United States District Court, S.D. California
CHRISTOPHER J. REICHMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
POSHMARK, INC., a Delaware Corporation, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR EARLY
Dana M. Sabraw United States District Judge
case comes before the Court on Defendant Poshmark, Inc.'s
motion for early summary judgment pursuant to Federal Rule of
Civil Procedure 56. The motion came on for hearing on May 5,
2017. David C. Beavans appeared for Plaintiff, and Laura
Alexandra Stoll appeared for Defendant. After considering the
parties' briefs, oral argument, the relevant legal
authority, and the record, Defendant's motion is granted.
lawsuit arises out of Plaintiff Christopher J. Reichman's
receipt of two text messages containing an invitation to
register with Poshmark. Defendant Psohmark operates a mobile
application (“app”) that provides users with a
platform to sell and purchase used clothing and accessories.
(First Amended Complaint (“FAC”) ¶¶
7-9.) Users can use the app to list their goods for sale by
creating an online “closet” and uploading
pictures of the items from their mobile devices.
(Id. ¶¶ 7, 10-11.) Users can also purchase
goods from other users' closets on their mobile devices
by using the app. (Id.) Like many other apps,
Defendant's app allows users to invite their
“contacts” to join Poshmark by text message or
former client, Tricia Tolentino, is a registered user on
Poshmark, with over 14, 000 users “following” her
closet. (Declaration of John McDonald (“McDonald
Decl.”) ¶¶ 20, 28.) On January 18, 2015, Ms.
Tolentino accessed the app and listed several clothing items
for sale. (Id. ¶ 21.) Afterwards, she navigated
to the “Find People” page, which provided her
with three options to find her contacts: (1) from her contact
list stored on her mobile device, (2) from her Facebook
account, and (3) from her Twitter account. (Id.
¶¶ 8, 22.) Ms. Tolentino selected the first
option. (Id. ¶ 22.) She was then
brought to a screen displaying a list of her contacts,
including those who have yet to register with Poshmark.
(Id. ¶¶ 14, 22.) Displayed below each of
those contact's name was his or her phone number or
e-mail address. (Id. ¶ 14.) On this screen,
Ms. Tolentino was provided with two options to invite her
contacts to join Poshmark: (1) selecting the “Invite
All” button to send an invite to everyone in her
contact list, or (2) individually selecting an invitation
button next to each contact's name. (Id. ¶
15.) Ms. Tolentino chose to send an invitation to all of her
contacts by selecting the “Invite All” button.
(Id. ¶¶ 15, 22.) As a result, invitational
messages were sent to the invitees according to the contact
method displayed under their names. (Id. ¶¶
16, 22.) Because Ms. Tolentino had saved Plaintiff's
phone number in her contact list, Plaintiff received a text
message, which contained an invitation “to view and buy
the wares now being sold through POSHMARK” and a link
to Ms. Tolentino's closet. (FAC ¶ 14; Declaration of
Christopher J. Reichman (“Reichman Decl.”) ¶
3.) On January 25, 2015, Ms. Tolentino again access the app
and selected the “Invite All” button, which
caused Plaintiff to receive another text message. (Reichman
Decl. ¶ 5.)
on the receipt of two text messages, Plaintiff alleges
Defendant violated the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii).
Plaintiff seeks to represent a class of “[a]ll persons
and entities located within the United States of America to
whose mobile phones POSHMARK and/or its agents transmitted a
text message without prior express written consent anytime
from September 15, 2012, to the present.” (FAC
¶¶ 6, 36.) Defendant now moves for summary
judgment, arguing Plaintiff cannot establish a violation of
§ 227(b)(1)(A)(iii) because Defendant did not
“make” the invitational text message.
judgment is appropriate if “no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The moving party
has the initial burden of demonstrating that summary judgment
is proper. Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). The moving party must identify the
pleadings, depositions, affidavits, or other evidence that it
“believes demonstrates the absence of a genuine issue
of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). “A material issue of fact is
one that affects the outcome of the litigation and requires a
trial to resolve the parties' differing versions of the
truth.” S.E.C. v. Seaboard Corp., 677 F.2d
1301, 1306 (9th Cir. 1982).
burden then shifts to the opposing party to show that summary
judgment is not appropriate. Celotex, 477 U.S. at
324. The opposing party's evidence is to be believed, and
all justifiable inferences are to be drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). However, to avoid summary judgment, the opposing
party cannot rest solely on conclusory allegations. Berg
v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).
