Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 1 of 12 1 2 3 4 5 Jeremy Hutchinson, Esq. 6 Jonathan Camp, Esq. 7 HUTCHINSON LAW FIRM 1 E. North St. 8 Benton, AR 715 9 Attorneys for Plaintiff, Anthony Johnson 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF ARKANSAS FILED US. DISTRICT C1)! Jf(i' EASTERN DISTRICT AR ;JM\ JAMES By:_-6"'1f-+-~~.,,.a~ 13 ANTHONY JOHNSON, Case No.: t/-.' r) C--1 3 -JLl-f 14 INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, 15 16 17 Plaintiff, v. HOLMES EUROPEAN 18 MOTORS, INC.; and, HOLMES 19 EUROPEAN MOTORS, LLC, 21 22 23 24 25 Defendants. CLASS ACTION COMPLAINT COMPLAINT - CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF PURSUANT TO IBE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. 2, ET SEQ. JURY TRIAL DEMANDED This case assigned to Distr"ct J and to Magistrate Judge _..l...t.~~~.l.--1
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 2 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 INTRODUCTION 1. ANTHONY JOHNSON ("Plaintiff') brings this Class Action Complaint for damages, injunctive relief, and any other available legal or equitable remedies, resulting from the illegal actions of defendants HOLMES EUROPEAN MOTORS, INC. and HOLMES EUROPEAN MOTORS, LLC Gointly referred to as "Defendants") in negligently contacting Plaintiff on Plaintiffs cellular telephone, in violation of the Telephone Consumer Protection Act, 47 U.S.C. 2 et seq., ("TCPA"), thereby invading Plaintiffs privacy. Plaintiff alleges as follows upon personal knowledge as to himself and his own acts and experiences, and, as to all other matters, upon information and belief, including investigation conducted by his attorneys. 2. The TCPA was designed to prevent calls like the ones described within this complaint, and to protect the privacy of citizens like Plaintiff. "Voluminous consumer complaints about abuses of telephone technology - for example, computerized calls dispatched to private homes - prompted Congress to pass the TCPA." Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 744 (12). 3. In enacting the TCP A, Congress intended to give consumers a choice as to how creditors and telemarketers may call them, and made specific findings that "[t]echnologies that might allow consumers to avoid receiving such calls are not universally available, are costly, are unlikely to be enforced, or place an inordinate burden on the consumer. TCPA, Pub.L. No. 102-243, 11. Toward this end, Congress found that: [b]anning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protecting telephone consumers from this nuisance and privacy.. mvas1on. CLASS ACTION COMPLAINT PAGE 1OF11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 3 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 Id. at 12; see also Martin v. Leading Edge Recovery Solutions, LLC, 12 WL 32938, at* 4 (N.D. Ill. Aug. 10, 12) (citing Congressional findings on TCP A's purpose). 4. Congress also specifically found that "the evidence presented to the Congress indicates that automated or prerecorded calls are a nuisance and an invasion of privacy, regardless of the type of call... " Id. at 12-13. See also, Mims, 132 S. Ct. at 744. 5. As Judge Easterbrook of the Seventh Circuit recently explained in a TCPA case regarding calls to a non-debtor similar to this one: The Telephone Consumer Protection Act... is well known for its provisions limiting junk-fax transmissions. A less-litigated part of the Act curtails the use of automated dialers and prerecorded messages to cell phones, whose subscribers often are billed by the minute as soon as the call is answered-and routing a call to voicemail counts as answering the call. An automated call to a landline phone can be an annoyance; an automated call to a cell phone adds expense to annoyance. Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 12). 6. The Ninth Circuit recently affirmed certification of a TCP A class action remarkably similar to this one in Meyer v. Portfolio Recovery Associates, LLC, _ F.3d_, 12 WL 4840814 (9th Cir. Oct. 12, 12). JURISDICTION AND VENUE 7. This Court has federal question jurisdiction because this case arises out of violation of federal law. 47 U.S.C. 2(b); Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (12). 8. Venue is proper in the United States District Court for the Eastern District of Arkansas pursuant to U.S.C. 1391 for the following reasons: (i) Plaintiff resides in the City of Little Rock, County of Pulaski, State of CLASS ACTION COMPLAINT PAGEF 11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 4 of 12 1 Arkansas which is within this judicial district; (ii) the conduct complained of 2 herein occurred within this judicial district; and, (iii) many of the acts and 3 transactions giving rise to this action occurred in this district because 4 Defendants: 5 (a) have intentionally availed itself of the laws and markets within 6 this district and is therefor also subject to personal jurisdiction 7 of this district; 8 (b) do substantial business within this district; and, 9 ( d) the harm to Plaintiff occurred within this district. 