Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 1 of 8 Page ID #:1
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`TRINETTE G. KENT (State Bar No. 222020)
`3219 E Camelback Rd, #588
`Phoenix, AZ 85018
`Telephone: (480) 247-9644
`Facsimile: (480) 717-4781
`E-mail: tkent@lemberglaw.com
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`Of Counsel to
`Lemberg Law, LLC
`43 Danbury Road
`Wilton, CT 06897
`Telephone: (203) 653-2250
`Facsimile: (203) 653-3424
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`Attorneys for Plaintiff,
`Maria Thrasher
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`SOUTHERN DIVISION
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`Plaintiff,
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`Defendant.
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`Case No.:
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`COMPLAINT FOR DAMAGES
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`FOR VIOLATIONS OF:
`1. THE TELEPHONE CONSUMER
`PROTECTION ACT
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`JURY TRIAL DEMANDED
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`Maria Thrasher,
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`GrubHub Inc.,
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`vs.
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`Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 2 of 8 Page ID #:2
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`Plaintiff, Maria Thrasher (hereafter “Plaintiff”), by undersigned counsel, brings
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`the following complaint against GrubHub Inc. (hereafter “Defendant”) and alleges as
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`follows:
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`JURISDICTION
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`1.
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`This action arises out of Defendant’s repeated violations of the
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`Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).
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`2.
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`Jurisdiction of this Court arises under 47 U.S.C. § 227(b)(3) and 28
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`U.S.C. § 1331.
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`3.
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`Venue is proper before this Court pursuant to 28 U.S.C. § 1391(b), where
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`the acts and transactions giving rise to Plaintiff’s action occurred in this district and/or
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`where Defendant transacts business in this district.
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`PARTIES
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`4.
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`Plaintiff is an adult individual residing in Orange, California, and is a
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`“person” as defined by 47 U.S.C. § 153(39).
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`5.
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`Defendant is a business entity located in Chicago, Illinois, and is a
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`“person” as the term is defined by 47 U.S.C. § 153(39).
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`THE TELEPHONE CONSUMER PROTECTION ACT OF 1991
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`6.
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`The TCPA regulates, among other things, the use of automatic telephone
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`dialing systems (“ATDS”).
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`7.
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`Specifically, 47 U.S.C. § 227(1)(A)(iii) prohibits any call using an ATDS
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`to a cellular phone without prior express consent by the person being called or an
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`emergency purpose.
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`8.
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`47 U.S.C. § 227(a)(1) defines an ATDS as equipment having the
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`capacity–
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`(A)
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`to store or produce telephone numbers to be called, using a random or
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`sequential number generator; and
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`(B)
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`to dial such numbers.
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`2
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`COMPLAINT FOR DAMAGES
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`Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 3 of 8 Page ID #:3
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`9.
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`According to the Federal Communications Commission (“FCC”), an
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`ATDS “encompass[es] any equipment that stores telephone numbers in a database and
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`dials them without human intervention.” Nunes v. Twitter, Inc., No. 14-cv-02843-VC,
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`2014 WL 6708465, at *1 (N.D. Cal. Nov. 26, 2014); Fields v. Mobile Messengers
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`Am., Inc., No. 12-cv-05160-WHA, 2013 WL 6774076, at *3 (N.D. Cal. Dec. 23,
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`2013) (concluding there were genuine disputes of material fact regarding whether
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`messages were sent using an ATDS where plaintiffs alleged that the equipment used
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`functioned similarly to a predictive dialer in that it received numbers from a computer
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`database and dialed those numbers without human intervention.”).
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`10.
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`“Human intervention” means significant human involvement in the
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`dialing of a number, and any human involvement with phone number compilation is
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`irrelevant. See In re Rules and Regulations Implementing the Telephone Consumer
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`Protection Act of 1991, CG Docket No. 02–278, Report and Order, 18 FCC Rcd.
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`14014, ¶ 132 (2003) (“2003 FCC Order”) (“The basic function of [ATDS], however,
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`has not changed—the capacity to dial numbers without human intervention.”
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`(emphasis added and omitted)); Moore v. Dish Network L.L.C., 57 F. Supp. 3d 639,
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`654 (N.D.W. Va. 2014) (“[I]t is irrelevant under the FCC’s definition of a predictive
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`dialer that humans are involved in the process of creating the lists that are entered into
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`the Campaign Manager software.”).
