Unreported / Non-Citable
Background
Plaintiff Edward Lewis filed a putative class action against Tenth Hall, Inc. d/b/a GuideReal Estate alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. Lewis claims his phone number has been registered on the National Do Not Call Registry since December 14, 2004, and that defendant sent him unsolicited marketing text messages on March 21, 2026 and April 9, 2026. He alleges he had not transacted business with defendant in the prior 18 months, made no inquiries in the prior three months, and never authorized such messages. The proposed class includes all U.S. persons whose numbers were on the Do Not Call Registry for at least 30 days and who received more than one marketing text from defendant in a 12-month period without an established business relationship or recent inquiry.
Defendant moved to dismiss under Rule 12(b)(6) on two grounds: (1) the TCPA does not apply to text messages, relying on the Seventh Circuit's decision in Steidinger v. Blackstone Medical Services, 182 F.4th 532 (7th Cir. 2026); and (2) plaintiff failed to allege the specific telephone number at which he received the messages, making it unclear whether the number was on the Do Not Call Registry. Defendant also attacked plaintiff's counsel as a "serial and prolific filer" of similar lawsuits. In its reply brief, defendant requested for the first time that the court certify an interlocutory appeal under 28 U.S.C. § 1292(b) if the motion were denied.
The Court’s Holding
The court denied the motion to dismiss in full. On the first issue, the court held that the TCPA applies to text messages under binding Ninth Circuit precedent. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) and Howard v. Republican Nat'l Comm., 164 F.4th 1119 (9th Cir. 2026) established that a text message constitutes a "call" within the meaning of the TCPA. The court rejected defendant's reliance on the Seventh Circuit's contrary ruling in Steidinger, noting that district courts in the Ninth Circuit are not bound by out-of-circuit authority and that multiple district courts have applied Satterfield and Howard to claims under § 227(c)(5). The court found the reasoning in Combs v. UG Franchise Operations, 2026 WL 2970636 (C.D. Cal. Oct. 2, 2026) persuasive: the term "call" bears the same meaning throughout the statute.
On the second issue, the court held that plaintiff's complaint satisfies federal pleading standards without alleging his specific phone number. The amended complaint identifies the approximate dates of the messages, alleges defendant sent more than one marketing text, describes the commercial purpose, alleges plaintiff is the regular user of the receiving number, and states the number has been on the Do Not Call Registry since December 14, 2004. The court found these allegations sufficiently definite to permit a response and noted defendant cited no authority requiring the phone number in the complaint. The court also denied the request for interlocutory appeal, holding there is no "substantial ground for difference of opinion" in the Ninth Circuit — the circuit split with the Seventh Circuit does not justify certification under § 1292(b).
Key Takeaways
- The Ninth Circuit's precedent that text messages are "calls" under the TCPA applies across all subsections of the statute, including the Do Not Call Registry provisions at § 227(c)(5).
- A plaintiff need not plead his specific telephone number in a TCPA complaint if the complaint otherwise alleges sufficient facts — dates, content, commercial purpose, registry status, and lack of consent — to give the defendant fair notice of the claim.
- A circuit split alone does not create "substantial ground for difference of opinion" within a circuit for purposes of 28 U.S.C. § 1292(b) interlocutory appeal certification.
- Arguments raised for the first time in a reply brief are procedurally improper and may be denied on that basis alone.
- Attacks on opposing counsel's litigation history are irrelevant to the legal sufficiency of a complaint under Rule 12(b)(6).
Why It Matters
This order reinforces the Ninth Circuit's expansive interpretation of the TCPA to cover text messages under the Do Not Call Registry provisions, creating a clear intra-circuit consensus that district courts must follow despite the Seventh Circuit's contrary view in Steidinger. The decision clarifies pleading standards in TCPA text-message cases: plaintiffs can survive a motion to dismiss without disclosing their phone number in the complaint if they allege sufficient factual context. This is particularly significant for putative class actions where plaintiffs may wish to protect class members' privacy at the pleading stage. The court's refusal to certify an interlocutory appeal underscores that intra-circuit uniformity, not inter-circuit splits, governs the § 1292(b) standard.