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Rando v. Edible Arrangements International, LLC

United States District Court, D. New Jersey

March 28, 2018

NICOLE RANDO, individually and on behalf of all others similarly situated, Plaintiff,

          Mark W. Morris, Esq. CLARK LAW FIRM Attorney for Plaintiff

          James S. Richter, Esq. Keiyana B. Fordham, Esq. WINSTON & STRAWN, LLP Attorneys for Defendants




         Plaintiff Nicole Rando brings this putative class action against Defendant Edible Arrangements International, LLC[1] (“EA”), alleging violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., based on commercial text messages EA allegedly sent to Plaintiff after, she claims, she revoked her consent to receive such text messages. [Docket Item 1.] Before the Court is Defendant's motion to dismiss. [Docket Item 5.] Plaintiff has filed a Response [Docket Item 10], Defendant has filed a Reply [Docket Item 15], and both parties have submitted letters containing supplemental authority [Docket Items 16-19].

         Defendant argues, in the main, that Plaintiff lacks standing and that Plaintiff cannot maintain a claim that Defendant sent her text messages after she revoked her consent because Plaintiff does not plausibly allege that her method of revocation was reasonable, thereby rendering it ineffective. [Docket Item 15 at 12.] For the reasons that follow, the Court finds Plaintiff has Article III standing but will grant Defendant's motion to dismiss for failure to state a claim under the TCPA.

         II. BACKGROUND[2]

         Plaintiff Nicole Rando, a New Jersey resident, consented to receive text messages from Defendant, a corporation headquartered in Connecticut, in December of 2016. [Docket Item 1, Complaint, ¶ 12.] Plaintiff alleges that “Defendant placed these text messages using an ‘automatic telephone dialing system' (‘ATDS') as defined by 47 U.S.C. § 227(a)(1).” Id.

         Plaintiff later “withdrew consent to receive further commercial texts and notified Defendant to stop sending her commercial text messages - multiple times - each time using a reasonable method. For example, Plaintiff instructed Defendant by text: (1) ‘Take my contact info off please'; (2) ‘I want to confirm that I have been removed off your contacts'; (3) ‘I asked to be removed from this service a few times. Stop the messages.' and (4) ‘Again I want to stop this service thank you.'” Id. at ¶ 13.

         Plaintiff alleges that Defendant nevertheless continued to send her text messages, and claims that these text messages violated the TCPA because they occurred after EA impermissibly designated an exclusive means for the revocation of consent to receive such text messages. Id. at ¶¶ 13-16. Plaintiff also makes class action allegations against Defendant. Id. at ¶¶ 16-27. Plaintiff pleads two claims for relief: the first for negligent violations of TCPA, id. at ¶¶ 28-32, and the second for knowing and/or willful violations of TCPA, id. at ¶¶ 33-37.

         Defendant, citing the declaration of Drew Sirico, Senior Director of Marketing at EA [Docket Item 5-2], and the related records of the text messages between Plaintiff and Defendant [Docket Item 5-3][3], notes that every text message Defendant sent to Plaintiff--after Plaintiff's initial consent--ended with the words, “Reply HELP for help. STOP to cancel.” [Docket Item 5-3 at 2.] It is undisputed that Plaintiff did not reply using the single word “STOP, ” but rather sent ten separate messages containing natural language stating her desire to stop receiving text messages instead (including, eventually, sentence-long messages containing the word “stop, ” in lowercase) on and between December 8, 2016 to January 12, 2017. Id.


         Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not required, and “the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). While a complaint is not required to contain detailed factual allegations, the plaintiff must provide the “grounds” of his “entitle[ment] to relief”, which requires more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that the plaintiff failed to set forth fair notice of what the claim is and the grounds upon which it rests. Id. A complaint will survive a motion to dismiss if it contains sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court must accept as true all factual allegations in a complaint, that tenet is “inapplicable to legal conclusions, ” and “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. at 678.

         IV. ANALYSIS

         Defendant moves to dismiss on a variety of grounds. First, Defendant claims that the Complaint fails to state a claim, either because Plaintiff does not plausibly allege that she revoked her consent to receive automated text messages [Docket Item 5-1 at 13-17], or because she failed to plausibly allege that Defendant used an ATDS. Id. at 17-19. Second, Defendant argues that Plaintiff lacks Article III standing. Id. at 10-13. Finally, Defendant argues that the class allegations should be stricken from the Complaint. Id. at 19-22.

         The Court turns to these arguments, beginning with Article III standing.

         A. Standing

         Defendant argues that Plaintiff lacks standing under Article III of the United States Constitution because she does not plead a sufficient injury in fact (having not suffered a “cognizable concrete harm”), thereby divesting ...

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