Case 3:21-cv-01122 Document 1 Filed 02/15/21 Page 1 of 7
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`SULAIMAN LAW GROUP
`Alexander J. Taylor
`2500 South Highland Ave
`Suite 200
`Lombard, Illinois 60148
`Telephone: 331-307-7646
`Facsimile: 630-575-8188
`E-Mail: ataylor@sulaimanlaw.com
`Attorney for the Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`TERRY DOW, individually, and on behalf of
`all other similarly situated,
`
`Plaintiff,
`
`v.
`
`DOORDASH, INC,
`
`Defendant.
`
`
`Case No. 3:21-cv-01122
`
`CLASS ACTION COMPLAINT FOR
`DAMAGES
`
`VIOLATION OF THE TELEPHONE
`CONSUMER PROTECTION ACT
`(“TCPA”) PURSUANT TO 47 U.S.C. §227.
`
`JURY TRIAL DEMANDED
`
`
`
`NOW COMES TERRY DOW (“Plaintiff”), on behalf of himself and all others similarly
`
`situated by and through his undersigned attorney, on behalf of himself and all others similarly
`
`situated, complaining of DOORDASH, INC., (“Defendant”) as follows:
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff brings this class action on behalf of himself and numerous other
`
`individuals pursuant to the seeking redress for violations of the Telephone Consumer Protection
`
`Act (“TCPA”) pursuant to 47 U.S.C. §227.
`
`2.
`
`Subject matter jurisdiction is conferred upon this Court by the TCPA, and 28
`
`U.S.C. §§1331 and 1337, as the action arises under the laws of the United States.
`
`3.
`
`Venue is proper in this Court pursuant to 28 U.S.C. §1391 as Defendant is
`
`headquartered in this District and the wrongful conduct giving rise to this case emanated from this
`
`
`
`
`
`
`1
`
`
`
`
`

`

`Case 3:21-cv-01122 Document 1 Filed 02/15/21 Page 2 of 7
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`District.
`
`PARTIES
`
`4.
`
`Plaintiff is a consumer and natural person over 18-years-of-age who, at all times
`
`relevant, is a “person” as defined by 47 U.S.C. §153(39).
`
`5.
`
`Defendant provides a service that allows consumers to place food orders from
`
`restaurants and to have those orders delivered by contracted DoorDash drivers who are known as
`
`Dashers.
`
`6.
`
`Defendant acted through its agents, employees, officers, members, directors, heirs,
`
`successors, assigns, principals, trustees, sureties, subrogees, representatives and insurers at all
`
`times relevant to the instant action.
`
`7.
`
`8.
`
`Defendant is a “person” as defined by 47 U.S.C. §153(39).
`
`FACTS SUPPORTING CAUSES OF ACTION
`
`Around November 2020, Plaintiff began receiving numerous unsolicited and
`
`unwanted text messages and phone calls from Defendant to his cellular phone number, (360)
`
`XXX-4804.
`
`9.
`
`At all times relevant, Plaintiff was the sole subscriber, owner, possessor, and
`
`operator of his cellular telephone number ending in 4804. Plaintiff is and has always been
`
`financially responsible for this telephone and its services.
`
`10.
`
`Defendant’s text messages and calls were regarding deliveries for a costumer
`
`named “Vein Yang.”
`
`11.
`
`Plaintiff was perplexed, as he does not know a “Vein Yang.” Moreover, Plaintiff
`
`never used the Door Dash app nor does he have it installed on his cellular phone.
`
`12.
`
`Around December 2020, Plaintiff answered a call from Defendant. During this call,
`
`Plaintiff explained that the text messages and phone calls were disturbing to him, that he did not
`
`
`
`
`
`
`2
`
`
`
`
`
`

