TCPA Defendant's Brilliantly Dumb MTD Denied
- Peter Schneider
- Apr 25
- 5 min read
Updated: May 5
I have seen some dumb motions to dismiss that beggars belief. This one might top them all. The case is D'Agostino v. Circle K Stores Inc., No. CV-26-01225-PHX-JAT, 2026 LX 247804 (D. Ariz. Apr. 22, 2026). TCPA defendant Circle K Stores (yes of Abboud v. Circle K Stores Inc fame) got sued by pro se Daniel D'Agostino for allegedly sending him hundreds of text messages despite Mr. D'Agostino replying STOP or STOP2End 299 times.
The messages continued even after Defendants averred to Plaintiff that he had been unsubscribed from the communications and would not receive additional messages.
As usual I don't know the underlying truth to any of this. Like the court I assume all well plead facts are true and report the allegations and reasonable facts raised by the defendant.
It took Mr. D'Agostino two years to reply STOP 299 times and then he filed suit on February 23, 2026. Mr. D'Agostino came to court for willful violation of the TCPA (47 U.S.C. § 227(b)), 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)), willful and knowing violations of Federal "Quiet Hours" (47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(c)(1)), and willful violation of Internal Do-Not-Call Procedures (47 U.S.C. § 227(c); 47 C.F.R. § 64.1200(d)).
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.
Circle K came at Mr. D'Agostino with a FRCP 12(b)(6) motion to dismiss and it was a trainwreck of dumb.
Exhibits external to the complaint
Circle K wanted the Court to consider 72 pages of exhibits including screen shots of its websites and Mr. D'Agostino alleged purchase history.
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." Because Plaintiff allegedly consented to the text messages, Circle K contends that it cannot be held liable for violating the TCPA.
It is true that many courts would find that walking into a Circle K and buying a pack of gum with cash would entitle Circle K to start telephone soliciting the customer for the next 18 months through an established business relationship. An EBR can be terminated even as the customer continues to frequent the business.
§ 64.1200(f)(5)(i) The subscriber's seller-specific do-not-call request, as set forth in paragraph (d)(3) of this section, terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.
I didn't pull Circle K's actual motion, so it is possible their argument isn't as dumb as it appears in the face of Mr. D'Agostino's 299 STOPs. It is possible, even likely, Circle K argued that Mr. D'Agostino's 299 STOP's were ambiguous and Circle K didn't understand the meaning. I don't agree with this but I've seen it work with Patron Saints of Telemarketing and you can't fault Circle K for making what could be a winning argument.
The court took the easy way out and ducked the EBR debate by ignoring it.
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);
ATDS Claim
ATDS claims in the ninth circuit are Princess Bride level dead. Yet Circle K didn't take a shot at D'Agostino's 47 U.S.C. § 227(b) claim until its Reply. The court refused to consider an argument not raised in the original motion. Dumb on Circle K, they should have won that one.
Text messages aren't calls under the TCPA?
Some Patron Saints of Telemarketing are currently ruling that text messages are not telephone calls under the TCPA, but the 9th Circuit kind of addressed that in dicta from Howard v. Republican Nat'l Comm., 164 F.4th 1119 (9th Cir. 2026).
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." 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." There is no question 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.
Telephone Solicitations
The Court opinion does not extensively cite the contents of the Circle K text messages, either by choice or by poor quotations in the Complaint, but it was enough to survive the motion to dismiss.
Plaintiff provided screenshots of the text messages, which directed him to "Reply YES to subscribe and receive special offers, updates, and more." . . . "[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."
The Takeaway
Circle K should have lost all but the ATDS issue but they could have won that and they took an ugly loss. Mr. D'Agostino, a pro se, made big law attorneys look like chumps but it may not be exactly as it appears. Big law is known for bleeding their clients so quite possibly Circle K's attorneys at Greenberg Traurig saw this motion to dismiss as an opportunity to get $25k from a half assed cash grab.
Got a Case Like This?
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Note: The opinions in this blog are mine (Peter Schneider) and do not constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.