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Gibbs v. Solarcity Corp.

United States District Court, D. Massachusetts

March 8, 2017

CAROLE GIBBS and ARTHUR COLBY, Individually an on behalf of all others similarly situated, Plaintiffs,
v.
SOLARCITY CORPORATION, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS (DOCKET NO. 31)

          TIMOTHY S. HILLMAN DISTRICT JUDGE

         Plaintiffs Carole Gibbs and Arthur Colby bring this action against SolarCity Corporation individually and on behalf of all others similarly situated alleging that SolarCity made unsolicited telephone calls to their cellular phones and landlines in violation of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, et seq. Plaintiffs Gibbs and Colby allege that SolarCity engaged in a campaign of unrelenting, unsolicited telemarketing calls to plaintiffs using an automatic telephone dialing system (“ATDS”), and that, to the extent plaintiffs had at some point consented to solicitation, these calls persisted after any such consent had been repeatedly and expressly revoked. SolarCity moves to dismiss the present action on the grounds that both plaintiffs lack standing because they failed to plead a concrete injury, depriving this court of subject matter jurisdiction, and that plaintiff Colby also fails to state a claim upon which relief can be granted. For the reasons outlined below the motion to dismiss is denied as to all counts.

         Background

         Defendant SolarCity is the largest installer of solar energy systems in the United States. SolarCity uses an automated telephone dialing system to place telemarketing calls to potential customers. Automated telephone dialing systems can store, produce, and dial random or sequential numbers en masse, without the need for human intervention.

         Plaintiff Gibbs claims a SolarCity representative visited her home at some point in 2014 to provide an initial assessment and offer SolarCity products and services. Gibbs notified the salesman during that visit that she was not interested in doing business with the Defendant. Since that initial consultation, she has received numerous telemarketing calls from SolarCity. Gibbs alleges that she expressly asked the SolarCity representatives to stop calling her two years ago, but has continued to receive calls regularly. Gibbs initially registered her landline phone number on the National Do Not Call registry in July 2005.

         Plaintiff Colby registered his cellular phone number on the National Do Not Call registry in October 2008. He visited SolarCity's website around December 2015 and requested a quote for installation of solar panels at his home. A SolarCity representative visited his residence at some point after this request, and notified Colby that his house was ill-suited for solar panels. Despite being told that solar panels were not appropriate for his residence, after that initial consultation, Colby alleges SolarCity repeatedly called his landline and cellular telephones for six months. Colby states that he repeatedly requested SolarCity stop calling him, but after months of fruitless efforts, he stopped answering their calls. Colby states that he received “at least one call more than thirty [] days after he requested for the calls to stop.” Compl. ¶33. Colby also alleges that, upon answering calls from SolarCity, there would be a pause before a live person began speaking, and that this was “indicative of an ATDS or predictive dialer.” Compl. ¶34.

         Gibbs and Colby filed the present suit on behalf of themselves and all others similarly situated, seeking certification of the classes outlined below, actual and statutory damages, injunctive relief enjoining SolarCity and its agents from making unsolicited telephone calls, as well as costs and attorneys' fees. Gibbs and Colby propose the following classes:

1) Autodialed No Consent Class, defined as
All persons in the United States who from May 24, 2012 to the present (1) SolarCity caused to be called using an ATDS, (2) on the person's cellular telephone number, (3) for the purpose of selling SolarCity's products and services, and (4) for whom Defendant claims it obtained prior express consent in the same manner as Defendant claims it supposedly obtained prior express consent to call Plaintiff.
2) Autodialed Do Not Call Class, defined as
All persons in the United States who from May 24, 2012 to the present (1) SolarCity caused to be called using an ATDS, (2) on the person's cellular telephone, (3) for the purpose of selling SolarCity's products and services, (4) after the person informed SolarCity that s/he no longer wished to receive calls from SolarCity.
3) Do Not Call Registry Class, defined as
All persons in the United States who (1) SolarCity caused to be called more than one time on his/her telephone, (2) within any 12- month period, (3) where the telephone number had been listed on the National Do Not Call Registry for at least thirty days, (4) for the purpose of selling SolarCity's products and services, and (5) for whom Defendant claims it obtained prior express consent in ...

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