In a text message case, the U.S. District Court for the Southern District of Florida recently granted Atlantic Coast Enterprise, LLC’s (“Ace”) motion to dismiss upon finding that the plaintiff had failed to plausibly allege Ace’s use of an automatic telephone dialing system (“ATDS”). See Turizo v. Jiffy Lube International, Inc., et al., No. 19-61140, 2019 WL 4737696 (S.D. Fla. Sept. 27, 2019) (available here).

Plaintiff had alleged that Ace, at the direction of co-defendant Jiffy Lube International, Inc. (“Jiffy Lube”), sent at least one text message to his mobile phone using an ATDS. Ace moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff had failed to plead any facts to create an inference that an ATDS was used.

The Court sided with Ace and concluded that Plaintiff’s allegations were insufficient to plausibly allege the use of an ATDS. As the Court explained, “[a] bare allegation that a defendant used an [ATDS] is not enough.” Turizo, 2019 WL 4737696, at *2 (citation and internal quotation marks omitted). The Court further stated that “a plaintiff may not merely recite the statutory elements of the use of an ATDS . . . without alleging additional facts to support those facts.” Id. (citation and internal quotation marks omitted). Such additional facts, the Court observed, might include “the content of the message, the context in which it was received, and the existence of similar messages to raise an inference that an [ATDS] was used.” Id. (citation and internal quotation marks omitted).

Plaintiff had merely alleged that Jiffy Lube provides its franchisees like Ace with access to an array of “marketing assets and tools” as well as “equipment, software, hardware, and other products and services as part of its franchise agreement.” Id. at *3. Plaintiff then alleged that such equipment includes an ATDS that enables Ace to send texts to consumers. As the Court observed, however, this allegation was wholly conclusory: there were no facts alleged to actually connect Jiffy Lube’s provision of marketing tools and equipment with Plaintiff’s allegation that one such tool was an ATDS.

Moreover, the few additional facts that were alleged weighed against any inference that Ace used an ATDS. For example, Plaintiff provided a screenshot of one text message he allegedly received, which stated, “Blake, Thank you for allowing our team to help you. Please click the link below to leave your feedback!” The Court reasoned that the personalized content of the message raised an inference that it was sent as a result of some provision of services to Plaintiff, not as a marketing message sent en masse. Thus, the Court granted Ace’s motion, although with leave to amend.

The Turizo decision serves as helpful reminder that ATDS allegations in federal court cannot simply parrot the statutory definition. Rather, such allegations must contain enough facts to be plausible—or a TCPA claim may be dismissed.