`

`Case 3:21-cv-01122 Document 1 Filed 02/15/21 Page 3 of 7
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`have Door Dash, and that he was not “Vein Yang.”
`
`13.
`
`Despite Plaintiff informing Defendant he was not “Vien Yang,” Defendant
`
`continued to text and call Plaintiff.
`
`14.
`
`Frustrated, Plaintiff answered several calls and reiterated that he was not “Vien
`
`Yang” and was the wrong party.
`
`15.
`
`Notwithstanding Plaintiff informing Defendant on several occasions that he was
`
`the wrong party, Defendant sent or caused to be sent numerous text messages and automated calls
`
`to Plaintiff’s cellular phone between November 2020 and the present day, often with multiple text
`
`messages and calls being sent within an hour.
`
`16.
`
`Defendant intentionally harassed and abused Plaintiff on numerous occasions by
`
`texting multiple times, which such frequency as can be reasonably expected to harass.
`
`Class Allegations
`
`17.
`
`Plaintiff brings this action pursuant to Federal Rules of Civil Procedure 23(b)(2)
`
`and 23(b)(3) and seek certification of the following Class:
`
`Unsolicited Text Message Class: All persons in the United States
`who from four years prior to the filing of this action (1) Defendant
`(or an agent acting on behalf of Defendant) texted, (2) for
`substantially the same reason Defendant texted Plaintiff, (3) after
`they informed Defendant they were the wrong party, (4) using
`automated messaging.
`
`The following individuals are excluded from the Class: (1) any Judge or Magistrate
`
`18.
`
`presiding over this action and members of their families; (2) Defendant, their subsidiaries, parents,
`
`successors, predecessors, and any entity in which either Defendant or its parents have a controlling
`
`interest and their current or former employees, officers and directors; (3) Plaintiff’s attorneys; (4)
`
`persons who properly execute and file a timely request for exclusion from the Class; (5) the legal
`
`representatives, successors or assigns of any such excluded persons; and (6) persons whose claims
`
`against Defendant have been fully and finally adjudicated and/or released. Plaintiff anticipates the
`3
`
`
`
`
`
`
`
`
`
`

`

`Case 3:21-cv-01122 Document 1 Filed 02/15/21 Page 4 of 7
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`need to amend the Class definitions following appropriate discovery.
`
`19.
`
`Numerosity: On information and belief, there are hundreds, if not thousands
`
`members of the Classes such that joinder of all members is impracticable.
`
`20.
`
`Commonality and Predominance: There are many questions of law and fact
`
`common to the claims of the Plaintiff and the Class, and those questions predominate over any
`
`questions that may affect individual members of the Class. Common questions for the Class
`
`include, but are not necessarily limited to the following:
`
`(a) whether Defendant DoorDash placed automated text messages to consumers after
`
`being instructed they were the contacting the wrong party;
`
`(b) whether the Defendant engaged in placed automated text messages without
`
`implementing adequate internal policies and procedures for maintaining an internal do not
`
`contact list;
`
`(c) whether Defendant’s conduct constitutes a violation of the TCPA;
`
`(d) whether members of the Classes are entitled to treble damages based on the willfulness
`
`of Defendant’s conduct.
`
`21.
`
`Adequate Representation: Plaintiff will fairly and adequately represent and
`
`protect the interests of the Classes, and has retained counsel competent and experienced in class
`
`actions. Plaintiff has no interests antagonistic to those of the Classes, and Defendant has no
`
`defenses unique to Plaintiff. Plaintiff and his counsel are committed to vigorously prosecuting this
`
`action on behalf of the members of the Classes, and have the financial resources to do so. Neither
`
`Plaintiff nor his counsel have any interest adverse to the Classes.
`
`22.
`
`Appropriateness: This class action is also appropriate for certification because
`
`Defendant has acted or refused to act on grounds generally applicable to the Classes and as a
`
`whole, thereby requiring the Court’s imposition of uniform relief to ensure compatible standards
`
`
`
`
`
`
`4
`
`
`
`
`
`

`

`Case 3:21-cv-01122 Document 1 Filed 02/15/21 Page 5 of 7
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`of conduct toward the members of the Classes and making final class-wide injunctive relief
`
`appropriate. Defendant’s business practices apply to and affect the members of the Classes
`
`uniformly, and Plaintiff’s challenge of those practices hinges on Defendant’s conduct with respect
`
`to the Classes as wholes, not on facts or law applicable only to Plaintiff. Additionally, the damages
`
`suffered by individual members of the Classes will likely be small relative to the burden and
`
`expense of individual prosecution of the complex litigation necessitated by Defendant’s actions.
`
`Thus, it would be virtually impossible for the members of the Classes to obtain effective relief
`
`from Defendant’s misconduct on an individual basis. A class action provides the benefits of single
`
`adjudication, economies of scale, and comprehensive supervision by a single court.
`
`COUNT I – VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION
`
`Plaintiff restates and realleges paragraphs 1 through 22 as though fully set forth
`
`
`23.
`
`herein.
`
`24.
`
`Defendant repeatedly sent or caused to be sent frequent non-emergency text
`
`messages, including but not limited to the messages referenced above, to Plaintiff’s cellular
`
`telephone number using a telephone facsimile machine (“TFM”) or transmitting text without
`
`Plaintiff’s prior consent in violation of 47 U.S.C. §227 (b)(1)(C).
`
`25.
`
`The TCPA defines TFM as “equipment which has the capacity…to transcribe text
`
`or images, or both from paper into an electronic signal and to transmit that signal over a regular
`
`telephone line.” 47 U.S.C. §227(a)(3).
`
`26.
`
`Alternatively, Defendant sent these texts an automated telephone dialing system
`
`(“ATDS”) in violation of 47 U.S.C. § 227(b)(1)(iii). The TCPA, under 47 U.S.C. § 227(a)(1),
`
`defines an ATDS as “equipment which has the capacity...to store or produce telephone numbers
`
`to be called, using a random or sequential number generator; and to dial such numbers.”
`
`27.
`
` Defendant used an ATDS in connection with its communications directed towards
`
`
`
`
`
`
`5
`
`
`
`
`
`

