Opinion
Civil Action No. 1:21-cv-00119 (AJT/MSN)
2021-06-07
Kevin CAVEY, individually and on behalf of all others similarly situated, Plaintiff, v. MARKETPRO HOMEBUYERS, LLC, Defendant.
Andrew Joseph Guzzo, Kristi Cahoon Kelly, Casey Shannon Nash, Kelly Guzzo PLC, Fairfax, VA, for Plaintiff. Walter John Buzzetta, Stradley Ronon Stevens & Young, LLP, Washington, DC, Eric Hurwitz, Pro Hac Vice, Stradley Ronon Stevens & Young LLP, Cherry Hill, NJ, for Defendant.
Andrew Joseph Guzzo, Kristi Cahoon Kelly, Casey Shannon Nash, Kelly Guzzo PLC, Fairfax, VA, for Plaintiff.
Walter John Buzzetta, Stradley Ronon Stevens & Young, LLP, Washington, DC, Eric Hurwitz, Pro Hac Vice, Stradley Ronon Stevens & Young LLP, Cherry Hill, NJ, for Defendant.
ORDER
Anthony J. Trenga, United States District Judge
Plaintiff Kevin Cavey ("Plaintiff"), individually and on behalf of all others similarly situated, has sued Defendant MarketPro South, Inc., d/b/a MarketPro Homebuyers (misidentified in the Amended Complaint as "MarketPro Homebuyers, LLC") ("MarketPro" or "Defendant"), for violations of the Virginia Telephone Privacy Protection Act ("VTPPA") and specifically for: (1) Calls to Members of the Do Not Call Registry (Individually and on Behalf of the Virginia Do Not Call Registry Class) (Count I); and (2) Failure of Telephone Solicitors to Identify (Individually and on behalf of the Virginia Unidentified Sender Class) (Count II). The Defendant has moved to dismiss the matter pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing under Article III of the U.S. Constitution and pursuant to Rule 12(b)(6) for failure to state a claim. See [Doc. No. 24] (the "Motion"). For the reasons stated below, the Plaintiff has Article III standing but has failed to adequately allege that Defendant was a "telephone solicitor" who made a "telephone solicitation call." The Motion pursuant to Rule 12(b)(1) is therefore DENIED; the Motion pursuant to Rule 12(b)(6) is GRANTED; and this action is DISMISSED.
I. BACKGROUND
The following facts are taken from the Amended Complaint [Doc. No. 18] ("Am. Compl.") unless otherwise noted.
Plaintiff asserts class action claims under the VTPPA on behalf of individuals who received unsolicited text messages from Defendant MarketPro. Am. Compl. ¶ 1. Defendant brokers real estate transactions between residential property owners and prospective investors and, to entice homeowners to sell their property through MarketPro, it also offers certain services to homeowners such as the handling of paperwork related to the sale and closing of the transaction, cleaning the property, and helping the homeowner move, and also provides a cash payout to the selling homeowner. Id. ¶¶ 2, 14. MarketPro typically does not keep the property itself; rather, it acquires the right to buy the property from a homeowner, then markets the property for sale to prospective third-party buyers through its website and may also make properties available through in-person showings. Id. ¶ 16. In its contracts with homeowners, MarketPro reserves the right to unilaterally assign its purchasing rights to a third-party buyer and reserves the right to withdraw from the sale for when it cannot procure a third-party buyer at a price that delivers sufficient profits. Id. ¶ 15. For a third-party buyer to participate in a sale, MarketPro requires that the prospective third-party buyer form a limited liability company and deposit at least $10,000 in earnest money and, on making an offer, supply proof of funds or financing for the amount being offered. Id. ¶ 17. When the sale closes, MarketPro profits on the margin between its offer to the homeowner and the offer it procures from the third-party buyer. Id.
To identify prospective sellers, MarketPro tracks real property transactions and realty websites and maintains information about prospective sellers in databases that it controls. Id. ¶ 3. In September 2020, using a telephone number with the 301 area code for Rockville, Maryland, where MarketPro is headquartered, and the next three digits 368, associated with at least three other telephone numbers that are or have been used by MarketPro, MarketPro (or someone acting at its direction) send this text to mobile telephone subscribers:
Hi. I am with MarketPro Homebuyers, I am a local buyer in DC, VA, MD. I'd like to speak with you about buying [property address] for cash if you might be interested in selling? Reply STOP for opt-out.
