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Hickey v. Voxernet, 12-Cv-00373 (W.D. Wash.; Aug. 13, 2012)

Hickey v. Voxernet, 12-Cv-00373 (W.D. Wash.; Aug. 13, 2012)

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Judge Pechman declines to dismiss putative text spam class action against Voxernet (an application that transforms your cell phone into a walkie talkie). She also finds that claims under Washington state statute are not preempted.
Judge Pechman declines to dismiss putative text spam class action against Voxernet (an application that transforms your cell phone into a walkie talkie). She also finds that claims under Washington state statute are not preempted.

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Published by: Venkat Balasubramani on Sep 06, 2012
Copyright:Attribution Non-commercial

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09/07/2012

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ORDER ON DEFENDANT’S MOTION TODISMISS- 1
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLESTEPHEN HICKEY,Plaintiff,v.VOXERNET LLC, a Delawarecorporation; TOM KATIS, an individual;JOHN DOE, an unknown person,Defendants.CASE NO. C12-373 MJPORDER ON DEFENDANT’SMOTION TO DISMISSThis matter comes before the Court on Defendant’s motion to dismiss (Dkt. No. 14.)Having reviewed the motion, the response (Dkt. No. 16), the reply (Dkt. No. 18), and all relatedfilings, the Court DENIES in part and GRANTS in part Defendant’s motion to dismiss Plaintiff’sfederal and state law causes of action with leave to amend.
Background
“Voxernet” is a software application that transforms a user’s cellular phone into a walkie-talkie. (Dkt. No. 14 at 7.) Plaintiff pursues federal and state consumer protection claims againstDefendant Voxernet arising out of its alleged use of Voxer subscribers’ cell phone contact lists to
Case 2:12-cv-00373-MJP Document 22 Filed 08/13/12 Page 1 of 11
 
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ORDER ON DEFENDANT’S MOTION TODISMISS- 2
send text messages advertising Voxer. (Dkt. No. 11 at 3.) The proposed class action was filed instate court and removed to this Court pursuant to the Class Action Fairness Act.Plaintiff alleges that in December 2011, he received an unsolicited text messagetransmitted by or on behalf of Voxernet using an automatic telephone dialing system (“ATDS”).(Dkt. No. 11 at 5.) The message told Plaintiff to “Get on Voxer” and provided him a link towhere he could download Voxer. (Id. at 5.) Plaintiff believed that the message was from one of his contacts trying to contact him. (Id.) Plaintiff argues that Voxer is similar to a predictivedialer and that Voxer will send advertisements in an automated manner to cell phone numbers.(Id. at 3.)Plaintiff alleges that the text messages are commercial solicitations that are meant toelicit valuable consideration from consumers. (Id.) Plaintiff claims that he was injured as aresult of the text message due to associated phone charges, the depletion of his cell phone datacapacity, invasion of privacy and the annoyance of receiving unsolicited text messages. (Id. at6.)Plaintiff seeks to represent on behalf of a national class under federal law and aWashington State subclass under Washington law anyone who has received “at least oneunsolicited text message which marketed Voxer on behalf of Defendant.” (Id. at 7.) Plaintiff pursues one cause of action under the Telephone Consumer Protection Act (“TCPA”), one underthe Washington State Commercial Electronic Mail Act (“CEMA”) as a per se violation of theWashington Consumer Protection Act (“CPA”), and requests damages and injunctive relief.Defendant moves to dismiss both causes of action. \\  \\ 
Case 2:12-cv-00373-MJP Document 22 Filed 08/13/12 Page 2 of 11
 
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ORDER ON DEFENDANT’S MOTION TODISMISS- 3
Analysis
 A.
 
StandardA court may dismiss a complaint for “failure to state a claim upon which relief can begranted.” Fed. R. Civ. P. 12(b)(6). On a motion to dismiss, the Court accepts all well-pleadedallegations of material fact as true and draws all reasonable inferences in favor of the plaintiff.Wyler Summit P’ship v. Turner Broad. Sys., 135 F.3d 658, 661 (9
th
Cir. 1998). The complaintmust allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleadsfactual content that allows the court to draw the reasonable inference that the defendant is liablefor the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). The complaintmust contain “more than labels and conclusions, and a formulaic recitation of the elements of acause of action will not do.” Twombly, 550 U.S. at 555.B.
 
TCPA ClaimDefendant seeks dismissal of Plaintiff’s TCPA claim, arguing that (1) Plaintiff failed toallege Voxer sent the disputed text message, and (2) Plaintiff failed to adequately plead the useof an ATDS as defined under the TCPA. The Court finds neither argument persuasive.1.
 
Voxer’s Transmission of the Text MessagePlaintiff sufficiently alleges that Voxer sent a text message to his cell phone. The TCPAprohibits making “any call . . . using any automatic telephone dialing system . . . to any telephonenumber assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A). A text messageis a call under the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9
th
Cir.2009). Courts have found a “[Defendant] can be held liable even if it did not physically send themessages at issue” as long as Plaintiff plausibly alleges Defendant ultimately controlled sending
Case 2:12-cv-00373-MJP Document 22 Filed 08/13/12 Page 3 of 11

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