Colette Jenkins v. MGage, LLC, No. 1:14-cv-2791-WSD (N.D. Ga. Aug. 12, 2016)

Plaintiff filed this TCPA lawsuit after receiving 150 text messages over an approximately one year period during which she tried to stop the messages on 17 occasions. Defendant moved for summary judgment, contending the messages were not sent using an Automatic Telephone Dialing System (ATDS) but rather as a result of human intervention. Thus, Defendant argued, since it did not use an ATDS (a vital component of a TCPA claim) to send the messages, the claim should be dismissed.

Granting summary judgment in Defendant’s favor, the Court quoted from the June 18, 2015, FCC Declaratory Ruling, stating “How the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.” The Court also cited Luna v. Shac, LLC, 122 F. Supp.3d 936, 939 (N.D. Cal. 2015) extensively, wherein the U.S. District Court for the Northern District of California similarly dismissed a plaintiff’s claims because text messages were sent as a result of human intervention.

Important to the Court was the fact that in order to send a text message, Defendant’s employee had to navigate MGage’s website and log into MGage’s Platform. Once logged in, the employee had to determine the content of, and type the message into the Platform. After entering the content of the message, the employee could send it out immediately by clicking “send,” or choose a later date from a drop-down calendar function on the Platform. Defendant also chose the numbers to which text messages were sent from lists of numbers that Defendant uploaded to, and were housed in, the Platform.

The Court concluded its opinion stating “The Court finds the Luna court’s reasoning sound and consistent with the reasoning of other courts’ finding that human intervention discredits that a communication system is an ATDS. The Court finds that, in this case, the uncontested evidence shows human intervention was required to send each text message. “‘In sum, [Plaintiff’s] claims fail as a matter of law because [s]he failed to establish a genuine issue for trial with respect to whether the [texts] were [sent] using an ATDS, a necessary element of [her] claims.’”

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