D'Agostino v. Circle K Stores Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Daniel D’Agostino,
Plaintiff,
v.
Circle K Stores Incorporated,
Defendant.
No. CV-26-01225-PHX-JAT
ORDER
On April 23, 2026, the Court issued an Order granting in part and denying in part
Defendant Circle K’s Motion to Dismiss. (Doc. 35). The Court dismissed two claims, but
found that Plaintiff had plausibly pled (1) an intrusion upon seclusion claim under Arizona
law, and (2) claims under the Telephone Consumer Protection Act (“TCPA”). Pending
before the Court is Defendant’s Motion for Reconsideration, wherein Defendant argues
that the Court erred by denying Defendant’s Motion to Dismiss Plaintiff’s intrusion-upon-
seclusion claim. (Doc. 41 at 1–2). Plaintiff filed a Response to the Motion for
Reconsideration and Defendant filed a Reply in support of the reconsideration motion.
(Docs. 43, 43). Because parties are not permitted to file responses or replies on a motion
for reconsideration “unless ordered by the Court,” LRCiv 7.2(g)(2), the Court declines to
consider either filing.
I. BACKGROUND
Plaintiff Daniel D’Agostino alleges that between September 1, 2023 and February
5, 2026, Defendant sent Plaintiff 350 unsolicited marketing text messages to encourage
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him to purchase goods and services from Circle K stores. (Doc. 1 at 6, ¶¶ 23–24). Plaintiff
alleges that in doing so, Defendant intentionally and repeatedly intruded upon his “solitude,
seclusion, and private affairs.” (Doc. 1 at 22, ¶ 110). Plaintiff claims that 146 of the 350
communications occurred “during hours of rest”—some between 4:11 a.m. and 5:30
a.m.—causing Plaintiff to suffer “severe physiological stress and systemic sleep
deprivation.” (Doc. 1 at 23, ¶ 112). Because Plaintiff alleged that (1) he received 349
unwanted text messages over (approximately) a 9-month period—averaging 1.2 text
messages per day, and (2) 146 of those messages occurred before 8:00 a.m., the Court
found that Plaintiff plausibly pled an intrusion upon seclusion claim. (Doc. 35 at 20).
Defendant moves for reconsideration of this finding.
II. LEGAL STANDARD
“A motion for reconsideration is appropriate where the district court (1) is presented
with newly discovered evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.” Brown v.
Brnovich, No. CV-22-00166-PHX-JAT (MHB), 2022 WL 1239207, at *1 (D. Ariz. Apr.
27, 2022) (quoting Sch. Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255,
1263 (9th Cir. 1993)) (internal quotations omitted). “Such motions should not be used for
the purpose of asking a court to rethink what the court had already thought through – rightly
or wrongly.” Id. (quoting Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D.
Ariz. 1995)) (internal quotations omitted). A party’s “mere disagreement” with a court’s
previous order is insufficient to support a motion for reconsideration. Id.
III. DISCUSSION
Defendant argues that the Court clearly erred by allowing Plaintiff’s intrusion upon
seclusion claim to survive dismissal. Defendant argues that by allowing the claim to
proceed, the Court “impermissibly extended its analysis beyond Arizona law” because
“there is no Arizona authority recognizing an intrusion upon seclusion claim based on the
conduct alleged [in this case].” (Doc. 41 at 3) (emphasis added). Defendant further
contends that the Court’s reliance on Commend d of the Restatement (Second) of Torts
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was misplaced because Comment d has not been adopted or incorporated by any Arizona
Court. (Doc. 41 at 3). In Defendant’s view, the Court effectively “create[ed] a new Arizona
common law claim where none previously existed.” (Doc. 41 at 5).
The Court did not “create” a new common law claim. Arizona courts recognize the
tort of intrusion upon seclusion. Hart v. Seven Resorts Inc., 947 P.2d 846, 853 (Ariz. Ct.
App. 1997). Defendant’s argument, in essence, is that Plaintiff’s intrusion upon seclusion
claim cannot survive because the exact same facts and conduct have not been addressed by
an Arizona court. This reasoning is counter to how the American legal system generally
words. Under this logic, a federal could never resolve a state-law claim unless the facts or
conduct alleged in the case had been previously brought before/ruled on by a state court.
In practice, however, cases necessarily contain different facts that may support the same
cause of action. The mere fact that an Arizona court has not addressed this exact set of facts
as they relate to an intrusion upon seclusion claim does not bar this Court from doing so.
And the Court committed no error in relying on Comment d of the Restatement of
Torts to conclude that incessant, unwanted text messages could support an intrusion upon
seclusion claim. The Arizona Supreme Court has held that “[i]n the absence of law to the
contrary, Arizona follows the Restatement.” Webster v. Culbertson, 761 P.2d 1063, 1066
(Ariz. 1988); see also Reed v. Real Detective Pub. Co., 162 P.2d 133, 137 (Ariz. 1945)
(“This court has adopted the rule that where not bound by its previous decisions or by
legislative enactment, it would follow the Restatement of the Law.”). Defendant fails to
argue or identify any Arizona law that conflicts with Comment d of the Restatement of
Torts. Accordingly, the Court assumes that Arizona courts would follow this portion of the
Restatement.
Defendant also complains about the Court’s citation to Drazen v. Pinto, 74 F.4th
1336, 1345 (11th Cir. 2023) and Howard v. Republican Nat’l Comm., 164 F.4th 1119 (9th
Cir. 2026). Defendant argues that because neither case explicitly held that receipt of
unwanted text messages could support a state-law intrusion upon seclusion claim, the Court
erred by referencing these cases in its analysis. (Doc. 41 at 4–5). The Court was and is
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aware that those cases contemplated alleged violations of the TCPA and did not explicitly
consider claims brought under the common law tort of intrusion upon seclusion. However,
the Court found Drazen and Howard instructive because they discuss the relationship
between those two claims. Drazen, 74 F.4th at 1345 (holding that the receipt of an
unwanted text message causes a concrete injury for standing purposes because “the harm
associated with an unwanted text message shares a close relationship with the harm
underlying the tort of intrusion upon seclusion”); Howard, 154 F.4th at 1124 (observing
that auto-dialed text messages “typically produce the particular type of intrusion on privacy
at which the [TCPA] is aimed, which is an intrusion upon ‘seclusion’”).
Because Defendant’s arguments are meritless, unfounded, and merely ask the Court
to rethink its prior decision, the Motion for Reconsideration will be denied. Brown, 2022
WL 1239207, at *1.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s Motion for Reconsideration (Doc. 41) is
denied.
Dated this 2nd day of June, 2026.
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