Id. ¶ 19. Plaintiff alleges the reference to "DC, VA, MD" indicates the text was indiscriminately sent to property owners in Virginia and other states. Id. ¶ 20. MarketPro has told the Better Business Bureau that it maintains a database of prospective sellers and targets them for solicitations. Id. ¶ 21.
To the extent MarketPro inserts property addresses into its text messages, the addresses appear to have been exported using a database or similar automated application. Id. ¶ 21. In October 2020, MarketPro (or someone acting at its direction) send this text to mobile telephone subscribers:
Good morning! This is Ray with MarketPro Homebuyers. A local investor based in Rockville. I'm reaching out to talk about [property address]. Are you interested in selling your property? Reply STOP for opt-out.
Id. ¶ 22.
Plaintiff alleges that several persons have complained to the Better Business Bureau about MarketPro sending them unwelcome and unsolicited telephone calls and others have posted complaints on Yelp about MarketPro sending similar text messages. Id. ¶ 23. Plaintiff registered his cellular telephone with the Do Not Call Registry in July 2003 to limit harassing telephone calls and also believing that it would limit harassment from unwelcome text messages. Id. ¶¶ 25, 26.
In late September 2020, Plaintiff received the following text from 301-368-****:
Hi. I am with MarketPro Homebuyers, I am a local buyer in DC, VA, MD. I'd like to speak with you about buying [property address] for cash if you might be interested in selling? Reply STOP for opt-out.
Id. ¶ 27. This text was unwelcome and annoying to Plaintiff who felt it was intrusive and interfered with his use and enjoyment of his telephone. Id. ¶ 29. Plaintiff claims that by not fully identifying itself as the sender of the message, MarketPro evades responsibility for its unwelcome messages and impedes efforts to monitor and prevent unwelcome messages from those senders and, by not fully identifying itself, it inflicted a direct harm against Plaintiff and interfered with efforts to investigate and prevent unwelcome texts from being sent to his phone. Id. ¶ 31.
Plaintiff, who resides in Reston, Virginia, and is a citizen of Virginia, is one of the recipients of these unsolicited text messages and he brings this action individually and on behalf of the following two classes pursuant to 28 U.S.C. § 1332(d)(2), as the parties are diverse, all class members are citizens of Virginia, and the amount in controversy exceeds $5 million, id. ¶¶ 6, 11:
MarketPro is headquartered in Rockville, Maryland and is a citizen of Maryland. Am. Compl. ¶ 5.
• Virginia Do Not Call Registry Class: All natural persons residing in Virginia and all natural persons with cellular telephones with a Virginia area code, in the period from two years prior to commencement of this litigation until this class is certified, who (1) had a registered number on the Do Not Call Registry; (2) did not provide Marketpro with prior express consent to send them text messages; and (3) after the number was registered, received one or more text messages from Marketpro.
• Virginia Unidentified Sender Class: All natural persons residing in Virginia and all natural persons with cellular telephones with a Virginia area code, in the period from two years prior to commencement of this litigation until this class is certified, who (1) received one or more text messages from Marketpro; and (2) the sender of the text did not identify themselves by first and last name.
Reflecting the requirements for Rule 23 class certification, Plaintiff asserts that each class is so numerous that joinder of individual plaintiffs is not practical; the litigation presents several questions of law and fact that are common to both Plaintiff and the members of each class and that these questions predominate over any questions that affect individual class members; Plaintiff's claims are typical of all class members; Plaintiff will fairly and adequately protect the interests of the classes; a class action is superior to other available methods for the fair and efficient adjudication of this controversy; and that MarketPro has acted on grounds that generally apply to the classes such that final injunctive relief—in the form of an injunction preventing MarketPro from texting persons whose numbers are registered on the Do Not Call Registry and to forbit MarketPro from sending text messages without its solicitors identifying themselves by first and last name—is appropriate. Am. Compl. ¶¶ 33–37.