`

`Case 3:21-cv-01122 Document 1 Filed 02/15/21 Page 6 of 7
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Plaintiff’s cellular phone. The automated nature of the text messages Plaintiff received similarly
`
`Defendant’s use of an ATDS.
`
`28.
`
`Upon information and belief, the system employed by Defendant to place text
`
`messages to Plaintiff’s cellular phone has the capacity – (A) to store or produce telephone numbers
`
`to be called, using a random or sequential number generator; and (B) to dial such numbers.
`
`29.
`
`Defendant violated the TCPA by placing numerous text messages to Plaintiff’s
`
`cellular phone using an ATDS without his consent. Plaintiff repeatedly placed Defendant on notice
`
`that he was the wrong party and that they did not have his consent to contact him.
`
`30.
`
`The text messages placed by Defendant to Plaintiff were not for emergency
`
`purposes as defined by the TCPA under 47 U.S.C. §227(b)(1)(A)(i).
`
`31.
`
`Upon information and belief, based on the frequency and content of the text
`
`messages, Defendant used a TFM or ATDS.
`
`32.
`
`Defendant violated the TCPA by sending numerous text messages to Plaintiff’s
`
`cellular phone using a TFM or ATDS without his prior consent.
`
`33.
`
`As pled above, Plaintiff was severely harmed by Defendant’s text messages sent
`
`to his cellular phone.
`
`34.
`
`Upon information and belief, Defendant has no system in place to document and
`
`archive whether it has consent to continue to contact consumers on their cellular phones.
`
`35.
`
`Upon information and belief, Defendant knew its marketing practices were in
`
`violation of the TCPA, yet continued to employ them to increase profits at Plaintiff’s expense.
`
`36.
`
`Defendant, through its agents, representatives, subsidiaries, and/or employees
`
`acting within the scope of their authority acted intentionally in violation of 47 U.S.C.
`
`§227(b)(1)(C).
`
`37.
`
`Pursuant to 47 U.S.C. 227(b)(3)(B), Defendant is liable to Plaintiff for a minimum
`
`
`
`
`
`
`6
`
`
`
`
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Case 3:21-cv-01122 Document 1 Filed 02/15/21 Page 7 of 7
`
`
`
`of $500 per text message. Moreover, pursuant to 47 U.S.C. §227(b)(3)(C), Defendant’s willful
`
`and knowing violations of the TCPA triggers this Honorable Court’s discretion to triple the
`
`damages to which Plaintiff is otherwise entitled to under 47 U.S.C. §227(b)(3)(C).
`
`WHEREFORE, Plaintiff, TERRY DOW, individually and on behalf of the class, respectfully
`
`prays this Honorable Court for the following relief:
`
`a. Declare Defendant’s text messages to be in violation of the TCPA;
`b. Certification of the Class requested above and appointment of the Plaintiff as Class
`Representative and of his counsel as Class Counsel;
`c. Award statutory damages of at least $500 per text message and treble damages
`pursuant to 47 U.S.C. §227(b)(3)(B)&(C);
`d. An injunction requiring Defendant to cease all unsolicited calling activity, and to
`otherwise protect the interests of the Class;
`e. Awarding any other relief as this Honorable Court deems just and appropriate.
`
`
`
`Plaintiff demands trial by jury.
`
`
`
`Date: February 15, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`TERRY DOW, individually and on behalf of
`others similarly situated
`
`By: /s/ Alexander J. Taylor
`
`Alexander J. Taylor
`Sulaiman Law Group
`2500 S. Highland Avenue
`Suite 200
`Lombard, Illinois
`Telephone: 331-307-7646
`Facsimile: 630-575-8188
`E-Mail: ataylor@sulaimanlawgroup.com
`
`
`
`7
`
`
`
`
`
`