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Boqdan Ryabyshchuk, Individually and v. Citibank (South Dakota) N.A.

November 28, 2011


The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court


This is a purported class action brought by Plaintiff Boqdan Ryabyshchuk alleging that Defendant Citibank, N.A. sent text messages to his cellular phone in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227. Subject matter jurisdiction is premised on the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). Currently before the Court is Citibank's motion to dismiss for failure to state a claim. [Doc. No. 14.] Ryabyshchuk filed an opposition to the motion, and Citibank replied. [Doc. Nos. 15, 16.] The Court took the matter under submission pursuant to Civil Local Rule 7.1(d)(1). Having considered the parties' arguments, and for the reasons set forth below, the Court DENIES Citibank's motion to dismiss.


Ryabyshchuk alleges that on May 16, 2011, he contacted Citibank by telephone and inquired about the possibility of Citibank providing him a line of personal credit in the form of a credit card. (First Amended Complaint ¶ 9.) Later that day, Ryabyshchuk alleges he received the following "unsolicited" text message from Citibank on his cellular phone: Free Text Msg: Citi Cards needs to talk with you regarding your recent application. Please call 866-365-8962. To Opt-Out reply STOP. (Id. ¶ 10.) In response, Ryabyshchuk replied "STOP" by sending a text message. (Id. ¶ 11.) Thereafter, Ryabyshchuk alleges he received the following "unsolicited" text message:

Free Text Msg: Per your request you will no longer receive text alerts from Citi Cards Credit Dept. If you have any questions call 866-365-8962. (Id. ¶ 16.) Ryabyshchuk alleges that both text messages he received were placed via an "automatic telephone dialing system" and without any consent by him. (Id. ¶¶ 11, 15, 17, 22.)

Ryabyshchuk filed his complaint on June 6, 2011, and filed his First Amended Complaint ("FAC") on August 25, 2011. [Doc. Nos. 1, 10.] He alleges two causes of action: (1) negligent violations of the TCPA; and (2) knowing or willful violations of the TCPA. He seeks statutory damages in the amount of $500 per violation on the first cause of action and treble damages on the second cause of action. He also seeks injunctive relief prohibiting future similar conduct.

Ryabyshchuk also brings this action on behalf of the following class: "all persons within the United States who received any unsolicited confirmatory text messages, including any unsolicited confirmatory/marketing text messages from Citibank after any class member sent a reply text message, 'STOP,' to Citibank in response to a text message sent by Citibank, which text message by Citibank or its agents was not made for emergency purposes or with the recipient's prior express consent, within the four years prior to the filing of this Complaint." (FAC ¶ 25.)


A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. 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."'" Id. (internal citation omitted). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

In ruling on a motion to dismiss, the court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). The court, however, need not accept "legal conclusions" as true. Iqbal, 129 S. Ct. at 1949. Thus, "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. It is also improper for the court to assume that plaintiff "can prove facts that it has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S. Ct. at 1950.


Ryabyshchuk brings his claims under Section 227(b)(1)(A)(iii) of the TCPA, which provides in pertinent part:

It shall be unlawful for any person within the United States . . . to make any call (other than a call made for emergency purposes or 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 Ninth Circuit has held that "a text message is a 'call' within the meaning of the TCPA." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). Furthermore, the TCPA defines an automatic telephone dialing system ("ATDS") as "equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator [and] to dial such numbers." 47 U.S.C. ยง 227(a)(1). "[A] system need not actually store, produce, ...

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