HUDSON v. HOMEADVISOR INC (2025)

ORDER DENYING MOTION TO DISMISS AND MOTION TO STRIKE

Defendant has moved both to dismiss Plaintiff's putative class action complaint and to strike her proposed class definition. Because its motion to dismiss is premised on a factual dispute that would be inappropriate to resolve at this stage of litigation, and because it has not shown that class certification would be impossible, both motions are denied.

BACKGROUND

Plaintiff Kimberly Hudson registered her phone number on the national Do Not Call Registry on January 13, 2022. Dkt. 22 at ¶ 21. She alleges she did not give Defendant “prior written consent” or “any other form of consent” to send her text messages. Id. at ¶ 26. Nonetheless, she claims, she received a text from Defendant, a company in the business of connecting consumers with various home project services, on January 5, 2023, at 6:01 am, stating: “Thanks for using HomeAdvisor! Reply HELP or call 800-266-8722. Msg&data rates may apply.” Id. at ¶¶ 12, 27. “Upon information and belief,” she alleges, “upon calling the phone number identified in the first text message, Defendant's representatives will answer the phone and ask the caller if it has a project with which Defendant can assist.” Id. at ¶ 28.

Plaintiff subsequently received a second text, also at 6:01 am, stating “Hello from Angi! Daymakers ․ is interested in your project! View details to accept their invite: http://www.smgc.co/_pruWis6a.” Id. at ¶ 29. “Upon clicking the link in the second text message, Hudson was directed to Defendant's website,” which “attempted to sell Defendant's home project services.” Id. at ¶¶ 30, 31.

About an hour later, Plaintiff received a third text message. Id. at ¶ 32. It stated, “Hello from Angi! You are now connected with a pro for your project. Tap to view the details: https://xy59r.app.goo.gl/nqyyukWvNLtkLZVS7.” Id. Upon clicking the link in the third message, Plaintiff was directed to the app store for Defendant's cell phone application. Id. at ¶ 33. The app store identified the name of Defendant's app as “Angi: Hire Home Service Pros.” Id. The app store link further stated, “Hire professionals for all home services projects. Remodeling, repair and more” and “Find pros for every job.” Id. at ¶34.

Based on these allegedly improper communications, Plaintiff brought one claim for violation of the Telephone Consumer Protection Act, which prohibits commercial “telephone solicitations” to those who have placed their name on the do not call registry. Dkt. 22 at 13; 47 U.S.C. §§ 227(c)(3)(F), (c)(5). She brought this claim on a class action basis, alleging that Defendant sent similar messages to many others who were also on the do not call list. On August 21, 2024, Defendant moved to dismiss Plaintiff's claim and to strike her class allegations. Dkt. 24; 25.

APPLICABLE LAW

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) requires a court to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). In doing so, the court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Mere ‘labels and conclusions’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 555). A court will “disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Id. At this stage, the well-pleaded facts underlying a plaintiff's allegations must articulate a viable legal claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555.

DISCUSSION

I. Motion to Dismiss

The argument presented in Defendant's motion to dismiss is fundamentally a fact dispute that is inappropriate for resolution at this stage of litigation. Defendant argues, for example, that “[o]n its face, the content of this text message does not encourage the purchase of any good or service. The plain language of the text message indicates that it is intended to acknowledge receipt of a service request and provide contact information for further assistance.” Dkt. 24 at 5. Elsewhere Defendant suggests that the “likely and plausible conclusion is that the message is merely informational or transactional.” Id. at 8. Maybe. But these arguments—and the assertion that Plaintiff must have either provided prior consent to receive text messages or had a preexisting business relationship with Defendant—fly in the face of Plaintiff's allegations, which I must presume are true for the time being. See Dkt. 22 at ¶ 26 (“Hudson did not provide Defendant ‘prior express consent’ ․ or any other form of consent to send her text messages.”). While discovery may ultimately substantiate Defendant's position, the current posture of this case is incompatible with the resolution of this kind of factual dispute.