Plaintiff seeks: (1) class certification under Fed. R. Civ. P. 23 and appointment of Kristi Kelly of Kelly Guzzo PLC as class counsel; (2) damages in an amount to be determined at trial; (3) all damages and relief authorized by statute of law, including attorney's fees and costs; (4) special damages under the VTPPA up to $5,000 per violation; (5) any other relief the Court deems just and equitable; and (6) a trial by jury.
II. LEGAL STANDARD
A motion to dismiss under Fed. R. Civ. P. 12(b)(1) places the burden on the plaintiff, as the party asserting jurisdiction, to prove that federal jurisdiction is proper. White v. CMA Const. Co., Inc. , 947 F. Supp. 231, 233 (E.D. Va. 1996) (citing McNutt v. General Motors Acceptance Corp. , 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)) ; Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982). A Rule 12(b)(1) motion may challenge subject matter jurisdiction in two different ways. First, a Rule 12(b)(1) motion may attack the complaint on its face, asserting simply that the complaint "fails to allege facts upon which subject matter jurisdiction can be based." Id. (quoting Adams , 697 F.2d at 1219 ). Under such a facial challenge to jurisdiction, "the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration." Id.
A defendant may also challenge "the existence of subject matter jurisdiction in fact, quite apart from any pleadings." Mortensen v. First Fed. Sav. and Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977). In such a fact-based challenge, the district court's "very power to hear the case" is at issue; and the district court is then free to weigh the evidence to determine the existence of jurisdiction. See Adams , 697 F.2d at 1219. "[N]o presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Mortensen , 549 F.2d at 891. When such a factual challenge is made to jurisdiction, the jurisdictional facts must be determined with the same procedural safeguards as afforded through a motion for summary judgment. See Kerns v. United States , 585 F.3d 187 at 192–93 (4th Cir. 2009).
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. See Randall v. United States , 30 F.3d 518, 522 (4th Cir. 1994) ; Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992). A claim should be dismissed "if, after accepting all well-pleaded allegations in the plaintiff's complaint as true ... it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Edwards v. City of Goldsboro , 178 F.3d 231, 244 (4th Cir. 1999) ; see also Trulock v. Freeh , 275 F.3d 391, 405 (4th Cir. 2001). In considering a motion to dismiss, "the material allegations of the complaint are taken as admitted," Jenkins v. McKeithen , 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969) (citations omitted), and the court may consider exhibits attached to the complaint, Fayetteville Investors v. Commercial Builders, Inc. , 936 F. 2d 1462, 1465 (4th Cir. 1991).
Moreover, "the complaint is to be liberally construed in favor of plaintiff." Id. ; see also Bd. of Trs. v. Sullivant Ave. Props., LLC , 508 F. Supp. 2d 473, 475 (E.D. Va. 2007). In addition, a motion to dismiss must be assessed in light of Rule 8's liberal pleading standards, which require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8. Nevertheless, while Rule 8 does not require "detailed factual allegations," a plaintiff must still provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (the complaint "must be enough to raise a right to relief above the speculative level" to one that is "plausible on its face"); see also Giarratano v. Johnson , 521 F.3d 298, 302 (4th Cir. 2008). As the Supreme Court stated in Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the Court to draw a reasonable inference that the defendant is liable for the conduct alleged."
III. ANALYSIS
A. Whether Plaintiff Has Standing to Bring His Claims
Count I is a claim for violation of the VTPPA when MarketPro sent a text message to Plaintiff who was registered on the Do Not Call Registry. Count II is a claim for violation of the VTPPA when MarketPro sent a text message to Plaintiff and did not identify the sender by first and last name. Defendant contends that Plaintiff does not have Article III standing to sue because his receipt of one text message is not a sufficient invasion of a legally protected right under Virginia common law, which does not recognize a right to be free from an intrusion upon seclusion. "Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016), as revised (May 24, 2016). Whether a plaintiff has constitutional standing is determined by three elements: the plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Here, Defendant contends that Plaintiff has not adequately alleged that he suffered an injury in fact. To establish injury in fact, a plaintiff must show that he or she suffered "an invasion of a legally protected interest" that is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Spokeo , 136 S. Ct. at 1548 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). In that regard, the Article III standing requirement must be satisfied even where, as here, a plaintiff is suing pursuant to a statute that has created a private cause of action. See Krakauer v. Dish Network, L.L.C. , 925 F.3d 643, 652 (4th Cir. 2019) ("Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.") (quoting Spokeo , 136 S. Ct. at 1547–48 ).
