RUBIN

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JOSHUA RUBIN, on behalf of himself and

all others similarly situated,

Plaintiff, Civ. No. 2:25-15515 (WJM)

v.

STAPLES, INC., OPINION

Defendant.

This is a putative class action filed by Plaintiff Joshua Rubin (“Plaintiff”) on behalf

of recipients of unsolicited marketing text messages from Defendant Staples, Inc.

(“Defendant” or “Staples”) for violations of the Telephone Consumer Protection Act of

1991 “*TCPA”), 47 U.S.C. § 227 ef seg. Defendant moves to dismiss Plaintiffs Amended

Complaint pursuant to Fed. R. Civ. P. Rule 12(b)(6), or in the alternative, for a more

definite statement pursuant to Fed, R. Civ. P. Rule 12(e). ECF No. 14. The Court decides

the motion without oral argument pursuant to Fed. R. Civ. P. 78(b). Having carefully

considered the parties’ submissions, Defendant’s motion to dismiss is granted.

Defendant’s motion for a more definite statement is denied as moot.

I. BACKGROUND

Plaintiff initially sued in state court on September 12, 2025. ECF No. 1. This action

was then removed to this Court on September 12, 2025 under 28 U.S.C. § 1331 and the

Class Action Fairness Act, 28 U.S.C. §§ 1332(d), 1441{a)-(b), and 1453. In the Amended

Complaint, filed November 11, 2025, Plaintiff contends that within the last four years,

Staples engaged in “a solicitation text message campaign” in which Staples sent him

“numerous” text messages to his cell phone trying to sell items such as paper or ink at a

discount. Am. Compl. ff 8-10, 19, ECF No. 10. Those texts did not identify the name of

the sender or the telephone number or address at which the sender could be contacted. /d.

qq 11, 14, 47-48, 52-53.

Plaintiff alleges violations of both the two main provisions of the TCPA — § 227(b)

and § 227(c). In Count I, Plaintiff claims that Stapies violated the do-not-call (“DNC”)

restrictions in 47 U.S.C. § 227(c)(5) by texting his “residential” cell phone “on at least two

separate occasions” within a 12-month period and more than 30 days after his specific

instruction to cease texting him. /d@. Jf 13, 17-18. Plaintiff also pleads that Defendant failed

to keep a DNC list or otherwise comply with implementing regulations, 47 C.F.R.

§ 64.1200(d)(1)-(6). fd. YF 41-42. In Counts II and III, Plaintiff alleges that Defendant sent

advertising text messages to his cell phone without his consent utilizing an “artificial or

prerecorded template” and “artificial or prerecorded voice” in violation of 47 U.S.C.

§ 227(b) and 47 C.F.R. § 64.1200(a). For each violation, Plaintiff seeks statutory damages

and treble damages pursuant to 47 U.S.C. § 227(c)(5). Id. 9 44-45, 49-50, 54-55. Plaintiff

asserts allegations on behalf of two classes: recipients of Staples’ 1) telemarketing texts

despite do-not-call requests; and 2) text messages sent without prior express consent that

contained artificial or prerecorded messages. Jd. at { 28.

In moving to dismiss, Staples argues that that § 227(b) and (c) of the TCPA do not

prohibit text messages to cell phones because § 227(b) proscribes artificial or prerecorded

voice calls and § 227(c) protects only “residential telephone subscribers” who are on a

DNC registry. Staples also claims that Plaintiffs factual allegations fail to support any

inference that Staples failed to adhere to § 64.1200(d)’s requirements. Alternatively,

Defendant seeks a more definite statement requiring Plaintiff to provide the phone number

where he claims to have received the text messages at issue.

I. = =DISCUSSION

A. Standard for Motion to Dismiss

On a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), “[c]ourts are required

- to accept all well-pleaded allegations in the complaint as true and draw all reasonable

inferences in favor of the non-moving party.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008) (internal citations omitted), Courts must “determine whether, under any

reasonable reading of the complaint, the Plaintiff may be entitled to relief.” Pinker v. Roche

Holdings, Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002), However, a complaint must contain

sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts are not required to

credit bald assertions or legal conclusions draped in the guise of factual allegations. See In

re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997). A pleading

that offers “labels and conclusions” or a “formulaic recitation of the elements of a cause of

action will not do,” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

U.S, at 555), Additionally, in evaluating a plaintiffs claims, generally “a court looks only

to the facts alleged in the complaint and its attachments without reference to other parts of

the record.” Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d

Cir. 1994),

B. Prerecorded Calls, 47 U.S.C. § 227(b) and 47 C.F.R. § 64.1200(a)

The TCPA, enacted in 1991, is a “remedial statute that was passed to protect

consumers” from “intrusive and unwanted” automated telephone calls and “should be

construed to benefit consumers.” Gager y. Dell Fin. Servs., LLC, 727 F.3d 265, 268, 271

