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, et al.,
Defendants.
No. CV-26-01225-PHX-JAT
ORDER
Plaintiff Daniel D’Agostino alleges that Defendant Circle K Stores Incorporated
(“Circle K”) and Defendant Mobivity Holdings Corporation (“Mobivity”) (collectively,
“Defendants”) violated the Telephone Consumer Protection Act (“TCPA”) by sending him
hundreds of text messages without his consent despite his phone number being registered
with the National Do Not Call Registry (“DNC Registry”) since 2004. (Doc. 1 at 6).
Pending before the Court is Circle K’s Motion to Dismiss.1 (Doc. 11). Plaintiff filed a
Response and Circle K filed a Reply. (Docs. 13, 15). Also pending before the Court is
Plaintiff’s Motion for Leave to File a Sur-Reply in opposition to Circle K’s Motion to
Dismiss. (Doc. 16). The Court now rules.2
1 Circle K requested oral argument on the motion. (Doc. 11 at 1). The request for oral
argument is denied because both parties submitted memoranda discussing the law and facts
in support of their positions and oral argument will not aid the Court’s decision-making
process. See e.g., Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); Lake at Las Vegas
Investors Group, Inc. v. Pacific. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991).
2 Several other motions are pending before the Court. (Docs. 20, 25, 29). Because
they are unrelated to Circle K’s Motion to Dismiss, those motions will be addressed in a
separate order.
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I. BACKGROUND
The following summary of facts is taken from the Complaint and attachments
thereto. In deciding a motion to dismiss for failure to state a claim, the Court must construe
the facts alleged in the Complaint in the light most favorable to the Plaintiff and accept all
well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435
(9th Cir. 2000).
On July 31, 2004, Plaintiff registered his phone number on the DNC Registry. (Doc.
1 at 6 ¶ 21). Between September 1, 2023 and February 5, 2026, Defendants sent Plaintiff
350 unsolicited marketing text messages to encourage him to purchase goods and services
from Circle K stores. (Doc. 1 at 6 ¶¶ 23–24). Plaintiff breaks these 350 messages into four
categories:
1. “Isolated Marketing Solicitation” (1 of the 350 messages)
• Defendants’ first text message to Plaintiff was sent on September 1, 2023
and stated: “Circle K: Finish registering for 7 Inner Circle to unlock your
member benefits: circlek.com/inner-circle. Txt HELP 4 Info. Msg&Data
rates may apply.” (Doc. 1 at 7 ¶ 26).
2. “Standard Marketing Solicitations” (343 of the 350 messages)
• Approximately 19 months after Defendants’ first message, Defendants
“initiated a relentless sequence” of messages beginning April 21, 2025
and ending February 5, 2026. These messages stated: “Welcome to Circle
K! Reply YES to subscribe and receive special offers, updates, and more.
Txt HELP4Info, STOP2End. Msg&Data rates may apply.” (Doc. 1 at 7 ¶
27).
3. “Immediate Profit Solicitations” (2 of the 350 messages)
• On June 10, 2025 and August 12, 2025, Plaintiff inadvertently answered
“YES” to Defendants’ prompt to “subscribe and receive special offers,
updates, and more.” In response to those two accidental “YES” responses,
Plaintiff received the following message: “Hi! You save 25c/gal on your
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first 5 fill-ups, & then ongoing discounts! Finish enrollment now for
instant savings! circlekmobile.page.link/OWh8 Txt STOP 2 End.” (Doc.
1 at 7 ¶ 28).
4. “Fraudulent Confirmations” (4 of the 350 messages)
• In response to Plaintiff’s repeated “STOP” responses, Defendants sent
four messages confirming that Plaintiff would no longer receive text
messages. Those four messages stated: “Circle K: You’ve been
unsubscribed from all texts on 25050 & will no longer receive text msgs.
Txt YES to resubscribe. Q’s? Txt HELP. Msg&Data rates may apply.”
(Doc. 1 at 7 ¶ 29).
Plaintiff made “exhaustive efforts” to stop Defendants’ repeated communications,
sending 299 separate opt-out requests by either responding “STOP” or “STOP2End” to
Defendants’ messages. (Doc. 1 at 2 ¶ 3; Doc. 1 at 8–9 ¶¶ 33–34). Despite these efforts,
Defendants continued to send hundreds of messages to Plaintiff. (Doc. 1 at 9). The
messages continued even after Defendants averred to Plaintiff that he had been
unsubscribed from the communications and would not receive additional messages. (Doc.
1 at 9 ¶ 35).
After receiving the unwanted messages for over two years, Plaintiff mailed a
demand letter to Circle K’s legal department, (Doc. 1-2 at 50–52), which Circle K received
on February 4, 2026, (Doc. 1 at 9 ¶ 37). Following receipt of the demand letter, the text
messages “ceased completely after a final message on February 5, 2026.” (Doc. 1 at 9, ¶
38).
Plaintiff filed suit on February 23, 2026, alleging the following claims:
• Count I: Willful Violation of the TCPA (47 U.S.C. § 227(b))
• Count II: Willful and Knowing Violations of the National Do Not Call Registry (47
U.S.C. § 227(c); 47 C.F.R. § 64.1200(c)(2))
• Count III: Willful and Knowing Violations of Federal “Quiet Hours” (47 U.S.C. §
227(c); 47 C.F.R. § 64.1200(c)(1))
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• Count IV: Willful Violation of Internal Do-Not-Call Procedures (47 U.S.C. §
227(c); 47 C.F.R. § 64.1200(d))
• Count V: Willful Violation of the Arizona Consumer Fraud Act (A.R.S. §§ 44-1251
et seq.)
• Count VI: Common Law Intrusion Upon Seclusion
• Count VII: Breach of Implied-in-Fact Contract and Promissory Estoppel
(Doc. 1 at 14–27).
