ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
PHYLLIS J. HAMILTON, District Judge.
Defendant's motion for summary judgment came on for hearing before this court on November 5, 2014. Plaintiff Brian Glauser ("plaintiff") appeared through his counsel, Rafey Balabanian. Defendant GroupMe, Inc. ("defendant" or "GroupMe") appeared through its counsel, Bryan Merryman. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion as follows.
This putative class action arises under the Telephone Consumer Protection Act ("TCPA"), which prohibits the making of any call (including text messages) without the prior express consent of the called party, using an automatic telephone dialing system, to any telephone number assigned to a cellular telephone service. In the operative first amended complaint ("FAC"), plaintiff describes GroupMe's product as a "group messaging" application, which allows users to create a "group" and to transmit text messages to all members of the group at the same time.
On or about April 23, 2011, plaintiff received two text messages sent through the GroupMe application. The messages read as follows:
Dkt. 54, ¶¶ 33, 35.
These two messages will be referred to collectively as the "Welcome Texts
Plaintiff then received more messages sent by group members, discussing their plans for scheduling a poker game. Plaintiff still did not respond, so he received another message from GroupMe: "We haven't heard from you, so we removed you from this group to be on the safe side. Don't worry, though. You can always get back in by replying to this text." Dkt. 54, ¶ 39. Plaintiff then responded "In," which added him back to the group, and he continued to receive messages from other group members.
Plaintiff filed this action on May 27, 2011, asserting a single claim against GroupMe
On January 27, 2012, the case was stayed pending FCC decisions on three issues: (1) the definition of an "automatic telephone dialing system" under the TCPA, (2) whether prior express consent could be received through an intermediary, and (3) the scope of the TCPA's "common carrier" exemption.
The court lifted the stay on March 27, 2014, after receiving no indication that any FCC action was forthcoming. The court also granted GroupMe permission to file an early motion for summary judgment on the issue of whether it used an "automatic telephone dialing system" (referred to as an "ATDS" or "autodialer"), as required to establish TCPA liability. The court directed the parties to conduct discovery on the "autodialer" issue, and GroupMe now moves for summary judgment on that issue.
A. Legal Standard
A party may move for summary judgment on a "claim or defense" or "part of . . . a claim or defense." Fed. R. Civ. P. 56(a). Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.
Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.
When the moving party has carried its burden, the nonmoving party must respond with specific facts, supported by admissible evidence, showing a genuine issue for trial. Fed. R. Civ. P. 56(c), (e). But allegedly disputed facts must be material — the existence of only "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."
When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor.
B. Legal Analysis
The relevant portion of the TCPA provides as follows:
47 U.S.C. § 227(b).
The term "automatic telephone dialing system" is defined in the statute as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). GroupMe's central argument on this motion is that it did not use an "automatic telephone dialing system," as defined by the statute, because its equipment did not have the capacity to store or produce numbers randomly or sequentially.
The first issue raised by GroupMe's motion is whether TCPA liability depends on the present capacity (or "actual capacity") of a defendant's equipment to function as an autodialer, or the
While the facts of
In support of the "potential capacity" argument, plaintiff starts by citing the two relevant Ninth Circuit cases on the topic. The first such case,
Three years after
For more definitive support regarding his "potential capacity" argument, plaintiff cites a district court case,
For the reasons explained above, the court disagrees with the
As explained above, the court's view is that the Ninth Circuit has clearly rejected a focus on "actual use" rather than "capacity," but has not yet spoken on the issue of "present capacity" versus "potential capacity." And on that latter issue, the court finds significant the use of the present tense by the statute, by the FCC, and by the Ninth Circuit. The court further finds the reasoning of the
If the court had adopted plaintiff's "potential capacity" view, there would be no dispute that defendant's equipment was indeed an "autodialer," and defendant's motion would need to be denied. However, because the court has adopted the "present capacity" view, it must address the next issue raised by the parties — whether the TCPA's definition of "autodialer" includes predictive dialers.
As mentioned above, the TCPA defines an "autodialer" as having "the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). Defendant argues that its equipment does not have the present capacity to dial numbers randomly or sequentially, and thus, its equipment cannot be an "autodialer."
While the TCPA's language does appear to support defendant's argument, in the years since the statute's passage in 1991, the FCC has issued regulations that expand the statutory definition, and under the Hobbs Act, the court is bound by those FCC rulings.