10 PARTIES 11 9. Plaintiff is, and at all times mentioned herein was, a citizen and resident of 12 the City of Little Rock, County of Pulaski, State of Arkansas. Plaintiff is, 13 and at all times mentioned herein was, a "person" as defined by 47 U.S.C. 14 153 (39). 15 1 O.Plaintiff is informed and believes, and thereon alleges, that Holmes 16 European Motors, Inc. is, and at all times mentioned herein was, a 17 corporation whose primary corporate address is in Shreveport, Louisiana. 18 11.Plaintiff is informed and believes, and thereon alleges, that Holmes 19 European Motors, LLC is, and at all times mentioned herein was, a limited liability company whose primary business address is in Shreveport, 21 Louisiana. 22 12.Defendants are, and at all times mentioned herein were, a "person," as 23 defined by 47 U.S.C. 153 (39). 24 13.Defendants are an auto retailer that sell exotic cars to consumers nationwide, 25 and advertise such cars online via their website. Plaintiff alleges that at all times relevant herein Defendants conducted business in the State of Arkansas and in the County of Pulaski, and within this judicial district. /// CLASS ACTION COMPLAINT PAGE3OF11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 FACTUAL ALLEGATIONS 14.At all times relevant, Plaintiff was a citizen of the State of Arkansas. Plaintiff is, and at all times mentioned herein was, a "person" as defined by 47 u.s.c. 153 (39). 15.Defendants are, and at all times mentioned herein were, Louisiana businesses and a "person," as defined by 47 U.S.C. 153 (39). 16.At all times relevant, Defendants conducted business in the State of Arkansas and in the County of Pulaski, within this judicial district. 17.Sometime in June of 14, Plaintiff was shopping for a vehicle online and came upon Defendants' website, www.holmesmercedes.com. 18. While visiting Defendants' website, Plaintiff filled out a "quick" online form, which simply requested Plaintiffs name, email address and phone number. The online form did not contain any disclaimer or "opt-in" language informing Plaintiff that by filling out the online form that he was consenting to receive text messages, including automated text messages, from Defendants. 19. There was no clear disclosure whatsoever on the website or near the online form that Plaintiff was consenting to marketing text messages from Defendants or their agents by filling out the online form..nevertheless, on or about June 11, 14, at approximately 2:59 p.m. (CDT), Defendants sent an unsolicited, uniform, and impersonal text message to Plaintiffs cellular telephone ending "7240." This text message, read: To opt-in to receive Holmes European Motors text msgs, please reply with 'yes', or 'stop' 21.Defendants sent this unsolicited text message to Plaintiffs cellular telephone from telephone number (318) 302-4382. CLASS ACTION COMPLAINT PAGE40F 11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 6 of 12 1 22.Plaintiff received at least one more unsolicited, uniform and impersonal text 2 message, with the same exact content, from Defendants after the initial June 3 11, 14 text message. 4 23. Upon information and belief, Plaintiff alleges that Defendants utilize bulk 5 SP AM text messaging equipment to send unsolicited text messages to 6 Plaintiff, marketing and advertising Defendants' business. Such text 7 messages are uniform and impersonal in nature. 8 24.At no time did Plaintiff consent to receive text messages from Defendants, 9 including automated marketing text messages. 1 O 25. Plaintiff has never used Defendants' services or products, and has never had 11 any prior business relationship with Defendants. 12.Through the unsolicited SPAM text messages, Defendants contacted 13 Plaintiff on Plaintiffs cellular telephone regarding an unsolicited service via 14 an "automatic telephone dialing system," ("ATDS") as defined by 47 U.S.C. 15 2(a)(l) and prohibited by 47 U.S.C. 2(b)(l)(A). 16.This AIDS has the capacity to store or produce telephone numbers to be 17 called, using a random or sequential number generator. 18. This ATDS also has the capacity to sent text messages to a list or database of 19 cellular telephone numbers without human intervention. 29.The telephone number Defendants called was assigned to a cellular 21 telephone service for which Plaintiff incurs a charge for incoming calls 22 pursuant to 47 U.S.C. 2(b)(l). 