Plaintiff seeks (1) statutory treble damages in the amount of $1,779,000, (2)
compensatory damages, (3) punitive damages, (4) a permanent injunction to bar
Defendants from transmitting further communications to Plaintiff’s phone, (5) costs and
interest, and (6) such other and further relief that the Court deems just and proper. (Doc. 1
at 28–29).
II. DISCUSSION
Circle K moved to dismiss Plaintiff’s Complaint for failure to state a claim pursuant
to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Doc. 11). Plaintiff moved for
permission to file a sur-reply to the Motion to Dismiss. (Docs. 16). The Court begins with
the Motion to Dismiss.
A. Circle K’s Motion to Dismiss
i. Legal Standard
“To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must
meet the requirements of Rule 8(a)(2).” Rule 8(a)(2) requires a pleading to contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). Although Rule 8 does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
The Ninth Circuit Court of Appeals has instructed that courts must “construe pro se
filings liberally” and give such plaintiffs the “benefit of any doubt.” Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010) (internal quotations and citation omitted). A complaint filed
by a pro se litigant “must be held to less stringent standards than formal pleadings drafted
by lawyers.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)).
Courts ordinarily may not consider evidence outside the pleadings in ruling on a
Rule 12(b)(6) motion to dismiss. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir.
2003); Laborers Dist. Council Constr. Indus. Pension Fund v. Sea Ltd., 743 F. Supp. 3d
1083, 1095 (D. Ariz. 2024). Consideration of such extrinsic evidence typically converts a
Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Gunn v. Drage, 65
F.4th 1109, 1120 (9th Cir. 2023); see also Fed. R. Civ. P. 12(d) (“If, on a motion under
Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56.”). However,
a court may consider “(1) evidence that the court has judicially noticed, and (2) evidence
incorporated, either literally or by reference, into the plaintiff’s complaint” without
converting the motion to dismiss into a summary judgment motion. Ctr. for Biological
Diversity v. U.S. Forest Serv., 746 F. Supp. 3d 749, 755 (D. Ariz. 2024).
ii. Circle K’s Reference to Evidence Outside the Pleadings
In support of its Motion to Dismiss under Rule 12(b)(6), Circle K attached 72 pages
of exhibits for the Court’s consideration. (Doc. 11-1). Circle K attached (1) screenshots of
its website “as preserved on the Wayback Machine from August 2023” (“Exhibit A”), (2)
a log of Plaintiff’s alleged purchases/transaction history from Circle K stores, (“Exhibit 1”)
and (3) a declaration of Carly Lee, “the head of loyalty for North America for Defendant
Circle K Stores Inc.” (“Exhibit B”). (Doc. 15 at 6; Doc. 11-1).
Given the general rule against considering evidence outside the pleadings on a
12(b)(6) motion, this Court must first determine what evidence, if any, it may consider in
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resolving Circle K’s motion. To aid in this inquiry, the Court ordered Circle K to, in its
Reply, address Rule 12(d) and explain how the Court can consider 72 pages of exhibits in
resolving the Motion to Dismiss. (Doc. 12); Fed. R. Civ. P. 12(d).
In reply, Circle K noted that the “the Court need not consider [its] exhibits to address
the primary legal issues presented in the Motion – namely, that the alleged texts at issue
are outside the purview of the TCPA as a matter of law.” (Doc. 15 at 2 n.1). Despite stating
that the exhibits were not necessary to grant the Motion to Dismiss, Circle K went on to
argue that “the exhibits are properly included for consideration as judicially noticeable
(Exhibit A), and as context for the undisputed facts surrounding Defendant’s SMS-
enrollment process (Exhibit [1]).” The Court will address Circle K’s arguments as to
Exhibit A and Exhibit 1.3
a. Exhibit A
Circle K argues that Exhibit A—i.e., Circle K’s website from August 2023—
“makes clear” that Circle K messages its customers “only after those customers enter their
phone number during a purchase or transaction and consent to receive messages.” (Doc.
15 at 6). Because Plaintiff allegedly consented to the text messages, Circle K contends that
it cannot be held liable for violating the TCPA. (Doc. 11 at 6). Circle K argues that the
Court can take judicial notice of Exhibit A. (Doc. 15 at 6).
Federal Rule of Evidence 201 permits a court to notice an adjudicative fact if it is
“not subject to reasonable dispute.” A fact is not subject to reasonable dispute if it: “(1) is
generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.
R. Evid. 201(b)(1)–(2).
Circle K cites to caselaw holding that courts may take judicial notice of websites
3 Circle K’s Reply does not acknowledge Exhibit B—the sworn declaration of Carly
Lee, “the head of loyalty for North America for Defendant Circle K Stores Inc.” attached
to the Motion to Dismiss—or offer any explanation as to how the Court could properly
consider this extrinsic evidence. The Court interprets Circle K’s lack of argument regarding
this exhibit (despite the Court’s explicit Order at Doc. 12) as Circle K’s admission that the
evidence is not properly before the Court and cannot be considered in resolving the
12(b)(6) motion.
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when the authenticity of the website or the accuracy of the information on the website is
undisputed. (Doc. 11 at 6, n.1 (citing Poll v. Stryker Sustainability Sols., Inc., No. CIV 13-
440-TUC-CKJ, 2014 WL 199150, at *2 (D. Ariz. Jan. 17, 2014)); (Doc. 15 at 6 (citing UL
LLC v. Space Chariot Inc., 250 F. Supp. 3d 596, 604 n.2 (C.D. Cal. 2017)). Plaintiff’s
lodged sur-reply argues that the Court should not take judicial notice of Circle K’s website.4
(Doc. 17). Plaintiff argues that Circle K does not merely seek notice of the information
contained on its website, but seeks to establish the inference that customers only receive
Circle K text messages if they have consented to receive such messages. (Doc. 17 at 3).
Plaintiff disputes this inference, (Doc. 17 at 3), and the Complaint alleges that Plaintiff
continued to receive hundreds of text messages despite his attempts to opt out by issuing
various “STOP” or “STOP2End” commands.