(3d Cir, 2013). Specifically, § 227(b)(1) prohibits “any call” (other than for emergency

purposes or made with the prior express consent of the recipient) using any 1) automatic

telephone dialing system (“ATDS”) or 2) an artificial or prerecorded voice to any telephone

number including a cellular telephone service. 47 U.S.C. § 227(b)(1)(A); see also 47 C.F.R.

§ 64.1200(a) (barring “any telephone call” that is not made for emergency purposes or with

prior express consent of the called party “using an automatic telephone dialing system or

an artificial voice.”). The TCPA prohibitions are to act “in the interest of [] privacy rights.”

Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (citing 47 U.S.C. §

227(b}(2)(C)). “[A] voice message or a text message are not distinguishable in terms of

being an invasion of privacy.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th

Cir. 2009). Thus, § 227(b)’s restriction on any “call” has been deemed to encompass text

messages. See Dominguez on Behalf of Himself vy. Yahoo, Inc., 894 F.3d 116, 118, n.3 Gd

Cir, 2018); Campbell-Ewald Co. v. Gomez, 577 U.S, 153, 156 (2016), as revised (Feb. 9,

2016) (“A text message to a cellular telephone, [] qualifies as a ‘call’ within the compass

of § 227(b)C. )(A)(ili)”); see also Howard v. Republican Nat'l Comm, _F.4th__, No. 23-

3826, 2026 WL 90273, at *4 (9th Cir. Jan. 13, 2026) (noting that even in absence of agency

deference under Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

statutory construction supports conclusion that text constitutes a “call” within meaning of

TCPA). Hence the text messages Plaintiff received constitute “calls” for purposes of §

227(b)(1)(A).

Likewise, the “TCPA's prohibition on automated dialing applies to both voice calls

and text messages.” Gager v. Dell Financial Servs., LLC, 727 F.3d 265, 268-69 n.2 (3d

Cir, 2013); Barr v. Am, Ass'n of Pol. Consultants, Inc., 591 U.S. 610, 615 n.1 (2020); see

also In the Matter of Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991,

SoundBite Communications, Inc., 27 F.C.C. Red. 15391, 15392 (2012). However, because

Plaintiff does not allege that Staples sent texts using an automatic dialing system, that prong

is not at issue.

Rather, Plaintiff posits that Staples violated the statute by utilizing an “artificial or

prerecorded template,” which he maintains satisfies the “artificial or prerecorded voice”

requirement. See Am. Compl. § 47; Pl. Opp’n. Br. 9. Staples responds that “voice” is an

audible communication produced by vocal cords and therefore, prewritten or “template”

text messages do not count as “an artificial or prerecorded voice” under § 227(b). On this

dispositive inquiry, the Court agrees with Staples.

“As in all cases of statutory interpretation, our inquiry begins with the language of

the statute and focuses on Congress’ intent.” Susinno v. Work Out World Inc., 862 F.3d

346, 348-49 (3d Cir. 2017) (citing United States v. Abbott, 574 F.3d 203, 206 (3d Cir.

2009)). The Court is to “independently determine for itself” the “meaning of the law under

ordinary principles of statutory interpretation, affording appropriate respect to the agency’s

interpretation.” McLaughlin Chiropractic Assoc., Inc. vy. McKesson Corp., 606 U.S. 146,

155 (2025) (citing Loper Bright Enters. v. Raimondo, 603 U.S. 369, 402 (2024)). “Where

the statutory language is plain and unambiguous, further inquiry is not required.”

Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001).

In § 227(b), certain “calls” (which include texts) are barred only where they either

utilize an ATDS (not alleged here) or an artificial or prerecorded voice. The plain and

unambiguous meaning of “voice” is an audible sound produced by a person’s vocal cords.