Instead, it must designate specific facts showing there is a
genuine issue for trial. Id.; see also Butler v.
San Diego Dist. Attorney's Office, 370 F.3d 956, 958
(9th Cir. 2004) (stating if defendant produces enough
evidence to require plaintiff to go beyond pleadings,
plaintiff must counter by producing evidence of his own).
More than a “metaphysical doubt” is required to
establish a genuine issue of material fact. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986).
contends it cannot be liable under the TCPA because Plaintiff
cannot establish it made the calls, i.e., that Defendant sent
the challenged text messages. The TCPA makes it unlawful
“to make any call (other than a call ... made with the
prior express consent of the called party) using any
automatic telephone dialing system ... to any telephone
number assigned to a ... cellular telephone service[.]”
47 U.S.C. § 227(b)(1)(A)(iii). 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). The TCPA, however, does not define
the term “to make any call[.]” Congress has
delegated to the Federal Communications Commission
(“FCC”) the authority to make rules and
regulations to implement the TCPA. Satterfield, 569
F.3d at 953 (citing 47 U.S.C. § 227(b)(2)). Pursuant to
this authority, the FCC issued a Declaratory Ruling and
Order, providing guidance for determining who makes or
initiates a call, in light of the “changes in calling
technology.” See In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991,
30 FCC Rcd. 7961, 7978-84 (2015) (“FCC Order”).
In determining whether an app or its user is the maker of a
call, the FCC explained that it looks to “the totality
of the facts and circumstances surrounding the placing of a
particular call to determine: 1) who took the steps necessary
to physically place the call; and 2) whether another person
or entity was so involved in placing the call as to be deemed
to have initiated it, considering the goals and purposes of
the TCPA.” Id. at 7980. Because the TCPA does
not define the term “to make any call” and the
FCC's interpretation of the TCPA is reasonable, the Court
uses the FCC Order to inform its analysis. See
Satterfield, 569 F.3d at 953; see also Van Patten v.
Vertical Fitness Grp., LLC, 847 F.3d 1037, 1048 (9th
Cir. 2017) (finding reasonable the FCC's interpretation
of the TCPA in the 2015 FCC Order).
particular relevance to this case, the FCC determined whether
two app providers, Glide and TextMe, “make” calls
for purposes of the TCPA. The FCC used Glide to illustrate
when an app provider is a maker of a call. Glide was a video
messaging service that automatically sent “invitational
texts of its own choosing to every contact in the app
user's contact list” unless the user affirmatively
opted out. FCC Order at 7982-83. The FCC found “the app
user plays no discernible role in deciding whether to send
the invitational text messages, to whom to send them, or what
to say in them.” Id. at 7983. Given these
facts, the FCC concluded “Glide makes or initiates the
invitational text messages by taking the steps physically
necessary to send each invitational text message or, at a
minimum, is so involved in doing so as to be deemed to have
made or initiated them.” Id.
contrast, the FCC reached the opposite conclusion with
TextMe. Unlike Glide, users had to take several affirmative
steps for TextMe to send invitational text messages. Users
had to “(1) tap a button that reads ‘invite your
friends'; (2) choose whether to ‘invite all their
friends or  individually select contacts'; and (3)
choose to send the invitational text message by selecting
another button.” FCC Order at 7983-84. Although the FCC
expressed concern that TextMe controlled the content of the
messages, the affirmative choices by users led the FCC to
conclude the user, not TextMe, was the maker of the text
message. Id. at 7984. The FCC reasoned “the
app user's ...