# RUBIN

> District Court, D. New Jersey · March 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11355746

## Case

- **Full name:** Joshua Rubin, on behalf of himself and all others similarly situated v. Staples, Inc.
- **Court:** District Court, D. New Jersey
- **Decided:** March 31, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11355746. Public record. Not legal advice.