See https://www.merriam-webster.com/dictionary/voice. A text message is not an audible

sound and thus is not an “artificial or prerecorded voice.” While the Third Circuit has not

addressed this question, other courts have squarely concluded that a text message does not

constitute use of an “artificial voice.” See e.g., Trim v. Reward Zone USA LLC, 76 F.Ath

1157, 1161 (9th Cir. 2023) (“Congress clearly intended ‘voice’ in 47 U.S.C, § 227(b)(1)(A)

to encompass only audible sounds, because the ordinary meaning of voice and the statutory

context of the TCPA establish that voice refers to an audible sound.”); Soliman v. Subway

Franchisee Advert. Fund Tr., LTD., 101 F.4th 176, 187 (2d Cir. 2024) (holding that text is

not an “artificial voice” under § 227(b)(1)(A) because “voice” ordinarily refers to “a sound

produced by a human being” and that “Congress meant ‘voice’ to mean something audible,

not a text message”).

Plaintiff would have the Court interpret “voice” to include a “template” despite no

evidence that Congress intended to do so. Nor does Plaintiff cite any caselaw that has held

that a text message satisfies the artificial or prerecorded “voice” prong of § 227(b)(1){A).

Instead, Plaintiff insists his interpretation prevents “selective enforcement” of a statute. PL,

Opp’n. Br. 9. That is, if unsolicited marketing text messages that use an ATDS are □

precluded by § 227(b) but those that do not use an ATDS are not, Plaintiff maintains that

that would lack “uniformity” in the statute’s enforcement. Jd. However, reading § 227(b)

to bar text messages only if they either use ATDS or use “voice” is not “selective

enforcement,” but rather, giving effect to every word that Congress uses. See Rosenberg vy,

AM Ventures, 274 F.3d 137, 141 Gd Cir, 2001); see also Howard, — F.4th __, 2026 WL

90273, at *5 (noting rejection of broader meaning of “voice” that includes symbolic or

poetic uses because then “all text messages would already be covered by the phrase ‘call

made using a voice service,’ thereby rendering the additional language concerning ‘text

messages’ as surplusage”). The statute expressly limits its proscriptions to calls that utilize

an ATDS or a “voice.” Because Plaintiff has not alleged that he received texts utilizing

either, Plaintiff's § 227(b) and § 64.1200(a) claims are dismissed without prejudice.

C. Do-Not-Call List, 47 U.S.C. § 227(c)(1-5) and 47 C.E.R. § 64.1200(d)

The TCPA provides that a “person who has received more than one telephone call

within any 12-month period by or on behalf of the same entity in violation of the regulations

prescribed under this subsection” may sue to recover up to $500 in damages for each

violation. 47 U.S.C. § 227(c)(5) (emphasis added). The implementing regulation that

Staples purportedly violated, 47 C.F.R. § 64.1200(d), provides in relevant part: “No person

or entity shall initiate ... any call for telemarketing purposes to a residential telephone

subscriber unless such person or entity has instituted procedures for maintaining a list of

persons who request not to receive such calls made by or on behalf of that person or entity,”

47 C.F.R, § 64.1200(d) (emphasis added). Those § 64.1200(d) procedures include requiring

telemarketers to: maintain a DNC list and have available upon demand a related written

policy; train telemarketing staff on use of the DNC list; record and honor DNC requests

within a reasonable amount of time from when the request is made; and identify the seller's

name and number during pre-recorded or artificial calls. 47 C.F.R. § 64.1200(d)(1)-(6)).

1. Residential Telephone Subscribers

Staples contends that subsection (d) is inapplicable to cell phone users because

Congress intended that provision to apply only to residential telephones that are “hardwired

into the building” or “used by individuals in the home, and not a cellular telephone, which

can be used anywhere.” Def. Br. 17-18. To show that Congress meant to exclude cell phone

users in § 227(c), Staples notes that that provision makes no mention of cell phone users in

contrast to other sections of the TCPA, such as § 227(b) and § 64,1200(a)(1)(iii) where

“cellular telephone service” is expressly mentioned. Staples concludes that because this

shows that “both Congress and the FCC were aware of the distinction between a cellular

telephone and a residential telephone,” Congress “purposely protected only ‘residential

telephone subscribers’ under § 227(c), § 64.1200(c) and (d).” Def. Br. 19.