Virginia does not recognize a common law cause of action for invasion of privacy or intrusion upon seclusion. See WJLA-TV v. Levin , 264 Va. 140, 160, 564 S.E.2d 383 (2002) (stating the Virginia General Assembly has excluded the common law tort of invasion of privacy concerning "unreasonable intrusion upon the plaintiff's seclusion, or solitude, or into his private affairs" as an actionable tort in Virginia). Nevertheless, the Virginia legislature did create a cause of action under the VTPPA that effectively recognizes a privacy right and protects its intrusions with sanctions. It is specific in its reach: persons on the Do Not Call Registry may not be subjected to certain types of solicitations and certain solicitors that may call must identify themselves by first and last name. See Va. Code §§ 59.1-514(b) and 59.1-512. Here, Plaintiff has alleged specific conduct that violated his rights under the VTPPA—he registered on the Do Not Call Registry, yet was texted by MarketPro, and the sender of the text did not provide his or her name and only said he or she was from MarketPro. Whether that conduct is a cognizable common law claim is immaterial, see Krakauer , 925 F.3d at 654–55 (rejecting the "sort of judicial grafting" that would occur if the court were to conclude that "Article III's injury-in-fact requirement is not met until the plaintiff's alleged harm has risen to a level that would support a common law cause of action"); and for these reasons, Plaintiff has alleged an invasion of a legally protected interest, as defined by the VTPPA, when he received the MarketPro text message.
Plaintiff has also adequately alleged that the injury was "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." For an injury to be "particularized," it "must affect the plaintiff in a personal and individual way." Spokeo , 136 S. Ct. at 1548. Here, Plaintiff has appropriately alleged that a text message was sent directly to him and referred to Plaintiff's specific property address. See, e.g., United States v. Richardson , 418 U.S. 166, 177, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974) (stating that for standing a plaintiff's injury must not be "undifferentiated"). For an injury to be "concrete," it must be " ‘de facto’ ; that is, it must actually exist." Spokeo , 136 S. Ct. at 1548 (citing Black's Law Dictionary 479 (9th ed. 2009)). Plaintiff has alleged, and Defendant does not contest, that he actually received this text message from MarketPro in September 2020, and for that reason, Plaintiff has adequately alleged the injury actually occurred.
In arguing against Article III standing, Defendant contends that a mere violation of the VTPPA, by itself, is not sufficient to establish Article III standing, Plaintiff has not suffered any injury under any Virginia common law right of action, and the Court must therefore look to the nature and extent of the actual injury experienced by the Plaintiff, relying on pronouncements in Spokeo and other cases. For that purpose, Defendant essentially characterizes Plaintiff's injury as de minimis —a single text message that caused nothing more than Plaintiff's subjective sense of annoyance and invasion, an "injury" objectively insufficient to establish injury in fact, with no common law analogue under Virginia law. Defendant's position falls short on three grounds. First, the statutory violation alleged here is not the violation of some collateral or procedural aspect of a statute with no real world impact on a plaintiff or a type of harm other than what a statute was enacted to prevent. See, e.g., Baehr v. Creig Northrop Team, P.C. , 953 F.3d 244 (4th Cir. 2020) ; Dreher v. Experian Information Solutions, Inc. , 856 F.3d 337 (4th Cir. 2017). Here, Defendant's alleged violation went to the core of the statute's purpose and caused precisely the type of harm the statute was enacted to prevent, resulting in a complete frustration of its remedial purpose in that instance. See Baehr , 953 F.3d at 253 ("Cognizant that a statutory cause of action is not a replacement for concrete injury, we recognize that a plaintiff suffers a concrete injury if she shows the harm stemming from the ‘defendant's statutory violation is the type of harm Congress sought to prevent when it enacted the statute.’ ") (quoting Curtis v. Propel Prop. Tax Funding, LLC , 915 F.3d 234, 240-41(4th Cir. 2019)). Second, the lack of a common law analogue is not "fatal." Dreher , 856 F.3d at 345 (citing Pub. Citizen v. U.S. Dep't of Justice , 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) ) (finding a "sufficiently discrete injury" without a finding that a similar right existed at common law). Third, Defendant's assessment of Plaintiff's level of injury, even if accepted, is inconsistent with the legislative judgment that the zone of privacy established under the VTPPA merits protection and that the level of injury associated with invasion of that privacy, whatever its nature, is compensable, without any further particularized showing of injury.
