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D'Ottavio v. Slack Technologies

United States District Court, D. New Jersey

April 15, 2019

GINO D'OTTAVIO, individually and on behalf of all others similarly situated, Plaintiff,




          NOEL L. HILLMAN, U.S.D.J.

         Plaintiff, Gino D'Ottavio, filed a putative class action alleging that Defendant, Slack Technologies, transmitted dozens of unsolicited commercial text messages to Plaintiff on Plaintiff's cellular telephone, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., (“TCPA”), thereby invading Plaintiff's privacy.[1] Plaintiff claims that after he signed up at, he began to receive tens of unsolicited text messages. Plaintiff claims that even though he contacted Slack by email to request that Slack cease sending him text messages, Slack's unwanted text messages continued. Plaintiff alleges that Slack's violation of the TCPA entitles him, and every other similarly situated class member, to an award of $500.00 to $1, 500 in statutory damages for each violation.

         Slack filed an answer to Plaintiff's complaint denying his claims and lodged a counterclaim. Slack contends that Plaintiff abused a feature on Slack's website to deliberately send himself the texts at issue. Slack alleges that this feature was designed to allow desktop users of Slack to download and use a version of the application on their mobile devices, but instead Plaintiff abused the feature 1, 590 times to send himself 1, 590 texts to trump up his baseless TCPA lawsuit. Slack alleges that each text was an act of fraud by Plaintiff, intended to manufacture “injury” and a baseless demand for recovery.

         Slack alleges that Plaintiff is well-versed in the TCPA, having brought five separate actions under the TCPA against a range of companies before suing Slack.[2] Slack contends that it is entitled to dismissal of Plaintiff's case and its costs in responding to Plaintiff's transparent sham. Slack has alleged counterclaims against Plaintiff for wanton and willful misconduct, common law fraud, breach of express contract, and breach of the implied covenant of good faith and fair dealing. (Docket No. 6.)

         Plaintiff filed an answer to Slack's counterclaims. “Plaintiff categorically denies using any feature of Slack to text himself 1, 590 times or that he engaged in the conduct alleged by Defendant.” (Docket No. 15 at 3, ¶ 26.)

         Presently before the Court are three motions: Slack's motion for sanctions against Plaintiff and his counsel pursuant to Federal Civil Procedure Rule 11 (Docket No. 28), Plaintiff's counsel's motion to withdraw as counsel for Plaintiff (Docket No. 30), and Plaintiff's motion to dismiss his complaint with prejudice (Docket No. 31). Slack does not oppose Plaintiff's motion to dismiss his complaint, so long as it is with prejudice, and it takes no position on Plaintiff's counsel's motion to withdraw. Slack points out that the dismissal of Plaintiff's complaint and the resolution of counsel's motion to withdraw do not resolve Slack's motion for sanctions in the form of Slack's attorney's fees and costs, and Slack's counterclaims against Plaintiff remain pending and should proceed to discovery. (Docket No. 32, 33.)

         For the following reasons, the Court will grant Plaintiff's motion to dismiss his complaint, but the Court will deny without prejudice Plaintiff's counsel's motion to withdraw, as well as Slack's motion for sanctions.

         1. Plaintiff's motion to dismiss

         In his motion to dismiss his claims with prejudice, Plaintiff asserts that after he filed this action, Slack provided him with a Declaration that claimed that the text messages were purposely solicited from Plaintiff's electronic devices. “The Plaintiff categorically denies the Defendant's claims that the Plaintiff is the one who purposely solicited these messages from the Defendant. However, if the Defendant was ‘set up' by anyone to make these calls, the Plaintiff desires no part in any claims for recovery resulting from such calls. As such, the Plaintiff desires to withdraw his Complaint and his claims against Defendant with prejudice. Plaintiff has offered to stipulate to the dismissal of those claims; Defendant has refused to so stipulate, instead insisting that the Plaintiff file the instant Motion to Dismiss.” (Docket No. 31-1 at 2.)

         Federal Civil Procedure Rule 41(a) governs Plaintiff's motion. Rule 41(a) provides in relevant part:

(1) Without a Court Order . . . [T]he plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. . . . Unless the notice or stipulation states otherwise, the dismissal is without prejudice.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff's motion to dismiss, the action may be dismissed over the defendant's objection only if the counterclaim can remain pending for independent adjudication.

Fed. R. Civ. P. 41(a).

         Because Slack has not stipulated to the dismissal of Plaintiff's complaint, Rule 41(a)(2) applies. Plaintiff requests that his complaint be dismissed with prejudice, and Slack does not oppose this request, ...

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