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Liotta v. Wolford Boutiques, LLC

United States District Court, N.D. Georgia, Atlanta Division

March 30, 2017

JENNIFER LIOTTA, on behalf of herself and all others similarly situated, Plaintiff,
v.
WOLFORD BOUTIQUES, LLC, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Wolford Boutiques, LLC's (“Defendant”) Motion to Dismiss [7].

         I. BACKGROUND

         A. Facts

         Plaintiff Jennifer Liotta (“Plaintiff”) alleges that Defendant caused a text message advertising Defendant's goods to be sent to Plaintiff's cellular telephone. (Am. Compl. [2] ¶ 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).

         On or 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.

         B. Procedural History

         On 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 [2]. 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).

         On 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.

         II. DISCUSSION

         A. Legal Standard

         On a 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)).

         “To 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 ...


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