Brickman v. Facebook, Inc., No. 3:2016cv00751 - Document 152 (N.D. Cal. 2021)
Court Description: ORDER DENYING 133 MOTION FOR LEAVE TO AMEND by Judge William H. Orrick.The parties are ordered to meet-and-confer and report the results of their efforts within a week of the date of this Order. (jmdS, COURT STAFF) (Filed on 9/15/2021)
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Brickman v. Facebook, Inc. Doc. 152 Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 1 of 8 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 COLIN R. BRICKMAN, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 Case No. 16-cv-00751-WHO ORDER DENYING MOTION FOR LEAVE TO AMEND v. FACEBOOK, INC., Re: Dkt. Nos. 133, 148 Defendant. This class action case – alleging that Facebook violated the Telephone Consumer 13 Protection Act of 1991 (TCPA) by using an “automatic telephone dialing system” (ATDS) to 14 transmit unauthorized text messages containing birthday announcements to consumers’ cell 15 phones – was stayed pending the United States Supreme Court’s opinion in Facebook, Inc. v. 16 Duguid, 141 S. Ct. 1163, 1164 (2021). In Duguid, the Court held that “[t]o qualify as an 17 “automatic telephone dialing system,” a device must have the capacity either to store a telephone 18 number using a random or sequential generator or to produce a telephone number using a random 19 or sequential number generator.” Id. at 1167. I now consider whether plaintiff Colin Brickman 20 pleads a plausible claim following Duguid in his proposed Second Amended Complaint and 21 conclude that he has not. 22 The Court in Duguid had “granted certiorari to resolve a conflict among the Courts of 23 Appeals regarding whether an autodialer must have the capacity to generate random or sequential 24 phone numbers.” Id. at 1168. Its holding expressly rejected the Ninth Circuit’s definition – that 25 an ATDS need not “be able to use a random or sequential generator to store numbers; it need only 26 have the capacity to ‘store numbers to be called’ and ‘to dial such numbers automatically’” – and 27 instead sided with the courts of appeal that concluded systems that “target phone numbers that 28 were obtained in a non-random way (specifically, from consumers who provided them)” were not Dockets.Justia.com United States District Court Northern District of California Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 2 of 8 1 covered ATDS. See Hufnus v. DoNotPay, Inc., 20-CV-08701-VC, 2021 WL 2585488, at *1 (N.D. 2 Cal. June 24, 2021) (discussing Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 460 (7th Cir. 3 2020) (holding that a system that “exclusively dials numbers stored in a customer database” does 4 not qualify as an autodialer) and Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301, 5 1306 (11th Cir. 2020) (adopting a definition of autodialer that excludes equipment that “target[s] a 6 list of debtors” or “target[s] individuals likely to be interested in buying vacation properties”)). In 7 rejecting Duguid’s argument that “using a random or sequential number generator” modified only 8 “produce” and not also “store” in the TCPA’s definition of an ATDS, the Court explained that 9 Congress could have included “both functions in the autodialer definition so as to clarify the 10 domain of prohibited devices” so, for “instance, an autodialer might use a random number 11 generator to determine the order in which to pick phone numbers from a preproduced list [and] 12 then “store those numbers to be dialed at a later time” or “even if the storing and producing 13 functions often merge, Congress may have ‘employed a belt and suspenders approach’ in writing 14 the statute.” Id. at 1172 n.7. 15 After Duguid was decided, I set a briefing schedule requiring Brickman to file a motion for 16 leave to amend and a proposed Second Amended Complaint demonstrating that he could plead his 17 TCPA claim and plausibly allege that Facebook used an ATDS and allowing Facebook to show 18 why leave should be denied because any proposed amendment would be futile under Duguid. 19 Dkt. No. 132. Brickman argues that he has done so by alleging that Facebook first identifies the 20 telephone numbers of a Facebook user’s friends (that he concedes were provided by users like 21 himself, although he contends that he and the purported class members did not consent to 22 receiving texts from Facebook on those numbers) and then uses the required “random or 23 sequential number generator” to “store” those numbers in a sequential or random order – thus 24 meeting the Duguid definition of an ATDS as explained in footnote 7. See Proposed SAC ¶¶ 67- 25 85;1 Reply at 1. The system later fills in the content of the message and then sends by massive 26 27 28 Proposed SAC ¶ 69 (“Facebook programmed its mobile messaging application (i.e. computer software or an algorithm that operates as an autodialer) to first identify a