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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

Paula L. Zecchini, AZ Bar No. 031880

Aaron M. McKown (admitted pro hac vice)

COZEN O’CONNOR

999 Third Avenue, Suite 1900

Seattle, WA 98104

Telephone: (206) 340-1000

Facsimile: (206) 621-8783

E-Mail: pzecchini@cozen.com

 amckown@cozen.com

Attorneys for Defendant

GODADDY.COM, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

JOHN HERRICK, individually and as the 

representative of a class of similarly 

situated persons,

Plaintiff,

v.

GODADDY.COM, LLC,

Defendant.

Case No.: 2:16-cv-00254-DJH

DEFENDANT GODADDY.COM, 

LLC’S RENEWED MOTION TO 

DISMISS

Complaint Filed: August 10, 2016

Trial Date: None Set.
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE that Defendant GoDaddy.com, LLC (“GoDaddy”) 

will and hereby does move this Court for an order pursuant to Rule 12(b)(1) of the 

Federal Rules of Civil Procedure dismissing the Amended Complaint of Plaintiff 

John Herrick, individually and as the purported representative of an alleged class of 

similarly situated persons, (collectively “Plaintiff”), with prejudice. 

This Motion is made on the ground that the Amended Complaint fails to allege 

facts sufficient to establish standing under Article III of the United States 

Constitution and therefore, this Court’s subject matter jurisdiction, as required by the 

Supreme Court’s decision in Spokeo, Inc. v Robins, 136 S. Ct. 1540 (2016), which 

held that an alleged statutory violation alone is not sufficient to establish the injuryin-fact requirement of Article III. This Motion is based upon this Notice, the 

Memorandum of Points and Authorities, all pleadings and documents concerning this 

matter contained in the Court’s file, any other matters of which this Court may take 

judicial notice, and such further evidence and oral argument as may be presented at 

the hearing of this Motion. 

Dated: January 24, 2017 COZEN O’CONNOR

By: /s/ Paula L. Zecchini

Paula L. Zecchini

Attorneys for Defendant

GODADDY.COM, LLC 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

TABLE OF CONTENTS

I. INTRODUCTION .......................................................................................................... 2

II. LEGAL STANDARD..................................................................................................... 5

III. ANALYSIS..................................................................................................................... 5

A. Plaintiff Has Not Met His Burden to Demonstrate Article III Standing Under Spokeo

because He Cannot Prove He Suffered an Injury in Fact .................................................. 6

B. Recent Case Law Supports the Dismissal of Plaintiff’s Amended Complaint........... 9

IV. CONCLUSION............................................................................................................. 14
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

TABLE OF AUTHORITIES

CASES

Arizona v. City of Tucson, 

761 F.3d 1005 (9th Cir. 2014)............................................................................................ 9

Arizonians for Official English v. Arizona

520 U.S. 43, 64 (1997)....................................................................................................... 5

Caldwell v. Caldwell, 

545 F.3d 1126, 1134 (9th Cir. 2008)................................................................................ 14

Chandler v. State Farm Mut. Auto. Ins. Co., 

598 F.3d 1115, 1122 (9th Cir. 2010).................................................................................. 5

Ewing v. SQM US, Inc.,

Case No.: 3:16-CV-1609-CAB-JLB, 2016 WL 5846894 (C.D. Cal. Sept. 29 2016)...... 10

Gladstone, Realtors v. Village of Bellwood, 

441 U.S. 91, 100 (1979)..................................................................................................... 6

Godbehere v. Phoenix Newspapers, Inc., 

162 Ariz. 335 (1989).......................................................................................................... 8

Juarez v. Citibank, 

Case No. 16-cv-01984-WHO, 2016 WL 4547914, *2-3 (E.D. Cal. August 23, 2016)... 13

Kosmayer Constr. LLC v. Port Pipe & Tube, Inc., 

No. 2:16-cv-01012, 2016 U.S. Dist. LEXIS 145947, at *7 (W.D. La. Oct. 19, 2016).... 10

Lewis v. Casey, 

518 U.S. 343, 357 (1996)................................................................................................... 5

Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560 (1992)........................................................................................... 5, 6, 7

Raines v. Byrd,

521 U.S. 811, 820 n. 3 (1997)............................................................................................ 6

