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Snow v. General Electric Co.

United States District Court, E.D. North Carolina, Western Division

June 14, 2019

MARIAN SNOW, Plaintiff,
v.
GENERAL ELECTRIC COMPANY, DELL TECHNOLOGIES, DELL INC., and DELL EMC, Defendants.

          ORDER

          LOUISE W. FLANAGAN, UNITED STATES DISTRICT JUDGE

         This 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 are granted.

         STATEMENT OF THE CASE

         Plaintiff 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.

         The 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 Alabama.

         Defendant 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.

         STATEMENT OF ALLEGED FACTS

         The facts alleged in the complaint[1] may be summarized as follows.

         Plaintiff 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. ¶¶ 62, 68).

         “On 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).

         “At 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).

         Between 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).

         “The 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 Name: Symmetrix=00287890995': ‘stent.symmetrix.Symmetrix, 38380'; ‘NAME: Sto rage Agent'; and ‘gislonpeccsym.gis.corp.ge.com'.” (Id. ¶ 48).

         According 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).

         “The 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. ¶ 35).

         According 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).

         “On 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 [35] 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 [39] or more within 24-hours, [d]efendants inflicted [p]laintiff's cell phone with no less than [195] text messages[.]” (Id. ¶ 46).

         “Each batch of [d]efendants' text messages received by Plaintiff's cell phone deducted charges for five . . . separate texts from her prepaid minutes.” (Id. ΒΆ 40). For example, texts received on May 4, 2014, resulted in 35 text message charges, and texts received on ...


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