Facebook user’s birthday as the trigger to create and send the form Birthday Announcement Texts to that Facebook user’s friends”); ¶ 70 (“Facebook mobile messaging application creates the Birthday 2 1 Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 3 of 8 1 “blast” thousands of messages in bulk in the sequential or random order determined by the number 2 generator. Proposed SAC ¶¶ 73, 77.2 Brickman’s proposed SAC, even considering the supporting Snyder Declaration, is United States District Court Northern District of California 3 4 insufficient to plausibly allege use of an ATDS post-Duguid. I agree with the numerous district 5 court opinions – including two from this District – that have dismissed cases following Duguid for 6 failure to plausibly allege use of an ATDS where the number called by the defendant – here 7 Brickman’s cell phone – was not itself created by the random or sequential number generator. 8 In Hufnus v. DoNotPay, Inc., 2021 WL 2585488, at *1 (N.D. Cal. June 24, 2021), the 9 plaintiff made similar allegations to the ones in this case, that the calling platform at issue “stores 10 [] numbers in a random and/or sequential way; uses a random and/or sequential generator to pull 11 from the list of numbers to send targeted text messages; and uses a random and/or sequential 12 generator to determine the sequence in which to send messages.” The Hon. Vince Chhabria from 13 this District granted a motion to dismiss because the numbers called were provided by a consumer 14 seeking defendant’s services, and “not phone numbers identified in a random or sequential 15 fashion. The platform thus does not qualify as an autodialer under the TCPA.” Id. 16 17 18 19 20 21 22 23 24 25 26 27 28 Announcement Text by using the person’s name, date of birth, and a list of the cellular telephone numbers of that person’s friends as a set of instructions used to automatically generate the Birthday Announcement Texts”); ¶ 71 (“The Birthday Announcement Texts are identical text messages sent to the cellular telephone numbers of the friends of the birthday celebrant.”); ¶ 72 (“This process is known as a text message ‘blast,’ which is sent to a list of cellular telephone numbers stored by Facebook.”); ¶ 73 (“The Birthday Announcement Texts are part of a specialized blast text message campaign that is based on the current date where the telephone numbers of the recipients are collected in a random or sequential order either at the time that the Birthday Announcement Texts are sent or at some prior time”); ¶ 75 (“The list of the cellular telephone numbers that any given Birthday Announcement Text is sent to are collected and then stored by Facebook’s mobile messaging application in a random or sequential order.”); ¶ 77 (“The Facebook mobile messaging application then automatically sends the Birthday Announcement Text at a prescheduled time on the Facebook user’s birthday in a sequential or random order as determined by the number generator (which operates using an algorithm), that Facebook created and used to send these messages.”). Brickman’s proposed SAC attaches and relies on the declaration of an expert (Randall A. Snyder, Dkt. No. 133-1) who explains why in his view – and as reiterated in the proposed SAC cited above – Facebook’s birthday text message system plausibly is an ADTS. Facebook objects to my consideration of the Snyder declaration. Oppo. at 19-21. Snyder’s factual assertions regarding the operation of Facebook’s system – as relevant to this motion – are reiterated as factual allegations in the proposed SAC, the truth of which I assume. However, consideration of the Snyder Declaration does not lead to a different outcome. 3 2 Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 4 of 8 In Hufnus, as here, the plaintiff relied heavily on footnote 7 of Duguid to argue that United States District Court Northern District of California 1 2 systems using a “generator” (e.g., algorithm) to place and store preexisting phone numbers in a 3 random or sequential order for later calling qualifies as an ATDS. Judge Chhabria rejected that 4 argument because: (i) there was no evidence in his case that the “preproduced list” referenced in 5 the Court’s footnote was in his case “itself created through a random or sequential number 6 generator” but was instead simply a list of customers who had provided their numbers to 7 donotpay; (ii) the donotpay system (and any system that calls numbers provided by consumers 8 seeking services) was wholly unlike the concerns underlying the enactment of the TCPA (random 9 or sequential number generators reduced the capacity of the recipients’ phone systems); and (iii) 10 donotpay’s system was more akin to systems deemed not to qualify as ATDS under Duguid 11 because its system simply “targets phone numbers that were obtained in a non-random way.” Id. 12 at *1. 