United States District Court, D. New Jersey
NICOLE RANDO, individually and on behalf of all others similarly situated, Plaintiff,
EDIBLE ARRANGEMENTS INTERNATIONAL, LLC, Defendant.
W. Morris, Esq. CLARK LAW FIRM Attorney for Plaintiff
S. Richter, Esq. Keiyana B. Fordham, Esq. WINSTON &
STRAWN, LLP Attorneys for Defendants
B. SIMANDLE, U.S. DISTRICT JUDGE.
Nicole Rando brings this putative class action against
Defendant Edible Arrangements International, LLC
(“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].
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.
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.
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.
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.
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], 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.
STANDARD OF REVIEW
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).
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.
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.
Court turns to these arguments, beginning with Article III
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