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Hamza v. Dunhams Athleisure Corp.

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

November 1, 2017

ABDUL HAMZA, Plaintiff,
v.
DUNHAMS ATHLEISURE CORPORATION, Defendant/Third-party Plaintiff,
v.
AISHA HAMZA, Third-party Defendant.

          ORDER DENYING THIRD-PARTY DEFENDANT'S MOTION TO DISMISS [#36]

          DENISE PAGE HOOD CHIEF JUDGE.

         I. INTRODUCTION

         Defendant/Third-party Plaintiff Dunham's Athleisure Corporation's (“Dunham's”) filed a third-party complaint against Third-party Defendant Aisha Hamza (“Aisha Hamza”) on June 2, 2017, which Dunham's amended on June 23, 2017 (the “Amended TPC”). Third-party Defendant Aisha Hamza filed a Motion to Dismiss the Amended TPC on July 7, 2017 (the “Motion”), and the Motion is fully briefed. The Court, having concluded that the decision process would not be significantly aided by oral argument, ordered that the motion be resolved on the motion and briefs submitted by the parties. E.D. Mich. L.R. 7.1(f)(2). Dkt. No. 45. For the reasons set forth below, the Court denies the Motion.

         II. STATEMENT OF FACTS

         Plaintiff is an adult consumer who resides in Saint Clair Shores, Michigan, and Dunham's is a Delaware corporation headquartered in Troy, Michigan. On February 29, 2016, Dunham's allegedly 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 Dunham's was: “Thank you 4 opting-in to the Dunhams mobile program.” Plaintiff alleged that he had never: (1) opted in or text-messaged Dunham's to effect an opt-in; (2) provided his cellular telephone number to Dunham's; or (3) provided Dunham's prior express written consent to send automated text messages to his cellular telephone. Plaintiff alleged that he does not know how Dunham's obtained Plaintiff's cellular telephone number.

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

Checkbox
[ ] 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 Dunham's 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 when she: (1) checked the box; (2) provided the Number as the mobile phone number to receive messages; and (3) entered her address (which is also Plaintiff's address).

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

         On May 6, 2016, Plaintiff filed a Class Action Complaint against Dunham's (the “Hamza Litigation”), alleging that Dunham's violated the Telephone Consumer Protection Act (“TCPA”) by sending, without his prior express written consent, text message promotions to the Number, which he owned and which he did not know how Dunham's had obtained it, and that the text messages he received were from an automatic telephone dialing system (“ATDS”). Plaintiff later amended his Class Action Complaint. On March 22, 2017, the Court granted in part and denied in part Dunham's motion to dismiss Plaintiff's First Amended Class Action Complaint.

         In the Amended TPC, Dunham's alleges that Aisha Hamza fraudulently misrepresented that the Number was hers, as she did not have authority to provide the Number on the Form or check the box on the Form that represented that the Number was hers (¶¶29-30).[1] Dunham's further alleges that Aisha Hamza, by providing the Number and indicating that it was hers, intended to have Dunham's sent text message promotions to the Number (¶¶31, 33). Dunham's alleges that, because Dunham's did not know that the Number was not Aisha Hamza's and that she was not a called party at the Number, Dunham's reasonably relied upon Aisha Hamza's representation that the Number was hers, such that Dunham's had permission to send the text message promotions to the Number (¶¶32, 34-35). Dunham's alleges that, had Aisha Hamza not provided the Number on the Form and represented that it was hers, Dunham's would not have sent any text messages to the Number (¶36). Dunham's alleges that, should Plaintiff prevail against Dunham's on the Amended Class Action Complaint, any and all damages awarded will be the result of its reliance on Aisha Hamza's misrepresentation that the Number was hers (¶¶37-38).

         III. APPLICABLE LAW & ANALYSIS

         A. ...


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