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Moskowitz v. American Savings Bank, F.S.B.

United States District Court, D. Hawaii

January 6, 2020

CRAIG MOSKOWITZ, Plaintiff,
v.
AMERICAN SAVINGS BANK, F.S.B., Defendant.

          ORDER GRANTING DEFENDANT AMERICAN SAVINGS BANK, F.S.B.'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 112)

          HELEN GILLMOR UNITED STATES DISTRICT JUDGE.

         Between June 1, 2016 and July 3, 2016, Defendant American Savings Bank, F.S.B. (“American Savings Bank”) received 11 text messages from Plaintiff Craig Moskowitz's cellular phone. American Savings Bank sent short confirmation messages in response to each of the 11 text messages from Plaintiff's phone.

         Plaintiff has sued American Savings Bank for the receipt of the 11 text messages, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C § 277.[1]

         This suit is one of at least fifteen different class action-based lawsuits that Plaintiff has filed alleging violations of the Telephone Consumer Protection Act, and one of the “somewhere between ten and a hundred” lawsuits in which he has been a plaintiff.[2]

         Plaintiff seeks statutory damages for the 11 text messages American Savings Bank sent in direct response to the text messages that were sent from Plaintiff's phone.

         Defendant filed a Motion for Summary Judgment. Defendant asserts that it cannot be liable pursuant to the Telephone Consumer Protection Act because each text message it received from Plaintiff's phone constitutes express consent for it to send singular, confirmatory text messages in response. The Court agrees.

         Defendant American Savings Bank, F.S.B.'s Motion For Summary Judgment (ECF No. 112) is GRANTED.

         PROCEDURAL HISTORY

         On June 23, 2017, Plaintiff filed a Complaint. (ECF No. 1). On July 19, 2017, Defendant filed a MOTION TO STAY PENDING DECISION OF D.C. CIRCUIT. (ECF No. 14).

         On the same date, Defendant filed a MOTION FOR RULE 41(d) COSTS AND STAY OF PROCEEDINGS. (ECF No. 15).

         On July 21, 2017, Defendant filed a MOTION FOR CONTINUANCE OF RESPONSIVE PLEADING AND RULE 16 CONFERENCE. (ECF No. 18).

         On September 25, 2017, Plaintiff filed his Oppositions to Defendant's three motions. (ECF Nos. 26, 27, and 28).

         On October 2, 2017, Defendant filed its Replies. (ECF Nos. 30, 31).

         On October 25, 2017, the Magistrate Judge held a hearing. (ECF No. 35).

         On October 30, 2017, the Magistrate Judge issued a FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT AMERICAN SAVINGS BANK, F.S.B.'S MOTION FOR Rule 41(d) COSTS AND STAY PROCEEDINGS. (ECF No. 36).

         On the same date, the Magistrate Judge issued an ORDER GRANTING DEFENDANT'S MOTION TO STAY PENDING DECISION OF D.C. CIRCUIT. (ECF No. 37).

         On November 13, 2017, Plaintiff filed an Objection to the Magistrate Judge's Findings and Recommendation. (ECF No. 38).

         On November 27, 2017, Defendant filed its Response. (ECF No. 39).

         On December 26, 2017, the Court issued its ORDER OVERRULING PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION AND ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART DEFENDANT AMERICAN SAVINGS BANK, F.S.B.'S MOTION FOR RULE 41(d) COSTS AND STAY OF PROCEEDINGS. (ECF No. 40).

         On April 25, 2018, Plaintiff filed a MOTION TO LIFT THIS COURT'S OCTOBER 30, 2017 STAY PENDING THE D.C. CIRCUIT'S DECISION IN ACA INTERNATIONAL v. FEDERAL COMMUNICATIONS COMMISSION AND TO PERMIT INDIVIDUAL AND CLASS DISCOVERY TO MOVE FORWARD SIMULTANEOUSLY. (ECF No. 50).

         On May 14, 2018, the Magistrate Judge filed a JOINT STIPULATION TO LIFT THE COURT'S STAY. (ECF No. 54).

         On July 9, 2018, Defendant filed a Second Motion to Stay. (ECF No. 70).

         On September 4, 2018, the Magistrate Judge issued an ORDER GRANTING DEFENDANT'S MOTION TO STAY CASE. (ECF No. 82).

         On February 5, 2019, the Magistrate Judge lifted the stay. (ECF No. 93).

         On August 29, 2019, Defendant filed its MOTION FOR SUMMARY JUDGMENT and a CONCISE STATEMENT IN SUPPORT. (ECF Nos. 112, 113).