In Krakauer v. Dish Networks, L.L.C. , 925 F.3d 643 (4th Cir. 2019), the Fourth Circuit considered similar arguments with respect to the federal Telephone Consumer Protection Act ("TCPA"). In Krakauer , the Plaintiff received phone calls in violation of the TCPA. Defendant claimed there was no Article III standing because the level of injury associated with the alleged violation of the statute was not a sufficient injury in fact. Thoroughly rejecting that claim, the Fourth Circuit made pronouncements with respect to the TCPA fully applicable to Defendant's contentions relative to Article III standing under the VTPPA:
Defendant attempts to distinguish Krakauer on the grounds that its Article III analysis depended in part on the "historical practice" of recognizing common law protections for privacy interests, the Supreme Court of Virginia has not recognized a private right of action for the tort of intrusion upon seclusion, and a greater showing of harm is therefore required than just a violation of the statute. But the Fourth Circuit made clear that it did not consider important whether a violation stated a claim under the common law, but whether the statute pertained to the type of interest recognized under the common law. While there is not a private right of action under Virginia common law for the tort of "invasion of seclusion," Virginia common law clearly recognizes a wide range of protectible privacy interests. See, e.g., WJLA-TV v. Levin , 264 Va. 140, 160, 564 S.E.2d 383 (2002) (stating Virginia recognizes misappropriation of plaintiff's name or likeness for commercial purposes); see also Archer v. Commonwealth , 20 Va. App. 87, 89, 455 S.E.2d 280 (1995) (acknowledging that Virginia recognizes privacy rights conferred by the Fourth Amendment to the United States Constitution); Martin v. Ziherl , 269 Va. 35, 607 S.E.2d 367 (2005) (recognizing a person's constitutional right to privacy while engaging in private consensual sexual acts). In any event, the critical feature of the Fourth Circuit's analysis in this regard is that "Congress is empowered to ‘elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate.’ " Krakauer , 925 F.3d. at 654 (internal quotation marks omitted); see also Dreher , 856 F.3d at 345 ("The lack of a common law analogue is not fatal to his case [that he suffered an Article III injury in fact]").
This private cause of action is a straightforward provision designed to achieve a straightforward result. Congress enacted the law to protect against invasions of privacy that were harming people. The law empowers each person to protect his own personal rights. Violations of the law are clear, as is the remedy. Put simply, the TCPA affords relief to those persons who, despite efforts to avoid it, have suffered in intrusion upon their domestic peace....
Looking both to Congress's judgment and historical practice, as Spokeo instructs, the private right of action here plainly satisfies the demands of Article III. In enacting § 227(c)(5) of the TCPA, Congress responded to the harms of actual people by creating a cause of action that protects their particular and concrete privacy interests.... This is not a statute authorizing citizen-suits for any legal violation to which a plaintiff might take issue. The statute requires that an individual receive a call on his own residential number, a call that he previously took steps to avoid. There is nothing ethereal or abstract about it....
The arguments to the contrary, made by both the [defendant] and its amici, deploy Spokeo in ways that go well beyond its holding and rationale. Rather than paying heed to Congress's judgment of what sort of particular and concrete harms ought to count, the [defendants] ask that we import the elements of common law torts, piece by piece, into any scheme Congress may devise. As they see it, Article III's injury-in-fact requirement is not met until the plaintiff's harm has risen to a level that would support a common law cause of action. This sort of judicial grafting is not what Spokeo had in mind. Our inquiry is focused on types of harm protected at common law, not the precise point at which those harms become actionable. Congress is empowered to elevate to the status of legally cognizable injuries concrete, de facto injuries that were previously in adequate in law, ... and that is precisely what it did here.