The Court disagrees and rejects this expression unius est exclusio alterius canon of

interpretation (“the expression of one thing implies the exclusion of others”) as evidence

of congressional intent to exclude cell phone users as “residential subscribers” in §

277(c)(5). See e.g., Jackson v, Direct Building Supplies, No. 23-01569, 2024 WL 184449,

at *6 (M.D. Pa. Jan. 17, 2024); Cacho v. MeCarthy & Kelly LLP, 739 F. Supp. 3d 195, 204

(S.D.N,Y. 2024). As explained by the Supreme Court, “[t]he expressio unius canon applies

only when ‘circumstances support[ ] a sensible inference that the term left out must have

been meant to be excluded.’” NLRB. v. SW Gen., Inc., 580 ULS. 288, 302 (2017) (citing

Chevron U.S.A. Ine. v. Echazabal, 536 U.S. 73, 81 (2002)). The canon “does not apply to

every statutory listing or grouping; it has force only when the items expressed are members

of an ‘associated group or series,’ justifying the inference that items not mentioned were

excluded by deliberate choice, not inadvertence.” Barnhart v. Peabody Coal Co., 537 U.S.

149, 168 (2003) (citing United States v. Vonn, 535 U.S, 55, 65 (2002)).

Section 227(b) “forbids the use of artificial and prerecorded messages to enumerated

categories of phone technologies.” Cacho, 739 F. Supp. 3d at 204 (emphasis added). Those

prohibited categories include calls to a “cellular telephone service.”! See 47 U.S.C. §

227(b)(1)A) and § 64.1200(a)(1)Gi1). Separately, subsection (b)(1)(B) precludes non-

emergency artificial or prerecorded voice calls to “any residential telephone line” absent

prior express consent or under certain limited exceptions. 47 U.S.C. § 227(b)\(1)(B); §

64.1200(a)(3). In contrast, § 227(c) “protect[s] residential telephone subscribers’ privacy

rights.” 47 U.S.C, § 227(c)(1) (emphases added). Indeed, § 227(c) is aptly titled “Protection

' Section 227(b){1)(A) prohibits any ATDS non-emergency calls to other specified phone lines as well including: i)

emergency telephone lines, ii} hospital, health care, or similar establishment room lines, or iid} any “paging service,

cellular telephone service, specialized mobile radio service.” 47 U.S.C, § 227(b)( IAG).

of subscriber privacy rights” and addresses exactly that — the privacy rights of the

“residential telephone subscriber.” See § 227(c)(1). Thus, § 227(b) and (c) do not address

members of the same category. Cacho, 739 F. Supp. 3d at 204-05. Section (c)(5) authorizes

a private right of action to a “person who has received more than one telephone call”

without regard to what type of line or telephone technology receives those calls. As

explained in Jackson, § “227(c)’s focus on the telephone subscriber demonstrates that the

term ‘residential’ is a ‘functional term not tethered to a particular technology,” focusing

instead on the subscriber’s privacy rights ... rather than his telephone’s technological

capabilities.” Jackson, 2024 WL 184449, at *7, The specific kind of telephone or

communications technology, e.g. a cellular telephone, is distinct from and does not

identify the “type or identity of the subscriber to the technology,” ie., a residential

subscriber, Cacho, 739 F. Supp. 3d at 204-205; Wilson v. Better Mortgage Corp., _ F.

Supp. 3d, 2025 WL 3493815, at *8 (S.D.N.Y. Dec. 5, 2025) (“The statute's text and

context thus show that Congress, in enacting § 227(c}, was focused on protecting

subscribers from telephone solicitations, not on any one form of such solicitations.”).

“Had Congress wished to limit section 227(c) to specified telephone technologies

rather than specified telephone subscribers, it would have indicated somewhere in that

section that the [DNC] registry is limited to a ‘residential telephone /ine,’ as Congress used

that term in the preceding subsection.” Jackson, 2024 WL 184449, at *6. Similarly, had

Congress sought to address different subscribers in § 227(b), it would have distinguished

between “residential” and “business or commercial” subscribers. See Cacho, 739 □□□ Supp.

3d at 207 (“Congress’s definition of ‘established business relationship’ ... expressly

distinguishes between a business subscriber and a residential subscriber,” (citing 47 U.S.C.

§ 227(a)(2)(A)); see Shelton v. Fast Advance Funding, LLC, 805 Fed. App’x, 156, 159 Gd

Cir. 2020) (holding plaintiff had standing under TCPA because there was no evidence

plaintiff used cell phone for business rather than for personal purposes).