23 30.This text messages constituted calls that were not for emergency purposes as 24 defined by 47 U.S.C. 2(b)(l)(A)(iii). 25 31.Plaintiff did not provide Defendants or its agent prior express consent to receive the text messages, including the unsolicited marketing text messages, to his cellular telephone, pursuant to 47 U.S.C. 2 (b)(l)(a). CLASS ACTION COMPLAINT PAGE5OF11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 7 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 32.The unsolicited text message by Defendants, or their agent, violated 47 u.s.c. 2(b)(l). CLASS ACTION ALLEGATIONS 33.Plaintiff brings this action on behalf of himself and on behalf of all others similarly situated (''the Class"). 34.Plaintiff represents, and is a member of the Class, consisting of: All persons within the United States who were sent a text message substantially similar or identical to the text message described in Paragraph of the Complaint by Defendants and/or their agent within the four years prior to the filing of the Complaint. 35.Defendants and their employees or agents are excluded from the Class. Plaintiff does not know the number of members in the Class, but believes the Class members number in the thousands, if not more. Thus, this matter should be certified as a Class action to assist in the expeditious litigation of this matter. 36.Plaintiff and members of the Class were harmed by the acts of Defendants in at least the following ways: Defendants, either directly or through its agents, illegally contacted Plaintiff and the Class members via their cellular telephones by using an unsolicited SP AM text message/s, thereby causing Plaintiff and the Class members to incur certain cellular telephone charges or reduce cellular telephone time for which Plaintiff and the Class members previously paid, and invading the privacy of said Plaintiff and the Class members. Plaintiff and the Class members were damaged thereby. 37.This suit seeks only damages and injunctive relief for recovery of economic injury on behalf of the Class, and it expressly is not intended to request any recovery for personal injury and claims related thereto. Plaintiff reserves the right to modify or expand the Class definition to seek recovery on behalf of CLASS ACTION COMPLAINT PAGE60F 11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 8 of 12 1 additional persons as warranted as facts are learned in further investigation 2 and discovery. 3 38.The joinder of the Class members is impractical and the disposition of their 4 claims in the Class action will provide substantial benefits both to the parties 5 and to the court. The Class can be identified through Defendant's records or 6 Defendants' agents' records. 7 39.There is a well-defined community of interest in the questions of law and 8 fact involved affecting the parties to be represented. The questions of law 9 and fact to the Class predominate over questions which may affect 1 O individual Class members, including, but not limited to, the following: 11 a) Whether, within the four years prior to the filing of this Complaint, 12 Defendants or its agents sent any unsolicited text message/s (other 13 than a message made for emergency purposes or made with the prior 14 express consent of the called party) to a Class member using any 15 automatic dialing to any telephone number assigned to a cellular 16 phone service; 17 b) Whether Defendants provided a clear disclosure that by filing out a 18 form on their website that Plaintiff and the putative class members 19 were consenting to receive automated marketing text messages from Defendants; 21 c) Whether Plaintiff and the Class members were damaged thereby, and 22 the extent of damages for such violation; 23 d) Whether Defendants and its agents should be enjoined from engaging 24 in such conduct in the future; and 25 e) Whether Plaintiff and the Class are entitled to any other relief. 40.As a person who received at least two unsolicited SP AM text messages without Plaintiffs prior express consent, Plaintiff is asserting claims that are typical of the Class. Plaintiff will fairly and adequately represent and protect CLASS ACTION COMPLAINT PAGE 70F 11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 9 of 12 1 the interests of the Class in that Plaintiff has no interests antagonistic to any 2 member of the Class. 3 41.Plaintiff and the members of the Class have all suffered irreparable harm as 4 a result of the Defendant's unlawful and wrongful conduct. Absent a class 5 action, the Class will continue to face the potential for irreparable harm. In 6 addition, these violations of law will be allowed to proceed without remedy 7 and Defendants will likely continue such illegal conduct. Because of the 8 size of the individual Class member's claims, few, if any, Class members 9 could afford to seek legal redress for the wrongs complained of herein. 