In McKenna v. WhisperText, 2015 WL 428728 (N.D.Cal. 2015), Judge Grewal found that a TCPA plaintiff pleaded himself out of a TCPA claim because there was no allegation of an absence of human intervention.
A little over a year ago, Plaintiff Tony McKenna got a text he did not expect from “16502412157.” The text was an invitation to download the Whisper app from Defendants WhisperText, LLC and WhisperText, Inc. (collectively, “WhisperText”). Irritated to have received what he considered little more than spam for which he might be charged by his cellular service provider, McKenna filed this suit. McKenna alleges that WhisperText violated his rights under the Telephone Consumer Protection Act, and he seeks to represent a class of those similarly irritated. McKenna failed to state a plausible claim in his first amended complaint; the court dismissed it with leave to amend further. WhisperText again moves to dismiss. Once again, McKenna has not sufficiently stated his claim, and so the court GRANTS the motion. . . .¶ Whenever a new user downloads the Whisper app from WhisperText, the message “Whisper will text your friends for you” appears on the screen automatically. The new user then has the opportunity to invite all contacts. Contacts are then uploaded to a database and routed through a third party that generates and sends automated text messages. McKenna himself received an impersonal, unsolicited text message from a long code registered to Whis-perText in December 2013. ¶ . . . Shortly thereafter, McKenna filed this suit. He alleges that the unsolicited and unauthorized commercial text calls he received were made by WhisperText in violation of his rights under 42 U.S.C § 227. Specifically, he alleges that WhisperText used equipment that had the capacity at the time the calls were placed to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers. He further alleges that these text calls were made en masse to all class members through the use of an automated system whereby the messages were sent without human intervention from a long code registered to WhisperText without any class member’s prior express consent. Among his remedies, McKenna seeks class certification, actual and statutory damages, an injunction barring WhisperText from “all wireless spam activities,” and reasonable fees and costs. . . ¶ After McKenna amended his initial complaint, the court declined WhisperText’s request to stay the case while the FCC considers what qualifies as an ATDS and what it means for a software provider to “make” a call. But the court agreed with WhisperText that the first amended complaint failed to allege plausible facts suggesting that the Whisper app uses an ATDS sufficient to trigger TCPA liability. The court then dismissed the first amended complaint but with leave to amend. WhisperText now move to dismiss McKenna’s third amended complaint with prejudice, arguing that further amendment would be futile. McKenna opposes and alternatively requests leave to amend his complaint again. . . .McKenna leans hard on a 2003 FCC order that found a so-called “predictive dialer” can qualify as an ATDS because Section 227(a)(1) covers “any equipment” with the capacity to “generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” . . . But even if the FCC’s authority to adopt such an expansive view is not disputed, the FCC order still does not get McKenna all the way home. The reason is that the language of the FCC that mandates storing and dialing “without human intervention.” Unlike in Nunes and Fields, here McKenna’s allegations make clear that the Whisper App can send SMS invitations only at the user’s affirmative direction to recipients selected by the user. McKenna’s opposition similarly concedes that the Whisper App sends SMS invitations only at the user’s affirmative direction. At least two other district courts in the Ninth Circuit have held that, under such circumstances, the action taken is with human intervention—disqualifying the equipment at issue as any kinds of ATDS. . . .To be fair, both Gragg and Marks were decided on motions for summary judgment rather than at the pleading stage. But McKenna’s affirmative allegations of the need for human intervention by a Whisper App user when the sending an SMS invitation preclude the need for discovery to address whether McKenna has alleged the use of an ATDS. . . .McKenna finally urges that “a recipient” of an SMS invitation sent using the Whisper App who sends a text message to the telephone number from which she received the invitation will receive an “auto-reply” text message makes it plausible that the invitation was sent using an ATDS. According to McKenna, this “autoreply” allegation plausibly “demonstrates … that the messages were not sent by any WhisperText customer, but rather were sent by autodialer equipment owned or operated by WhisperText.” But McKenna fails to show how his generic “auto-reply” allegation is relevant to whether McKenna himself can state a claim for relief. Nothing in the operative com-plaint alleges that: (1) McKenna himself responded to the invitation that he was sent and then received an auto-reply message; (2) that the alleged “auto-reply” would be received in response to a text message sent to the actual telephone number from which McKenna alleges he received an SMS invitation or (3) that the supposed “auto-reply” would have been received in December 2013, at the time when McKenna claims to have received the message at issue in this case. McKenna disputes that such contextual details are immaterial at the pleading stage, but McKenna ignores the fact that the court considers only McKenna’s own claim at this stage of the proceedings. Put another way, this putative class action cannot proceed unless McKenna himself has a viable individual claim for relief.