Judge Charlotte N. Sweeney, in the District of Colorado denied motions to dismiss filed by two defendants in a Telephone Consumer Protection Act (TCPA) class action. The case centers on allegations that the plaintiff received multiple unsolicited text messages while his number was listed on the national Do-Not-Call (DNC) registry.
- Sufficiency of TCPA Claims Based on Text Message Segmentation
Defendants argued that the plaintiff only received a single text message, despite phone records showing two messages, due to technical processes that split longer messages into multiple segments. The court rejected this argument, finding that the plaintiff’s phone records and billing entries sufficiently alleged receipt of more than one message within a twelve-month period, as required by the TCPA. The court emphasized that, at the motion to dismiss stage, factual disputes—such as how messages are counted—must be resolved in favor of the plaintiff.
Plaintiff not only pleads allegations regarding the text contained in each of the two messages, ECF No. 35 at 6 ¶¶ 30, 31, Plaintiff’s allegations are supported by an excerpt from his phone records, which reflect his receipt of two separate messages, id. at 7 ¶ 32. Other courts have relied on billing records in determining the number of contacts plaintiffs received when evaluating TCPA claims. See, e.g., Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152, 1156 (N.D. Ill. 2009) (acknowledging that “billing records…provide some information about each job billed” and that “client invoices indicate how many faxes were sent”). While the screenshot of Plaintiff’s phone appears to reflect one continuous message, see ECF No. 38-2, that does not necessarily refute or “utterly contradict[ ]” Plaintiff’s allegation that he received two separate messages, particularly given Plaintiff’s allegations regarding his billing records and the complexities of the background technological processes at work. See Flores v. City of Aurora, No. 1:20-cv-00618-RBJ, 2021 WL 4033117, at *7 (D. Colo. Sept. 3, 2021) (citation omitted). At this stage, where Plaintiff is entitled to have his properly alleged facts accepted as true and enjoy all reasonable inferences drawn from those facts, these allegations are sufficient for Plaintiff’s claim to survive. See Est. of Hebert by & through Bourgeois v. Marinelli, No. 1:22-cv-02582-CNS-STV, 2023 WL 4744927, at *12 (D. Colo. July 25, 2023) (denying a motion to dismiss even where it “[was] a close call” that plaintiff “alleged enough factual content” to set forth claim).
- Residential vs. Business Phone Numbers
One defendant contended that the plaintiff’s phone number was a business line and thus not protected by the TCPA. The court found the plaintiff’s allegations that the number was used for personal, residential, and household purposes, and was listed on the DNC registry, were sufficient to survive dismissal. The court noted that whether the number was actually used for business is a factual dispute to be addressed during discovery.
- Article III Standing and “Professional Plaintiff” Arguments
The defendants challenged the plaintiff’s standing, arguing that his history of filing telemarketing lawsuits undermined any claim of injury. The court disagreed, holding that the plaintiff’s allegations of receiving unsolicited messages, lack of consent, and personal registration on the DNC registry established a concrete injury sufficient for standing. The court also noted there was no evidence the plaintiff used his phone solely to generate TCPA claims.
- Direct Liability of Text Messaging Platforms
A key issue was whether the platform provider could be directly liable under the TCPA. The court found that the plaintiff sufficiently alleged that the platform not only enabled but directly initiated the text messages at issue, including sending messages from its own number and providing campaign support. This direct involvement was enough to survive a motion to dismiss.
- Motions to Strike Allegations
The court declined to strike allegations regarding the use of automated calling software, noting that such motions are disfavored and require a showing of prejudice, which was not demonstrated. The court reiterated that factual support for allegations is not required at the pleading stage.
JAY CONNOR, v. SERVICEQUICK INC., d/b/a Zing Bus. Mgmt. Software, & WOOSENDER, INC, No. 1:24-CV-02286-CNS-NRN, 2025 WL 2855393 (D. Colo. Oct. 8, 2025).