Romero v. Department Stores National Bank, et al., 

No. 15-CV-193 (S.D. Cal. Aug. 5, 2016) .................................................................. 10, 12

Sartin v. EKF Diagnostics, Inc., 

No. 16-1816, 2016 WL 3598297 (E.D. La. July 5, 2016) ............................................... 10

Smith v. Aitima Med. Equip., Inc.,

2016 U.S. Dist. LEXIS 113671 (C.D. Cal. July 29, 2016) ................................. 10, 11, 14

Spokeo, Inc. v Robins,

136 S. Ct. 1540 (2016) ...................................................................................... 4, 5, 6, 7, 8
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

Summers v. Earth Island Institute, 

555 U.S. 488, 497 (2009)............................................................................................... 6, 7

Supply Pro Sorbents, LLC v. Ringcentral, Inc., 

No. C 16-02113 JSW, 2016 WL 5870111, at *3 (N.D. Cal. Oct. 7, 2016) ....................... 9

Susinno v. Work Out World, 

No., 3:15-cv-5881 (D.N.J. Aug. 1, 2016) ............................................................ 10, 11, 12

Valencia v. Duval Corp., 

132 Ariz. 348, 350 (1982).............................................................................................. 8, 9

Vazquez v. Triad Media Sols., Inc., 

No. 15-cv-07220 (WHW) (CLW), 2016 U.S. Dist. LEXIS 143937, at *7 n.1 (D.J.N. Oct. 

18, 2016)........................................................................................................................... 10

STATUTES

47 U.S.C § 227(b)(3)(A)-(C) ................................................................................................. 7

CONSTITUTIONAL PROVISIONS

U.S. Const. Art. III, § 2, cl. 1................................................................................................. 5
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

I. INTRODUCTION

This lawsuit arises from Plaintiff John Herrick’s (“Plaintiff”) receipt of a 

single text message as a result of his inclusion in the first and only text marketing 

campaign engaged in by Defendant GoDaddy.com, LLC (“GoDaddy”). Plaintiff 

and the other marketing campaign participants—a group representing less than 

.0066% of GoDaddy’s 13 million customers—received this text message because 

they affirmatively opted-in to receive such messages via their online account 

preferences. Despite this fact, Plaintiff filed this class action lawsuit under the 

Telephone Consumer Protection Act, codified at 47 U.S.C. section 227 (the 

“TCPA”), seeking over $5,000,000 in damages and attempting to certify a class of 

persons who received what Plaintiff speciously describes as “unlawful text 

messages” from GoDaddy. 

Although Plaintiff attempts to paint GoDaddy as a serial TCPA-violator run 

amok, the truth is much more benign, and the alleged harm to Plaintiff non-existent. 

Notably absent from the Amended Complaint are any allegations of concrete harm 

suffered by Plaintiff. As a result, Plaintiff fails to present this Court with facts 

sufficient to establish standing under Article III of the United States Constitution and 

therefore, this Court’s subject matter jurisdiction, as required by the Supreme 

Court’s decision in Spokeo, Inc. v Robins, 136 S. Ct. 1540 (2016). The holdings of 

Spokeo and its progeny support the dismissal of claims involving the receipt of only 

a single communication with no allegation of actual harm, as alleged here, due to the 

demonstrable absence of an “injury in fact” to support Article III standing. 

Absent factual allegations to support the existence of a concrete injury, 

Plaintiff cannot maintain this lawsuit on behalf of himself, let alone the proposed 

class. Because Plaintiff failed to allege facts demonstrating Article III standing, and 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

as such, this Court’s subject matter jurisdiction, GoDaddy respectfully requests the 

Court dismiss the Amended Complaint with prejudice.

II. LEGAL STANDARD 

To bring suit in federal court, a party must meet the standing requirements of 

Article III of the Constitution. Standing “limits the category of litigants empowered 

to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, 136 

S. Ct. at 1547. The “irreducible constitutional minimum” of standing consists of 

three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The 

plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the 

challenged conduct of the defendant, and (3) that is likely to be redressed by a 

favorable judicial decision.” Spokeo, 136 S. Ct. at 1547. 

