United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OPINION AND ORDER
C. NUGENT UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Kisling, Nestico
& Redick, LLC's ("KNR") Motion To Dismiss
(ECF #31) Frank Lord and Steven M. Katz's (Plaintiffs)
First Amended Class Action Complaint pursuant to Fed.R.Civ.P.
12(b)(6). (ECF #15).Plaintiffs filed an Opposition (ECF #32)
to KNR's Motion to Dismiss and KNR filed a Reply (ECF
#34) in Support of its Motion to Dismiss. Plaintiffs also
filed a Motion to Strike (ECF #33) KNR counsel's letter
and the declaration of the computer programmer that created
KNR's messaging system Alin Mazilu. For the reasons
that follow, KNR's Motions to Dismiss is GRANTED.
Factual and Procedural Background
December 18, 2017, Plaintiffs Frank Lord and Steven M. Katz
filed an amended class action complaint against Defendants
KNR and Wire2Air Mobile Solutions (Wire2Air"), alleging
receipt of unsolicited and unauthorized electronic text
messages from KNR. (ECF #15). Plaintiffs alleged that KNR
sent text messages using an automatic telephone dialing
system ("ATDS") in violation of (1) the Telephone
Consumer Protection Act, 47 U.S.C. § 227
("TCPA"); (2) the Ohio Electronic Mail
Advertisements Act, 47 U.S.C. § 2307.64
("EMAA"); and (3) the Ohio Consumer Sales Practices
Act O.R.C. § 1345.09 ("OCSPA"). (ECF #15).
Plaintiffs' later withdrew their claim under EMAA. (ECF
alleged that shortly after they were both involved in
separate automobile accidents they each received a single
text message from KNR. Plaintiffs' alleged that the text
messages referenced their recent automobile accidents and
advertised KNR's legal services. Plaintiffs contend that
KNR obtains cellular telephone number of individuals involved
in motor vehicle accidents from police reports, inputs those
telephone numbers into an auto-dialing system developed by
fellow Defendant Wire2Air, and then sends text messages
containing KNR legal service advertisements. Plaintiffs
alleged that the platform KNR uses, and other systems
Wire2Air developed, have the "capability and/or
functionality to launch mass and bulk messages 'in
seconds.'" (ECF #15). Plaintiff's further allege
that “the platform that KNR acknowledges using, uses
and requires a short code which is used for bulk and mass
texting which indicates the use of an ATDS." (ECF #15).
STANDARD OF REVIEW
evaluating a motion to dismiss, the court must construe the
complaint in the light most favorable to the plaintiff,
accept its factual allegations as true, and draw reasonable
inferences in favor of the plaintiff. See Directv, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The
complaint need not contain detailed factual allegations, but
it must include more than labels, conclusions, and formulaic
recitations of the elements of a cause of action.
Id. "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
Twombly, 550 U.S. at 555).
survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege facts that "state a claim to relief that is
plausible on its face," and that, if accepted as true,
are sufficient to "raise a right to relief above the
speculative level." Twombly, 550 U.S. at 555,
570. "The plausibility standard is not akin to a
'probability requirement,' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678. "A
claim is plausible on its face if the 'plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'" Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 369 (6th Cir. 2011), cert.
denied, 132 S.Ct. 1583, 182 L.Ed.2d 172, (2012) (quoting
Iqbal, 556 U.S. at 677). Where a complaint pleads
facts that are merely consistent with a defendant's
liability, it "stops short of the line between
possibility and plausibility of 'entitlement to
relief.'" Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557).
motion brought under Rule 12(b)(6) the court's inquiry is
limited to the content of the complaint, although matters of
public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint may also be
taken into account. See Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008);
Amini v. Oberlin College, 259 F.3d 493, 502 (6th
TCPA states that it is unlawful for any person "(A) to
make any call (other than a call made… with the prior
express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded
voice… to any telephone number assigned to a…
cellular telephone service." 47 U.S.C. §
227(b)(1)(A)(iii). The TCPA does not completely prohibit
calling or texting cellular telephones. Instead, the TCPA
only prohibits calling or texting cellular telephones when
(1) the call or text is made using an ATDS; or (2) the
telephone call uses an artificial or prerecorded voice. An
ATDS is defined as "equipment which has the capacity (A)
to store or produce telephone numbers to be called, using a
random or sequential number generator; and (B) to dial such
numbers." U.S.C. § 227(a)(1).
in 2015 issued a Declaratory Ruling and Order regarding the
definition and interpretation of an ATDS. In re
TCPA, 30 F.C.C.R. 7961 (2015). This interpretation
drastically expanded and altered the statutory definition of
an ATDS. ACA Int'l v FCC, 885 F.3d 687, 692,
697. The FCC held that the "capacity" of an ATDS
"includes its potential functionalities" and is not
limited to what the equipment is capable of doing in its
current configuration. Id. at 694. On March 16, 2018
the D.C. Circuit vacated the FCC's 2015 interpretation of
an ATDS. See Id. The D.C. Circuit held that the
FCC's prior definition of an ATDS which included an
equipment's potential functionalities was "utterly
unreasonable in breath of its regulatory [in]clusion,"
that the interpretation was "unreasonably, and
impermissibly, expansive" interpretation of the TCPA.
ACA Int'l, 885 F.3d at 692, 697, 699.
the D.C. Circuit's ruling, the TCPA does not completely
prohibit calling or texting cellular telephones as long as an
ATDS is not utilized. An ATDS is defined as "equipment
which has the capacity (A) to store or produce telephone
numbers to be called, using a random or sequential number
generator; and (B) to dial such numbers." 47
U.S.C.§ 227(a)(1). Plaintiffs' allege that KNR
violated the TCPA because the system KNR allegedly used is
capable of sending mass and bulk text messages without human
intervention. To state a claim Plaintiffs' complaint
completely depends on the validity of the FCC's expansive
2015 order which included devices that have the capacity to
perform the necessary functions. This Court finds the D.C.
Circuit's interpretation of an ...