Opinion
No. 5:19-CV-455-D
2020-09-18
Lauren DAVIS, Plaintiff, v. SAFE STREETS USA LLC, and ADT, LLC, Defendants.
Scott C. Harris, Whitfield Bryson LLP, Raleigh, NC, for Plaintiff. Christopher J. Derrenbacher, Eric G. Sauls, Lewis Brisbois Bisgaard & Smith LLP, Raleigh, NC, David M. Hawthorne, Lewis Brisbois Bisgaard & Smith, LLP, Fort Lauderdale, FL, for Defendant Safe Streets USA LLC. Daniel S. Blynn, Venable LLP, Washington, DC, Elizabeth C. Rinehart, Venable LLP, Baltimore, MD, David M. Hawthorne, Lewis Brisbois Bisgaard & Smith, LLP, Fort Lauderdale, FL, VI Edward Avery Wyatt, Wyatt Law, PLLC, Eric G. Sauls, Lewis Brisbois Bisgaard & Smith, LLP, Raleigh, NC, for Defendant ADT, LLC.
Scott C. Harris, Whitfield Bryson LLP, Raleigh, NC, for Plaintiff.
Christopher J. Derrenbacher, Eric G. Sauls, Lewis Brisbois Bisgaard & Smith LLP, Raleigh, NC, David M. Hawthorne, Lewis Brisbois Bisgaard & Smith, LLP, Fort Lauderdale, FL, for Defendant Safe Streets USA LLC.
Daniel S. Blynn, Venable LLP, Washington, DC, Elizabeth C. Rinehart, Venable LLP, Baltimore, MD, David M. Hawthorne, Lewis Brisbois Bisgaard & Smith, LLP, Fort Lauderdale, FL, VI Edward Avery Wyatt, Wyatt Law, PLLC, Eric G. Sauls, Lewis Brisbois Bisgaard & Smith, LLP, Raleigh, NC, for Defendant ADT, LLC.
ORDER
JAMES C. DEVER III, United States District Judge On October 15, 2019, Lauren Davis ("Davis" or "plaintiff") filed a complaint on behalf of herself and others similarly situated against Safe Streets USA LLC ("Safe Streets") and Always Protected Security, LLC ("Always Protected") alleging a violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. [D.E. 1]. On January 6, 2020, Always Protected moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) [D.E. 19]. On February 17, 2020, Davis amended her complaint [D.E. 25]. The amended complaint removed Always Protected as a defendant and added ADT, LLC ("ADT"; collectively, with Safe Streets, "defendants"), and alleges a TCPA claim against defendants. See id. On March 2, 2020, Safe Streets moved to dismiss the amended complaint under Rules 12(b)(1) and 12(b)(6) [D.E. 27]. On March 16, 2020, Safe Streets amended its motion to dismiss [D.E. 29] and filed a memorandum in support [D.E. 30]. On April 13, 2020, ADT moved to dismiss the amended complaint [D.E. 37] and filed a memorandum in support [D.E. 38]. On May 20, 2020, Davis responded in opposition [D.E. 41]. On June 17, 2020, defendants replied [D.E. 43]. On July 27, 2020, Davis moved to strike ADT's response [D.E. 46] and defendants' response [D.E. 48] to Davis's notices of subsequent authority [D.E. 49] and filed a memorandum in support [D.E. 50]. On August 14, 2020, defendants responded in opposition [D.E. 52]. On August 25, 2020, Davis replied [D.E. 55].
As explained below, the court dismisses Always Protected's motion as moot, denies defendants' motions to dismiss the amended complaint, and denies Davis's motion to strike.
I.
Davis is a realtor in Dallas, Texas. See Am. Compl. [D.E. 25] ¶¶ 8, 19–20. ADT provides alarm monitoring services and sells its alarm products through third-party dealers. See id. at ¶¶ 11–12. Safe Streets is an authorized third-party dealer for ADT that sells and installs ADT products. See id. at ¶¶ 13–14. On April 15, 2019, Davis received a text message either from defendants or sent on defendants' behalf. See id. at ¶¶ 21–22. The text message addressed Davis by name, congratulated her on a recent home sale, and offered to provide ADT equipment to the buyer free of charge if the buyer consented to Davis completing an ADT referral form. See id. at ¶¶ 21–23. The referral form asked for information concerning Davis and the buyer. See id. If the buyer consented and Davis completed the form, defendants would give Davis $200. See id. The text provided a link to the website that hosted the referral form. See id. The text did not allow Davis to opt out of receiving future text messages. See id.