Once a defendant has moved to dismiss for lack of subject matter jurisdiction 

under Rule 12(b)(1), “[t]he plaintiff, as the party invoking federal jurisdiction, bears 

the burden of establishing these elements.” Id.; see Chandler v. State Farm Mut. 

Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). The plaintiff carries that burden 

by putting forth “the manner and degree of evidence required” by whatever stage of 

the litigation the case has reached. Lujan, 504 U.S. at 561. 

III. ANALYSIS

Plaintiff maintains the burden to prove he has Article III standing. Lewis v. 

Casey, 518 U.S. 343, 357 (1996). “Article III, Section 2 of the United States 

Constitution restricts federal court jurisdiction to resolving cases and controversies. 

Standing to sue or defend is an aspect of the case or controversy requirement.” 

Arizonians for Official English v. Arizona 520 U.S. 43, 64 (1997); U.S. Const. Art. 

III, § 2, cl. 1. To meet the “case and controversy” requirement of Article III, a 

plaintiff must allege an “injury in fact—an invasion of a legally protected interest 

which is (a) concrete and particularized, and (b) actual or imminent, not conjectural 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

or hypothetical.” Lujan, 504 U.S. at 560. “Standing to sue is a doctrine rooted in the 

traditional understanding of a case or controversy. The doctrine developed in our 

case law to ensure that federal courts do not exceed their authority as it has been 

traditionally understood.” Spokeo, 136 C. Ct. at 1547. 

“Injury in fact is a constitutional requirement, and ‘it is settled that Congress 

cannot erase Article III’s standing requirement by statutorily granting the right to sue 

to plaintiffs who would not otherwise have standing.” Spokeo, 136 S. Ct. at 1548

(citing Raines v. Byrd, 521 U.S. 811, 820 n. 3 (1997)); Summers v. Earth Island 

Institute, 555 U.S. 488, 497 (2009); Gladstone, Realtors v. Village of Bellwood, 441 

U.S. 91, 100 (1979) (“In no event . . . may Congress abrogate the Article III 

minima.”). Plaintiff has failed to allege an injury in fact, and therefore lacks 

standing to maintain its solitary TCPA claim in this Court. 

A. Plaintiff Has Not Met His Burden to Demonstrate Article III Standing 

Under Spokeo because He Cannot Prove He Suffered an Injury in Fact

As set forth above, “[i]njury in fact is a constitutional requirement, and ‘it is 

settled that Congress cannot erase Article III’s standing requirements by statutorily 

granting the right to sue to a plaintiff who would not otherwise have standing.” 

Spokeo, 136 S.Ct. at 1548. To qualify as a party with standing to litigate, a person 

must show, first and foremost, “an invasion of a legally protected interest” that is 

“concrete and particularized” and “actual or imminent.” Lujan, supra, 504 U.S. at 

560. As the Spokeo court explained:

In the context of this particular case, these general principles tell us two 

things: On the one hand, Congress plainly sought to curb the 

dissemination of false information by adopting procedures designed to 

decrease that risk. On the other hand, Robins cannot satisfy the 

demands of Article III by alleging a bare procedural violation. A 

violation of one of the FCRA’s procedural requirements may result in 

no harm. For example, even if a consumer reporting agency fails to 

provide the required notice to a user of the agency’s consumer 

information, that information regardless may be entirely accurate. In 

addition, not all inaccuracies cause harm or present any material risk of 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

harm. An example that comes readily to mind is an incorrect zip code. 

It is difficult to imagine how the dissemination of an incorrect zip code, 

without more, could work any concrete harm.

Spokeo, 136 S.Ct. at 1550. 

As relevant in the instant action, the TCPA permits a private right of action to 

either: (1) enjoin the violation; (2) recover for actual monetary loss from such a 

violation, or to receive $500 in damages for each such violation, whichever is 

greater, or (3) both. See 47 U.S.C § 227(b)(3)(A)-(C). Traditionally, plaintiffs have 

interpreted this statute to confer a statutory right to sue when the statute is violated, 

even if the plaintiff never suffered an actual, concrete loss. The Supreme Court in 

Spokeo rejected that proposition in the context of Article III standing:

Congress’ role in identifying and elevating intangible harms does not 

mean that a plaintiff automatically satisfies the injury-in-fact 

requirement whenever a statute grants a person a statutory right and 

purports to authorize that person to sue to vindicate that right. Article 

III standing requires a concrete injury even in the context of a statutory 

violation. For that reason, Robins could not, for example, allege a bare 

procedural violation divorced from any concrete harm, and satisfy the 

injury-in-fact requirement of Article III.