         On September 4, 2019, the Court issued a briefing schedule. (ECF No. 114).

         On September 17, 2019, Plaintiff filed a MOTION FOR EXTENSION OF TIME TO FILE RESPONSE. (ECF No. 117).

         On September 18, 2019, the Court issued a Minute Order granting Plaintiff's Request for an Extension of Time. (ECF No. 118).

         On September 25, 2019, the Court granted Defendant's request to continue the hearing. (ECF No. 119).

         On October 3, 2019, the Parties filed a JOINT MOTION TO STAY CASE PENDING COURT'S DECISION ON DEFENDANT'S PENDING MOTION FOR SUMMARY JUDGMENT AND FOR AN EXTENSION OF PRE-TRIAL AND TRIAL DEADLINES AND DATES IN THE AMENDED SCHEDULING ORDER. (ECF No. 120).

         On October 16, 2019, the Court held a hearing. The Court denied the Parties' joint request. (ECF No. 126).

         Also on October 16, 2019, Plaintiff filed its Opposition and Concise Statement in Opposition to Defendant's Motion for Summary Judgment. (ECF Nos. 123, 124, and 125).

         On November 13, 2019, Defendant filed its Reply and Concise Statement in Reply. (ECF Nos. 132, 133).

         On November 13, 2019, Defendant also filed a Second Motion for Summary Judgment. (ECF No. 128). Defendant's Second Motion for Summary Judgment is moot given the Court's ruling here, granting Defendant's first Motion for Summary Judgment.

         On December 18, 2019, the Court held a hearing on Defendant's August 29, 2019 Motion for Summary Judgment (ECF No. 112). (ECF No. 146).

         BACKGROUND

         The Parties Do Not Dispute The Following Facts:

         The facts of this case are largely undisputed. Defendant American Savings Bank, F.S.B. (“American Savings Bank”) is a financial institution located in Honolulu, Hawaii. (American Savings Bank Text Banking Website, https://www.asbhawaii.com/ personal/online-banking/text-banking (last visited December 18, 2019)).

         On January 12, 2012, American Savings Bank entered into an agreement to license the Monitise Mobile Banking Software in order to provide mobile banking services to its customers, including Short Message Service (“SMS”) text alerting and text banking. (Declaration of Lael Martin, (“Martin Decl.”), consultant for Fiserv, Inc., parent company of Monitise, the provider of Defendant's of mobile banking software, at ¶ 3, attached to Def.'s Concise Statement of Facts (“CSF”), ECF No. 113-1).

         The Short Code 27244 was assigned to American Savings Bank. (Martin Decl. at ¶ 4, ECF No. 113-1). A Short Code is an abbreviated phone number that can only be used to send and receive text messages. (Id.)

         American Savings Bank's Short Code mobile banking system required customers to enroll in a multi-step phone verification process in order to engage in text banking. (Id. at ¶ 6).

         American Savings Bank's Short Code also provided assistance when it received text messages from non-customers. If the Short Code received a text message from a mobile number that was not enrolled in American Savings Bank's System, the System was configured to send a responsive text message. (Id. at ¶ 8). The following Standard Non-Customer Response Message would be sent to the mobile number that initiated the message, as follows:

ASB Hawaii Mobile Reply STOP to cancel alerts. Call 800.272.2566 or go to www.ASBhawaii.com. Msg freq depends on account settings. Msg&data rates may apply.

(Martin Decl. at ¶ 8, ECF No. 113-1).

         American Savings Bank's System was also designed to send a standard confirmatory text message in response to any text message that began with the word, “STOP.” If such a message was sent, the System would send the following Standard Unsubscribe Response Message, as follows:

ASB Hawaii Mobile. You are not subscribed and will not receive alerts. To subscribe, call 800.272.2566 or go to www.ASBHawaii.com. Reply HELP for help.

(Standard Unsubscribe Response Message, Martin Decl. at ¶ 12, ECF No. 113-1).

         Plaintiff Craig Moskowitz is a resident of Connecticut. He is not an American Savings Bank customer and did not register his phone number to engage in text banking services with American Savings Bank. (Deposition of Craig Moskowitz, Mar. 20, 2019, at p. 85, attached as Ex. C to Def.'s CSF, ECF No. 113-6).

         Plaintiff's mobile telephone number during the relevant time period was (914) 426-3033. (Verizon Customer Agreement For Craig Moskowitz for (914) 426-3033, ...


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