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Stone v. At & T Services, Inc.

United States District Court, S.D. California

January 13, 2020

JOHN STONE, an individual, Plaintiff,
v.
AT&T SERVICES, INC. a corporation; VEHICLE AGENCY, LLC, a limited liability company, and DOES 1 through 10 inclusive, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART VEHICLE'S MOTION FOR SUMMARY JUDGMENT, [ECF, 33]

          Hon. Gonzalo P. Curiel United States District Judge

         Plaintiff John Stone filed a First Amended Complaint (“FAC”) against AT&T Services, Inc. (“AT&T”) and Vehicle Agency, LLC's (“Vehicle”) on November 8, 2018, for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and for invasion of privacy. ECF No. 8. Before the Court is Vehicle's motion for summary judgment. ECF No. 33. AT&T has joined Vehicle's motion. ECF No. 35. Plaintiff filed an opposition on September 13, 2019. ECF No. 36. On September 30, 2019, Vehicle filed a reply. ECF No. 38. On November 15, 2019, the Court held oral argument and allowed Vehicle to file an expert witness report to supplement the factual record. Defendant filed the report on November 18, 2019 and Plaintiff filed a response on December 12, 2019. ECF Nos. 44, 45.[1] Based on review of the factual record and oral argument from both parties, the Court hereby GRANTS in part and DENIES in part Defendants' motion for summary judgment.

         BACKGROUND

         According to the FAC, Plaintiff is a resident of San Diego County, California. FAC ¶ 2. Vehicle is a mobile marketing technology company, which does business in San Diego. Id. ¶ 4; ECF No. 33-1 at 6. Vehicle sends Multimedia Messaging Service (“MMS”) messages on behalf of clients, including AT&T. Id. at 6. MMS messages contain multimedia content (e.g., videos, images, and audio files). Meanwhile, Short Message Service (“SMS”) messages consist of text. ECF No. 38 at 2.

         Plaintiff alleges that Vehicle and AT&T (collectively, “Defendants”) violated the TCPA by sending automated text messages, via an automated dialing system, to Plaintiff's circa-2007 Motorola RAZR cell phone. FAC ¶¶ 1, 7, 13. In the FAC, Plaintiff describes these messages as “service reminders for internet service” provided by the Defendants. Id. ¶ 8. Plaintiff alleges that he “requested that the automated messages stop, ” but Defendants did not honor Plaintiff's request and sent him messages “multiple times a day, seven days a week.” Id. ¶¶ 9-11. Defendants deny that they sent more than a single MMS message sent on March 2, 2017.

         In 2017, AT&T contracted Vehicle to provide MMS messages as part of its “AT&T Appointment Reminder campaign” in order to remind AT&T customers of upcoming AT&T service appointments. ECF No. 38-1 (Defendant Vehicle Agency's Reply to Plaintiff's Response to Defendant's Statement of Undisputed Material Facts, “Reply SOF”) ¶ 2. Generally, AT&T and Vehicle followed a five-step protocol in conducting a campaign. First, an AT&T customer provided AT&T with their preferred cell phone number for contact and consented to be contacted by AT&T at the designated number. Id. ¶ 4. AT&T then sent Vehicle an application programming interface (“API”) request. Id. ¶ 5. Vehicle subsequently prepared an MMS message, which included the name and photograph of the AT&T technician that would visit the customer's house for the service appointment. Id. ¶ 6. Vehicle sent the MMS package to OpenMarket, a messaging aggregator service, which then routed the MMS message to the customer's cellular carrier. Id. ¶ 7. The cellular carrier then sent the MMS message to the customer's phone number. Id. ¶ 8.

         At all times, Plaintiff has resided with Li Ting Kuang (“Kuang”), in San Diego, California. ECF No. 36-2 (Declaration of John Stone, “Plaintiff Decl”) ¶ 3. In February 2017, Kuang was an AT&T Digital Subscriber Line (“DSL”) internet customer. Reply SOF ¶ 9. While Plaintiff was attempting to use the internet service, he received an error message with an 800 number listed for AT&T. ECF No. 33-4 (June 14, 2019 Deposition of John Stone, “Plaintiff Dep.”) at 10:22-11:4. Plaintiff called AT&T using the listed 800 number. Id. During the phone call, the AT&T representative scheduled a service appointment at Plaintiffs residence in order to upgrade the DSL service and informed Plaintiff that AT&T would send Plaintiff a text message with information about when the technician would be coming out to his home. Plaintiff Dep. at 20:5-8. At his deposition, Plaintiff testified that while he knew that AT&T would send a text message, he did not recall providing his phone number to the AT&T service representative during the service call. Plaintiff Dep. at 13:2-13, 14:1-5. An AT&T representative acknowledged that AT&T had not received written consent to send Plaintiff a text message and had no knowledge that Plaintiff provided oral consent. ECF No. 36-10 (Deposition of Shannon Grizzell, “Grizzell Dep.”) at 41:18-23.

         On March 2, 2017, AT&T sent Vehicle a single API request in order to prompt Vehicle to send a personalized MMS message to Plaintiffs RAZR phone. Reply SOF ¶ 7. After processing AT&T's request, Vehicle created the MMS to include the name and photograph of the AT&T technician who would perform the service appointment at Plaintiffs house and the technician's estimated time of arrival. Reply SOF ¶ 16. The MMS message also included text similar to “Reply STOP to stop receiving these messages.” Id. Vehicle then sent the MMS message to OpenMarket and did not receive any subsequent error messages indicating any problem with delivery of the MMS message. Id. ¶¶ 17, 19. The parties dispute whether Vehicle sent just one MMS message on March 2, 2017 to OpenMarket for delivery to Plaintiff's cell phone. Reply SOF ¶ 17; Stone Declaration ¶¶ 12-13, Exhibit 1; Golden Declaration, Ex. 14 (“Broom Rept.”) at 5. However, the Plaintiff's declarations offer no support for this proposition. The Court finds there was one MMS sent on March 2, 2017. Plaintiff testified that he received an appointment reminder that a technician would arrive at a certain time; that the message was helpful and that he was not suing on the basis of this message. Plaintiff Dep. at 22-23.

