In Borden v. Efinancial, LLC, No. C19-1430JLR, 2021 U.S. Dist. LEXIS 153086, at *13-16 (W.D. Wash. Aug. 13, 2021), Judge Robart dismissed a TCPA case based on Duguid.
In this context, Mr. Borden’s allegations are insufficient to establish that eFinancial’s system is an ATDS. He alleges that eFinancial’s system uses a sequential number generator to select which stored phone numbers to dial and to populate the LeadID field that eFinancial’s system uses to identify “or ‘point to'” phone numbers in its database. (See SAC ¶¶ 34, 48-50.) He does not, however, allege that eFinancial’s system “generate[s] random or sequential phone numbers” to be dialed; instead, he expressly alleges that he provided his phone number to eFinancial through the ABOUT form. See Duguid, 141 S. Ct. at 1168; (see SAC ¶¶ 19-22). eFinancial’s use of its system to send advertisement text messages to consumers who entered their phone numbers into a form on its website simply does not implicate the problems caused by autodialing of random or sequential blocks of numbers that Congress sought to address when it passed the TCPA. Mr. Borden relies on footnote 7 of Duguid for the proposition that it is enough that an autodialer “use a random number generator to determine the order in which to pick numbers from a preproduced list [and] then store those numbers to be dialed at another time.” (Resp. at 2 (quoting Duguid, 141 S. Ct. at 1172 n.7); see also Resp. at 5-6.) As eFinancial points out, however, Mr. Borden’s argument relies on a selective reading of one line within footnote 7 and ignores the greater context of that footnote and the opinion. As another district court recently recognized, “the Court employed [*15] the quoted line to explain how an autodialer might both ‘store’ and ‘produce’ randomly or sequentially generated phone numbers.” Hufnus v. Donotpay, Inc., No. 20-cv-08701-VC, 2021 U.S. Dist. LEXIS 118325, 2021 WL 2585488, at *1 (N.D. Cal. June 24, 2021). The Supreme Court cited an amicus brief filed by the Professional Association for Consumer Engagement (“PACE”) in support of the narrow interpretation of ATDS that the Eleventh Circuit set forth in Glasser “narrower ATDS interpretation of Glasser” rather than the expansive interpretation favored by the Ninth, Second, and Sixth Circuits. Duguid, 141 S. Ct. at 1172 n.7; (see Reply, Ex. A (“PACE Brief”) at 32-33). Rather than support Mr. Borden’s position, the PACE Brief makes clear that the preproduced list of phone numbers referenced in footnote 7 was itself created through a random or sequential number generator, thus differentiating it from the stored list of consumer-provided phone numbers used by eFinancial. (See generally PACE Brief at 19; see SAC ¶¶ 19-22); see also Hufnus, 2021 U.S. Dist. LEXIS 118325, 2021 WL 2585488, at *1-*2 (discussing footnote 7 and granting motion to dismiss where plaintiff alleged that defendant collected phone numbers from consumers who signed up for defendant’s services); Timms v. USAA Fed. Sav. Bank, No. 3:18-cv-01495-SAL, 2021 U.S. Dist. LEXIS 108083, 2021 WL 2354931, at *5-*6 (D.S.C. June 9, 2021) (discussing footnote 7 and granting motion for summary judgment where plaintiff contended that defendant’s system qualified as an ATDS if it used [*16] a random number generator to determine the order in which to pick phone numbers from a preproduced list). Because Mr. Borden has not plausibly alleged that the system that eFinancial used to send its Insurance Text Message Advertisements was an ATDS within the meaning of the TCPA, the court need not address whether Mr. Borden plausibly alleged that he did not provide prior express consent for eFinancial to send him those text messages. The court GRANTS eFinancial’s motion to dismiss Mr. Borden’s second amended complaint. Further, because Mr. Borden expressly alleges that he provided his phone number to eFinancial—and thus the text messages at issue necessarily were not sent through an ATDS—the court concludes that amendment would be futile and dismisses this action with prejudice. See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962); Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir. 2002).