United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE
matter is before the court on defendants' motions to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
(DE 65, 68). Plaintiff responded in opposition and defendants
replied. In this posture, the issues raised are ripe for
ruling. For the following reasons, defendants' motions
OF THE CASE
commenced this action pro se on November 21, 2017, in the
United States District Court for the Northern District of
Alabama, and filed amended complaint on December 6, 2017,
asserting claims arising out of unwanted text messages she
received on her cell phone, for violations of the Telephone
Consumer Protection Act (“TCPA”), 47 U.S.C.
§ 227(b)(1)(A)(iii), and for conversion under state law.
Plaintiff seeks statutory damages in the amount of $500.00
for each violation of the TCPA, trebled to $1, 500.00 for
each violation; compensatory damages and punitive damages for
conversion; injunctive and declaratory relief; as well as
fees, costs, and interest.
United States District Court for the Northern District of
Alabama dismissed plaintiff's action for lack of personal
jurisdiction over defendants and transferred the action to
this district for all further proceedings, on October 29,
2018. This court set a deadline for filing responsive
pleading and set aside previous scheduling order entered by
the United States District Court for the Northern District of
General Electric Company (“GE”) filed its instant
motion to dismiss for failure to state a claim on December 7,
2018, relying upon a May 14, 2018, public notice by the
United States Federal Communications Commission
(“FCC”), and an October 3, 2018, public notice by
the FCC. Defendants Dell EMC, Dell Inc., and Dell
Technologies (collectively, the “Dell
defendants”) filed their instant motion to dismiss for
failure to state a claim on December 10, 2018. Plaintiff
responded in opposition to each motion to dismiss on January
23, 2019. Defendant GE replied on February 6, 2019, and the
Dell defendants replied on February 7, 2019.
OF ALLEGED FACTS
facts alleged in the complaint may be summarized as follows.
is a resident of Tuscaloosa, Alabama. Defendants GE and Dell
EMC are corporations headquartered in Massachusetts, and
defendants Dell Technologies, Inc. and Dell, Inc. are
corporations headquartered in Texas. According to the
complaint, defendant GE is “the world's largest
digital industrial company, ” and the Dell defendants
“provide essential [technological] infrastructure to
98 percent of the Fortune 500.” (Compl. ¶¶
March 29, 2014, [p]laintiff purchased a new cellular
telephone provided by the service Tracfone, who assigned a
telephone number ending in 4908 (‘[p]laintiffs cell
phone').” (Compl. ¶ 12). “Plaintiff
activated her new cell phone, which had been purchased along
with an airtime or prepaid minutes package from said service,
Tracfone, within a short time thereafter.”
(Id. ¶ 13).
some unknown time, prior to or around April 1, 2014,
[d]efendants caused or facilitated the composition,
programming, system implementation, and automated or
automatic transmission or sending through any of multiple
technologies or business applications, including
Internet-to-phone messaging technologies, text calls, or
short message service (‘SMS') calls
(‘[d]efendants' text messages') to the subject
[p]laintiff's cell phone number ending in 4908.”
(Id. ¶ 14). “Defendants took the actions
necessary to initiate a communication with [p]laintiff
through use of her telephone number by an automated means
that did not require direct human intervention and which
resulted in the receipt of text messages by [p]laintiff's
cell phone.” (Id. ¶ 15).
April 1, 2014, and January 15, 2015, defendants sent in
excess of 2900 text messages to plaintiff's cell phone.
(Id. ¶ 43). “The content of
[d]efendants' text messages contained technical
information or alerts that were clearly intended for another
recipient.” (Id. ¶ 44). “It is
[p]laintiff's good faith belief that she was, for [that]
period[, ] . . . the unwitting recipient of a barrage of
communications intended for the prior owner or holder of her
reassigned number.” (Id. ¶ 49). According
to plaintiff, a “text message intended for an internal
business or industrial communication, or as a remote alert to
an employee or agent, can be sent to a reassigned
number” or “an incorrectly entered or generated
number” and “potentially reach a member of the
public.” (Id. ¶¶ 51-52).
technical information or alerts contained in
[d]efendants' text messages included, but were not
limited to: ‘FRM:EMC Control
Center@e2ksmtpOLe2k.ad.ge.com'; ‘SUBJ:ECC Alert:
SRDF/A'; ‘Session entered transmit idle state';
‘Alert ID: 1854732'; ‘Severity: NORMAL';
‘Severity: WARNING'; ‘Server Timestamp: Mon
Aug 25 02:19:14 BST 2014'; ‘Alert Name: PC
Communications Error'; ‘Canonical Managed Object
‘stent.symmetrix.Symmetrix, 38380'; ‘NAME:
Sto rage Agent'; and
(Id. ¶ 48).
to plaintiff, defendant GE is “the owner of the URL or
web address: ‘ge.com', which was referenced in
[d]efendants' text messages.” (Id. ¶
58). Defendant Dell EMC allegedly produces and “owns
the registered trademarks for ‘EMC',
‘Symmetrix', and ‘SRDF, '” as also
referenced in defendants' text messages. (Id.
¶¶ 59-61). According to plaintiff, based upon her
research, the Dell defendants and GE had an ongoing
technology or collaborative relationship during the period of
time she received text messages from defendants. (See
id. ¶¶ 62-67).
number that was displayed in the ‘FROM' address in
[d]efendants' text messages was 10-digits long.
(‘Sender ID').” (Id. ¶ 32).
“Defendants' text message sent on April 30, 2014 at
7:16am displayed a Sender ID of ‘1210100022' and
another that was received that day at 9:37am display[ed] a
Sender ID of ‘1210100025'.” (Id.
¶ 33). Another received August 19, 2014,
“displayed a Sender ID of
‘1210100270'.” (Id. ¶ 34).
“[T]he Sender IDs appeared to be sequential and to
change or increase by one digit with each text message
[p]laintiffs' cell phone received.” (Id.
to plaintiff, “long SMS messages are sent using
multiple messages, in which case each message will start with
a User Data Header (“UDH”) containing
segmentation information.” (Id. ¶ 37).
“Defendants' text messages, as received by
[p]laintiff's cell phone, were delivered as a batch of
five . . . text messages, the first holding the Sender ID
followed by a UDH, in this manner: ‘FROM 1210100265 - 1
of 5'.” (Id. ¶ 38). “The four .
. . successive separate [d]efendants' text messages, sent
in the batch of five . . ., usually carried a UDH, such as
‘2 of 5', ‘3 of 5', ‘4 of 5',
or ‘5 of 5'.” (Id. ¶ 39).
May 4, 2014 at 8:19pm, [p]laintiff's cell phone received
seven . . . unique and date-branded [d]efendants' text
message batches within one single minute.”
(Id. ¶ 44). “Within said single minute at
8:19pm on May 4, 2014, Plaintiffs cell phone had, in fact,
been deluged with  separate text messages[.]”
(Id. ¶ 45). “On September 24, 2014, a day
when [d]efendants' text message batches sent to
[p]laintiff's cell phone numbered  or more within
24-hours, [d]efendants inflicted [p]laintiff's cell phone
with no less than  text messages[.]” (Id.
batch of [d]efendants' text messages received by
Plaintiff's cell phone deducted charges for five . . .
separate texts from her prepaid minutes.” (Id.
¶ 40). For example, texts received on May 4, 2014,
resulted in 35 text message charges, and texts received on