United States District Court, D. Maryland
THOMAS WILSON, JOHN GALVAGNO, and ERICA CRUZ, individually and on behalf of all others similarly situated
PH PHASE ONE OPERATIONS L.P. d/b/a XFINITY Live! Philadelphia 1100 Social, et al.
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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.
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).
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
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
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).
Standard of Review
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
Adoption by Reference
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
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
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. §
“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) ...