States District Court, E.D. Louisiana
ORDER AND REASONS
ANN VIAL LEMMON, UNITED STATES DISTRICT JUDGE.
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.,
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.
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 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 (http://tinyurl.com/yag8aoha), 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,
(http://tinyurl.com /yc8zaep8)." The fourth
message, on January 23, 2018, reads: "Follow us on
social media! Facebook (http://tinyurl.com/
(http://tinvurl.com/y77ocpih)." 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
Federal Rule 12(b)(6) standard
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.
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).
The Telephone Consumer Protection Act ("TCPA
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).
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