Circle K asks this Court to take judicial notice of its website as it existed in 20235
and conclude that any person receiving a text message from Circle K consented to those
communications. In essence, Circle K asks the Court to make a dispositive finding
regarding the affirmative defense of consent for Plaintiff’s TCPA claims. See Abboud v.
Circle K Stores Inc., CV-23-01683-PHX-DWL, 2025 WL 307039, at *10 (D. Ariz. Jan.
4 The Court must first rule on Plaintiff’s Motion for Leave to File a Sur-Reply, (Doc.
16), and determine whether the Court will consider the arguments presented in the lodged
sur-reply (Doc. 17). Although sur-replies are generally disfavored, a district court may, in
its discretion, permit a party to file a sur-reply, considering whether (a) “the movant’s reply
in fact raises arguments or issues for the first time,” (b) “the nonmovant's proposed sur-
reply would be helpful to the resolution of the pending motion,” and (c) “the movant would
be unduly prejudiced were leave to be granted.” Smarthealth Inc. v. Chemotechnique MB
Diagnostics AB, CV-25-00115-PHX-JJT, 2025 WL 3527499, at *1 (D. Ariz. Dec. 9, 2025)
(internal quotations and citation omitted).
Circle K’s Reply indicates that its exhibits should be considered by the Court
because they are undisputed. (Doc. 15 at 6–7). Because Circle K makes this argument for
the first time its Reply—and in doing so, makes sweeping conclusions about Plaintiff’s
position on Circle K’s exhibits—the Court will consider Plaintiff’s sur-reply to the extent
he rebuts Circle K’s arguments about the extrinsic-evidence exhibits. Plaintiff’s sur-reply
also claims that Circle K’s Reply introduces new legal arguments that were “wholly absent
from the [Motion to Dismiss]” and seeks to rebut these allegedly “new” legal theories. The
Court will consider whether to address Plaintiff’s arguments on Circle K’s “new”
theories—which go to the merits of Plaintiff’s TCPA claims—infra in Section II.A.iii.b,
page 13.
5 The Court notes that the majority of the conduct Plaintiff complains of occurred
between April 2025 and February 2026. (Doc. 1 at 7). It is unclear whether Circle K’s
website has remained unchanged over the years or if there have been material revisions to
the site, rendering its relevance questionable.
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27, 2025) (noting that a defendant cannot be liable under the TCPA for a message sent to
a person with their invitation or permission, and stating that the presence of such consent
“is an affirmative defense for which the defendant bears the burden of proof”) (internal
quotations and citation omitted). This request is not properly before the Court on a motion
to dismiss. At the Rule 12(b)(6) stage, the only question is whether Plaintiff’s Complaint
states a plausible claim.
Because Exhibit A—and the inference Circle K seeks to draw from it—is disputed,
the Court declines to take judicial notice and will not consider the exhibit in addressing the
Motion to Dismiss. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1000 (9th Cir.
2018) (“It is improper to judicially notice a [document] when the substance of the
[document] is subject to varying interpretations, and there is a reasonable dispute as to what
the [document] establishes.”) (internal quotations and citation omitted).
b. Exhibit 1
Circle K argues that every text message that Plaintiff received was sent “only after
[Plaintiff] entered his number during a purchase to consent to receive Circle K messages.”
(Doc. 11 at 7). In support, Circle K attached Exhibit 1, the “D’Agostino Transaction
Report.” (Doc. 11 at 7; Doc. 11-1 at 24–68). Circle K claims that this report documents
every time Plaintiff made a purchase at a Circle K store and entered his phone number in
the system, thus prompting the messages he received that form the basis of his TCPA
claims. Circle K argues that the Court can consider Exhibit 1 because “Plaintiff does not
dispute the accuracy of Defendant’s records matching the text messages to [Plaintiff’s]
purchases at Circle K.” (Doc. 15 at 7). Circle K contends the exhibit “makes clear that
Plaintiff has manufactured this case and renders any claim that the messages he allegedly
received were unsolicited entirely implausible.” (Doc. 15 at 7). Plaintiff complains that the
transaction log contains no identifying information and does not establish that he consented
to the text-message communications. (Doc. 17 at 4–5).
Circle K’s arguments go directly to its consent theory. As noted, a court can only
consider extrinsic evidence at the pleadings stage if it takes judicial notice of the evidence
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or if the evidence is incorporated into the Plaintiff’s Complaint. Ctr. for Biological
Diversity, 746 F. Supp. 3d at 755. Circle K fails to argue that either exception applies to
Exhibit 1. And, as described above, the Court cannot, at this stage of the case, make
determinative findings on an affirmative defense to Plaintiff’s TCPA claims. Accordingly,
the Court declines to consider Exhibit 1 in resolving the Motion to Dismiss.
iii. Analysis re: Circle K’s Motion to Dismiss (Counts I–IV)
Plaintiff’s Complaint outlines seven claims, supra page 3–4, and Counts I–IV allege
violations of the TCPA. The Court will address Counts I–IV together and consider the
remaining state-law claims—Counts V–VII—separately.
a. Counts I–IV: Violations of the TCPA
Count I alleges that Circle K used an “automatic telephone dialing system”
(“ATDS”) to send Plaintiff text messages in violation of 47 U.S.C. § 227(b). (Doc. 1 at
14).
Counts II–IV allege claims to relief under 47 U.S.C. § 227(c). (Doc. 1 at 15–18).
The TCPA’s implementing regulations prohibit a person or entity from initiating any
telephone solicitation to (1) “[a]ny residential telephone subscriber before the hour of 8
a.m.” or (2) “[a] residential telephone subscriber who has registered his or her telephone
number on the national do-not-call registry of persons who do not wish to receive telephone
solicitations that is maintained by the Federal Government,” 47 C.F.R. § 64.1200(c)(1)–
(2); see also Abboud v. Circle K Stores Inc., 731 F. Supp. 3d 1094, 1102 (D. Ariz. 2024).
