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COMPLAINT FOR DAMAGES

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Matthew A. Rosenthal (SBN 279334)

matt@westgatelaw.com

Westgate Law

15760 Ventura Blvd, Suite 880

Los Angeles, CA 91436

Tel: (818) 200-1497

Fax: (818) 574-6022

Attorneys for Plaintiff,

HEATHER PROFFITT

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

HEATHER PROFFITT,

Plaintiff,

vs.

FRIEND TRUSTED, INC,

Defendant(s).

Case No.: 3:17-cv-281

COMPLAINT AND DEMAND FOR

JURY TRIAL FOR:

1. VIOLATIONS OF THE

TELEPHONE CONSUMER

PROTECTION ACT [47 U.S.C. §

227]

COMPLAINT FOR DAMAGES

INTRODUCTION

1. Heather Proffitt (Plaintiff) brings this action to secure redress from

Friend Trusted Inc. (Defendant) for violations of the Telephone Consumer

Protection Act [47 U.S.C. § 227].

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COMPLAINT FOR DAMAGES

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JURISDICTION AND VENUE

2. Jurisdiction in this Court is proper pursuant to 28 U.S.C. § 1331 as

Plaintiff’s claims arise under the laws of the United States.

3. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)

because the acts and transactions alleged in this Complaint occurred here, and

Defendant transacts business here.

PARTIES

4. Plaintiff is an individual, residing in Jefferson, Kentucky. Plaintiff

is a natural person from whom a debt collector seeks to collect a consumer debt

which is due and owing or alleged to be due and owing from such person.

5. Defendant, Friend Trusted, Inc. (“Defendant”), is a Delaware

corporation which utilizes various internet based platforms aimed at consumer

commerce with a principal place of business in Melo Park, California and is a

“person” as defined by 47 U.S.C. § 153 (10).

FACTUAL ALLEGATIONS

7. During 2016, Defendant sent scores of automated text messages to

Plaintiff’s cellular telephone number ending in 9405, which Plaintiff has possessed

exclusively for years.

8. Defendant sent its text messages to Plaintiff’s cellular telephone

from telephone numbers 814-281-5514 and 502-234-2877. In sum, Defendant

has sent around 100 such text messages to Plaintiff’s cellular telephone.

9. The purpose of Defendant’s texts was to solicit an individual into

accepting a potential job opportunity submitted by a user of the website

www.gosmith.com. Plaintiff asked Defendant how they obtained her telephone

number. Defendant advised Plaintiff that their system automatically finds

contractors closest to the homeowner, it could be her website or other online listings

her company may be listed on. When Plaintiff advised Defendant she is not

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COMPLAINT FOR DAMAGES

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interested, Defendant responded “Just checking why you’re not interested? There’s

no monthly fee, and you can give quote online for free. It is only a small fee for a

guaranteed appointment”. For example, scores of the automated text messages

Defendant sent to Plaintiff’s cellular telephone advised Plaintiff of a “jobs” in

Louisville, Bullitt, Shepherdsville and Kennesaw, and gave a website link to the

posting on Defendant’s website, www.gosmith.com, to review and ultimately

accept the “job” Specifically, the texts described above read as follows:

10. Plaintiff is not a registered user of Defendant’s site,

www.gosmith.com, nor has Plaintiff ever provided her cellular telephone number

to Defendant in any fashion to receive such automated text messages.

11. Defendant used an “automatic telephone dialing system”, as defined

by 47 U.S.C. § 227(a)(1) to send its text messages to Plaintiff seeking to solicit

business. The informal and impersonal nature of the text messages sent (i.e.,

Plaintiff was never referred to by name – thus not a customized message sent

manually to Plaintiff, but instead a mass automated text message) and the use of

hyperlinks in the text messages referring Plaintiff to Defendant’s site to review the

“jobs” in Louisville, Bullitt, Shepherdsville and Kennesaw is indicative of the use

of an automatic telephone dialing system..

12. Defendant’s text messages constituted calls that were not for

emergency purposes as defined by 47 U.S.C. § 227(b)(1)(A).

13. Defendant’s text messages were placed to a telephone number

assigned to a cellular telephone service for which Plaintiff incurs a charge for

incoming calls pursuant to 47 U.S.C. § 227(b)(1)..

14. Plaintiff has no business relationship with Defendant whatsoever and

never provided Defendant with her cellular telephone number for any purpose.

Accordingly, Defendant did not have Plaintiff’s “prior express consent” to receive

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COMPLAINT FOR DAMAGES

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text messages using an automatic telephone dialing system on her cellular

telephone pursuant to 47 U.S.C. § 227(b)(1)(A).

15. As a result of Defendant’s alleged violations of law by placing these

automated text messages to Plaintiff’s cellular telephone without prior express

consent, Defendant caused Plaintiff harm and/or injury such that Article III

standing is satisfied in at least the following, if not more, ways:

a. Invading Plaintiff’s privacy;

b. Electronically intruding upon Plaintiff’s seclusion;

c. Intrusion into Plaintiff’s use and enjoyment of their cellular

telephones;

d. Impermissibly occupying minutes, data, availability to answer

another text, and various other intangible rights that Plaintiff have as

to complete ownership and use of their cellular telephones;

e. Causing Plaintiff to expend needless time in receiving, answering,

and attempting to dispose of Defendant’s unwanted text messages and

attempting to stop Defendant’s unwanted text messages.

FIRST CAUSE OF ACTION

(Violations of the TCPA, 47 U.S.C. § 227)

26. Plaintiff repeats and incorporates by reference into this cause of

action the allegations set forth above at Paragraphs 1-25.

27. The foregoing acts and omissions of Defendant constitute numerous

and multiple negligent violations of the TCPA, including but not limited to each

and every one of the above cited provisions of 47 U.S.C. § 227 et seq.

28. As a result of Defendant’s negligent violations of 47 U.S.C. § 227 et

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COMPLAINT FOR DAMAGES

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seq., Plaintiff is entitled an award of $500.00 in statutory damages, for each and

every violation, pursuant to 47 U.S.C. § 227(b)(3)(B).

29. Plaintiff is also entitled to and seek injunctive relief prohibiting such

conduct in the future.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that judgment be entered

against Defendant for the following:

A. Actual damages.

B. Statutory damages;

C. Costs and reasonable attorney fees;

D. Awarding Plaintiff any pre-judgment and post-judgment interest as

may be allowed under the law;

E. For such other and further relief as the Court may deem just and

proper.

DEMAND FOR JURY TRIAL

Please take notice that Plaintiff demands a trial by jury in this action.

Date: January 19, 2017 RESPECTFULLY SUBMITTED,

By:/s/ Matthew A. Rosenthal

Matthew A. Rosenthal

Attorney for Plaintiff,

HEATHER PROFFITT

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