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`11. Moreover, the FCC has made clear that it is a system’s capacity to dial
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`randomly or sequentially that determines whether it is an ATDS, not its “present
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`ability.” In re Rules & Regulations Implementing the Telephone Consumer Protection
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`Act of 1991, Declaratory Ruling and Order, CG Docket No. 02-278, FCC 15-72, at ¶
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`15 (July 10, 2015) (“2015 FCC Order”); see also Meyer v. Portfolio Recovery Assocs.,
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`LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (“[T]he clear language of the TCPA
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`‘mandates that the focus be on whether the equipment has the capacity to store or
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`produce telephone numbers to be called, using a random or sequential number
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`3
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`COMPLAINT FOR DAMAGES
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`Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 4 of 8 Page ID #:4
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`generator.’” (quoting Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th
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`Cir. 2009))). In other words, “even when the equipment presently lack[s] the
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`necessary software, it nevertheless [may have] the requisite capacity to be an
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`autodialer.” 2015 FCC Order, at ¶ 16.
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`12. A piece of equipment can possess the requisite “capacity” to satisfy the
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`statutory definition of “autodialer” even if, for example, it requires the addition of
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`software to actually perform the functions described in the definition. 2015 FCC
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`Ruling, at ¶ 18.
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`13. The FCC has clarified that text messages qualify as “calls” under the
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`TCPA
`We affirm that under the TCPA, it is unlawful to make any call using an
`automatic telephone dialing system or an artificial or prerecorded
`message to any wireless telephone number. Both the statute and our
`rules prohibit these calls, with limited exceptions, “to any telephone
`number assigned to a paging service, cellular telephone service,
`specialized mobile radio service, or other common carrier service, or any
`service for which the party is charged.” This encompasses both voice
`calls and text calls to wireless numbers including, for example, short
`message service (SMS) calls, provided the call is made to a telephone
`number assigned to such service.
`2003 FCC Order, at ¶ 165; see Satterfield, 569 F.3d at 953.
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`ALLEGATIONS APPLICABLE TO ALL COUNTS
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`14. Defendant is an American online and mobile prepared food ordering and
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`delivery platform that connects diners with local restaurants.
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`15. At all times mentioned herein where Defendant communicated with any
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`person via telephone, such communication was done via Defendant’s agent,
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`representative, or employee.
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`16. At all times mentioned herein, Plaintiff utilized a cellular telephone
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`service and was assigned the following telephone number: 626-XXX-6396 (hereafter
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`“Number”).
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`COMPLAINT FOR DAMAGES
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`Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 5 of 8 Page ID #:5
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`17. Within the last year, Defendant contacted Plaintiff by way of text
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`messages sent to Plaintiff’s Number.
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`18. Defendant placed text messages from number “303-68,” an abbreviated
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`telephone number known as an SMS short code licensed and operated by Defendant
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`or one of its agents on its behalf.
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`19. Defendant also placed text messages from number +1 (312) 345-6639, a
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`number owned and operated by Defendant or one of its agents on its behalf.
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`20. The text messages were placed using an automatic telephone dialing
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`system (“ATDS”).
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`21. Defendant’s text messages to Plaintiff were template-based. They
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`consisted of a notification that a restaurant was preparing Plaintiff’s order, an
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`estimated delivery time, and a link to Defendant’s app.
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`22. Other text messages consisted of delivery time updates.
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`23. Other text messages consisted of a notification that Plaintiff’s order was
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`left outside of the door.
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`24. All of Defendant’s text messages were template-based and were
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`impersonal to Plaintiff. She had not ordered anything from Defendant or from any
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`restaurant. Indeed, she had not provided Defendant with her Number, nor did she
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`provide her prior express consent to receive Defendant’s autodialed text messages.
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`25. Plaintiff has no business relationship with Defendant and never requested
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`by an agreement or otherwise that she be contacted.
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`26.
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`In an effort to stop the text messages, Plaintiff called Defendant
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`repeatedly and advised Defendant that she was receiving text messages in error and
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`directed Defendant to cease all communications to her Number.
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`27.