“Telephone solicitation” is defined as
the initiation of a telephone call or message for the purpose of encouraging
the purchase or rental of, or investment in, property, goods, or services,
which is transmitted to any person, but such term does not include a call or
message (A) to any person with that person’s prior express invitation or
permission, (B) to any person with whom the caller has an established
business relationship, or (C) by a tax exempt nonprofit organization.
47 U.S.C. § 227(a)(4). The TCPA grants a private right of action to any consumer who
receives more than one call in violation of those regulations within a 12-month period. 47
U.S.C. § 227(c)(5).
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Circle K argues that Plaintiff’s TCPA claims should be dismissed because (1) the
TCPA does not apply to text messages, (2) the text messages at issue were not solicitations,
and (3) Plaintiff consented to receiving the text messages. The Court addresses each
argument in turn.
1. Text Messages as “Calls” Under the TCPA
Circle K argues that Counts I–IV should be dismissed because he failed to allege
that he received a “telephone call,” and the TCPA does not apply to text messages. (Doc.
11 at 4). See 47 U.S.C. §§ 227(b)(1), (c)(5). To support this argument, Circle K cites
Stockdale v. Skymount Property Group, LLC, 1:25 CV 1282, 2026 WL 591842 (N.D. Ohio
Mar. 3, 2026). In Stockdale, the plaintiff received text messages soliciting her to sell her
home “despite her number’s continued presence on the DNC Registry” and she filed suit
alleging violations of the TCPA. Id. at *1. The Stockdale court dismissed the claim because
it found that a “telephone call” under the TCPA could not include modern-day text
messages. Id. at *3–4.
In citing to Stockdale and urging this Court to accept its reasoning, Circle K failed
to cite binding caselaw from this Circuit arriving at the opposite conclusion. Howard v.
Republican Nat’l Comm., 164 F.4th 1119 (9th Cir. 2026). In Howard, the Ninth Circuit
Court of Appeals concluded that a “a ‘text message’ constitutes a ‘call’ within the meaning
of the TCPA.”6 Id. at 1123–24. Circle K acknowledges Howard for the first time in its
Reply, arguing that Plaintiff’s reliance on the case “is misplaced,” and that Counts I and
IV should be dismissed for other reasons “even assuming text messages could potentially
qualify as ‘calls’ under the TCPA.” (Doc. 15 at 3) (emphasis added). There is no question
6 The Court of Appeals noted it had previously held, under Chevron v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), that “it was ‘reasonable’ to defer to
the [Federal Communications Commission’s (“FCC”)] conclusion that the term ‘call’ in
[47 U.S.C.] § 227 includes a “text message.” Id. (citing Satterfield v. Simon & Schuster,
Inc., 569 F.3d 946, 954 (9th Cir. 2009)). The U.S. Supreme Court overruled Chevron in
2024. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024). In Howard, the Court
of Appeals acknowledged its Satterfield holding “was framed . . . in terms of the then-
applicable deference required to be given to the FCC’s construction,” but found its prior
holding—that a text message is a call under the TCPA—“would be the same even in the
absence of Chevron deference.” Howard, 164 F.4th at 1123.
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as to whether text messages are calls under the TCPA in this Circuit. Although Circle K’s
counsel seems determined to ignore it, settled law from the Ninth Circuit Court of Appeals
establishes that a TCPA violation may arise from unsolicited text messages.
2. Telephone Solicitations
Circle K argues Counts I–IV should be dismissed because the messages Plaintiff
received are not “telephone solicitations” under the TCPA since the messages “do not
encourage the purchase or rental of, or investment in, property, goods, or services.” (Doc.
11 at 3, 8); see 47 U.S.C. § 227(a)(4). Circle K contends the messages were a “continuation
of enrollment messages” that are sent after a customer provides his phone number during
a transaction at Circle K, and that these “double opt-in messages” are meant to provide “an
additional second layer verification to confirm the intent of customers” who had already
consented to receive special offers and updates. (Doc. 11 at 3).
“The purpose of a text or call determines whether it qualifies as a telephone
solicitation, and courts use ‘a measure of common sense’ to determine its purpose.”
Abboud, 731 F. Supp. 3d at 1102. Text messages may constitute a telephone solicitation
even if the message serves a dual purpose by including “both advertising/telemarketing
and merely informational or transactional communications.” Id. (quoting Vallianos v.
Schultz, 2019 WL 4980649, *3 (W.D. Wash. 2019) (cleaned up)). Accordingly, a party
engaged in telephone solicitation need not directly offer property or services for sale—
merely encouraging the future purchase of property or services is sufficient. Id.; see Orea
v. Nielsen Audio, Inc., 2015 WL 1885936, at *3 (N.D. Cal. 2015) (“A call that encourages
future purchasing activity may be a telephone solicitation, even if the sales pitch is not
explicitly contained in the call itself.”).
The question, then, is whether it is plausible that the messages Plaintiff received
constituted telephone solicitations. The Complaint alleges that Plaintiff received hundreds
of messages that had the “objective and intent . . . to encourage the purchase of goods and
services at Circle K locations.” (Doc. 1 at 6 ¶ 24). Plaintiff provided screenshots of the text
messages, which directed him to “Reply YES to subscribe and receive special offers,
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updates, and more.” (Doc. 1-1). The Court concludes that “[t]hese facts make it plausible
that the purpose of the text messages was to encourage Plaintiff to sign up to receive offers
for future shopping at Circle K.” Abboud, 731 F. Supp. 3d at 1103–05 (three text messages
advising plaintiff to reply “YES” to sign up and receive special offers from Defendant
Circle K made it plausible the messages were telephone solicitations under the TCPA).