The plaintiffs here do not seek redress for a procedural shortcoming, such as the defendant's failure to keep accurate Do-Not-Call records. Their claim ... accrues only once a telemarketer disregards the registry and actually places multiple calls [as required under the statute]. Since that harm is both particular to each person and imposes a concrete burden on his privacy, it is sufficient to confer standing. The [defendants’] suggestion otherwise is nothing more than an attempt to dismember the TCPA, converting a simple remedial scheme into a fact-intensive
quarrel over how long a party was on the line or how irritated it felt when the phone rang. Obviously, Congress could have created such a cumbersome scheme if it wanted to. It instead opted for a more straightforward and manageable way of protecting personal privacy, and the Constitution in no way bars it from doing so.
925 F. 3d at 650, 653, 654 (internal citations and quotation marks omitted).
For the above reasons, Plaintiff has adequately alleged Article III standing.
In further support of it position, Defendant cites to Salcedo v. Hanna , 936 F.3d 1162 (11th Cir. 2019), in which the Eleventh Circuit essentially adopted a fact intensive analysis concerning whether a Plaintiff experienced an injury in fact for Article III standing under the TCPA based on his receipt of a single text, concluding that he did not. The court's analysis in that regard is fundamentally inconsistent with that of the Fourth Circuit in Krakauer , which is binding precedent as to this action and which to a large extent dictates the result in this case as to Article III standing.
B. Whether the Amended Complaint States a Claim for Violation of the VTPPA
In Count I, Plaintiff seeks damages for the alleged violation of Section 59.1-514 of the Virginia Code, which states:
No telephone solicitor shall initiate, or cause to be initiated, a telephone solicitation call to a telephone number on the National Do Not Call Registry maintained by the federal government pursuant to the Telemarketing Sales Rule, 16 C.F.R. Part 310, and 47 C.F.R. § 64.1200.
Va. Code § 59.1-514(b) (emphasis added). In Count II, Plaintiff seeks damages for the alleged violation of Section 59.1-512, which states:
A telephone solicitor who makes a telephone solicitation call shall identify himself by his first and last names and the name of the person on whose behalf the telephone solicitation call is being made promptly upon making contact with the called person.
Va. Code § 59.1-512 (emphasis added). The VTPPA defines a "telephone solicitor" as "any person who makes or initiates, or causes another person to make or initiate, a telephone solicitation call." Va. Code § 59.1-510. The VTPPA defines a "telephone solicitation call" as "any text message sent to any wireless telephone with a Virginia area code or to a wireless telephone registered to any natural person who is a resident of the Commonwealth for the purpose of offering or advertising any property, goods, or services for sale, lease, license or investment." Va. Code § 59.1-510.
The definition of "telephone solicitation call" was amended to include text messages on April 2, 2020, and the new definition became effective on July 1, 2020. See 2020 Virginia Laws Ch. 607 (S.B. 812). Plaintiff alleges that he received the text message in September 2020, after the definition was amended.
In assessing whether Defendant violated the VTTPA, Defendant contends that the "purpose" of the text message is to be determined not solely by its contents relative to its recipient, but rather based on an assessment of a sender's broader intent in sending the text, which Plaintiff alleges in this case was for the purpose of ultimately selling Plaintiff's property that Defendant offered to buy in the text message as well as offering services associated with that proposed purchase of Plaintiff's property, namely moving, cleaning, and other services. In other words, the "purpose" referenced in the statute is not simply the immediate purpose for which the text was sent to its recipient, but rather the overall purpose of that text within the broader context of why MarketPro wanted to purchase Plaintiff's property. This broader context is consistent, Plaintiff contends, with the remedial purpose of the statute, which is to be construed liberally.
Va. Code § 59.1-510 is to be interpreted according to "the plain meaning of the words used in the statute ... unless the words are ambiguous or such application would render the law internally inconsistent or incapable of operation." Llewellyn v. White , 297 Va. 588, 595, 831 S.E.2d 494 (2019). Based on a natural and straightforward reading of the VTPPA's definition of "telephone solicitation call," the "purpose" of the text is determined from the contents of the text message relative to its recipient. Based on that interpretation, Plaintiff has not alleged facts from which to reasonably infer that Defendant violated the VTPPA since its text message did not offer or advertise any property, goods or services for sale, lease, license or investment. Rather, MarketPro's text message offered only to buy property from Plaintiff. Similarly, the text message made no mention of any ancillary services that were being offered for sale, and Plaintiff does not allege that Defendant intended to, or later would, attempt to sell any such service; or that the text was somehow a ruse to in fact sell, rather than purchase, property or services.