1 O 42.Plaintiff has retained counsel experienced in handling class action claims 11 and claims involving violations of the Telephone Consumer Protection Act. 12 43.A class action is a superior method for the fair and efficient adjudication of 13 this controversy. Class-wide damages are essential to induce Defendant to 14 comply with federal and California law. The interest of Class members in 15 individually controlling the prosecution of separate claims against 16 Defendants is small because the maximum statutory damages in an 17 individual action for violation of privacy are minimal. Management of these 18 claims is likely to present significantly fewer difficulties than those 19 presented in many class claims. 44.Defendants have acted on grounds generally applicable to the Class, thereby 21 making appropriate final injunctive relief and corresponding declaratory 22 relief with respect to the Class as a whole. 23 FIRST CAUSE OF ACTION 24 NEGLIGENT VIOLATIONS OF THE TELEPHONE CONSUMER PROTECTION ACT 25 47 U.S.C. 2 ET SEQ. 45.Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein. CLASS ACTION COMPLAINT PAGE80F 11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 10 of 12 1 46. The foregoing acts and omissions of Defendants constitute numerous and 2 multiple negligent violations of the TCP A, including but not limited to each 3 and every one of the above-cited provisions of 47 U.S.C. 2 et seq. 4 47.As a result of Defendants' negligent violations of 47 U.S.C. 2 et seq., 5 Plaintiff and The Class are entitled to an award of $500.00 in statutory 6 damages, for each and every violation, pursuant to 47 U.S.C. 2(b)(3)(B). 7 48.Plaintiff and the Class are also entitled to and seek injunctive relief 8 prohibiting such conduct in the future. 9 SECOND CAUSE OF ACTION 10 KNOWING AND/OR WILLFUL VIOLATIONS OF THE 11 TELEPHONE CONSUMER PROTECTION ACT 12 47 U.S.C. 2 ET SEQ. 13 49.Plaintiff incorporates by reference all of the above paragraphs of this 14 Complaint as though fully stated herein. 15 SO.The foregoing acts and omissions of Defendants constitute numerous and 16 multiple knowing and/or willful violations of the TCP A, including but not 17 limited to each and every one of the above-cited provisions of 47 U.S.C. 18 2 et seq. 19 51.As a result of Defendants' knowing and/or willful violations of 47 U.S.C. 2 et seq., Plaintiff and The Class are entitled to an award of $1,500.00 in 21 statutory damages, for each and every violation, pursuant to 47 U.S.C. 22 2(b)(3)(B) and 47 U.S.C. 2(b)(3)(C). 23 52.Plaintiff and the Class are also entitled to and seek injunctive relief 24 prohibiting such conduct in the future. 25 Ill Ill Ill Ill CLASS ACTION COMPLAINT PAGE90F 11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 11 of 12 1 PRAYER FOR RELIEF 2 Wherefore, Plaintiff respectfully requests the Court grant Plaintiff and the Class 3 members the following relief against Defendants, and each of them: 4 FIRST CAUSE OF ACTION FOR NEGLIGENT VIOLATION OF 5 THE TCPA, 47 U.S.C. 2 ET SEQ. 6 As a result of Defendants' negligent violations of 47 U.S.C. 2(b)(l), 7 Plaintiff seeks for herself and each Class member $500.00 in statutory 8 damages, for each and every violation, pursuant to 47 U.S.C. 9 2(b )(3)(B). 10 Pursuant to 47 U.S.C. 2(b)(3)(A), injunctive relief prohibiting such 11 conduct in the future. 12 Any other relief the Court may deem just and proper. 13 SECOND CAUSE OF ACTION FOR KNOWING AND/OR WILLFUL VIOLATIONS OF 14 THE TCPA, 47 U.S.C. 2 ET SEQ. 15 As a result of Defendant's knowing and/or willful violations of 47 U.S.C. 16 2(b)(l), Plaintiff seeks for herself and each Class member $1,500.00 17 in statutory damages, for each and every violation, pursuant to 47 U.S.C. 18 2(b)(3)(B). 19 Pursuant to 47 U.S.C. 2(b)(3)(A), injunctive relief prohibiting such conduct in the future. 21 Any other relief the Court may deem just and proper. 22 Ill 23 Ill 24 Ill 25 Ill Ill Ill Ill CLASS ACTION COMPLAINT PAGE loof 11
Case 4:15-cv-00003-JLH Document 1 Filed 01/05/15 Page 12 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 TRIAL BY JURY Pursuant to the seventh amendment to the Constitution of the United States of America, Plaintiff is entitled to, and demands, a trial by jury. Dated: January 15 CLASS ACTION COMPLAINT Respectfully submitted, HUTCHIN~. my Hutchinson ATTORNEY FOR PLAINTIFF ABN: 06-145 1 E. NORTH STREET BENTON,ARKANSAS715 (501) 776-1022 JEREMY@JHUTCHLA WFIRM.COM PAGE 11 OFll