Indeed, as the Abboud court noted, “it is difficult to imagine why [Circle K] would
repeatedly encourage [Plaintiff] to sign up for offers other than to encourage [him] to make
future purchases of goods at [Circle K’s] stores based on those offers.” Id. at 1103.
Accepting the Complaint’s factual allegations as true, it is plausible that the
hundreds of messages Plaintiff received were telephone solicitations within the meaning
of the TCPA.
3. Messages Sent with Consent or Sent Pursuant to an
Established Business Relationship
The TCPA only prohibits unsolicited communications—a telephone solicitation
falls outside the purview of the TCPA if the call is transmitted to (1) “to any person with
that person’s prior express invitation or permission,” or (2) “to any person with whom the
caller has an established business relationship.” 47 U.S.C. § 227(a)(4). Circle K argues that
its communications with Plaintiff do not subject it to liability under the TCPA because
Plaintiff consented to the messages and the messages were sent pursuant to the parties’
established business relationship. (Doc. 11 at 6–8).
The Complaint alleges that Plaintiff received his first text message from Circle K
on September 1, 2023. (Doc. 1 at 7 ¶ 26). Circle K alleges that “it has records for every
transaction by Plaintiff” and that those records confirm Plaintiff visited a Circle K store on
September 1, 2023 to purchase cigarettes and snacks.7 (Doc. 11 at 7). Circle K alleges that
Plaintiff entered his phone number when making those purchases, which resulted in the
first text message and established the parties’ “business relationship.” (Doc. 11 at 7). Circle
K insists that “the subsequent messages that Plaintiff alleges he received” were also sent
7 Plaintiff claims he is not the individual that made these purchases and affirms he “is
a lifelong non-smoker and has never purchased cigarettes as an adult.” (Doc. 13 at 5).
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with Plaintiff’s consent and pursuant to the parties’ “pre-existing relationship.” (Doc. 11 at
8; Doc. 11 at 8–12 (repeating consent arguments)).8
Plaintiff rebuts these allegations, claiming that he did not sign up for any programs
with Circle K, provide his phone number for marketing purposes, or maintain a business
relationship with Circle K. (Doc. 1 at 7 ¶ 25). Plaintiff “denies ever entering his phone
number at a Circle K store or visiting their website for enrollment purposes,” (Doc. 13 at
5), and argues that the 299 opt-out requests he sent in response to Circle K’s messages
“constitute a complete revocation of any alleged consent,” (Doc. 13 at 9).
At this stage of the case, the Court must accept Plaintiff’s allegations as true.
Abboud, 731 F. Supp. 3d at 1101, 1105 (accepting plaintiff’s allegation that she “never
provided her telephone number to [Circle K] and never consented to receive any text
messages from [Circle K]” as true at the motion to dismiss stage); Abrahamian v.
loanDepot.com LLC, 2024 WL 1092442, *3 (D. Ariz. 2024) (plaintiff adequately pleaded
that he did not consent to defendant’s messages based on his allegation that “he never
provided his telephone number to Defendant”); Blalack v. RentBeforeOwning.com, 2022
WL 7320045, *5 (C.D. Cal. 2022) (defendant’s argument that “someone signed up for and
wanted to receive the[] messages” sent to plaintiff presented a factual question the court
could not resolve on a motion to dismiss).
b. Plaintiff’s Motion to File a Sur-Reply
Plaintiff filed a Motion for Leave to File a Sur-Reply, alleging that Circle K’s Reply
impermissibly introduces new legal arguments that were not presented in its Motion to
8 Embedded into Circle K’s Motion to Dismiss is a screenshot from a Circle K
security camera allegedly showing Plaintiff making a purchase on February 19, 2026 at
5:17am. (Doc. 11 at 11). Circle K attempts to use this photo to bolster its consent theory
and rebut Plaintiff’s claims that the early-morning text messages he received disrupted his
sleep/interfered with his solitude. (Doc. 1 at 8; Doc. 11 at 11). Circle K’s inclusion of and
reliance on this photo raises numerous issues. First, it is not properly before this Court for
consideration on a Rule 12(b)(6) motion. Indeed, Circle K has not argued that the evidence
should be evaluated under the judicial notice or incorporation doctrine exceptions, and the
Court finds neither would apply because Plaintiff disputes that he is the man portrayed in
the photo. (Doc. 13 at 5–6). Second, the Court questions the relevance of the evidence—
Plaintiff alleges that he received his last text from Circle K on February 5, 2026 and does
not allege a TCPA violation for any text messages received beyond that date. Conduct
occurring on February 19, 2026 appears to fall outside the scope of Plaintiff’s Complaint.
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Dismiss. (Doc. 16 at 3).
Upon review, the Court agrees with Plaintiff that Circle K raises a new argument in
its Reply. The Reply argues that the alleged text messages do not fall within the purview
of the TCPA because (1) the messages “were not initiated or made using an artificial or
prerecorded voice,” and (2) Plaintiff did not “plausible plead that an ATDS was used by
Circle K.” (Doc. 15 at 2). These arguments are wholly absent from Circle K’s Motion to
Dismiss, which argued only that the alleged text messages were (a) not an actionable form
of communication under the TCPA, (b) not solicitations, and (c) sent with Plaintiff’s
consent and as part of the parties’ business relationship. Accordingly, Circle K’s
representation that its Motion to Dismiss discussed the artificial-or-prerecorded-voice and
ATDS theories is unsupported and incorrect. (Doc. 15 at 2 (incorrectly stating that the
newly-presented arguments were “discussed in the Motion [to Dismiss] and herein [in the
Reply]”)).