13 The same holds true here, despite Brickman’s emphasis that Facebook’s automated 14 algorithm operates without human intervention and results in blast emails to hundreds of 15 thousands of users. See Reply at 5. Fundamentally, even assuming the truth of Brickman’s 16 allegations regarding the methodology used by Facebook to select, store, and blast-send the 17 birthday text messages, the numbers called were not randomly or sequentially generated; they 18 were pulled from an existing list. Even if pulled and then ordered “randomly or sequentially” by 19 an algorithm and stored for later use, there are no facts plausibly suggesting “stor[ing of] a 20 telephone number using a random or sequential generator or to produc[ing] a telephone number 21 using a random or sequential number generator.” Duguid, 141 S. Ct. at 1167 (emphasis added). 22 Other cases have adopted the same interpretation of Duguid and rejected plaintiff’s 23 proposed expansion of the Duguid’s footnote 7 to achieve a result untethered to the Supreme 24 Court’s actual holding in Duguid and untethered to the purposes underlying the TCPA. Most 25 recently, in Tehrani v. Joie De Vivre Hospitality, LLC, 19-CV-08168-EMC, 2021 WL 3886043, 26 at *3 (N.D. Cal. Aug. 31, 2021), the Hon. Edward M. Chen of this District rejected a similar 27 theory; namely that “the ‘number generator’ need only generate an index number which is then 28 assigned to preexisting phone numbers.” Id. *3 (emphasis in original). Judge Chen rejected that 4 United States District Court Northern District of California Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 5 of 8 1 argument because: (i) as a textual matter, the “‘number generator’ (whether random or sequential) 2 specified in § 227(a)(1)(A) implicitly refers back to a ‘telephone number[ ]’ – i.e., the preceding 3 phrase – and not to an index number”; (ii) the Supreme Court in Duguid addressed a split in circuit 4 authority between the circuits that required the number to be called to have been sequentially or 5 randomly generated and the Ninth and Second Circuits (that required the ATDS only to have the 6 capacity to store numbers to be called and to dial such numbers automatically) and in “rejecting 7 the Second and Ninth Circuit holdings, the Supreme Court implicitly rejected” the index theory; 8 and (iii) the index theory “makes little sense when one takes into account the harms that the TCPA 9 was intended to address.” Id. at *4. Following the “clear majority of cases,” including Hufnus, 10 Judge Chen dismissed the case because there was no dispute that plaintiff had provided defendant 11 with his phone number and, therefore, the call was the result of a pre-existing list and a random of 12 sequential number generator could not have been used. See also id. at *5 (addressing footnote 7 13 from Duguid and concluding “that the ‘preproduced list’ was not some kind of pre-existing list but 14 rather a list of phone numbers that was generated by a number generator”). 15 In Franco v. Alorica Inc, 2021 WL 3812872 (C.D. Cal. July 27, 2021), plaintiff alleged 16 she received calls to collect a debt. That court too, adopted “the Hufnus approach. When a 17 defendant randomly makes calls from a curated list, it is not randomly or sequentially generating 18 phone numbers. Therefore, under the Supreme Court’s definition of an ATDS announced in 19 Facebook—equipment that ‘uses a random or sequential number generator’—that defendant is not 20 using an ATDS and cannot be liable under § 227 of the TCPA.” Id. at *3. The “SAC fails to 21 allege Defendant randomly or sequentially generated her phone number. Instead, like the plaintiff 22 in Hufnus, Plaintiff had a pre-existing relationship with Defendant: Plaintiff allegedly owed a debt, 23 and Defendant was calling to collect. [] It would be wildly implausible for Defendant to randomly 24 or sequentially generate phone numbers in the hopes of reaching the Plaintiff-debtor. Instead, the 25 much more plausible explanation is that Plaintiff provided her creditor with her phone number as 26 part of taking out the loan, and Defendant used this voluntarily provided number to collect. It is 27 immaterial whether Defendant “randomly” selected Plaintiff's phone number from its list of 28 debtors.” Id. at *3; see also Borden v. eFinancial, LLC, C19-1430JLR, 2021 WL 3602479, at *5 5 United States District Court Northern District of California Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 6 of 8 1 (W.D. Wash. Aug. 13, 2021) (agreeing that following Duguid, the ATDS must have the capacity 2 to use and used “a random or sequential number generator to generate the phone numbers in the 3 first instance” and excluding from scope of statute a system that sent “advertisement text messages 4 to consumers who entered their phone numbers into a form on its website” and distinguishing 5 footnote 7 from Duguid as “the preproduced list of phone numbers referenced in footnote 7 was 6 itself