Spokeo, 136 S.Ct. at 1549; see also Summers, supra, 555 U.S. at 496 (“[D]eprivation 

of a procedural right without some concrete interest that is affected by the 

deprivation...is insufficient to create Article III standing”); Lujan, supra, 504 U.S. at 

572. “[T]he injury-in-fact requirement requires a plaintiff to allege an injury that is 

both ‘concrete and particularized.’” Spokeo, 136 S.Ct. at 1545.

In Spokeo, the plaintiff alleged a violation of the Fair Credit Reporting Act by 

claiming that the defendant disseminated false information about him. While the 

conduct complained of amounted to a technical violation of the statute, the Court 

held that the violation did not, on its own, satisfy the injury requirement. Spokeo, 

136 S.Ct. at 1550. Here, as in Spokeo, Article III standing is precluded by the fact 

that Plaintiff’s claim asserts nothing more than a “bare procedural violation divorced 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

from any concrete harm.” Id. at 1549. Plaintiff alleges that GoDaddy technically 

violated the TCPA by sending him a single text message in the absence of consent. 

See Amended Complaint (Am. Compl.) at ¶ 28. Plaintiff does not, however, claim 

that he suffered an actual injury as a result of receiving the single text message at 

issue; indeed, not a single allegation in the original or Amended Complaint 

references any harm or damage caused to Plaintiff by GoDaddy. See generally, Am. 

Compl. Instead, Plaintiff baldly alleges that GoDaddy “harmed consumers by 

sending these text messages1. . . because many consumers pay to receive text 

messages.” Am. Compl. at ¶ 54. Notably, Plaintiff never alleges that he incurred 

any fee from his wireless carrier for receiving the text message at issue, again simply 

alleging that “the members of the [purported] class suffered actual damages by, inter 

alia, having to pay their respective wireless carriers for the text message where 

applicable.” Am. Compl. ¶ 59. Such conclusory allegations, however, do nothing to 

support the existence of a concrete injury-in-fact suffered by the purported class 

members let alone one suffered by Plaintiff. 

Plaintiff may additionally contend that the single message at issue resulted in 

a concrete injury because the text allegedly caused him to suffer harm in the form of 

invasion of privacy or intrusion upon his telephone lines. This argument flounders 

because invasion of privacy requires, among other things, (a) the public disclosure of 

private facts and (b) that the matter made public must be highly offensive and 

objectionable to a reasonable person. See Valencia v. Duval Corp., 132 Ariz. 348,

350 (1982), overruled on other grounds in Godbehere v. Phoenix Newspapers, Inc., 

162 Ariz. 335 (1989). GoDaddy is not alleged to have publicly disclosed any private 

facts about Plaintiff and, furthermore, nowhere in Plaintiff’s failed attempts to allege 

 

1 Although Plaintiff admits that he only received a single text message from 

GoDaddy, the Amended Complaint repeatedly frames the allegations related to GoDaddy’s 

alleged communication in the plural in a transparent attempt to portray a systemic issue as 

opposed to the reality that Plaintiff’s lawsuit is based on a single alleged incident. 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

a concrete harm has he asserted facts that could possibly support the notion that the 

receipt of a single text message is highly offensive to a reasonable person. 

Any attempt to analogize the receipt of a text message to a nuisance under the 

common law also comes to naught. An action for nuisance is restricted to invasions 

of interest in the use and enjoyment of land, but Plaintiff does not allege any 

invasion of his interest in land. Arizona v. City of Tucson, 761 F.3d 1005 (9th Cir. 

2014). Plaintiff’s attempted analogy to the tort of inclusion upon seclusion is 

similarly unavailing. See Valencia, 132 Ariz. at 350 (1982); Supply Pro Sorbents, 

LLC v. Ringcentral, Inc., No. C 16-02113 JSW, 2016 WL 5870111, at *3 (N.D. Cal. 

