In Weisberg v. Stripe, Inc., 2016 WL 3971296, at *4–5 (N.D.Cal., 2016), Judge Tigar dismissed a TCPA case at the pleadings stage for wont of pleading an ATDS.
Plaintiff further relies on the case of Harnish v. Frankly Co., in which the court held that allegations claiming that text messages were sent “en masse,” had “generic” and “impersonal” content, and were sent using a “short code” that enabled mass transmission, were sufficient to infer the use of an ATDS. ECF No. 25 at 16; Harnish v. Frankly Co., No. 5:14-CV-02321-EJD, 2015 WL 1064442, at *3 (N.D. Cal. Mar. 11, 2015). Here, by contrast, the facts alleged by plaintiff do not support the same inference. Rather, the allegations suggest that Stripe’s text messages were sent to an individual user of its checkout service and in response to a direct communication from Plaintiff. Am. Compl. ¶¶ 11-12, 14-18; see also McKenna v. WhisperText, No. 14-cv-00424-PSG, 2015 WL 5264750, at *4 (N.D. Cal Sept. 9, 2015) (distinguishing Harnish on the basis that “in Harnish the complaint did not allege any actions by the Frankly App’s users, and alleged only the actions taken by Frankly Co.’s automated processes.”). Accordingly, Plaintiff has failed to plausibly plead that Stripe used an ATDS. Because the Court dismisses the complaint on these grounds, it need not address Stripe’s argument that Plaintiff gave express consent to receive the text messages at question. Though Stripe argues that further amendment would be futile, the Court concludes that leave to amend is appropriate. Leave to amend should be freely given when justice so requires, Fed. R. Civ. P. 15(a)(2), and while Plaintiff has previously amended his complaint once, this is the first Motion to Dismiss addressed by the Court in this case.