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Hamza v. Dunhams Athleisure Corp.

United States District Court, E.D. Michigan, Southern Division

March 22, 2017

ABDUL HAMZA, Plaintiff,


          Denise Page Hood Chief Judge, United States District Court


         On May 6, 2016, Plaintiff filed a two-count Class Action Complaint against Defendant, and Defendant filed an initial motion to dismiss on July 20, 2016. After Plaintiff filed a First Amended Class Action Complaint on August 10, 2016 (Doc. No. 10), Defendant filed a Motion to Dismiss First Amended Class Action Complaint on August 24, 2016 (“Motion to Dismiss”) (Doc. No. 11), which has been fully briefed, and each party has filed several notices of supplemental authority. A hearing on Defendant's Motion to Dismiss was held on November 9, 2016, at 3:00 p.m.

         For the reasons that follow, the Court denies Defendant's Motion to Dismiss with respect to Count I and grants Defendant's Motion to Dismiss with respect to Count II.


         Plaintiff is an adult consumer who resides in Saint Clair Shores, Michigan, and Defendant is a Delaware corporation headquartered in Troy, Michigan. On February 29, 2016, Defendant began placing automated text messages to Plaintiff's cellular telephone number, 734-xxx-3421 (the “Number”), from SMS short code number 55678. The first text message from Defendant set forth: “Thank you 4 opting-in to the Dunhams mobile program.” Plaintiff alleges that he had not: (1) opted in or text-messaged Defendant to effect an opt-in; (2) provided his cellular telephone number to Defendant; or (3) provided Defendant prior express written consent to send automated text messages to his cellular telephone. Plaintiff alleges that he does not know how Defendant obtained Plaintiff's cellular telephone number. (First Amended Class Action Complaint ¶ 22).

         On February 23, 2016, an entrant named “Aisha Hamza” completed an internet form to enter a Detroit Red Wings sweepstakes program (the “Form”), a program was sponsored by Defendant. The Form completed by Aisha Hamza included the opportunity to receive promotional text messages from Defendant, as follows:


[ ] By checking this box and providing your mobile number, you are subscribing to receive text message promotions from Dunham's Sports. Message & data rates may apply. Maximum seven messages per month, per subscription. You can cancel at any time. Dunham's respects your privacy - Your mobile number will be subject to our privacy policy. Links & coupons within Dunham's text messages are best viewed via smart phone & may not be accessible from all mobile phones.

         Opting-in to receive text messages from Defendant required the entrant to affirmatively check the box, as the default setting was an unchecked box. When completing the Form, Aisha Hamza opted-in to receive messages from Defendant by checking the box, provided the Number as the mobile phone number to receive messages, and entered the same address where Plaintiff allegedly resides.

         After the sweepstakes closed, the Detroit Red Wings sent a file to Defendant that included the telephone numbers that had opted-in, including the Number. According to Plaintiff, he began receiving text messages from Defendant on the Number on February 29, 2016. Plaintiff received numerous messages that marketed Defendant products, and each message appeared to be template-based and not personal to Plaintiff. (¶¶ 23-24). Each text sent by Defendant and received by Plaintiff included instructions on how to stop receiving subsequent text messages from Defendant. Plaintiff does not allege that he ever sent Defendant a response message asking Defendant to stop sending text messages to the Number.

         Plaintiff alleges that he was injured by Defendant unauthorized text messages in a number of ways: (a) the messages invaded Plaintiff's privacy and annoyed, frustrated, distracted, and inconvenienced Plaintiff while he was working on school assignments and during work hours (¶ 26); (b) he was disrupted by text messages from Defendant during dinner (¶ 26); (c) he was distracted while driving by incoming text messages from Defendant (¶ 26); (d) Defendant's text messages took over Plaintiff's cellular telephone, his personal property, during the time that the messages were incoming and while Plaintiff retrieved them, such that Plaintiff's time was wasted by text messages he neither asked for nor wanted (¶ 27); and (e) Defendant's text messages drained his cell phone battery, which he then had to recharge, requiring him to incur costs for electricity (¶ 28). Plaintiff also claims that the telephone number to which Defendant sent the text messages was assigned to a cellular telephone service for which Plaintiff incurred charges (¶ 28).


         A. Rule 12(b)(1)

Fed.R.Civ.P. 12(b)(1) provides for the dismissal of an action for lack of subject matter jurisdiction. A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack). United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter ...

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