United States District Court, E.D. Pennsylvania
BILL H. DOMINGUEZ, on behalf of himself and others similarly situated, Plaintiff,
YAHOO!, INC., Defendant
For BILL H. DOMINGUEZ, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff: DAVID A. SEARLES, JOHN SOUMILAS, LEAD ATTORNEYS, FRANCIS & MAILMAN, P.C., PHILADELPHIA, PA; GEOFFREY H. BASKERVILLE, LEAD ATTORNEY, FRANCIS & MAILMAN, PHILADELPHIA, PA; MARK D. MAILMAN, LEAD ATTORNEY, FRANCIS & MAILMAN, PC, PHILA, PA; JAMES A. FRANCIS, FRANCIS & MAILMAN, PC, PHILADELPHIA, PA.
For YAHOO, INC., Defendant: BRIAN T. FEENEY, LEAD ATTORNEY, GREENBERG TRAURIG, LLP, PHILADELPHIA, PA; LORI CHANG, LEAD ATTORNEY, PRO HAC VICE, WENDY MANTELL, LEAD ATTORNEY, IAN C. BALLON, PRO HAC VICE, GREENBERG TRAURIG LLP, LOS ANGELES, CA.
MEMORANDUM RE: MOTION FOR SUMMARY JUDGMENT
Michael M. Baylson, United States District Judge.
Surely, one of the unwelcome consequences of the digital age are unsolicited messages, telephone calls, and emails. However, this phenomenon is not new. Unwelcome circumstances have faced characters in literature and opera for centuries. Victims of circumstance are often portrayed by Shakespeare - Hamlet, Othello, Shylock; and in opera, Verdi's Don Carlos, who without fault, loses his fiancé e, Elisabeth of Valois, to his own father, King Phillip of Spain, who marries Elisabeth to ensure peace with France.
In this case, Plaintiff Bill Dominguez is also a victim of circumstance. Plaintiff purchased a cellular telephone and was assigned a phone number. The previous owner of the telephone number had enrolled the number in a text message system of Defendant, Yahoo!, Inc. (" Yahoo" ). Plaintiff, on behalf of himself and other similarly situated consumers, initiated this class action lawsuit against Defendant, Yahoo!, Inc. (" Yahoo" ) to challenge Yahoo's practice of sending unsolicited text messages to cellular telephone numbers owned by individuals who never consented to receive such text messages. He seeks statutory damages, treble damages, costs, fees, a declaratory judgment, and an injunction on behalf of his claim. Is Yahoo responsible for Plaintiff's damages?
II. Procedural History
Plaintiff filed his Complaint against Yahoo on April 10, 2013. ECF 1. Plaintiff alleges that Yahoo violated the Telephone Consumer Protection Act (" TCPA" ), enacted by Congress in 1991. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which provides that " [t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
Yahoo served its Answer to the Complaint on June 10, 2013. On June 18, 2013, Yahoo filed this Motion for Summary Judgment, ECF 14, and a Statement of Undisputed Facts, ECF 15. Plaintiff filed a Response in Opposition to the Motion for Summary Judgment on June 26, 2013. ECF 19. Yahoo submitted its Reply in Support of its Motion for Summary Judgment on July 3, 2013, which it amended the same day. ECF 22-23.
On August 16, 2013, this Court issued an Order instructing Yahoo to produce certain categories of documents and setting a schedule for supplemental briefing in response to Yahoo's Motion for Summary Judgment. ECF 28. On December 20, 2013, following discovery, Plaintiff filed his Opposition to Yahoo's Motion for Summary Judgment. ECF 39. Plaintiff also included a Response to Yahoo's Statement of Undisputed Facts. ECF 39-2. Yahoo filed its Reply to Plaintiff's Opposition on February 27, 2014. ECF 47. On March 4, 2014, Plaintiff filed a Sur Reply in Support of his Opposition. ECF 53.
This Court held oral argument on the Motion for Summary Judgment and related briefing on March 11, 2014.
III. The Parties' Contentions
A. Yahoo's Motion for Summary Judgment
Yahoo does not dispute that Plaintiff received text messages solely because a Yahoo subscriber, who previously used the same mobile phone number that was subsequently
assigned to Plaintiff, affirmatively signed up to receive text messages each time he received an email in his Yahoo email inbox. Yahoo argues that the TCPA only prohibits unsolicited automated telemarketing and bulk communications sent via an Automatic Telephone Dialing System (" ATDS" ), which means a system that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and dials those numbers. 47 U.S.C. § 227(b)(3).
Yahoo contends that its system is not an ATDS because the system lacks the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.
Yahoo also disputes that the messages it sent fall within the purview of the TCPA, which was intended to regulate the sending of unsolicited advertisements or bulk communication, not messages forwarded at the request of a user. Yahoo asks this court to conclude that the TCPA does not apply to the present facts because the notifications were specifically requested, and sent to the mobile phone number ...