Turizo v. Subway Franchisee Adver. Fund Trust Ltd.

603 F.Supp.3d 1334

Ryan TURIZO, individually and on behalf of all others similarly situated, Plaintiff,

v.SUBWAY FRANCHISEE ADVERTISING FUND TRUST LTD., Defendant.

CASE NO. 21-CIV-61493-RAR

United States District Court, S.D. Florida.

Signed May 18, 2022

Manuel Santiago Hiraldo, Hiraldo P.A., Fort Lauderdale, FL, Jennifer Gomes Simil, Jibrael Jarallah Said Hindi, Thomas John Patti, III, Law Offices of Jibrael S. Hindi, PLLC, Fort Lauderdale, FL, for Plaintiff.

Mark Allan Salky, Greenberg Traurig, Miami, FL, Lori Chang, Pro Hac Vice, Greenberg Traurig LLP, Los Angeles, CA, for Defendant.

Ian C. Ballon, Greenberg Traurig LLP, Los Angeles, CA, for Doctor's Associates, LLC.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS

RODOLFO A. RUIZ II, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court upon Defendant's Motion to Dismiss Second Amended Class Complaint [ECF No. 24 ], filed on October 15, 2021. Plaintiff filed a Response in Opposition [ECF No. 30 ] on October 28, 2021, Defendant filed a Reply in Support [ECF No. 34 ] on November 12, 2021, and Plaintiff filed a Sur-Reply in Opposition [ECF No. 35-1 ] on November 17, 2021. The Court having carefully considered the parties’ briefing, the record, and applicable law, it is hereby

ORDERED AND ADJUDGED that Defendant's Motion is DENIED as set forth herein.

BACKGROUND

Plaintiff brings this putative class action¹ under the federal Telephone Consumer Protection Act ("TCPA") and Florida's corollary statute, the Florida Telephone Solicitation Act ("FTSA"). [ECF No. 16] ("Second Am. Compl.") ¶ 1. Plaintiff alleges that Defendant provides advertising on behalf of Subway franchises throughout the United States. Id. ¶ 2. In the course of its advertising, Defendant allegedly sends unsolicited text messages to individuals who have registered their cellphone numbers on the National Do Not Call Registry ("DNC Registry") and have not consented to receiving text messages from Defendant. Id. ¶ 3. Plaintiff alleges that his cellphone number has been registered on the DNC Registry since September 18, 2020. Id. ¶ 16. Plaintiff also alleges that he never gave Defendant prior written consent to send Plaintiff text messages. Id. ¶ 31. Despite registration on the DNC Registry and Plaintiff's lack of consent, Defendant allegedly "bombarded" Plaintiff's cellphone with text message solicitations—including discount codes and invitations to order Subway products online. Id. ¶¶ 11–12.

Plaintiff alleges that Defendant used a computer software system to automatically select and dial Plaintiff's cellphone number. Second Am. Compl. ¶ 21. Plaintiff further alleges that this text messaging platform was able to transmit thousands of text messages without any human involvement. Id. ¶ 25. To support his allegation that the messages were sent via an automated system, Plaintiff points out that Defendant's website refers to the messaging platform as an "automated system" that sends "autodialed ads." Id. ¶ 30. Plaintiff also alleges that the generic, impersonal nature of the advertisements indicates the messages were sent via an automated system. Id. ¶ 24. Finally, Plaintiff alleges that he received the messages from a "short code" telephone number, which cannot be assigned to a standard telephone, further evidencing the automated nature of Defendant's text message solicitations. Id. ¶¶ 22–23.

Based on these allegations, Plaintiff brings two causes of action. Count One alleges that Defendant violated the TCPA's prohibition on soliciting phone numbers on the DNC Registry, also known as the "do-not-call" provision. Second Am. Compl. ¶¶ 51–52. Count Two alleges that Defendant sent telephone solicitations using an automated system for the selection and dialing of telephone numbers, in violation of the FTSA. Id. ¶¶ 58–60. Plaintiff seeks statutory, actual, and treble damages for Defendant's alleged statutory violations, as well as an injunction enjoining Defendant from continued unsolicited telephone advertisement. See id. at 15–16.

