A mother lacked standing to file a Telephone Consumer Protection Act (TCPA) suit on behalf of her minor son, a California federal court recently held, granting the defendants’ motion to dismiss.
In her complaint, Kristen Hall alleged that Smosh Dot Com, an online entertainment and merchandise company, along with its parent company sent at least five text messages soliciting Smosh merchandise to the phone number used by her minor son.
She asserted claims for violations of the TCPA as well as Texas state law.
The defendants moved to dismiss for lack of standing. They argued that because Hall did not plead that she was the actual user of the phone number to which the text messages were sent, nor the actual recipient of those messages, she could not bring suit.
Hall told the court that she did have standing because she is the subscriber/owner of the phone and registered the number on the National Do Not Call Registry. She claimed her son only used the phone “at times.”
But U.S. District Court Judge John A. Mendez was not convinced by Hall’s effort to downplay her son’s use of the number.
The complaint “clearly indicates [Hall’s] son was the phone user and the recipient of the messages,” he wrote. “[Hall’s] new contention—that actually she received the text messages—fails because a complaint cannot be amended through an opposition to a motion to dismiss. [Hall] did not plead she received any of defendants’ text messages. She pled only that she was ‘the subscriber and owner of the phone.’”
Nor did Hall provide any authority supporting the proposition that she had standing merely as the subscriber/owner of the phone, Mendez said. Hall also failed to address a Washington decision cited by the defendants where the court held it is “the actual user of the number that the TCPA is intended to protect.”
“For all of these reasons, the Court finds that [Hall] has not carried her burden to show she has standing,” Mendez wrote. “Defendants’ motion to dismiss is therefore granted.”
To read the order in Hall v. Smosh Dot Com, click here.
Why it matters: While the court refused to let the mother bring suit because she alleged in the complaint that her minor son was the user of the phone—and therefore the recipient of the text messages at issue—the case leaves unresolved a different issue: whether a minor can provide consent required by the TCPA to receive promotional calls or texts.