United States District Court, D. New Jersey
GINO D'OTTAVIO, individually and on behalf of all others similarly situated, Plaintiff,
SLACK TECHNOLOGIES, Defendant.
HILLEL MARCUS YITZCHAK ZELMAN MARCUS ZELMAN, LLC ON BEHALF OF
JEFFREY BOND MARK S. MELODIA HOLLAND & KNIGHT LLP ON
BEHALF OF DEFENDANT
L. HILLMAN, U.S.D.J.
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. Plaintiff claims that after he signed up
at slack.com, 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.
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.
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. 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.)
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,
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.)
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.
Plaintiff's motion to dismiss
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.)
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
Fed. R. Civ. P. 41(a).
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, ...