Oct. 7, 2016) (holding that the receipt of an unsolicited fax cover sheet with a single

printed line was not a privacy intrusion sufficient to rise to the level of injury that is 

required under the standing doctrine). Sending a text message to someone’s phone, 

without more, such as harassment, abuse, or fraud, simply does not constitute 

wrongful interference with the owner’s use of the phone. See id. Despite his bald 

recitation of common law causes of action, Plaintiff simply fails to allege any harm 

like those underlying the traditional tort claims under American and English law. 

Rather, Plaintiff alleges, at most, a bare procedural violation of 47 U.S.C § 

227(b)(1)(A)(iii), which is insufficient to confer standing under Article III. 

B. Recent Case Law Supports the Dismissal of Plaintiff’s Amended 

Complaint

Several courts have dismissed claims similar to the one asserted by Plaintiff 

where, as here, the only “harm” alleged as a result of receiving a single marketing 

call or text was “in the form of ‘multiple involuntary telephone and electrical 

charges, the aggravation, nuisance, and invasion of privacy that necessarily 

accompanies the receipt of unsolicited and harassing telephone calls, and violations 

of their statutory rights.’” See e.g., Smith v. Aitima Med. Equip. Inc., No. 16-0339, 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

2016 U.S. Dist. LEXIS 113671, at *11 (C.D. Cal. July 29, 2016) (dismissing 

complaint with near verbatim allegations of “harm” to those asserted by Plaintiff 

here); Kosmayer Constr. LLC v. Port Pipe & Tube, Inc., No. 2:16-cv-01012, 2016 

U.S. Dist. LEXIS 145947, at *7 (W.D. La. Oct. 19, 2016) (holding a bare procedural 

TCPA violation and general references to damages contemplated by Congress are 

insufficient to establish Article III standing); Vazquez v. Triad Media Sols., Inc., No. 

15-cv-07220 (WHW) (CLW), 2016 U.S. Dist. LEXIS 143937, at *7 n.1 (D.J.N. Oct. 

18, 2016) (noting that district courts in the Ninth Circuit have held a violation of the 

TCPA itself is not an injury for the purposes of standing); Ewing v. SQM US, Inc., 

Case No.: 3:16-CV-1609-CAB-JLB, 2016 WL 5846894 (C.D. Cal. Sept. 29 2016)

(holding plaintiff did not have standing for failing to allege the connection between 

the incurred charge and defendant’s alleged use of an automatic dialer); Romero v. 

Department Stores National Bank, et al., No. 15-CV-193 (S.D. Cal. Aug. 5, 2016)

(dismissing TCPA claim based on failure to allege an injury in fact traceable to the 

defendants’ violation of the TCPA as required for Article III standing); Susinno v. 

Work Out World, No., 3:15-cv-5881 (D.N.J. Aug. 1, 2016) (dismissing single call 

TCPA claim based on failure to allege actual or concrete damage as required for 

Article III standing); Smith v. Aitima Med. Equip., Inc., 2016 U.S. Dist. LEXIS 

113671 (C.D. Cal. July 29, 2016) (dismissing two-call TCPA claim based on failure 

to allege actual or concrete damage as required for Article III standing); Sartin v. 

EKF Diagnostics, Inc., No. 16-1816, 2016 WL 3598297 (E.D. La. July 5, 2016)

(dismissing single fax TCPA claim based on failure to allege actual or concrete 

damage as required for Article III standing).

These courts have reasoned that the receipt of a solitary call or text causes at 

most a de minimis injury that does not constitute a concrete injury as required by the 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

Supreme Court’s recent decision in Spokeo.

2

 A thorough review of these cases are 

instructive. For example, in Smith, the plaintiff alleged that she received one 

telemarketing call that the defendant had placed using an automatic telephone 

dialing system without her consent. See Smith, 2016 U.S. Dist. LEXIS 113671, at 

*3. Aside from a bare statutory violation, the plaintiff’s alleged harm consisted of 

aggravation, invasion of privacy, and “electrical charges” (which, the plaintiff 

explained at oral argument, was a reference to recharging her cellphone battery). 

