UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Submitted: October 24, 2023 Decided: May 10, 2024)

Docket No. 22-1726-cv

MARINA SOLIMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,

Plaintiff-Appellant,

v.

SUBWAY FRANCHISEE ADVERTISING FUND TRUST, LTD.,

Defendant-Appellee,

AND DOES, 1 THROUGH 20, INCLUSIVE, AND EACH OF THEM,

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

Before: CHIN AND PARK, Circuit Judges, and NARDACCI, District Judge. *

* Judge Anne M. Nardacci, of the United States District Court for the Northern District of New York, sitting by designation. Appeal from a judgment of the United States District Court for the District of Connecticut (Meyer, J.), granting defendant-appellee's motion to dismiss for failure to state a claim. Plaintiff-appellant received a marketing text message to her cell phone sent by an automated system using a pre-existing list of telephone numbers. She alleged that the text message violated the Telephone Consumer Protection Act, 47 U.S.C. § 227. The district court concluded that the statute did not apply and dismissed the first amended complaint.

AFFIRMED.

Judge Nardacci concurs in part and dissents in part in a separate opinion.

____________________________

Todd M. Friedman, Adrian R. Bacon, Law Offices of Todd M. Friedman, P.C., Woodland Hills, CA, - and - Brenden P. Leydon, Wocl & Leydon, L.L.C., Stamford, CT, for Plaintiff-Appellant Marina Soliman.

Ian C. Ballon, Lori Chang, Greenberg Traurig, LLP, Los Angeles, CA, and Brian T. Feeney, Greenberg Traurig, LLP, Philadelphia, PA, for Defendant-Appellee Subway Franchisee Advertising Fund Trust, Ltd.

____________________________

-2- CHIN, Circuit Judge:

Plaintiff-appellant Marina Soliman sued defendant-appellee Subway Franchisee Advertising Fund Trust, Ltd. ("Subway") for damages based on a text message she received on her cell phone offering her a free bag of potato chips. She contended that the text message, which was generated by an automatic dialing system using a pre-existing list of telephone numbers, violated the Telephone Consumer Protection Act of 1991 (the "TCPA"), 47 U.S.C. § 227. Because we conclude that the text message did not violate the TCPA, we affirm the order of the district court (Meyer, J.) granting Subway's motion to dismiss and its judgment dismissing the first amended complaint.

STATEMENT OF THE CASE I. Facts

As alleged in the first amended complaint (the "Complaint"), the facts are as follows:

Prior to December 1, 2016, Subway sent one or more automated marketing text messages to Soliman's cell phone. On December 1, 2016, Subway sent another automated marketing text message to Soliman's cel