         Plaintiff declared that the first message he received was sent on March 2, 2017 and that the last message was sent on September 15, 2018. Stone Decl. ¶ 13. Between September 16, 2017 and September 15, 2018, Plaintiff saved 111 of the SMS messages on his RAZR phone. Id. ¶ 12. Neil Broom, Plaintiff's expert, performed a Cellebrite extraction on Plaintiff's RAZR cellular telephone and identified 111 SMS messages on the phone during this time period. ECF No. 36-18 (“Broom Rept.”) at 5. All of the SMS messages list “73303” in the “From” line and list “AT&T Service Reminder” in the “Subject” line. Stone Decl., Ex. 1. “73303” is the short code listed in the U.S. Short Code Directory for Vehicle, and has reportedly been Vehicle's short code since May 5, 2011, the date of the short code activation. Broom Rept. at 4. Each message included different dates and times for “Received” and “Expires On.” Id. In May 2017, Plaintiff contacted AT&T to tell them to stop sending the messages. Stone Decl. ¶ 15. Thereafter, Plaintiff spoke with at least five employees from AT&T's executive office and was told that they would look into the situation; Plaintiff was never told that AT&T denied sending the messages. Id. Eventually, Plaintiff was specifically informed that he should contact T-Mobile, his service provider. Reply SOF ¶ 36. The messages reportedly ended in September 2018, soon after Plaintiff filed his complaint in this case. Stone Decl. ¶ 18.

         After the instant lawsuit was filed, Defendants hired Dr. Edwin Hernandez to provide an opinion as to whether Vehicle sent the alleged “service reminders” and to determine the cause and source of the “service reminders.” Dr. Hernandez, among other things, examined Plaintiff's cell phone and determined that it had reached its “End of Life” in 2009-10. ECF No. 44-1 (“Hernandez Rept.”) ¶ 27. He found that the RAZR had expired security certificates, a discrepancy between International Mobile Equipment Identity (“IMEI”) values in the phone itself and T-Mobile's network, and a lack of reliable General Packet Radio Services (“GPRS”) service. Id. ¶ 70. According to Dr. Hernandez, these factors contributed to the “misbehavior between [Plaintiff's] phone and T-Mobile's MMMS Relay server.” Id. Ultimately, Dr. Hernandez opined that Vehicle sent a single MMS message with a reminder payload to a T-Mobile MMS Relay server, but T-Mobile's Relay failed to adapt the MMS message in a way that a RAZR phone would have been able to process and then failed to block the MMS message. Id. ¶ 69. Dr. Hernandez concludes that, as a result of these factors, T-Mobile's MMS Relay server remained in a state of perpetually attempting to send the single MMS message to Plaintiff's RAZR phone. Id.

         LEGAL STANDARD

         Federal Rule of Civil Procedure (“Rule”) 56 empowers the Court to enter summary judgment on factually unsupported claims or defenses, and thereby “secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 327 (1986); Fed.R.Civ.P. 56. Summary judgment is appropriate “if the movant shows that there is 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(c). A fact is material when it affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

         The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element of his or her claim on which that party will bear the burden of proof at trial. Id. at 322-24. If the moving party fails to bear the initial burden, summary judgment must be denied and the Court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970). Once the moving party has satisfied this burden, the nonmoving party cannot rest on the mere allegations or denials of his or her pleading, but must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file' designate ‘specific facts showing that there is a genuine issue for trial.'” Celotex, 477 U.S. at 324 (citing Rule 56). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). In making this determination, the Court must “view [] the evidence in the light most favorable to the nonmoving party.” Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001). The Court does not engage in credibility determinations, weighing of evidence, or drawing of legitimate inferences from the facts; these functions are for the trier of fact. Anderson, 477 U.S. at 255.

         DISCUSSION

         The Defendants argue they are entitled to summary judgment because (1) Vehicle only sent one MMS message on March 2, 2017 that was never received, (2) AT&T had consent for the MMS message, and (3) an ATDS was not used to send the single MMS message. Plaintiff counters that Vehicle sent multiple messages for which consent was never given and that the record creates a genuine issue of fact as to whether an ATDS was used to send the messages.

         The parties agree that AT&T sent Vehicle a single API request on March 2, 2017 that directed Vehicle to send a personalized MMS message to Plaintiff's cell phone, and that Vehicle in turn sent OpenMarket an MMS message based on AT&T's request. The parties agree that Plaintiff did not receive the March 2, 2017 message in an MMS format. Reply SOF ¶ 18. Plaintiff, however, indicates that he received at least one text message appointment reminder in early March 2017. Plaintiff Dep. 22:13-23:15.[2] Defendants claim that Plaintiff consented to the delivery of the March 2, 2017 message; Plaintiff disputes this.

         The parties also disagree as to the nature and origin of the 111 subsequent SMS messages that Plaintiff received and photographed.[3] Vehicle asserts that these messages were message waiting indicators generated by the T-Mobile's voice messaging platform. Plaintiff counters that a triable issue of fact exists as to whether Vehicle sent these messages. Plaintiff further assert that even under Vehicle's theory - i.e., that T-Mobile was solely responsible for the 111 subsequent SMS messages - Vehicle should still be held responsible since it acted as the “but for” cause of these messages. ECF No. 45 at 3.

         I. ...


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