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`In a further effort to stop the text messages, Plaintiff replied to
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`Defendant’s text messages with “STOP.”
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`COMPLAINT FOR DAMAGES
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`Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 6 of 8 Page ID #:6
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`28. However, Defendant did not stop. Defendant continued to send text
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`messages to Plaintiff’s cell phone despite (1) that Plaintiff had not provided her
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`number in the first place, (2) her multiple phone call requests that Defendant cease,
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`and (3) her text message request that Defendant cease, which Defendant’s system
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`acknowledged, but then disregarded.
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`29. Defendant’s text messages directly interfered with Plaintiff’s right to
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`peacefully enjoy a cell phone service that Plaintiff paid for, and caused Plaintiff a
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`significant amount of anxiety, frustration and annoyance.
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`30. The messages from Defendant to Plaintiff were not placed for
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`“emergency purposes” as defined by 47 U.S.C. § 227(b)(1)(A)(i).
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`COUNT I
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`VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT, 47
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`U.S.C. § 227, et seq.
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`31. Plaintiff incorporates by reference all of the above paragraphs of this
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`complaint as though fully stated herein.
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`32. The TCPA prohibits Defendant from using, other than for emergency
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`purposes, an ATDS and/or Robocalls when calling Plaintiff’s Number absent
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`Plaintiff’s prior express consent to do so. See 47 U.S.C. § 227(b)(1).
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`33. FCC regulations promulgated under the TCPA specifically prohibit
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`Defendant from using an ATDS and/or Robocalls to call Plaintiff’s Number for the
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`purpose of advertising or telemarketing absent Plaintiff’s prior express written
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`consent. See 47 C.F.R. § 64.1200(a)(2).
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`34. FCC regulations promulgated under the TCPA require that Plaintiff’s
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`consent be pursuant to a written agreement, signed by the Plaintiff, which contains
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`Plaintiff’s unambiguous assent to receiving ATDS and/or Robocalls from Defendant.
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`See 47 C.F.R. § 64.1200(f)(8).
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`35. Defendant sent automated text messages to Plaintiff’s Number.
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`COMPLAINT FOR DAMAGES
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`Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 7 of 8 Page ID #:7
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`36. Defendant sent these automated text messages to Plaintiff’s Number
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`using an ATDS without Plaintiff’s consent in that Defendant either never had
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`Plaintiff’s prior express consent to do so, or such consent was effectively revoked
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`when Plaintiff requested that Defendant cease all further texts.
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`37. Defendant continued to willfully text Plaintiff’s Number using an ATDS
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`knowing that it lacked the requisite consent to do so in violation of the TCPA.
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`38. Plaintiff was harmed and suffered damages as a result of Defendant’s
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`actions.
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`39. Defendant’s texts directly interfered with Plaintiff’s right to peacefully
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`enjoy a service that Plaintiff paid for and caused Plaintiff a significant amount of
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`anxiety, frustration, and annoyance.
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`40. The TCPA creates a private right of action against persons who violate
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`the Act. See 47 U.S.C. § 227(b)(3).
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`41. As a result of each text sent in violation of the TCPA, Plaintiff is entitled
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`to an award of $500.00 in statutory damages.
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`42. As a result of each text sent knowingly and/or willingly in violation of
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`the TCPA, Plaintiff may be entitled to an award of treble damages.
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`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff prays for judgment against Defendant for:
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`A. Statutory damages of $500.00 for each call determined to be in violation
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`of the TCPA pursuant to 47 U.S.C.§ 227(b)(3);
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`B. Treble damages for each violation determined to be willful and/or
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`knowing under the TCPA pursuant to 47 U.S.C.§ 227(b)(3); and
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`C. Such other and further relief as may be just and proper.
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`TRIAL BY JURY DEMANDED ON ALL COUNTS
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`COMPLAINT FOR DAMAGES
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`Case 8:20-cv-02267-DOC-KES Document 1 Filed 12/02/20 Page 8 of 8 Page ID #:8
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`DATED: December 2, 2020
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` TRINETTE G. KENT
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`By: /s/ Trinette G. Kent
`Trinette G. Kent, Esq.
`Lemberg Law, LLC
`Attorney for Plaintiff, Maria Thrasher
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`COMPLAINT FOR DAMAGES
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