LaGuardia v. Designer Brands Inc.

LaGuardia v. Designer Brands Inc.

Opinion

OPINION & ORDER

This is a putative class action, brought under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. Because Defendants did not use an ATDS to send text messages to a putative class, and because Defendants fail to establish that they had an established business relationship ("EBR") with two of the Plaintiffs, summary judgment (ECF No. 117) is only partially proper. In reaching that determination, the Court also DENIES Plaintiffs' Motion to Exclude the Report of Ken Sponsler (ECF No. 130), DENIES Plaintiffs' request for additional discovery (ECF No. 128), and DENIES Plaintiffs' request for leave to amend (ECF No. 128).

I. BACKGROUND

This is the third dispositive motion presented to the Court in this matter. As such, all are well-versed in the case's procedural history and a truncated recitation of the background follows.

Plaintiffs Eric LaGuardia, Sophia Wingate, Lindsay Rucker, and Nicole Austin are California residents. (ECF No. 22 ¶ ¶ 7-11.) Defendant DSW Shoe Warehouse, Inc. sells footwear and is a wholly owned subsidiary of Defendant Designer Brands, Inc. (ECF No. 44 ¶ [*3]  ¶ 2, 12.) DSW Shoe Warehouse is a Missouri corporation headquartered in Columbus, Ohio. Id. ¶ 12. Designer Brands is an Ohio corporation with headquarters in Columbus. Defendants are collectively referred to as "DSW."

DSW, using the Oracle Responsys Interact platform ("Responsys"), sent Plaintiffs texts advertising DSW's products without their consent in July and August 2019. DSW sent LaGuardia and Austin one solicitation each after they told DSW to stop, even though they were on the National Do Not Call Registry ("Registry").

Plaintiffs argue that Responsys has the capacity to: (1) store telephone numbers; (2) generate sequential numbers; (3) dial numbers in sequential order; (4) dial numbers from a list of numbers; (5) dial numbers without human intervention; and (6) schedule the time and date for future transmission of text messages without human involvement. (ECF No. 22 ¶ ¶ 61-66.) Plaintiffs thus contend that DSW's program is an automated telephone dialing system ("ATDS") as defined in the TCPA.

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