As a matter of syntax, the definition of a "telephone solicitation call" links the relevant "purpose" to the text message itself and its recipient. See Va. Code § 59.1-510 ("[A]ny text message sent ... to any natural person ... for the purpose of offering or advertising ... for sale."). As calls from a telephone solicitor would typically be made as part of a larger commercial effort, Plaintiff's construction of the VTPPA would effectively expand its coverage to all text messages since a commercial actor that offers to purchase from a consumer "property, goods or services" would likely do so for the purpose of some later disposition, i.e., a "sale, lease, license or investment." And within the non-commercial context, hypotheticals yielding clearly unsupportable results under Plaintiff's proposed construction are easy to conjure up. For example, anyone who texts his neighbor offering to buy his broken-down car sitting in his driveway would be in violation of the VTPPA if he intended at the time to fix it up and ultimately sell it. Likewise, if that neighbor offers to buy his neighbor's antique rifle so he could "offer" it to his son "for investment." Nowhere in the definition of a "telephone solicitation call" can Plaintiff's ascribed meaning of "purpose" be found; and the definition of "telephone solicitation call" cannot be reasonably read in the fashion that Defendant proposes.
Nor does Plaintiff's proposed construction find support in the statute's remedial purpose. The statute was intended to address harassing sales calls. There is nothing in the statute to suggest that the legislative intent was to restrict in any way the opportunity for a consumer to sell his own "property, goods, or services." Moreover, Plaintiff's strained construction would require, as counsel for Plaintiff explained during oral argument, discovery into a solicitor's intentions at the time of the call, as reflected in its business model or objectives. But as the Fourth Circuit observed with respect to a similar contention under the TPPA concerning whether a consumer was sufficiently injured, Plaintiff's construction would "convert[ ] a simple remedial scheme into a fact-intensive quarrel," this time over Defendant's overall motivations and objectives in sending a text, and the Virginia legislature "could have created such a cumbersome scheme if it wanted to." Krakauer , 925 F.3d at 654. For the above reasons, Plaintiff has failed to state a claim for violation of the VTPPA in either Count I or Count II.
For similar reasons as those discussed above, Courts have reached similar conclusions with respect to the scope of the federal TCPA, which defines "telephone solicitation" as "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods or services, which is transmitted to any person ..." 47 U.S.C. § 227(a)(4). See, e.g., Murphy v. DCI Biologicals Orlando, LLC , 2013 WL 6865772, at *9 (M.D. Fla. Dec. 31, 2013), aff'd , 797 F.3d 1302 (11th Cir. 2015) (messages that offered money in exchange for plaintiff's blood donations were not "telephone solicitations" since they did not encourage the plaintiff to purchase, rent or invest in anything; rather, they sought to buy something from plaintiff); Hulsey v. Peddle, LLC , 2017 WL 8180583, at *3 (C.D. Cal. Oct. 23, 2017) (text message from defendant offering to pay plaintiff for her car was not a "telephone solicitation" since plaintiff's "allegations do not support the reasonable inference that the texts from [defendant] were initiated to sell products or encourage future purchases"); Edelsberg v. Vroom, Inc. , 2018 WL 1509135, at *5 (S.D. Fla. Mar. 27, 2018) (same); Orea v. Nielsen Audio, Inc. , 2015 WL 1885936, at *3 (N.D. Cal. Apr. 24, 2015) ("[T]elephone solicitations are calls intending to encourage a purchase by the listener, not the caller. Calls asking to purchase [from] the listener[ ] ... are not telephone solicitations.").
IV. CONCLUSION
For the above reasons, Plaintiff has adequately alleged Article III standing to bring his claim, but has failed to adequately allege that Defendant is a "telephone solicitor" who made a "telephone solicitation call" in violation of either Va. Code §§ 59.1-514(b) or 59.1-512. Accordingly, it hereby
ORDERED that Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1) be, and the same hereby is, DENIED; and it is further
ORDERED that Defendant's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) be, and the same hereby is, GRANTED; and this action is DISMISSED.