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Yashtinsky v. Walmart, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

November 15, 2019

KEVIN YASHTINSKY on behalf of himself and all others similarly situated PLAINTIFF



         Before the Court is Defendant Walmart, Inc.'s ("Walmart") Motion to Dismiss or, in the Alternative, to Stay the Action. (Doc. 23). For the reasons set forth below, the Court DENIES Walmart's Motion.

         I. BACKGROUND

         The following facts are taken from Mr. Yashtinsky's Complaint. (Doc. 3). On April 10, 2019, Mr. Yashtinsky received a two-part text message[1] on his wireless phone from Walmart without giving prior consent to Walmart to call or text him. The text messages stated:

WalmartRx - 1[]of 2 - REPLY NEEDED. TO begin receiving automated messages on your prescriptions, please reply YES. To decline reply STOP[;]
WalmartRX - 2[]of[]2 - Terms & Conditions at Msg & data rates may apply. Reply HELP for help, STOP to unenroll[.]

         Walmart sent the text messages from the short code number 455-00. Mr. Yashtinsky is not a Walmart Pharmacy customer, has never received prescriptions from a Walmart Pharmacy, and has never enrolled in Walmart's prescription messaging program. Mr. Yashtinsky has included his cellular number on the Do Not Call Registry since March 31, 2013. Mr. Yashtinsky further asserts that these text messages were sent "en masse." (Doc. 3, at ¶ 45).

         Following receipt of these text messages, Mr. Yashtinsky filed a class action complaint and demand for jury trial against Walmart on May 29, 2019, under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA") seeking damages, injunctive relief, and any other available legal or equitable remedies. The Complaint alleges two causes of action: (1) negligent violations of the TCPA; and (2) knowing and/or willful violations of the TCPA. Subsequently, Walmart filed its present motion, in which it argues that Mr. Yashtinsky failed to plausibly allege Walmart's use of an automatic telephone dialing system ("ATDS"), a required element of Mr. Yashtinsky's TCPA claims, or, alternatively, that the Court should issue a stay under the primary jurisdiction doctrine or pursuant to its inherent authority and defer resolution until the Federal Communications Commission ("FCC") issues a ruling on the scope of the statutory definition of an ATDS. (Doc. 23).

         Mr. Yashtinsky filed a Response, contending that the Court should not dismiss or stay this action because his allegations are sufficient to state a plausible claim for relief and because the majority of district courts have declined to stay proceedings in anticipation of the FCC's guidance on the definition of an ATDS. (Doc. 32). Thereafter, Walmart filed its Reply, claiming that Mr. Yashtinsky lacks standing under Article III to bring the present claims because he did not suffer a concrete injury, that the targeted text messages received by Mr. Yashtinsky could not support an inference that they were sent using an ATDS, and maintaining that the Court should issue a stay of the proceedings. (Doc. 33). Mr. Yashtinsky then filed a Notice of Filing Supplemental Authority, which argues that he has made sufficient allegations and that Walmart's Article III standing argument is barred by precedent. (Doc. 36). Walmart responded to this filing, arguing that the authority cited by Yashtinsky is distinguishable from the facts at hand. (Doc. 37).


         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court must accept the plaintiffs factual allegations as true and grant all reasonable inferences in the plaintiff's favor. Phipps v. F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005). However, this tenet "is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal, 556 U.S. at 665.


         A. Standing

         Walmart argues that Mr. Yashtinsky has not sufficiently pleaded an injury in fact to establish Article III standing. It is black letter law that Article III standing requires that "the plaintiff must have suffered an 'injury in fact.'" Lujan v. Defs. Of Wildlife, 504 U.S. 555, 560 (1992). In Spokeo Inc. v. Robins, the Supreme Court clarified that an "injury in fact" must be "concrete" and "particularized." 136 S.Ct. 1540, 1549 (2016). The Supreme Court held that a "bare procedural violation, divorced from any concrete harm" may not satisfy the injury in fact requirement, but it noted that even "intangible injuries can nevertheless be concrete." Id. at 1549. In Golan v., Inc. the Eighth Circuit held that the recipient of two unsolicited answering machine messages suffered "a concrete injury" sufficient to establish Article III standing. 930 F.3d 950, 958 (8th Cir. 2019). In Golan, the Eighth Circuit noted that Congress, by passing the TCPA, elevated "to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." Id. (citing Spokeo, 136 S.Ct. at 1549). The TCPA prohibits sending text message solicitations using an automatic telephone dialing system without the express written consent of the called party. Gould v. Farmers Ins. Exchange,288 F.Supp.3d 963, 967 (E.D. Mo. 2018) (citing Campbell-Ewald Co. v. Gomez,136 S.Ct. ...

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