United States District Court, N.D. Georgia, Atlanta Division
JENNIFER LIOTTA, on behalf of herself and all others similarly situated, Plaintiff,
WOLFORD BOUTIQUES, LLC, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Wolford Boutiques,
LLC's (“Defendant”) Motion to Dismiss .
Jennifer Liotta (“Plaintiff”) alleges that
Defendant caused a text message advertising Defendant's
goods to be sent to Plaintiff's cellular telephone. (Am.
Compl.  ¶ 7). The text message advertisement did not
clearly state the identity of the business responsible for
sending the text message, nor did it provide an automated
opt-out mechanism for the recipient to make a do-not-call
request. (Am. Compl. ¶¶ 8-9). The text message did
not otherwise provide an opt-out procedure. (Am. Compl.
¶ 9). Plaintiff called the telephone number provided in
the text message and attempted to be removed from the
recipient list, but Defendant's representative told
Plaintiff “there was nothing Defendant could do to stop
the text messages.” (Am. Compl. ¶ 10).
about September 2, 2016, Defendant again caused a text
message advertising its goods to be sent to Plaintiff's
cellular telephone. (Am. Compl. ¶ 11). This second
message also did not clearly state the identity of the
business responsible for sending the text message, nor did it
provide any opt-out mechanism, automated or otherwise. (Am.
Compl. ¶¶ 12-13). Plaintiff alleges that
Defendant's actions caused her to suffer an invasion of
privacy, depleted her cell phone batteries, and intruded on
the capacity of Plaintiff's cell phone.
September 7, 2016, Plaintiff filed her class action complaint
[1.1] in the State Court of Fulton County, Georgia. On
November 17, 2016, she filed her amended complaint . On
December 16, 2016, Defendant removed this action to this
Court. Plaintiff alleges that Defendant violated the
Telephone Consumer Protection Act (“TCPA”) by
sending her and others similarly situated text advertisements
that failed to include the disclosure requirements set forth
in 47 C.F.R. § 64.1200(b)(1), and the opt-out
requirements set forth in 47 C.F.R. § 64.1200(b)(3).
January 6, 2017, Defendant filed its Motion to Dismiss,
arguing that the Court lacks subject-matter jurisdiction over
the action because Plaintiff's Amended Complaint fails to
establish standing under Article III. Defendant argues that
Plaintiff's claim is based on a mere procedural violation
of the TCPA, and that Spokeo v. Robins, 136 S.Ct.
1549 (2016) bars such claims. Plaintiff argues that the
injury she sustained is the type of injury the TCPA seeks to
address, and that she has standing under Article III.
motion to dismiss, the Court must “assume that the
factual allegations in the complaint are true and give the
plaintiff the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc.,
626 F.3d 1187, 1196 (11th Cir. 2010). Although reasonable
inferences are made in the plaintiff's favor,
“‘unwarranted deductions of fact' are not
admitted as true.” Aldana v. Del Monte Fresh
Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005)
(quoting S. Fla. Water Mgmt. Dist. v. Montalvo, 84
F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the Court is
not required to accept conclusory allegations and legal
conclusions as true. See Am. Dental Ass'n v. Cigna
Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (construing
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). Mere “labels and conclusions”
are insufficient. Twombly, 550 U.S. at 555. “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 (citing
Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am.
Dental, 605 F.3d at 1290 (quoting Iqba ...