Circle K secondarily argues, in its Response to Plaintiff’s Sur-Reply Motion, that
its Reply arguments were made in response to the arguments Plaintiff raised in his
opposition to the Motion to Dismiss. (Doc. 26 at 2). Circle K explains that Plaintiff’s
Response to the Motion to Dismiss cited Howard v. Republican National Committee to
support his argument that the TCPA applies to text messages. (Doc. 26 at 2). Circle K
contends it was entitled to distinguish Howard, (Doc. 26 at 2), and the Court agrees. Circle
K permissibly argued that Howard’s holding only established that “voice” text messages
qualified as calls under the TCPA.9
However, Circle K’s argument that Plaintiff failed to plausibly plead that Circle K
9 But this argument is without merit. The TCPA makes it unlawful to “make any call
(other than a call made for emergency purposes or made with the prior express consent of
the called party) using [1] any automatic telephone dialing system or [2] an artificial or
prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.”
47 U.S.C. § 227(b)(1)(A)(iii). Howard broadly recognized that text messages are calls
under the TCPA. Howard, 164 F.4th at 1124 (“[A] text message is properly deemed to be
a “call” within the meaning of the TCPA.”). Accordingly, a text message is a call for
TCPA-liability purposes if it is sent using an artificial or prerecorded voice or an ATDS.
Trim v. Reward Zone USA LLC, 76 F.4th 1157, 1160 (9th Cir. 2023).
Plaintiff’s request to file a sur-reply to oppose this argument is denied.
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used an ATDS to send the alleged text messages was not raised in its initial Motion to
Dismiss, and was not responsive to arguments raised by Plaintiff’s Response to the Motion
to Dismiss. Accordingly, the Court will not address the ATDS argument. Zamani v.
Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments
raised for the first time in a reply brief.”); Aguilar v. Peters, No. CV-23-00268-TUC
(SHR), 2024 WL 4870496, at *13 (D. Ariz. Nov. 22, 2024) (“It is well established that new
arguments and evidence presented for the first time in reply are waived.”) (citation
omitted).
Because the Court will not consider this new argument, Plaintiff’s Motion for Leave
to File a Sur-Reply—to the extent he seeks to rebut the ATDS theory—is denied as moot.10
c. Conclusion
For the foregoing reasons, Circle K’s Motion to Dismiss Counts I–IV is denied.
iv. Analysis re: Circle K’s Motion to Dismiss (Counts V-VII)
Plaintiff alleges three state-law claims. The Court addresses each claim in turn.
a. Count V: Willful Violation of the Arizona Consumer Fraud
Act
Plaintiff alleges that on June 10, 2025, August 12, 2025, January 9, 2026, and
January 10, 2026, Circle K sent Plaintiff the following message: “Circle K: You’ve been
unsubscribed from all texts on 25050 & will no longer receive text msgs. Txt YES to
resubscribe. Q’s? Txt HELP. Msg&Data rates may apply.” (Doc. 1 at 7 ¶ 29; Doc. 1 at 20
¶ 103). After sending the June 10, 2025 confirmation that Plaintiff would be unsubscribed
from future text messages, Circle K transmitted 308 additional messages to Plaintiff. (Doc.
1 at 9 ¶ 35). Plaintiff alleges that in doing so, Circle K violated the Arizona Consumer
Fraud Act. (Doc. 1 at 19–20).
“The purpose of the [Arizona Consumer Fraud] Act is to provide injured consumers
with a remedy to counteract the disproportionate bargaining power often present in
10 As discussed above, supra page 7 n.2, the Court granted Plaintiff’s sur-reply motion
(Doc. 16) and considered the lodged sur-reply (Doc. 17) to the extent that Plaintiff rebutted
Circle K’s arguments about the extrinsic-evidence exhibits. The Court declines to consider
the lodged sur-reply except for this limited purpose.
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consumer transactions.” Waste Mfg. & Leasing Corp. v. Hambicki, 900 P.2d 1220, 1224
(Ariz. Ct. App. 1995). The Arizona Consumer Fraud Act (the “CFA”) provides as follows:
The act, use or employment by any person of any deception, deceptive or
unfair act or practice, fraud, false pretense, false promise, misrepresentation,
or concealment, suppression or omission of any material fact with intent that
others rely on such concealment, suppression or omission, in connection with
the sale or advertisement of any merchandise whether or not any person has
in fact been misled, deceived or damaged thereby, is declared to be an
unlawful practice.
A.R.S. § 44-1522(A).
The elements of private cause of action under the CFA are “[1] are a false promise
or misrepresentation [2] made in connection with the sale or advertisement of merchandise
and [3] the [plaintiff’s] consequent and proximate injury.” Castle v. Barrett-Jackson
Auction Co., LLC, 276 P.3d 540, 542 (Ariz. Ct. App. 2012). The statute requires that a
person intend for others to rely on the false promise or misrepresentation “in connection
with the sale or advertisement of any merchandise.” A.R.S. § 44-1522(A). Accordingly,
there must be a sale between the parties or an advertisement in relation to a sale between
the parties to support a cause of action under the CFA. See Sullivan v. Pulte Home Corp.,
290 P.3d 446, 453–54 ¶¶ 36–37 (Ariz. Ct. App. 2012), vacated in part, 306 P.3d 1 (Ariz.
2013) (vacating ¶¶ 24–31).
Plaintiff alleges that that the four messages confirming he had been unsubscribed
were “material representations and false promises” because Circle K “knew these
statements were false” and “intended for Plaintiff to rely on these false promises so that he
would cease his efforts to block the number or initiate legal action, thereby allowing [Circle
K] to continue their unauthorized access to Plaintiffs cellular device for marketing profit.”
(Doc. 1 at 20 ¶ 104). Plaintiff alleges that he suffered actual damages” from Circle K’s
conduct, including “the economic value of 50+ hours of time, resource depletion, and
systemic sleep deprivation” caused by 146 early-morning text messages. (Doc. 1 at 20 ¶
105).
