In DeCapua v. Metro. Prop. & Cas. Ins. Co., No. 18-590 WES, 2020 U.S. Dist. LEXIS 47695 (D.R.I. Mar. 18, 2020), Judge Smith granted a TCPA defendant’s motion to dismiss.
The Court accepts the R&R’s reasoning. See Glasser, 948 F.3d at 1312 (“Far from automatically dialing phone numbers, this system requires a human’s involvement to do everything except press the numbers on a phone.”). On review, the Court is unpersuaded by Plaintiff’s argument that human intervention is only relevant with respect to dialing. The Eleventh Circuit recently recognized that, even where a system dials numbers itself, critical is that “[a]n employee’s choice initiates every call.” Id. EZ Texting “demands far more from its human operators than just ‘turning on the machine or initiating its functions.'” Id. (quoting Marks, 904 F.3d at 1052-53); see also Ramos v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262, 1265 (S.D. Fla. 2018) (holding that human intervention sufficiently “negate[d] the EZ-texting program” as an auto-dialer); Duran v. La Boom Disco, Inc., 369 F. Supp. 3d 476, 492 (E.D.N.Y. 2019) (same). While this alone warrants dismissal, the Court also analyzes whether Plaintiff failed to plead that EZ Texting has the capacity to generate random or sequential numbers. The circuits are split on whether the TCPA requires this, with most determining that an auto-dialer must have the present capacity to do so. Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018); see also Glasser, 948 F.3d at 1311-12; Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 468-69 (7th Cir. 2020). But see Marks, 904 F.3d at 1050-53 (holding that an auto-dialer includes a device “with the capacity to dial stored numbers automatically”). This Court agrees with the majority of courts that have considered the question, a conclusion that ends Plaintiff’s case. These decisions hold that, to qualify as an auto-dialer, the system must be able to randomly or sequentially generate numbers. Plaintiff effectively concedes that EZ Texting cannot do this, but claims that “[b]ecause a list of phone numbers can be uploaded to and stored on the EZ Texting System from a Microsoft Excel spreadsheet,” EZ Texting is “capable [of] using Microsoft Excel’s [function] as a sequential number generator.” Compl. ¶¶ 48-52. Seeking to avoid dismissal, Plaintiff submits that various pieces of equipment may be combined to form what amounts to an auto-dialer. See Hatuey v. IC Sys., Inc., No. 16-CV-12542, 2018 U.S. Dist. LEXIS 193713, 2018 WL 5982020, at *7 (D. Mass. Nov. 14, 2018). But Plaintiff does not plead that Microsoft Excel is an integral and necessary part of EZ Texting, as he now suggests. Rather, Plaintiff alleges only that EZ Texting can use Microsoft Excel (as one of two options) as a sequential number generator, and that Defendant’s employees regularly do use it in that manner. See Compl. ¶¶ 34, 41-44, 50 (explaining that employees “regularly use Microsoft Excel” (one of “two methods”), Defendant seeks to hire employees with proficiency in Microsoft Excel, and EZ Texting “is also capable [of] using Microsoft Excel’s [function] as a sequential number generator”). But a system must have the present capacity to function as an autodialer and, as pleaded, EZ Texting does not.