Moreover, Congress specifically mandated that the FCC “initiate a rulemaking

proceeding concerning the need to protect residential telephone subscribers’ privacy rights

to avoid receiving telephone solicitations to which they object.” § 227(c)(1) (emphasis

added). The FCC was also tasked to “prescribe regulations to implement methods and

procedures for protecting” those privacy rights. § 277(c)(2). Acknowledging the “growing

number of consumers who no longer maintain wireline phone service, and rely only on

their wireless telephone service,” the FCC “presume[d] wireless subscribers who ask to be

put on the national do-not-call list to be “residential subscribers.” 2003 FCC Order at J

35, 36. Consistent with this presumption and its rulemaking authority, the FCC

implemented § 64.1200(e), which expressly makes both subsection (c), which prohibits

telephone solicitations to numbers on a national DNC registry, and subsection (d), which

governs an entity’s internal DNC registry, “applicable to any person or entity making

telephone solicitations or telemarketing calls or text messages to wireless telephone

numbers to the extent described in the [2003 FCC Order].” 47 C.F.R. § 64.1200(e)

(emphasis added). According to the 2003 FCC Order, “wireless subscribers may participate

in the national do-not-call list.” 2003 FCC Order at § 36. See e.g., Jzor v. Abacus Data Sys.,

Ine., No. 19-01057, 2019 WL 3555110, at *2 (N.D. Cal. Aug. 5, 2019) (rejecting

contention that “residential telephone subscriber” excludes cell phone users because §

64.1200(e) by its terms incorporates solicitations to wireless numbers”). While courts need

not defer to an agency’s interpretation of a statute, the FCC’s sustained interpretation that

“residential” subscribers can include cell phone subscribers is consistent with § 227(c)’s

text and purpose, as described above.

Finally, excluding a cell phone subscriber from being a “residential” subscriber

would have “sweeping practical consequences.” Cacho, 739 F, Supp. 3d at 203-04 (cleaned

up). “For more than two decades, cellphone users have been permitted by the FCC to

register for the National Do Not Cali Registry as ‘residential subscribers.” /d. at 203.

Additionally, the consensus in court decisions “in this Circuit is that Do Not Call claims

may apply to cell phones.” Dudley v. Vision Solar, LLC, No. 21-659, 2021 WL 3077557,

at *5 (2.D, Pa, July 21, 2021) (citing cases and denying motion to dismiss § 227(c) claim

where plaintiff alleged cell phones were for “residential purposes”); Atkinson v. Choice

Home Warranty, No. 22-04464, 2023 WL 166168, at *4-5 (D.N.J, Jan. 11, 2023) (same);

Cacho, 739 F. Supp. 3d at 203 (“[A]n individual who registers her cellphone with the Do

Not Call Registry is a residential telephone subscriber.”); Shelton, 805 Fed. App’x. at 159

(affirming that plaintiff had standing to bring TCPA suit where unsolicited telemarketing

calls were to personal cell phone); Jackson, 2024 WL 184449, at *8 (agreeing with

majority of cases that cell phone users may be “residential” telephone subscribers under §

227(c)). .

For these reasons, the Court concludes that “residential” telephone subscribers

encompass wireless subscribers for purposes of § 227(c) and 47 C.F.R. § 64.1200(d).

2. Text Messages .

The TCPA is meant to “protect residential telephone subscribers’ privacy rights to

avoid receiving telephone solicitations to which they object,” 47 U.S.C. § 227(c)(1)

(emphasis added). The phrase “telephone solicitation,” includes “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) (emphasis added). Staples argues that § 227(c)(5)’s right of action protects

recipients of at least two “telephone calls,” ot “telephone solicitations” and also maintains

that because Congress defined a “text message” to exclude a “real time, two-way voice

communication,” see § 227(e)(8)(C)(iii), it recognized text messages as a distinct mode of

communication that Congress did not include as “calls” in § 227(c).

None of these cases deferred to FCC’s interpretation in reaching their decisions. Moreover, the decisions cited by

Staples to support its position involve claims under § 227(b) and are thus inapposite. See Def. Br, 18-19.

Subsection (e)(8)’s definitions are, however, expressly for purposes of subsection

which addresses prohibitions on misleading or inaccurate caller identification

information. In contrast, the definition of “telephone solicitations” applies to the entire

section rather than just subsection (a). Staples fails to show that Congress’s definition

applicable only to subsection (e) undermines Congress’s express intent to protect

residential telephone subscribers from unwanted “telephone solicitations,” which include

both calls and messages.

Further, as noted above, the term “call” has been held to include text messages in §

227(b). Unlike the distinction between “residential” as used in § 227(b) to refer to a type

of line, and “residential” as used in § 227(c) to describe the type of subscriber, there is no

basis to ascribe different meanings to the term “call” by interpreting the same term more

narrowly in § 227(c) than in § 227(b), See Wilson, 2025 WL 3493815, at *7 (noting “weight

of [] authority concerning § 227(b) strongly suggests that § 227(c)’s parallel usage of

‘telephone call{s]’ applies to text messages”); Pariseau v. Built USA, LLC, 619 F. Supp.