Defendant now moves to dismiss Plaintiff's Second Amended Complaint for failure to state a claim upon which relief can be granted. See Mot. at 2. As to Count One, Defendant argues that the TCPA's do-not-call provision applies only to "residential" telephone numbers, not wireless numbers like Plaintiff's cellphone. Id. As to Count Two, Defendant argues that Plaintiff's claim is barred by the Supreme Court's recent decision in Facebook, Inc. v. Duguid , ––– U.S. ––––, 141 S. Ct. 1163, 209 L.Ed.2d 272 (2021). Mot. at 2. Alternatively, if Duguid does not bar Count Two, Defendant argues that the FTSA (i) is preempted by the TCPA; (ii) violates the Dormant Commerce Clause; (iii) violates the First Amendment; (iv) is unconstitutionally vague; and (v) should be interpreted "as coextensive" with the TCPA based on the doctrine of Constitutional Avoidance. See generally id.

LEGAL STANDARD

A pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). If a plaintiff fails to satisfy this requirement, the defendant may move to dismiss the complaint. Id. R. 12(b)(6). To survive a motion to dismiss, a complaint need not contain "detailed factual allegations," but it "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A pleading that offers "labels and conclusions," "naked assertion[s]," or "a formulaic recitation of the elements of a cause of action" will not survive a motion to dismiss. Id. (alteration in original).

When deciding a motion under Rule 12(b)(6), a court must "view the complaint in the light most favorable to the plaintiff and accept all of the plaintiff's well-pleaded facts as true." Ziyadat v. Diamondrock Hospitality Co. , 3 F.4th 1291, 1296 (11th Cir. 2021). Additionally, if a court can draw any reasonable inferences from the allegations in the complaint, the court must draw those inferences in favor of the plaintiff. Keating v. City of Miami , 598 F.3d 753, 762 (11th Cir. 2010). "Dismissal pursuant to Rule 12(b)(6) is not appropriate unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Magluta v. Samples , 375 F.3d 1269, 1273 (11th Cir. 2004) (citation and quotation omitted).

ANALYSIS

Unlike many motions made under Rule 12(b)(6), Defendant's Motion does not take issue with the sufficiency or plausibility of the facts alleged in Plaintiff's Second Amended Complaint. Rather, Defendant argues that neither the TCPA nor the FTSA provide relief in the scenario alleged by Plaintiff. The Court addresses the parties’ arguments about each statute in turn.

A. Count One – The TCPA

In response to "a torrent of vociferous consumer complaints about intrusive robocalls," Congress passed the TCPA in 1991. Barr v. Am. Ass'n of Political Consultants, Inc. , ––– U.S. ––––, 140 S. Ct. 2335, 2344, 207 L.Ed.2d 784 (2020). Among other things, the TCPA instructed the Federal Communications Commission to "prescribe regulations to implement methods and procedures for protecting the privacy rights [of consumers] ... in an efficient, effective, and economic manner and without the imposition of any additional charge to telephone subscribers." 47 U.S.C. § 227(c)(2). The TCPA explicitly authorized the FCC to establish a "single national database" of telephone numbers belonging to "residential subscribers" who object to receiving telephone solicitations. Id. § 227(c)(3).

With that grant of authority, the FCC established the national DNC Registry, and prohibited any person or entity from initiating any telephone solicitation to "[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government." 47 C.F.R. § 64.1200(c)(2). And although section 227(c) and section 64.1200(c)(2) —by their own terms—apply to "residential telephone subscribers," the FCC extended the rule in section 64.1200(c)(2) to cover "wireless telephone numbers." Id. § 64.1200(e) (citing In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 18 F.C.C.R. 14014, 14039 (2003) ("2003 Order")). In its 2003 Order, the FCC clarified that it "will presume wireless subscribers who ask to be put on the [DNC Registry] to be ‘residential subscribers.’ " 18 F.C.C.R. at 14039.

The purported upshot of this legislative and administrative framework is that the DNC Registry protections apply to residential and cellphone numbers alike. That interpretation is exactly what Defendant challenges: Defendant argues that the FCC overstepped its rulemaking authority because Congress authorized the FCC to create a registry for "residential subscribers," but not wireless or cellular subscribers. See Mot. at 6–7. In support of its position, Defendant points out that the text of the TCPA distinguishes between "residential" and "cellular" telephone lines. Id. at 3 (comparing 47 U.S.C. § 227(b)(1)(A)(iii), which concerns prerecorded calls to "cellular" telephone numbers, with 47 U.S.C. § 227(b)(1)(B), which concerns prerecorded calls to "residential" numbers). Thus, Defendants argue that Congress intentionally omitted cellular telephone numbers from section 227(c)(3) ’s grant of rulemaking authority to the FCC with respect to the DNC Registry.

The undersigned agrees with Defendant. The TCPA clearly draws a distinction between cellular telephones and...