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

October 30, 2012

BOQDAN RYABYSHCHUCK, INDIVIDUALLY AND ON BEHALF OF ALL OTHER SIMILARLY SITUATED, PLAINTIFF,
v.
CITIBANK (SOUTH DAKOTA) N.A., ALSO KNOWN AS CITY CARDS, DEFENDANT.



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

ORDER:

1. DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; [Doc. No. 32]

2. GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; [Doc. No. 36]

3. DENYING DEFENDANT'S MOTION TO STRIKE. [Doc. No. 40]

Before the Court are the parties' cross motions for summary judgment on the dispositive issue of whether certain text messages are actionable under the Telephone Consumer Protection Act (the "TCPA"), and Defendant Citibank (South Dakota), N.A., ("Citibank")'s motion to strike Plaintiff Boqdan Ryabyshchuk's declaration in support thereof. For the reasons below, the Court hereby DENIES Plaintiff's motion for summary judgment, [Doc. No. 32], GRANTS Defendant's motion for summary judgment, [Doc. No. 36], and DENIES Defendant's motion to strike, [Doc. No. 40].

BACKGROUND

This case concerns confirmatory text messages that were sent to cellular phone numbers voluntarily submitted to Citibank via online credit card applications. Plaintiff, individually and on behalf of those similarly situated, claims such text messages violate provisions of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), and seeks statutory damages of $500 per negligent violation and up to $1500 per knowing or willful violation.

I. Undisputed Facts

On May 14, 2011, Plaintiff provided his cellular phone number to Citibank in an online credit card application. [Doc. No. 42 at 3-4.] When the number was entered, a pop-up message displayed: "By providing . . . your mobile number, you agree to receive calls and messages, such as text messages . . . to service your account." [See Doc. No. 36 at 3.]

On May 16, 2012, Citibank, via third-party vendor using short message service ("SMS code"), sent the following text message (the "first text") to the cellular phone number Plaintiff had provided:

Free Text Msg.: Citi Cards needs to talk with you regarding your recent application. Please call 866 365-8962. To Opt-Out reply STOP. [Doc. No. 42 at 3-4 (omitted punctuation in original text).] That same day, after Plaintiff replied "STOP," Citibank sent the following text message (the "second text") to Plaintiff's cellular phone number:

Free Text Msg: Per your request you will no longer receive text messages from Citi Cards Credit Dept. If you have any questions call 866-365-8962. [Id.]

II. Procedural History

Plaintiff filed an initial complaint on June 6, 2011, [Doc. No. 1], and the operative first amended complaint ("FAC") on August 25, 2011. [Doc. Nos. 10.] The Court denied Defendant's motion to dismiss the FAC on November 28, 2011. [Doc. No. 18.] Discovery closed on June 27, 2012. [See Doc. No. 31.] Plaintiff and Defendant filed their present motions for summary judgment on July 5 and 27, 2012, respectively, [see ...


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