In 2003, the FCC noted that, "[i]n the past, telemarketers may have used dialing equipment to create and dial 10-digit telephone numbers arbitrarily" (i.e., randomly), but that "the evolution of the teleservices industry has progressed to the point where using lists of numbers is far more cost effective." 18 F.C.C.R. 14014, 14092 (2003). The FCC found it "clear from the statutory language and the legislative history that Congress anticipated that the FCC, under its TCPA rulemaking authority, might need to consider changes in technologies."
In 2008, the FCC "affirm[ed] that a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA's restrictions on the use of autodialers," and in 2012, the FCC again confirmed that the statute covered systems with the "capacity to store or produce and dial those numbers at random, in sequential order, or from a database of numbers." 23 F.C.C.R 559, 566 (2008); 27 F.C.C.R. at 15392 n.5 (2012) (emphasis added). Thus, even though the statute defines "ATDS" narrowly, as having the capacity to use "a random or sequential number generator," the FCC made clear that the definition now includes "predictive dialers," which may dial numbers from preprogrammed lists, and which need not necessarily generate numbers randomly or sequentially. As a result, the court rejects defendant's argument that "[t]he plain text of the TCPA and the FCC's implementing regulations have always defined an autodialer as a `random or sequential number generator.'" Dkt. 138 at 13. While the statute did indeed define an autodialer as such, the FCC's implementing regulations have expanded that definition, based on changes in technology, to include predictive dialers.
In its 2008 ruling, the FCC has made clear that the defining characteristic of an "autodialer" is not the ability to make calls randomly or sequentially — instead, the "basic function" of an autodialer is "the capacity to dial numbers without human intervention." 23 F.C.C.R. at 566. The FCC further discussed the "autodialer" definition in 2012, explaining that it "covers any equipment that has the specified capacity to generate numbers and dial them
If the court had accepted defendant's argument that random/sequential dialing were indeed required, then this issue alone would warrant the granting of summary judgment, because plaintiff appears to concede that defendant's dialers do not have the capacity to dial randomly or sequentially. However, because the court has not accepted defendant's argument, it must now address the final issue raised by the present motion — whether its equipment had the capacity to send text messages without human intervention. Defendant argues that its system sent text messages only in response to user requests (i.e., in response to human intervention), and thus, does not constitute an "autodialer."
Specifically, defendant points to the text messages described in the FAC, and argues that they were either sent by group members themselves, and merely routed through defendant's application, or in the case of the Welcome Texts, triggered by the group creator's addition of plaintiff to the group. In other words, defendant claims that its application "reacted entirely to actions by group members," and never sent messages without human intervention.
In response, plaintiff argues that defendant's system did indeed dial numbers "from a stored list without human intervention through a straightforward process" of collecting and storing all group member information, automatically generating the pre-programmed Welcome Texts, and sending the Welcome Texts to group members. Plaintiff emphasizes that "[g]roup creators never asked GroupMe to send the [Welcome Texts], did not send the messages themselves, and were never informed that the messages would be sent." According to plaintiff, "once GroupMe obtained the telephone numbers of the newly added group members," the "entire process was automated," and "[n]o human intervention was needed or involved."
Even if the court were to accept plaintiff's description of the process by which the Welcome Texts were sent, it finds no basis for plaintiff's argument that the Welcome Texts were sent without human intervention. Plaintiff admits that the Welcome Texts were triggered when "GroupMe obtained the telephone numbers of the newly added group members" (including himself), and ignores the fact that GroupMe obtained those numbers through the actions of the group's creator. Thus, the Welcome Texts were sent to plaintiff as a direct response to the intervention of Mike L., the "Poker" group creator.
Plaintiff makes one additional argument, for the first time on this motion, that defendant's conduct violated the TCPA even if it did not use an autodialer. The statute makes it unlawful to use "any automatic telephone dialing system or an artificial or prerecorded voice" to place calls to a cellular phone, and plaintiff argues that the Welcome Texts were "artificial, prewritten text messages," and thus constitute an "artificial or prerecorded voice." This argument fails for three reasons. First, plaintiff did not plead the use of an "artificial or prerecorded voice" in his complaint. Second, plaintiff admitted in response to a request for admission that defendant "never contacted [him] using an artificial or prerecorded voice." Dkt. 138-2, Ex. D. Finally, while plaintiff argues that the TCPA's definition of "voice" is "not limited to verbal communications," he presents no authority for the argument that a text message can have a "voice" — artificial, prerecorded, or otherwise.
