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Wilson v. PH Phase One Operations L.P.

United States District Court, D. Maryland

September 27, 2019

THOMAS WILSON, JOHN GALVAGNO, and ERICA CRUZ, individually and on behalf of all others similarly situated
v.
PH PHASE ONE OPERATIONS L.P. d/b/a XFINITY Live! Philadelphia 1100 Social, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution in this case brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), is a motion to dismiss filed by Defendants PL Phase One Operations L.P., The Cordish Companies, Inc. (“Cordish”), Entertainment Consulting International, LLC (“ECI”), and PL Phase One Operations, G.P., Inc. (collectively, “Defendants”). (ECF No. 32). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants’ motion to dismiss will be denied in part and granted in part.

         I. Background

         The following facts are set forth in the Amended Complaint, and construed in the light most favorable to Plaintiffs. Cordish owns and manages over fifty restaurants, bars, and live music venues. (ECF No. 25 ¶ 41). Xfinity Live! is a large entertainment complex in downtown Philadelphia that Cordish owns and manages. (Id. ¶¶ 6 & 42). 1100 Social is a bar located within Xfinity Live! (Id. ¶ 7). Cordish created two partnerships to hold the assets of these venues - Defendants PL Phase One Operations L.P., and PL Phase One Operations, G.P., Inc. (Id. ¶¶ 5-6). Plaintiffs allege that, despite the presence of these holding companies, Cordish itself possesses the final say over any day-to-day operating decisions, including those regarding advertising. (Id. ¶¶ 7, 41-42). Cordish established ECI to manage advertising at all Cordish establishments. (Id. ¶ 43). Cordish uses ECI to implement marketing for all of its venues, including Xfinity Live! and 1100 Social. (Id. ¶ 44).

         Plaintiffs Thomas Wilson, John Galvagno, and Erica Cruz attended a happy hour at Xfinity Live! (ECF No. 25, at 17). Plaintiffs provided Defendants with their personal information, including cellular telephone (“cell phone”) numbers, to receive happy-hour discounts on food and drink. (Id., at 20). Plaintiffs allege that on multiple occasions in 2015, 2016, and 2017, Defendants caused text messages to be sent to Plaintiffs’ cell phones using an automatic telephone dialing system (“ATDS”). (Id., at 18). Plaintiffs contend that these messages were sent through an online texting platform known as “TXT Live!, ” which Cordish developed. (Id. ¶¶ 46 & 50). TXT Live! is accessed through the “ECI Contact App.” (Id. ¶ 47). To use the messaging portal of TXT Live!, Defendants’ employees upload CSV files containing consumers’ cell phone numbers and compose promotional text messages to send to the numbers within the CSV file. (Id. ¶¶ 47 & 48). The software is programmed randomly to select phone numbers from the CSV files for advertising campaigns and automatically to send the relevant text messages to those cell phones. (Id. ¶¶ 55 & 56). The text messages contained Xfinity Live! and 1100 Social’s brand names, locations, and promotions of specials and events. (Id., at 18). Plaintiffs allege that some of these promotional text messages were sent at least twice within a twelve-month period. Despite registering his phone number on the do-not-call registry in 2010, Plaintiff Wilson continued to receive the alleged messages. Plaintiffs were not provided notice that they would receive promotional text messages and did not give express written consent in writing to receive such messages.

         Plaintiffs contend that these messages violate two sections of the TCPA: 42 U.S.C. § 227(b)(1)(A)(iii), prohibiting companies from making any call using an ATDS to a cell phone; and § 227(c), violations of the Federal Communication Commission’s (“FCC”) rules requiring companies to establish and maintain company-specific do-not-call lists and to adhere to the do-not-call registry. Additionally, all Plaintiffs allege a claim under 47 C.F.R. § 64.1200(d) and Plaintiff Wilson alleges a claim under § 64.1200(c).

