Florida District Court Denies Plaintiff's Motion for Summary Judgment for Failure To Demonstrate Automatic Telephone Dialing System Was Used

Buslepp v. Improv Miami, Inc., No. 12-601771-CIV, 2012 WL 4919809 (S.D. Fla. Oct. 16, 2012) Plaintiff filed a purported class action, contending that Defendant, which promotes and hosts events at its comedy club, sent unsolicited commercial text messages to potential customers using an automatic telephone dialing system (ATDS) and without prior express consent in violation of the TCPA. Plaintiff moved for summary judgment on his individual claims, which Defendant opposed contending Plaintiff failed to establish the elements of a claim under the TCPA. Noting that the TCPA applies to text messages, the court also noted that a plaintiff must demonstrate that a defendant called or texted a number assigned to a cell phone using an ATDS. Plaintiff attempted to shoulder his burden of demonstrating that an ATDS was used, by pointing to the testimony of Defendant's Chief Operating Officer, that Defendant periodically sent out “mass [text] message[s]” to customers that had specifically signed up for such messages.” Plaintiff also noted that Defendant's COO stated Defendant generally sent its texts to anywhere from 20-50 customers at a time, and that Defendant retrieved those numbers from its database of customers. Plaintiff also presented the court with an unverified printout from a website, the company Defendant hired to run its text message marketing campaign, which stated that the company sends an average of 100,000 text messages per month to Defendant's customers. The court considered this evidence insufficient to support Plaintiff's Motion for Summary Judgment, stating “Plaintiff has failed to offer any direct evidence that Defendant used an ATDS in sending the subject text message to Plaintiff in December 2011. Plaintiff seems to acknowledge this deficit, asserting that ‘Defendant can provide no evidence indicating that the text messages . . . were not send [sic] using an automatic telephone dialing system. But this confuses the burden of proof: It is Plaintiff who must show, as an element of his claim, that Defendant used an ATDS in December, 2011. Defendant's storing of customers' phone numbers in a database or sending out a text message to twenty or fifty customers, does not establish that Defendant used an ATDS. Even the unverified claims made on [the company Defendant retained to send messages'] website only show that Defendant was engaged in a mass texting campaign, and only as of April 2012. Such evidence sheds no light on the precise method by which Defendant sent a text to Plaintiff in December 2011. Therefore, there remains a disputed issue of fact as to whether Defendant employed an ATDS, which is an essential element of Plaintiff's TCPA claim.

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