Circle K acknowledges that Plaintiff satisfies the first and third elements for a
private right of action under the CFA, but argues that Count V should be dismissed because
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Plaintiff fails to identify any “sale or advertisement of any merchandise” regarding the opt-
out confirmation messages. (Doc. 11 at 12–13). The Court agrees. The four messages
supporting Plaintiff’s CFA claim merely inform Plaintiff that he has been “unsubscribed
from all texts” and “will no longer receive text msgs.” (Doc. 1 at 7 ¶ 29). At most, the
messages falsely promise that future communications will cease. But the messages do not
allude to the sale or advertisement of merchandise in any way. Because the message does
not conceal, suppress, or omit any material fact “in connection with the sale or
advertisement of any merchandise,” Plaintiff fails to state a claim under the CFA, and the
claim will be dismissed.
Although the Court is not dismissing the entire Complaint, in which circumstance
the Court must consider whether the deficiencies in the complaint could be cured by
amendment, the Court has nonetheless considered whether leave to amend should be
granted. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401
(9th Cir. 1986) (“If a complaint is dismissed for failure to state a claim, leave to amend
should be granted unless the court determines that the allegation of other facts consistent
with the challenged pleading could not possibly cure the deficiency.”); see Fed. R. Civ. P.
15(a).
The Court finds that amendment under Rule 15(a) would be futile because Plaintiff
cannot allege new facts that will transform these four text messages—of which Plaintiff
attached screenshots, (see Docs. 11-1, 11-2)—into communications that portray false,
deceptive, or misleading information about the sale or advertisement of merchandise.
Accordingly, Count V is dismissed with prejudice.
b. Count VI: Common Law Intrusion Upon Seclusion
Plaintiff alleges that Circle K intentionally and repeatedly intruded upon his
“solitude, seclusion, and private affairs by transmitting 350 unauthorized marketing
solicitations to his private cellular telephone.” (Doc. 1 at 22 ¶ 110). Plaintiff contends that
the nature and frequency of the messages “would be highly offensive to any reasonable
person.” (Doc. 1 at 22 ¶ 111). In support of this claim, Plaintiff cites to Navient Solutions,
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LLC v. Law Offices of Jeffrey Lohman, 2020 WL 1864871, at *12 (D. Ariz. 2020). This
case does not exist. As Circle K notes in its Motion to Dismiss, a search of “2020 WL
1864871” returns an Ohio Public Utilities Commission Finding and Order titled “In the
Matter of the Proper Procedures and Process for the Commission’s Operations and
Proceedings During the Declared State of Emergency and Related Matters.” (Doc. 11 at
13). The Court believes that Plaintiff intended to cite to a case from the Eastern District of
Virginia. See Navient Sols., LLC v. Law Offices of Jeffrey Lohman, 1:19-CV-461
(LMB/TCB), 2020 WL 1867939 (E.D. Va. Apr. 14, 2020). However, that case is irrelevant
to Plaintiff’s claim because it is devoid of any discussion regarding the tort of inclusion
upon seclusion.
Circle K argues Count VI should be dismissed because Plaintiff fails to provide any
basis in Arizona law for his “intrusion of seclusion” claim. (Doc. 11 at 13). In response,
Plaintiff argues that the tort of intrusion upon seclusion is supported by “decades of state
jurisprudence.” (Doc. 13 at 12).
Arizona state courts recognize four invasion-of-privacy claims, including the tort of
intrusion upon seclusion, Hart v. Seven Resorts Inc., 947 P.2d 846, 853 (Ariz. Ct. App.
1997), which “occurs when one intentionally intrudes, physically or otherwise, upon the
solitude or seclusion of another or his private affairs or concerns and the intrusion is highly
offensive to a reasonable person,” Shepherd v. Costco Wholesale Corp., 441 P.3d 989, 995
(App. 2019), vacated in part, 482 P.3d 390 (Ariz. 2021) (vacating ¶¶ 25–35) (internal
quotations and citation omitted). A defendant is “subject to liability . . . only when he has
intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff
has thrown about his person or affairs.” Hart, 947 P.2d at 853 (quoting Restatement
(Second) of Torts § 652B). Intrusion upon seclusion usually involves
(1) physical intrusion into a place in which the plaintiff has secluded himself;
(2) the use of the defendant’s senses, with or without mechanical aids, to
oversee or overhear the plaintiff’s private affairs, as by looking into his
upstairs windows with binoculars or tapping his telephone wires; or
(3) some other form of investigation or examination into his private concerns,
as by opening his private and personal mail, searching his safe or his wallet,
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examining his private bank account, or compelling him by a forged court
order to permit an inspection of his personal documents.
Shepherd, 441 P.3d at 995 (internal quotations and citation omitted). Conclusory
allegations that a defendant’s conduct intruded upon the plaintiff’s solitude and seclusion,
without more, are insufficient to support a claim for relief. Id.
Plaintiff claims that the “transmission of 350 messages over several months,
including 146 messages during hours of rest, represents . . . a substantial burden to
Plaintiff[‘]s existence.” (Doc. 1 at 23, ¶ 111). He further alleges that Circle K, by initiating
146 solicitations—some of which occurred between 4:11 a.m. and 5:30 a.m.—intentionally
violated his right to peace and solitude, causing “severe physiological stress and systemic
sleep deprivation.” (Doc. 1 at 23, ¶ 112).
Plaintiff does not cite, and this Court’s independent research did not reveal, any
Arizona caselaw regarding the tort of intrusion upon seclusion as it relates to unwanted text
messages. However, the Restatement (Second) of Torts provides some support for
Plaintiff’s position that repeated, incessant text messages can support an invasion of
privacy claim. The Restatement provides:
[T]here is no liability for [the tort of intrusion upon seclusion for] knocking
at the plaintiff’s door, or calling him to the telephone on one occasion or even
two or three, to demand payment of a debt. It is only when the telephone calls
are repeated with such persistence and frequency as to amount to a course
of hounding the plaintiff, that becomes a substantial burden to his existence,
that his privacy is invaded.
Restatement (Second) of Torts § 652B, cmt. d (emphasis added).
