Fantastic Order denying Office Depot's motion for summary judgment as it tried to evade TCPA liability.
Background:
In August 2024, the plaintiff walked into a Dollar General, bought a prepaid phone, and activated it with a carrier that randomly handed him a number. He didn't pick it. Nothing on the packaging mentioned that someone else had used it before. Over the next few months, he received at least 31 telemarketing text messages from Office Depot he had never shopped with, never visited online, and never given his number to.
The number had been on the National Do Not Call Registry since January 10, 2014 — more than ten years before plaintiff got it — thanks to a prior subscriber he'd never met. And in October 2020, that prior subscriber had opted into Office Depots SMS program.
So the defendant moved for summary judgment on five independent grounds in McGonigle v. Office Depot, LLC, No. 9:25-cv-80069, 2026 U.S. Dist. LEXIS 181722 (S.D. Fla. Aug. 14, 2026). It went zero for five.
First, the defendant argued the plaintiff couldn't sue because he wasn't the one who registered the number on the DNC list. The Court noted that FCC regulations require registrations to be honored "indefinitely," and that while one court in Iowa adopted this position in Rombough v. Robert D. Smith Ins. Agency, nearly every court since has called that decision "frivolous" and an "outlier" and declined to follow it — collecting Binetti v. Colorado Tech. Univ. and Clouse v. Loan Depot, LLC. The Court joined the majority in finding that a user doesnt have to personally put their number on the DNC list--the number just had to be on it. Makes sense.
Second, the defendant argued the 2020 opt-in superseded the 2014 DNC registration. The plaintiff pointed to Breslow v. Wells Fargo, N.A., 755 F.3d 1265 (11th Cir. 2014), and Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir. 2012) — consent comes from the current subscriber, and there is no good-faith reassignment defense in a statute the Eleventh Circuit has described as essentially strict liability. Faced with that, the defendant's reply brief said nothing at all, "appearing to have abandoned it."
Third, the defendant argued the Do-Not-Call provisions don't cover text messages. The Court had already rejected that argument earlier in the same case and declined to reconsider it. Duhh.
Fourth, the defendant argued the number wasn't a residential line at all, but a "litigation instrument". It had real material to work with: 38 TCPA suits filed with the same number since October 2024, a call to a law firm the same month the phone was activated, and a practice of forwarding suspicious texts to counsel. The Court didn't call any of that irrelevant. It called it disputed. Residential-subscriber status is "fact-intensive," and where evidence points both ways, it's a question for a jury rather than a summary judgment motion.
Fifth, the defendant argued no concrete injury and thus no standing. That one ran straight into Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc), where the Eleventh Circuit held that receipt of a single unwanted text causes concrete injury because it shares a close relationship with intrusion upon seclusion — a harm "smaller in degree rather than entirely absent."
Sitting tidy in the undisputed facts is the line that probably explains the rest of the order: the defendant does nothing to scrub the numbers it texts against either the National Do Not Call Registry or the Reassigned Numbers Database. That fact went uncontroverted — the defendant never responded to it — and the Court deemed it admitted.
Office Depot appears to be in big trouble but I think they may be planning on taking things up to the 11th circuit when the time comes. For now let's enjoy more of these great orders.
