Gragg v. Orange Cab Co.
145 F. Supp. 3d 1046
| W.D. Wash. | 2015Background
- On Feb. 25–26, 2012 plaintiff ordered an Orange Cab; the next day he received an unsolicited text: a dispatch notice plus a link promoting the Taxi Magic smartphone app.
- The message had two functions: a customer-service dispatch notification and a marketing invitation to download RideCharge’s app.
- Plaintiff sued, seeking a declaration the text was a “commercial electronic text message” under Washington’s CEMA, statutory damages ($500/violation), a private right of action, and revival of a dismissed Consumer Protection Act (CPA) claim; he alternatively sought certification to the WA Supreme Court.
- Defendants argued the text was non-commercial or partially non-commercial, that CEMA does not provide a private damages remedy (only limited injunctive relief), and raised a dormant Commerce Clause challenge to Washington’s application.
- The court found the promotional portion of the text (the Taxi Magic app link) violated RCW 19.190.060(1); the purely dispatch/customer-service portion did not.
- The court held CEMA itself provides injunctive relief but no general private damages remedy for non-phishing text violations; however, the court construed CEMA’s liquidated-damages provision together with the statute and legislative history to permit recovery under the CPA for the $500 (or actual) damages specified by CEMA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the text is a “commercial electronic text message” under CEMA | The combined dispatch+link message is commercial because it promotes future bookings via the Taxi Magic app | The dispatch part is purely customer-service and non-marketing; if plaintiff was outside WA when he received it, WA law cannot apply | The marketing/promotional portion (app link) is commercial and violates RCW 19.190.060(1); the dispatch notification alone is non-commercial and does not violate CEMA |
| Whether CEMA creates a private cause of action for damages | CEMA authorizes recipients to recover $500 or actual damages per violation | CEMA only authorizes limited injunctive relief; damages recovery requires a CPA claim | CEMA (as amended) provides injunctive relief; CEMA does not itself create a general private damages remedy except narrowly for phishing. Plaintiff cannot recover damages directly under CEMA |
| Whether plaintiff can recover statutory damages via the CPA | Plaintiff: even if CEMA lacks a direct damages remedy, CEMA’s liquidated-damages provision establishes the injury element of a CPA claim, permitting recovery under the CPA | Defendants: plaintiff lacks injury to business or property required for a CPA claim; CEMA’s damages provision does not substitute for CPA’s injury/causation elements | Court: plaintiff may pursue a CPA claim; the court construes RCW 19.190.040(1) as establishing the injury/causation elements for CPA purposes so plaintiff can recover CEMA’s $500(or actual) damages under the CPA |
| Whether defendants’ Dormant Commerce Clause challenge bars application of WA law | N/A (challenge to application) | Defendants: plaintiff didn’t prove he was in WA when he received the text; state law applied to extraterritorial conduct is unconstitutional; defense needn’t have been pled earlier | Court: Commerce Clause/constitutional challenge was an affirmative defense that defendants waived by not pleading it timely; alternatively, defendants failed to present evidence establishing the defense; Commerce Clause challenge rejected |
Key Cases Cited
- Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778 (Wash. 1986) (elements required for a private CPA claim)
- Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013) (party challenging state law bears burden to prove Commerce Clause issues)
- Branson v. O.F. Mossberg & Sons, Inc., 221 F.3d 1064 (8th Cir. 2000) (state statutes presumed constitutional; challenger bears burden)
- Kewanee Oil & Gas Co. v. Mosshamer, 58 F.2d 711 (10th Cir. 1932) (affirmative defenses must be pled)
- Volvo Trademark Holding Aktiebolaget v. AIS Constr. Equip. Corp., 416 F. Supp. 2d 404 (W.D.N.C. 2006) (procedural requirement to plead constitutional defenses)