Defendants did not object to Davis filing an amended complaint, and both defendants address the amended complaint in their respective motions to dismiss. See [D.E. 30, 38]. Accordingly, the court grants Davis leave to file the amended complaint. See Fed. R. Civ. P. 15(a)(2). Additionally, Always Protected's motion to dismiss the complaint is moot. See Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017) ; Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001).
Defendants sent the text message to Davis using a "dedicated, vanity short code" that a third-party text message marketing company, CallFire, Inc. ("CallFire"), owns. Id. at ¶¶ 25–31. A dedicated, vanity short code is a 5- or 6-digit number exclusive to a brand (like ADT) that the brand selects and uses to send digital advertising text messages. See id. CallFire states on its website that its text message advertising platform "is scalable to hundreds of thousands of messages." Id. at ¶ 31.
Davis alleges that defendants "are sending unsolicited text messages to realtors to get the realtors to provide contact information for new homebuyers [sic] so that they can, in turn, send unsolicited marketing messages to them ...." Id. at ¶ 24; see id. at ¶ 38. Davis did not consent to defendants sending her a text message, and alleges that "the nature and character of the text message at issue—standardized and consistent in structure and format—as well as CallFire's public statements regarding its users' ability to send thousands of messages instantly" demonstrates that defendants used an automatic telephone dialing system ("ATDS"). See id. at ¶¶ 32–34. Davis alleges that she "suffered an invasion of privacy, an intrusion into her life[,] and a private nuisance." Id. at ¶ 39. Davis also alleges that she and the purported class she represents "suffered lost utility of their phones—through diminished battery life and capacity incurred by receiving the text messages—lost time responding to the calls, and, where applicable, lost money or paid-for text-message allocations." Id. at ¶ 63.
Davis alleges that defendants knowingly or negligently sent the single, unsolicited text message to Davis using an ATDS without Davis's consent in violation of 47 U.S.C. § 227(b)(1)(A)(iii) and 47 C.F.R. § 64.1200(a)(2). See id. at ¶¶ 92–98. She seeks to represent a class that includes:
All persons to whom, on or after four years prior to filing of this complaint in this action, (1) received a text message, (2) made by or on behalf of Defendants, (3) regarding ADT home security services, and for whom (4) Defendants do not claim to have obtained prior express written consent, or claims to have obtained prior express written consent in the same manner it claims to have obtained prior express written consent from Plaintiff.
Id. at ¶ 66. Davis seeks injunctive relief and monetary damages. See id. at 19.
II.
A motion to dismiss under Rule 12(b)(1) for lack of standing tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (emphasis omitted). A federal court "must determine that it has subject-matter jurisdiction over [a claim] before it can pass on the merits of that [claim]." Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474, 479–80 (4th Cir. 2005). When considering a Rule 12(b)(1) motion, the court "may consider evidence outside the pleadings without converting the proceeding into one for summary judgment." White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (quotation omitted); see Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A plaintiff must establish that this court has subject-matter jurisdiction over her claims. See, e.g., Steel Co., 523 U.S. at 103–04, 118 S.Ct. 1003 ; Evans, 166 F.3d at 647 ; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). However, "when a defendant asserts that the complaint fails to allege sufficient facts to support subject[-]matter jurisdiction, the ... court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged [in the complaint and any additional materials]." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).
A plaintiff establishes standing by showing: (1) that the plaintiff has " ‘suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical’ "; (2) " ‘a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court’ "; and (3) that it is " ‘likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision’ " from the court. Chambers Med. Techs. of S.C., Inc. v. Bryant, 52 F.3d 1252, 1265 (4th Cir. 1995) (alterations omitted) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ); see Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). These requirements are "the irreducible constitutional minimum of standing." Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ; see Spokeo, Inc., 136 S. Ct. at 1547. If a plaintiff does not have standing, the court does not have subject-matter jurisdiction to hear the plaintiff's claims. See, e.g., Lujan, 504 U.S. at 560–61, 112 S.Ct. 2130 ; White Tail, 413 F.3d at 459 ; Payne v. Sears, Roebuck & Co., No. 5:11-CV-614-D, 2012 WL 1965389, at *2–3 (E.D.N.C. May 31, 2012) (unpublished).