         Plaintiffs filed a complaint in the Circuit Court for Baltimore County on July 30, 2018 against PL Phase One Operations L.P. (ECF No. 1). That defendant removed the action to federal court on October 24, 2018 and filed a motion to dismiss for lack of personal jurisdiction on November 7, 2018 (ECF No. 9). Plaintiffs filed an amended complaint on December 13, 2018, adding the three other defendants. (ECF No. 25). Defendants filed a motion to dismiss the first amended complaint on January 28, 2019 (ECF No. 32), and a contemporaneous notice of constitutional question pursuant to Federal Rule of Civil Procedure 5.1(a) (ECF No. 32-2). Plaintiffs responded on March 14, 2019 (ECF No. 39), and Defendants replied on April 10, 2019 (ECF No. 46). The United States of America (“United States”) filed a notice of intervention pursuant to Federal Rules of Civil Procedure 5.1(c) and 24(a)(1) for the limited purpose of defending the constitutionality of the TCPA on July 22, 2019. (ECF No. 52). The United States contemporaneously filed a memorandum of law in support of the constitutionality of the TCPA on July 22, 2019. (ECF No. 53). Defendants replied to the memorandum of United States on August 9, 2019. (ECF No. 57).

         II. Standard of Review

         A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cnty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged, but it has not ‘show[n] . . . that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         III. Analysis

         A. Adoption by Reference

         Before Plaintiffs filed their first amended complaint, Defendant PL Phase One Operations L.P. d/b/a Xfinity Live! filed a motion to dismiss for lack of personal jurisdiction. (ECF No. 9). Plaintiffs did not respond to the motion to dismiss, but instead filed a first amended complaint. In the first amended complaint, Plaintiffs added the Maryland defendants and factual allegations to support that the contacts of PL Phase One Operations L.P. with Maryland are substantial enough to support personal jurisdiction. Instead of addressing any personal jurisdiction issues not remedied by Plaintiffs first amended complaint, Defendants filed a consolidated motion to dismiss, simply “incorporating” the arguments advanced in the original motion to dismiss. Thus, PL Phase One Operations L.P. makes no effort to update its challenge to personal jurisdiction in the face of new factual allegations linking PL Phase One Operations L.P. to Maryland. Phase One Operations L.P. cites no authority for its incorporation position.

         Rule 10(c) provides that “[a] statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion.” Although Rule 10 instructs the form of pleadings, “[a] few federal courts have allowed defendants to incorporate by reference to prior motions made in the action, even though Rule 10(c) does not contemplate the incorporation of statements from prior motions (only statements ‘in a pleading’ may be adopted by reference elsewhere).” 5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1326 (4th ed. 2019)(further noting that motions are not pleadings). The difficulty in this case is that the allegations in the amended complaint affect the arguments made in the original motion and it is not the role of the court to try to discern which, if any, arguments still apply. Thus, PL Phase One Operations L.P.’s argument concerning a lack of personal jurisdiction will not be considered.

         B. The TCPA

         “Enacted in 1991, the TCPA was a response by Congress to the reactions of American consumers over intrusive and unwanted phone calls.” Am. Ass’n of Political Consultants, Inc. v. Fed. Commc’ns Comm’n, 923 F.3d 159, 161–62 (4th Cir. 2019) (“AAPC”). The automated call ban prohibits phone calls to cell phones that use “any automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). Text messages qualify as “calls” under the TCPA. See Campbell-Ewald v. Gomez, 136 S.Ct. 663, 667 (2016). Congress also authorized the FCC to implement rules and regulations enforcing the TCPA. 47 U.S.C. § 227(b)(2).

         An “automatic telephone dialing system” is defined as equipment that “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.” See Id . § 227(a)(1). The automated call ban does not, however, prohibit automated calls to cell phones initiated (1) “for emergency purposes, ” see 47 U.S.C. § 227(b)(1)(A); (2) with “the prior express consent of the called party, ” id.; or (3) “by the federal government itself, ” AAPC, 923 F.3d at 162. Thus, to state a claim under the TCPA, “a plaintiff must allege: (1) that the defendant called the plaintiff’s cellular telephone; (2) ...


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