And the Ninth Circuit Court of Appeals has found that auto-dialed text messages
typically result in “an immediate intrusion in the form of a display of a preview of the text
on the phone’s screen (even if locked), a sound, a vibration, or some combination of those,”
thereby producing “the particular type of intrusion on privacy at which the [TCPA] is
aimed, which is an intrusion upon ‘seclusion.’” Howard, 164 F.4th at 1124. The Eleventh
Circuit Court of Appeals has also indicated that unwanted text messages, like unwanted
phone calls, are among the privacy intrusions giving rise to liability for intrusion upon
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seclusion. See Drazen v. Pinto, 74 F.4th 1336, 1345 (11th Cir. 2023) (“And as with ‘the
unwanted ringing of a phone from a phone call,’ the ‘undesired buzzing of a cell phone
from a text message . . . is an intrusion into peace and quiet in a realm that is private and
personal.’”) (citation omitted). The Drazen court acknowledged, however, that it is difficult
to draw the line in determining how many unwanted text messages are required before the
intrusion becomes “highly offensive to a reasonable person.” See id.
Plaintiff allegedly received 349 unwanted text messages over (approximately) a 9-
month period.11 This averages to 1.2 text messages per day (349 messages/290 days). 146
of those 349 communications apparently took place before 8:00 a.m. Accepting the
Complaint’s factual allegations as true, as the Court must at this stage of the case, the Court
finds that Plaintiff has plausibly pled an intrusion upon seclusion claim, and will deny
Circle K’s request to dismiss this claim.
c. Count VII: Breach of Implied-in-Fact Contract and
Promissory Estoppel
Plaintiff contends that Circle K made a unilateral offer to enter into a contract by
directing Plaintiff to respond “Txt HELP4Info” or “STOP2End” in the text messages.
(Doc. 1 at 26, ¶ 117). By including the “Txt HELP4Info” or “STOP2End” options, Plaintiff
claims that Circle K “established the exact method of performance required to terminate
the relationship and cease all communications.” (Doc. 1 at 26 ¶ 117). Plaintiff alleges he
“accepted” the unilateral offer through “performance”—i.e., by responding “STOP2End”
on “299 separate occasions.” (See Doc. 1 at 26 ¶ 118). Plaintiff asserts that the “contract”
is supported by consideration because he “provided the economic value of his time” in
exchange for Circle K’s promise to cease the communications. (Doc. 1 at 26 ¶ 119).
Plaintiff claims Circle K breached the agreement by continuing to send him texts after he
had opted out. (Doc. 1 at 26 ¶ 120). He alternatively alleges a promissory estoppel claim,
claiming he detrimentally relied on Circle K “clear, express promises” that he would not
receive additional messages. (Doc. 1 at 26–27 ¶¶ 121–23; Doc. 1 at 7 ¶ 29 (Circle K sent
11 Although the first text message occurred on September 1, 2023, the remaining 349
messages were sent between April 21, 2025 and February 5, 2026. (Doc. 1 at 8).
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four messages stating: “Circle K: You’ve been unsubscribed from all texts on 25050 & will
no longer receive text msgs.”)).
Plaintiff’s Complaint is devoid of any support for his novel theory that that he and
Circle K, by virtue of Plaintiff’s responses to various marketing communications, were
contractually bound or that the doctrine of promissory estoppel applies to these facts.
“An implied-in-fact contract is a true contract, differing from an express contract
only insofar as it is proved by circumstantial evidence rather than by express written or oral
terms.” Pyeatte v. Pyeatte, 661 P.2d 196, 203 (Ariz. Ct. App. 1982). To support an
“implied-in-fact” contract claim, a party must still demonstrate the elements of a binding
contract, including “mutual assent or certainty as to the critical terms of the agreement.”
Id. When “a reasonable person” could conclude that both parties intended to contract for
certain terms, an implied-in-fact contract is formed. See Demasse v. ITT Corp., 984 P.2d
1138, 1143 (Ariz. 1999).
Circle K argues that “[n]o reasonable person could ever conclude that opting out of
a company’s messaging [system] would ‘create contractual obligations.’” (Doc. 11 at 14).
The Court agrees. Circle K further claims that it was unable to locate caselaw suggesting
(1) that a consumer’s decision to opt out of a messaging program creates an implied-in-fact
contract or constitutes the acceptance of a unilateral offer, or (2) that a company’s
confirmation of an opt-out request constitutes a “promise” to support a promissory estoppel
claim. (Doc. 11 at 15). Plaintiff failed to identify any such authority and the Court’s
independent research similarly failed to reveal any law supporting Count VII. “[A]lthough
Plaintiff appears in this Court pro se, the Court is not required to scour his Complaint and
piece together his claims for him.” Moore v. Maricopa Cnty. Juvenile Court, CV-18-
01553-PHX-JJT, 2018 WL 9848169, at *1 (D. Ariz. Sept. 18, 2018), aff’d, 786 Fed. Appx.
89 (9th Cir. 2019). Indeed, plaintiffs are responsible for identifying the legal basis for the
claims identified in their complaints. See id. at *2. Given Plaintiff’s failure to do so, the
Court will dismiss Count VII.
Because this claim is meritless and its defects could not be cured with amendment,
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Count VII is dismissed with prejudice. See Schreiber Distrib. Co., 806 F.2d at 1401; see
Fed. R. Civ. P. 15(a).
III. CONCLUSION
Accordingly,
IT IS ORDERED that Circle K’s Motion to Dismiss (Doc. 11) is granted in part
and denied in part, as specified herein.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a Sur-Reply
(Doc. 16) is granted in part and denied in part as moot, as specified herein.
IT IS FURTHER ORDERED that the Clerk of Court shall file Plaintiff’s lodged
Sur-Reply at Doc. 17.
IT IS FURTHER ORDERED that Defendant Circle K shall answer the non-
dismissed counts of the complaint within 14 days of the date of this Order.
Dated this 22nd day of April, 2026.
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