See id. The defendant moved to dismiss and argued that the plaintiff lacked Article 

III standing because she had not alleged a concrete injury. In deciding the issue, the 

court focused on “whether Plaintiff’s alleged harm resulting from a single phone call

is sufficient to confer standing.” Id. at *11. After discussing Congress’ purpose in 

enacting the TCPA, which was focused on “the injury multiple phone calls can 

cause,” the court found that “[a]ny depletion of Plaintiff’s battery, or aggravation 

and nuisance, resulting from only one call, [wa]s a de minimis injury” and 

insufficient to confer Article III standing as a matter of law. Id. at *13 (emphasis 

added). Because it was undisputed that the plaintiff had only received one call, the 

plaintiff could not amend the complaint to cure the lack of standing.

Simiarly, in Susinno, the plaintiff’s counsel conceded at oral argument that his 

client had only received a single call but argued that that fact was not relevant to 

whether there was Article III standing. See Hearing on Motion to Dismiss at 21:8-

26:8, Susinno v. Work Out World, Inc., No. 15-5881 (D.N.J. Aug. 1, 2016). The 

court disagreed. It discussed the various purposes behind the TCPA, including 

 

2 Plaintiff attempts to rely upon the text messages received by other proposed class 

members in order to support his own claim of Article III standing. His effort is to no avail 

because an aggregate-harm approach conflicts with the general rule that a plaintiff must 

first have a valid cause of action in his own right before he can proceed to represent a class. 

See Stonecrafters, Inc. v. Foxfire Printing & Packaging, Inc., 633 F. Supp. 2d 610, 614 

(N.D. Ill. 2009). “Cumulative allegations of a putative class in a complaint cannot be used 

to prop up an otherwise trivial claim that is unable to stand on its own.” Id. 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

preventing callers from tying up phone lines and protecting consumers from the 

invasion of privacy that can be caused by repeated calls. See id. It then found that, 

in enacting the TCPA, Congress was concerned with preventing the proliferation of 

multiple calls as opposed to the receipt of a single telemarketing phone call. See id. 

Because the plaintiff had received only a single, one-minute call, the court found that 

the harm caused by any aggravation or loss of battery life was de minimis, and did 

not amount to the concrete harm needed to confer Article III standing. See id.

Finally, in Romero, the court dismissed the plaintiff’s TCPA claim due to a 

lack of Article III standing. The court began by finding that the plaintiff did not 

have standing to complain about calls that she had not answered or otherwise known 

about. See Romero, 2016 U.S. Dist. LEXIS 110889, at *14. As for the two calls 

that the plaintiff had allegedly answered, the court rejected her argument that she 

had “suffered the exact injuries that the TCPA was intended to correct.” Id. at *15. 

On the contrary, the court found that “[t]he harm identified by Congress was based 

on the quantity of calls consumers were receiving from telemarketers,” and that 

“Congress did not claim that the receipt of one solitary telephone call that was made 

using an ATDS, viewed in isolation and without regard to the identity of the caller or 

reason for the call, causes harm.” Id. at *16-17. The court deemed it circular “to 

hold that a plaintiff who receives a call on his cell phone that violates the TCPA has 

suffered a concrete injury simply because the call violated the TCPA. . . . Under 

Spokeo, if the defendant’s actions would not have caused a concrete, or de facto, 

injury in the absence of a statute, the existence of the statute does not automatically 

give a Plaintiff standing.” Id. at *19.

It is notable that recent decisions allowing TCPA claims to proceed beyond 

the pleadings stage differentiate between situations where a plaintiff alleges the 

receipt of a single call/text versus multiple calls or texts. See Juarez v. Citibank, 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

Case No. 16-cv-01984-WHO, 2016 WL 4547914, *2-3 (E.D. Cal. August 23, 2016). 

In allowing the matter to proceed beyond the pleadings stage, the court in Juarez

found persuasive the allegations that the bank at issue had supposedly made 

voluminous calls to the individual even after the individual supposedly requested 

that the bank stop calling him because he was not the debtor—a situation certainly 

not presented by this matter. Id. The court, however specifically warned that not just 

any alleged violation of the TCPA will necessarily give rise to Article III standing: 

“[t]his does not mean any violation of the TCPA will necessarily give rise to Article 

III standing–for example calls made to a neglected phone that go unnoticed or calls 

that are dropped before they connect may violate the TCPA but not cause any 

concrete injury.” Id. at *3 (N.D. Cal. Sept. 1, 2016). 