3d 1203, 1207 (M.D. Fla, 2022) (agreeing with “several persuasive decisions” that

“telephone call” in § 227(c) includes text message because context of statutory text does

not distinguish “telephone call” in subsection (c) from “telephone call” in subsection (b),

which has been interpreted to include both voice call and text messages). The plain

meaning of “telephone call” in 1991 was “a communication made by telephone” without

distinction between an oral or vocal communication as the first text message was not sent

until 1992, Wilson, WL 3493815, at *5. “[A]lthough modern parlance tends to distinguish

between phone calls and text messages, the meaning of ‘telephone call’ in 1991—-when the

TCPA was enacted—was broad enough to encompass text messages.” Jd.

Notably, the majority of courts also consider § 277(c)(5)’s protection against “calls”

to include text messages. See Bradshaw v. CHW Group, Inc., 763 F. Supp. 3d 641 1.5

(D.N.J. 2025) (“Text messages are considered ‘calls’ for [§ 227(c)(5)] purposes.”);

Champion v, Credit Pros Int’l Corp., No. 21-10814, 2025 WL 3452354 (D.N.J. May 15,

2023) (denying motion to dismiss § 227(c)(5) claim based on receipt of text messages);

Zelma vy. Penn LLC, No, 19-8725, 2020 WL 278763, at *6-7 (D.N.J. Jan. 17, 2020)

(assuming that sending text messages to number on DNC registry was claim under §

227(¢)(5)); see also Hall v. Smosh Dot Com., Inc., 72 F.Ath 983, 986 (9™ Cir. 2023)

(holding that under § 227(c), “Congress granted residential phone subscribers the right to

create a private line, free from unsolicited calls and intrusive texts”), Consistent with these

cases, the Court concludes that “telephone call” can encompass text messages for purposes

of § 227(c)(5) and 47 C.F.R. § 64.1200(d).

3. Sufficiency of Pleading

The parties dispute whether the Amended Complaint pleads facts that plausibly

show that Defendant has failed to comply with 47 C.F.R. § 64.1200(d). At the outset,

Plaintiff alleges that his cell phone is used as his residential phone. Am, Compl. { 13.

Additional facts elaborating on the residential nature of Plaintiffs cell phone are not

needed to sufficiently state a claim. See Atkinson, 2023 WL 166168, at *5, However,

Plaintiff's allegations as to the remaining elements of the claim are merely conclusory

recitations. Compare Somogyi vy, Freedom Mortg. Corp., No. 17-6546, 2018 WL 3656158,

at *8 (D.N.J. Aug, 2, 2018) (finding alleged violation of TCPA’s internal DNC restrictions

sufficiently pled where plaintiffs alleged “specific manner” in which they requested that

defendant stop calls as well as “detailed factual allegations” as to how defendant failed to

comply with internal DNC list requirement), with Sterling v. Securus Techs., Inc., No. 18-

1310, 2020 WL 2198095, at *5 (D. Conn. May 6, 2020) (finding to be threadbare recitals

of elements of cause of action where plaintiffs provided no additional allegations regarding

maintenance or procedures for a DNC list). Plaintiff contends that Staples did not maintain

DNC procedures based solely on his bare assertion that he requested but did not receive a

copy of Staples’ internal DNC procedures, and that he continued to receive solicitations

beyond the statutory 30 days for a telemarketer to comply with a DNC request despite his

requests to cease. texting him. See Am. Compl. f§ 17, 22-24. Plaintiff provides no factual

details regarding these claims such as where he sent his stop request given that the

marketing texts did not provide any identification or contact information. See id. at § 11.

Because Plaintiff has not pleaded sufficient factual allegations to support a claim that

Staples violated 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(d), Defendant’s motion to

dismiss is granted; Count I is dismissed without prejudice.

D. Motion for More Definite Statement

Given the disposition above, the Court does not reach Defendant’s alternative

request for a more definite statement although the Court does expect that such information

will be provided during the course of discovery.

Tt. CONCLUSION

For the reasons noted above, Defendant’s motion to dismiss is granted. Counts I,

II, and II are dismissed without prejudice, The request for a more definite statement is

denied as moot. Plaintiff may file an amended pleading curing the defects noted herein

within 20 days of the date of the accompanying Order.

HG RTINE, U.S.D.J.

March 31, 2026