In sum, as to the allegedly-offending Welcome Texts, plaintiff has failed to raise a triable issue of fact as to whether defendant's texting equipment had the capacity to dial numbers without human intervention, as required to be considered an "autodialer" for TCPA purposes. For that reason, defendant's motion for summary judgment is GRANTED.
C. Motions to seal
Both parties have filed motions to seal various documents and portions of documents submitted in connection with defendant's motion for summary judgment. First, along with its opening motion, defendant filed a motion to seal (Dkt. 106) portions of the declarations of Steve Martocci (Dkt. 106-3) and John Pignata (Dkt. 106-5). Specifically, defendant sought to seal portions of the declarations that "set forth the content of text messages sent and received by plaintiff" and by other group members, and that "provide the first and last names of the non-party group members." The court agrees that the non-party group members have a privacy interest in avoiding disclosure of their full names, but disagrees with the scope of the proposed redactions. In the Martocci declaration, the content of the messages sent by defendant itself are redacted, even though those messages provide the basis for this entire case, and are included in the FAC. Also, defendant's own motion mentions the group creator by first name and last initial (Mike L.). Thus, while the court agrees that the content of messages sent by group members (i.e., not sent by defendant) may be redacted, and that the members' full last names (other than the initial) may be redacted, the court will not permit any further redactions from the Martocci and Pignata declarations. Defendant's motion is GRANTED in part and DENIED in part, and defendant is directed to re-file these two documents, unredacting the first name and last initial of all group members, as well as the content of messages sent by GroupMe.
Second, along with his opposition brief, plaintiff filed a motion to seal (Dkt. 129) portions of his opposition brief (Dkt. 131), as well as the entire declaration of Shawn C. Davis (Dkt. 130-1) and four exhibits attached to the Davis declaration. Plaintiff argued that the redactions were made to protect the confidentiality of defendant's documents produced through discovery. Pursuant to Civil Local Rule 79-5(e), defendant filed a declaration in support of plaintiff's motion. However, the supporting declaration addressed only the Davis declaration and attached exhibits, and not the redacted portions of plaintiff's opposition brief. For that reason, plaintiff's motion is DENIED to the extent that it seeks the sealing of portions of his opposition brief. Plaintiff is directed to file an unredacted version of his opposition brief on the public docket.
As to the Davis declaration and exhibits, defendant argues that the exhibits contain excerpts of its proprietary source code as well as descriptions of its database structure, and that the Davis declaration discusses that confidential information. The court finds that defendant's supporting declaration provides good cause for the requested sealing, and thus GRANTS plaintiff's motion to the extent that it seeks the sealing of the Davis declaration and associated exhibits.
Third, in connection with its reply brief, defendant filed a motion to seal (Dkt. 137) portions of the Supplemental Declaration of John Pignata (Dkt. 137-3). Defendant argues that two paragraphs of the supplemental Pignata declaration contain excerpts of defendant's source code. The court finds that defendant has demonstrated good cause for the requested redactions, and thus GRANTS defendant's motion to seal portions of the supplemental Pignata declaration.
After the summary judgment hearing, defendant filed a "supplemental motion to file under seal" (Dkt. 144), which sought the sealing of the same documents referenced in defendant's previous two motions to seal. While, at the hearing, the court did direct defendant to re-submit highlighted, unredacted versions of the documents for which sealing was sought, defendant did not need to file a new motion to seal. Thus, having ruled on the originally-filed motions to seal, the court DENIES defendant's "supplemental motion to file under seal" as moot.
Finally, as stated at the hearing, the argument included along with plaintiff's statement of recent decision (Dkt. 139) is stricken, as it violates Civil Local Rule 7-3(d)(2).
The Clerk shall close the file. Plaintiff's motion for class certification is now rendered moot, and the hearing date is vacated.
The court also rejects defendant's argument that the FCC regulations regarding predictive dialers do not apply to text messages. The FCC and the Ninth Circuit have made clear that a text message is a "call" for purposes of the TCPA, and defendant provides no justification for drawing any relevant distinction between the two.