Taking as true Plaintiff's allegation that she did not provide prior consent to Defendant's communications, there can be little doubt that the text messages she received were commercial in nature. Plaintiff has alleged that “upon calling the phone number identified in the first text message, Defendant's representatives will answer the phone and ask the caller if it has [sic] project with which Defendant can assist.” Id. at ¶ 28. She has also alleged that “[u]pon clicking the link in the second text message, Hudson was directed to Defendant's website,” which “attempted to sell Defendant's home project services.” Id. at ¶¶ 30–31. “Specifically, the website associated with the link states, ‘Find a Pro for your home project’ and ‘get matched to prescreened professionals.’ ” Id. at ¶ 31. She further alleged that the third text message directed her to an app that was titled “Angi: Hire Home Service Pros.” Id. at ¶¶ 32–34.

Assuming, as I must at this stage, that these messages were not sent in response to an inquiry or affirmative consent to be placed on a mailing list, the only reasonable conclusion is that they were “telephone solicitation[s]” sent “for the purpose of encouraging the purchase ․ of, or investment in, property, goods, or services.” 47 U.S.C. § 227(a)(4); see also, e.g., Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012) (approaching this same question “with a measure of common sense”). Plaintiff has therefore met her burden to plead a claim that is viable under the Act. See 47 U.S.C. §§ 227(c)(3)(F), (c)(5) (providing a private cause of action for plaintiffs who received “telephone solicitations” despite having registered their phone number on a do not call list). The motion to dismiss is denied.

II. Motion to Strike Class Allegations

“[M]otions to strike class allegations before discovery commences ․ are generally disfavored.” Cleary v. Whole Foods Mkt. Rocky Mountain/southwest L.P., No. 15-cv-01247-MEH, 2016 WL 7048899, at *2 (D. Colo. Dec. 5, 2015). “In most circumstances, it is appropriate for courts to allow discovery before determining whether class certification is appropriate.” Id. (quoting Wornicki v. Brokerpriceopinion.com, Inc., No. 13-cv-03258-PAB-KMT, 2015 WL 1403814, at *4 (D. Colo. Mar. 23, 2015)). “[C]ourts in this District have held that the ‘defendant must demonstrate from the face of the plaintiffs’ complaint that it will be impossible to certify the classes alleged by the plaintiffs regardless of the facts the plaintiffs may be able to prove.’ ” Id. (quoting Francis v. Mead Johnson & Co., No. 10-cv-00701-JLK, 2010 WL 3733023, at *1 (D. Colo. Sept. 16, 2010) (emphasis in original)).

Defendant has not shown that class certification is impossible here. At most, Defendant has shown that the proposed class definition is overbroad. And while I agree that Plaintiff's current class definition may not satisfy Rule 23's commonality requirement to the extent it includes people who gave consent to be contacted by Defendant, that is an issue that is more appropriate for resolution at the certification stage than on the pleadings.¹ That is especially so given that the private right of action here “offers many advantages for class-wide adjudication,” and any issues with the current class definition can likely be cured at a later time. Krakauer v. Dish Network, LLC, 925 F.3d 643, 655 (4th Cir. 2019) (noting that a plaintiff suing under the TCPA “is likely to be in the same position as a great many other people and can rely largely on common proof to make out his claim”). The motion to strike is therefore denied.

CONCLUSION

It is ORDERED that:

Defendant's motion to dismiss, Dkt. 24, and its motion to strike class allegations, Dkt. 25, are denied.

FOOTNOTES

1.   I have serious doubts, and am at this point somewhat puzzled by some of the cases Plaintiff cites that seem to suggest that a class is impermissibly “fail-safe” unless it includes some members who might not be entitled to relief. See Costa v. Dvinci Energy, Inc., 342 F.R.D. 38, 40 (D. Mass. 2022) (finding a proposed TCPA class was not fail-safe because “the proposed class could encompass people to whom [Defendant] would not be liable, such as those who had given [Defendant] prior written consent to solicit”). But Defendant has not raised this issue, and it is not necessary to resolve for at least the time being.

Daniel D. Domenico, United States District Judge