United States District Court, W.D. Arkansas, Fayetteville Division
KEVIN YASHTINSKY on behalf of himself and all others similarly situated PLAINTIFF
WALMART, INC. DEFENDANT
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
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
following facts are taken from Mr. Yashtinsky's
Complaint. (Doc. 3). On April 10, 2019, Mr. Yashtinsky
received a two-part text message on his wireless phone from
Walmart without giving prior consent to Walmart to call or
text him. The text messages stated:
WalmartRx - 1of 2 - REPLY NEEDED. TO begin receiving
automated messages on your prescriptions, please reply YES.
To decline reply STOP[;]
WalmartRX - 2of2 - Terms & Conditions at
Walmart.com/alerterms Msg & data rates may apply. Reply
HELP for help, STOP to unenroll[.]
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).
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.
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.
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.
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. FreeEats.com, 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. ...