created through a random or sequential number generator, thus differentiating it from the 7 stored list of consumer-provided phone numbers used by eFinancial.”); Watts v. Emergency 8 Twenty Four, No. 20-CV-1820, 2021 WL 2529613, at *3 (N.D. Ill. June 21, 2021) (dismissing 9 TCPA claims because the dialing equipment at issue placed calls to specific individuals from an 10 existing list of phone numbers, suggesting the numbers were not randomly or sequentially 11 generated); Barry v. Ally Fin., Inc., 2021 WL 2936636, at *4 (E.D. Mich. July 13, 2021) 12 (dismissing where “[p]laintiff does not dispute that Defendant’s autodialer system did not use a 13 random or sequential number generator in connection with its calls to her (or to the purported class 14 members). Rather, these calls were targeted at specific individuals in connection with specific 15 accounts held by Defendant. That ends this case.”).3 I recognize that some courts have considered the determination of whether a plaintiff has 16 17 plausibly shown the use of an ATDS covered by Duguid to be more appropriately resolved on 18 summary judgment than at the pleading stage. But in many of those cases, the plaintiffs alleged 19 that they had never provided defendant with their phone numbers in the first place, making it at 20 least plausible that a prohibited number generator had been used to produce or store the numbers 21 called. See Gross v. GG Homes, Inc., 2021 WL 2863623, at *7 (S.D. Cal. July 8, 2021) 22 (concluding, consistent that the “newly clarified definition of an ATDS is more relevant to a 23 24 25 26 27 28 3 Following the oral argument on this motion, Facebook asked me to take notice of supplemental authority. Dkt. Nos. 147, 150 [seeking notice of Franco v. Alorica, Inc., 2021 WL 3812872 (C.D. Cal. July 27, 2021); Tehrani v. Joie de Vivre Hospitality, LLC, 2021 WL 3886043 (N.D. Cal. Aug. 31, 2021)]. Plaintiff likewise filed a motion for leave to file a statement of recent decision, as well as a comment on those recent decisions that “these recent decisions confirm Plaintiff’s position that the facts regarding these matters differ from case to case.” Dkt. No. 148 [seeking judicial notice of Gross v. GG Homes, Inc., 2021 WL 2863623 (S.D. Cal. July 8, 2021); Miles v. Medicredit, Inc., 2021 WL 2949565 (E.D. Mo. July 14, 2021)]. The motions for leave to file, Dkt. Nos. 147, 148 are GRANTED. I have considered each of the cases brought to my attention by both parties. 6 United States District Court Northern District of California Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 7 of 8 1 summary judgment motion than at the pleading stage,” but also noting that there was no allegation 2 or evidence that plaintiff had provided her number to defendant); Miles v. Medicredit, Inc., 2021 3 WL 2949565, at *4 (E.D. Mo. July 14, 2021) (the “Court agrees with Plaintiff that the ‘newly 4 clarified definition of an ATDS is more relevant to a summary judgment motion than at the 5 pleading stage’” in a case where the calls were placed to plaintiff’s number in an effort to collect a 6 debt allegedly owed by an unknown third-party); see also Montanez v. Future Vision Brain Bank, 7 LLC, 2021 WL 1697928, at *2 (D. Colo. Apr. 29, 2021) (deferring issue to summary judgment, 8 where defendant contended plaintiff had voluntarily provided her number to defendant, yet none 9 of the messages received were “addressed specifically to Plaintiff.”); Jance v. Homerun Offer 10 LLC, 2021 WL 3270318, at *4 (D. Ariz. July 30, 2021) (allowing TCPA case to proceed past 11 motion to dismiss stage, where “Plaintiff alleges he had no business relationship with Defendants, 12 did not give Defendants his contact information, and did not consent to be contacted by 13 Defendants”). 14 I agree with Brickman that each case has to be addressed on its own alleged facts. Here, 15 considering the facts Brickman alleges in his proposed SAC that I take as true, Brickman fails to 16 plausibly allege the use of a prohibited ATDS following Duguid. Therefore, his motion for leave 17 to file the proposed SAC is DENIED as futile. 18 CONCLUSION 19 For the foregoing reasons, the motion for leave to file the proposed SAC is denied. 20 The parties shall meet and confer to discuss how this litigation should now proceed – for 21 example, should Facebook formally move for judgment (whether through a summary judgment or 22 some other vehicle) or can the parties stipulate to a judgment based on my interpretation 23 (preserving for Brickman’s right to appeal)? The parties are ordered to report back on their meet- 24 and-confer efforts within a week of the date of this Order. 25 26 IT IS SO ORDERED. Dated: September 15, 2021 27 28 7 Case 3:16-cv-00751-WHO Document 152 Filed 09/15/21 Page 8 of 8 William H. Orrick United States District Judge 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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