United States District Court, N.D. California
BRIAN GLAUSER, individually and on behalf of all other similarly situated, Plaintiff,
GROUPME, INC., Defendant.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
PHYLLIS J. HAMILTON, District Judge.
Defendant's motion for summary judgment came on for hearing before this court on November 5, 2014. Plaintiff Brian Glauser ("plaintiff") appeared through his counsel, Rafey Balabanian. Defendant GroupMe, Inc. ("defendant" or "GroupMe") appeared through its counsel, Bryan Merryman. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion as follows.
This putative class action arises under the Telephone Consumer Protection Act ("TCPA"), which prohibits the making of any call (including text messages) without the prior express consent of the called party, using an automatic telephone dialing system, to any telephone number assigned to a cellular telephone service. In the operative first amended complaint ("FAC"), plaintiff describes GroupMe's product as a "group messaging" application, which allows users to create a "group" and to transmit text messages to all members of the group at the same time.
On or about April 23, 2011, plaintiff received two text messages sent through the GroupMe application. The messages read as follows:
Hi Brian Glauser, it's Mike L. Welcome to GroupMe! I just added you to "Poker" w/Richard L. Text back to join the conversation.
GroupMe is a group texting service. Standard SMS rates may apply. Get the app at http://groupme.com/a to chat for free. Reply #exit to quit or #help for more.
Dkt. 54, ¶¶ 33, 35.
These two messages will be referred to collectively as the "Welcome Texts." After receiving the Welcome Texts, plaintiff received a number of messages from the "Poker" group's members. Plaintiff did not respond to these messages, so GroupMe sent a text saying "Hey, are you there? GroupMe is more fun when you participate! We'll remove you soon unless you reply to the group or text #stay. Reply #exit to leave." Dkt. 54, ¶ 38.
Plaintiff then received more messages sent by group members, discussing their plans for scheduling a poker game. Plaintiff still did not respond, so he received another message from GroupMe: "We haven't heard from you, so we removed you from this group to be on the safe side. Don't worry, though. You can always get back in by replying to this text." Dkt. 54, ¶ 39. Plaintiff then responded "In, " which added him back to the group, and he continued to receive messages from other group members.
Plaintiff filed this action on May 27, 2011, asserting a single claim against GroupMe under the TCPA. The operative FAC was filed on September 15, 2011. Although the FAC references all of the above messages, its opposition brief references only the Welcome Texts (which plaintiff refers to as the "GroupMe Mobile App Text(s)"), and at the hearing, plaintiff's counsel confirmed that plaintiff was relying on only the Welcome Texts to oppose summary judgment, though he made clear that "both parts" were challenged.
On January 27, 2012, the case was stayed pending FCC decisions on three issues: (1) the definition of an "automatic telephone dialing system" under the TCPA, (2) whether prior express consent could be received through an intermediary, and (3) the scope of the TCPA's "common carrier" exemption.
The court lifted the stay on March 27, 2014, after receiving no indication that any FCC action was forthcoming. The court also granted GroupMe permission to file an early motion for summary judgment on the issue of whether it used an "automatic telephone dialing system" (referred to as an "ATDS" or "autodialer"), as required to establish TCPA liability. The court directed the parties to conduct discovery on the "autodialer" issue, and GroupMe now moves for summary judgment on that issue.
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