Defendants argue that the intangible harms that Davis alleges are not a "concrete injury" sufficient to support Article III standing in light of Spokeo. See [D.E. 30] 5–10; [D.E. 38] 1–3. In discussing Spokeo, the Fourth Circuit identified three propositions from Spokeo concerning standing. First, a mere statutory violation is not synonymous with Article III standing. See Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 652 (4th Cir. 2019) ; see also Frank v. Gaos, ––– U.S. ––––, 139 S. Ct. 1041, 1046, 203 L.Ed.2d 404 (2019) ; Spokeo, 136 S. Ct. at 1549. Rather, a plaintiff alleging that a defendant violated her statutory rights must have "a personal stake in the litigation," which is "the traditional core of standing." Krakauer, 925 F.3d at 653. Second, injury-in-fact requires that plaintiff demonstrate a harm "both concrete and particularized." Id.; see Spokeo, 136 S. Ct. at 1548–49. As for concreteness, the injury must be "real, and not abstract," even if the harm is intangible. Spokeo, 136 S. Ct. at 1548–49 (quotation omitted); Curtis v. Propel Prop. Tax Funding, L.L.C., 915 F.3d 234, 240–41 (4th Cir. 2019). Third, "in determining whether a given injury meets the constitutional threshold, we look to both historic practice and the judgment of Congress." Krakauer, 925 F.3d at 653 ; see Spokeo, 136 S. Ct. at 1549. As for historic practice concerning an intangible harm, the court must determine whether the harm "has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts." Spokeo, 136 S. Ct. at 1549. The "close relationship" inquiry "is focused on types of harms protected at common law, not the precise point at which those harms become actionable." Krakauer, 925 F.3d at 654. In other words, a plaintiff does not have to allege a harm "that would support a common law cause of action," but rather identify a historic corollary of the kind of harm of which she suffers. Id. at 653–54. As for Congressional judgment, "Congress may elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate at law." Spokeo, 136 S. Ct. at 1549 (quotation and alteration omitted); see Lujan, 504 U.S. at 578, 112 S.Ct. 2130 ; Krakauer, 925 F.3d at 654.
Although ADT filed a separate motion to dismiss Davis's complaint, ADT "formally join[ed]" Safe Street's amended motion to dismiss. [D.E. 38] 1; [D.E. 43] (defendants' joint reply). Accordingly, the court addresses the motions together.
A defendant can mount either a facial or a factual attack upon standing. See Hutton v. Nat'l Bd. of Exam'rs in Optometry, Inc., 892 F.3d 613, 620–21 (4th Cir. 2018) ; Kerns, 585 F.3d at 192 ; Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A facial attack asserts that a complaint fails to allege facts upon which to base subject-matter jurisdiction. See Hutton, 892 F.3d at 621 n.7 ; Adams, 697 F.2d at 1219. The court takes the factual allegations of the complaint as true when a defendant makes a facial challenge to subject-matter jurisdiction. See Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017) ; Kerns, 585 F.3d at 192 ; Adams, 697 F.2d at 1219.
In evaluating a class action complaint, the Fourth Circuit analyzes "standing based on the allegations of personal injury made by the named plaintiffs." Hutton, 892 F.3d at 620 (quotation omitted); see Beck, 848 F.3d at 269 ; Doe v. Obama, 631 F.3d 157, 160 (4th Cir. 2011). Thus, if Davis lacks standing, this court lacks subject-matter jurisdiction.
Defendants make a facial attack upon Davis's standing and argue that the reasoning of Salcedo v. Hanna, 936 F.3d 1162, 1165 (11th Cir. 2019), requires this court to dismiss Davis's claim. See [D.E. 30] 7; [D.E. 38] 1. According to defendants, Salcedo teaches that Davis's receipt of one text message, coupled with the alleged privacy harms, loss of phone utility, and associated costs, is not a concrete injury sufficient to support Article III standing. See [D.E. 30] 5–10; [D.E. 38] 1–3.