Plaintiff is hard-pressed to demonstrate the harmful and invasive nature of the 

single text message at issue given the fact that he did not opt-out of receiving text 

messages from GoDaddy upon the receipt of the December 15, 2014 text message. 

Plaintiff does not allege that he replied STOP to the text message at issue, nor that 

he accessed his customer account preferences and changed his text status from YES 

to NO. See generally, Am. Compl. Certainly, discovery adduced to date bars 

Plaintiff from amending to include such an allegation. It also sheds light on the 

veracity of Plaintiff’s allegation of harm: by his own admission, Plaintiff accessed 

his GoDaddy preferences on December 16, 2015, saw that his text message 

preference was set to YES, and rather than changing the preference to NO, remained

opted-in. GoDaddy manually opted Plaintiff out of text messages once the 

Complaint was filed. If the single text message at issue caused Plaintiff the alleged 

level of trauma, it is inexplicable that Plaintiff declined to change his opt-in status—

especially after having taken the time to access his online account and print a copy 

of the communication preference page showing him as opted-in. 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

Plaintiff’s belated attempt to construct concrete harm from allegations of 

“aggravation [caused to] some consumers” does nothing to save his claim in the 

absence of actual harm. See Am. Compl. at ¶ 54. Although some courts have found 

allegations of “aggravation or nuisance” resulting from “systemic rather than 

episodic” unauthorized conduct to be more than a de minimis injury—and thus 

sufficient to confer Article III standing—Plaintiff has failed to allege anything more 

than the receipt of single text message “that surely cannot be considered systematic.” 

Smith, 2016 U.S. Dist. LEXIS 113671, *13. Any “aggravation [or] nuisance, 

resulting from only one [text message], is a de minimis injury . . . ‘too de minimis to 

satisfy the standing doctrine’s aim of improving judicial decision-making by 

ensuring that there is a specific controversy before the court and there is an advocate 

with sufficient personal concern to effectively litigate the matter.’” Id. (citing 

Caldwell v. Caldwell, 545 F.3d 1126, 1134 (9th Cir. 2008)). “Nor can [Plaintiff] 

amend the Complaint to allege more than a de minimis injury given the fact that [he] 

received only one [text]. Id.

IV. CONCLUSION

Plaintiff failed to plead facts to meet Article III’s injury-in-fact requirement, 

as interpreted by the Supreme Court in Spokeo. Plaintiff does not plead actual injury 

or a risk of actual injury stemming from the single text message at issue. Plaintiff 

does not seek actual damages; he requests only statutory damages. Plaintiff does not 

allege that he incurred a charge for any text messages. Nor does he allege any real 

risk of harm stemming from GoDaddy’s purported violations. Rather, Plaintiff 

presents only a “bare procedural violation, divorced from any concrete harm.” As 

such, GoDaddy respectfully requests that the Court dismiss Plaintiff’s Amended 

Complaint with prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil 

Procedure. 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

Dated: January 24, 2017 COZEN O’CONNOR

By: /s/ Paula L. Zecchini

Paula L. Zecchini

Attorneys for Defendant

GODADDY.COM, LLC 
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DEFENDANT GODADDY.COM, LLC’S RENEWED MOTION TO DISMISS

CERTIFICATE OF SERVICE

The undersigned hereby certifies, under penalty of perjury under the laws of 

the State of Arizona that I electronically filed the foregoing document with the Clerk 

of the Court using the CM/ECF system which will send notification of such filing to 

the following:

Phillip A. Bock

Tod A. Lewis

James M. Smith

BOCK, HATCH, LEWIS & 

OPPENHEIM, LLC

134 N LaSalle Street, Suite 1000

Chicago, IL 60602

phil@classlawyers.com

tod@classlawyers.com

jim@classlawyers.com

Attorneys for Plaintiff John Herrick

Trinette G. Kent

KENT LAW OFFICES

10645 N Tatum Boulevard, 

Suite 200-192

Phoenix, AZ 85028

tkent@kentlawpc.com

SIGNED AND DATED this 24th day of January, 2017 at Seattle, Washington.

COZEN O’CONNOR

By: /s/ Paula L. Zecchini 

Paula L. Zecchini