In Salcedo, the United States Court of Appeals for the Eleventh Circuit held that "a single unsolicited text message, sent in violation" of the TCPA, was not "a concrete injury in fact that establishes standing to sue in federal court[.]" Salcedo, 936 F.3d at 1165. As for Congress's judgment, the Salcedo court observed that "the [Congressional] findings in the TCPA show a concern for privacy within the sanctity of the home that do not necessarily apply to text messaging," and thus found that "the judgment of Congress [concerning text messaging] is ambivalent at best." Id. at 1169–70 (distinguishing the reasoning of Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017), as a "broad overgeneralization of the judgment of Congress[.]"); cf. Van Patten, 847 F.3d at 1043. As for historical practice, the Salcedo court examined the common law torts of intrusion upon seclusion, nuisance, trespass, conversion, and trespass to chattel, and held that "significant differences of kind and degree of harm they contemplate providing redress for[ ]" exist when compared to the harm of which plaintiff complained. Salcedo, 936 F.3d at 1172 ; see id. at 1170–72. Essentially, the Salcedo court found that plaintiff's alleged harm from the single, unsolicited text message defendants sent to her did not rise to the qualitative level of harm required to prove any of the referenced common law causes of action. See id. at 1170–72.
The Fourth Circuit has not addressed whether receipt of a text message is sufficient to support standing to bring a TCPA claim. Recently, the Seventh Circuit joined the Second and the Ninth Circuits to hold that it is. See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 461–63 (7th Cir. 2020) ; Melito v. Experian Mktg. Sols., Inc., 923 F.3d 85, 92–95 (2d Cir. 2019) ; Van Patten, 847 F.3d at 1043 ; cf. Susinno v. Work Out World, Inc., 862 F.3d 346, 350–52 (3d Cir. 2017) (discussing Spokeo and holding that an unsolicited call to plaintiff's cell phone constitutes a concrete injury for a TCPA claim). This court finds the Seventh Circuit's analysis in Gadelhak persuasive. As for historical practice, the Gadelhak court noted that the "close relationship" Spokeo requires is "in kind, not degree." Gadelhak, 950 F.3d at 462. The Gadelhak court went on to hold that "while the common law offers guidance, it does not stake out the limits of Congress's power to identify harms deserving a remedy." Id. at 463. In light of these principles, the Gadelhak court held the "harm posed by unwanted text messages is analogous" to the kind of harm that the common law tort of intrusion upon seclusion addressed. Id. at 462 ; see also id. at 463. Moreover, the Gadelhak court held that this harm (i.e., an invasion of privacy) is precisely the injury Congress sought to address in passing the TCPA into law. See id. at 462-63. Furthermore, the number of text messages plaintiff received does not change the analysis. See id. at 463 n.2 (citing Melito, 923 F.3d at 92–93, and Van Patten, 847 F.3d at 1041–43 ).
The Gadelhak court's reasoning, and the prevailing view among the circuits, comports with the Fourth Circuit's analysis in Krakauer. In Krakauer, the Fourth Circuit explicitly rejected the notion that a plaintiff must, in effect, plead a common law cause of action to establish concrete injury. See Krakauer, 925 F.3d at 653–54. Rather, the Krakauer court focused on the kinds of harms common law causes of action addressed in light of plaintiff's alleged harm. See id.; see also Melito, 923 F.3d at 92–95 ; Van Patten, 847 F.3d at 1043 ; cf. Susinno, 862 F.3d at 350–52. Moreover, the Krakauer court cited Van Patten approvingly when discussing harms—specifically, intrusions upon seclusion—sufficient to confer standing to bring TCPA claims. See Krakauer, 925 F.3d at 653.
As for Davis's allegations, she has sufficiently pleaded facts concerning "concrete injury" to support Article III standing to bring her TCPA claim. Davis alleges that "as a result of the text message at issue[,] she suffered an invasion of privacy, an intrusion into her life and a private nuisance." Am. Compl. at ¶ 39. That harm bears a close relationship to the common law tort of inclusion upon seclusion. See Gadelhak, 950 F.3d at 462–63 ; Van Patten, 847 F.3d at 1041–43 ; Melito, 923 F.3d at 92–94 ; cf. Krakauer, 925 F.3d at 653–54 ; Susinno, 862 F.3d at 350–52. And it is a harm Congress sought to remedy in the TCPA. See Krakauer, 925 F.3d at 653–54 ; see also Gadelhak, 950 F.3d at 462–63 ; cf. Campbell-Ewald Co., 136 S. Ct. at 667. Moreover, despite defendants' arguments to the contrary, the number of text messages received does not bear on the "closeness" of the relationship between the harm alleged and those common law causes of action addressed. See, e.g., Gadelhak, 950 F.3d at 462–63 & n.2. Thus, the court denies defendants' motion to dismiss for lack of subject-matter jurisdiction.
In their reply brief, defendants state that they "do not argue that the TCPA doesn't apply to text messages, only that the receipt of a single text message does not confer Article III standing." [D.E. 43] 6. Defendants wisely conceded that the TCPA applies to text messages. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 136 S. Ct. 663, 667, 193 L.Ed.2d 571 (2016) ("A text message to a cellular telephone, it is undisputed, qualifies as a ‘call’ within the compass of [section] 227(b)(1)(A)(iii).").
In light of this holding, the court does not address Davis's argument concerning whether she demonstrates standing under Salcedo. Cf. [D.E. 41] 14–17.
III.
As for defendants' motion to dismiss Davis's TCPA claim for failure to state a claim, a motion to dismiss under Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677–80, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554–63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012) ; Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) ; Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "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, 129 S.Ct. 1937 (quotation omitted); see Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937. Rather, a plaintiff's allegations must "nudge[ ] [his] claims," Twombly, 550 U.S. at 570, 127 S.Ct. 1955, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678–79, 129 S.Ct. 1937.
Defendants argue that Davis did not sufficiently allege that defendants used an ATDS to send her the text message at issue. See [D.E. 30] 10–15; [D.E. 38] 4–6; [D.E. 43] 6–11. The TCPA makes it unlawful for any person
to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States ....
See 47 U.S.C. § 227(b)(1)(A) ; Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012) ; Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 644–45 (4th Cir. 2018) ; Galbreath v. Time Warner Cable, Inc., No. 7:14-CV-61-D, 2015 WL 9450593, at *2 (E.D.N.C. Dec. 22, 2015) (unpublished). The TCPA defines an ATDS 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).
Davis's TCPA claim ekes across the line from possible to plausible. Viewed in the light most favorable to Davis, the factual allegations in Davis's amended complaint permit an inference that defendants used an ATDS to send the text message based on CallFire's public statements, the dedicated, vanity short code from which the message was sent, the structure and tone of the message, and Davis's lack of consent to receiving the message. See, e.g., Iqbal, 556 U.S. at 677–80, 129 S.Ct. 1937 ; Jones v. Safe Streets USA LLC, No. 5:19-CV-394-BO, 2020 WL 3261096, at *2 (E.D.N.C. June 16, 2020) (unpublished); Boger v. Citrix Sys., Inc., No. 8:19-cv-01234-PX, 2020 WL 1033566, at *2–4 (D. Md. Mar. 3, 2020) (unpublished); Wilson v. PL Phase One Operations L.P., 422 F. Supp. 3d 971, 981 (D. Md. 2019) ; Stewart v. T-Mobile USA, Inc., 124 F. Supp. 3d 729, 733–34 (D.S.C. 2015) ; cf., e.g., Snow v. Gen. Elec. Co., No. 5:18-CV-511-FL, 2019 WL 2500407, at *1–7 (E.D.N.C. June 14, 2019) (unpublished); Musenge v. SmartWay of the Carolinas, LLC, No. 3:15-cv-153-RJC-DCK, 2018 WL 4440718, at *2–3 (W.D.N.C. Sept. 17, 2018) (unpublished). Whether defendants in fact used an ATDS to send Davis the text message is an issue for another day.
The Supreme Court recently granted certiorari on the precise issue over which the parties (and various circuit courts) disagree: "[w]hether the definition of ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’ " Brief of Petitioner at i, Facebook, Inc. v. Duguid, No. 19-511, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2019 WL 5390116 (October 17, 2019) ; see Facebook, Inc. v. Duguid, No. 19-511, ––– U.S. ––––, 141 S.Ct. 193, 207 L.Ed.2d 1118, 2020 WL 3865252, at *1 (July 9, 2020) (Mem.) (granting certiorari). The parties will likely have the benefit of the Supreme Court's decision at summary judgment.
As for Davis's motion to strike defendants' responses to her notices of suggested subsequent authority, the court has considered the motion under the governing standard. See E.D.N.C. Local Civ. Rule 7.1(h). The court denies the motion.
IV.
In sum, the court DISMISSES as moot Always Protected's motion to dismiss [D.E. 19], DENIES defendants' motions to dismiss [D.E. 29, 37], and DENIES plaintiff's motion to strike [D.E. 49].
SO ORDERED. This 18 day of September 2020.