TCPA case involving Ever app dismissed by federal judge

By Sam Knef | Oct 28, 2017

U.S. District Judge Ronnie White has dismissed without prejudice a proposed class action brought against the owner and operator of a photo-sharing app that allows users to conserve storage space on their mobile devices.

ST. LOUIS — U.S. District Judge Ronnie White has dismissed without prejudice a proposed class action brought against the owner and operator of a photo-sharing app that allows users to conserve storage space on their mobile devices. 

Plaintiffs Gabriella Figuroa of New Jersey and Daisy Franklin of Missouri sued Everablum Inc. headquartered in San Francisco earlier this year claiming the Ever app violated the Telephone Consumer Protection Act (TCPA) over alleged unsolicited text messages. Both named plaintiffs had received text messages indicating the name of the person they were acquainted with "just recommended you check your photos on Ever. Click here: Tap to Load Preview."

The Ever app works by automatically backing up an Android or Apple user's photos and videos and saving them to the cloud, according to the ruling. After a new user downloads the app, he or she could earn up to 1 TB of "premium storage" at no cost by inviting others to download it.

To invite others, the user would have to grant the app access to the user's contact list, either approve invitations to all contacts or selective contacts and affirmatively click a button to cause text invitations to go to those contacts.

White, of the Eastern District of Missouri, held that his court lacks personal jurisdiction over California-based Everablum Inc., which has no offices, employees or assets in Missouri.

"There is no evidence that ever has and (sic) any contact with Missouri, let alone contacts sufficient to establish personal jurisdiction in this case," he wrote.

"Ever is not registered to do business in Missouri," he wrote. "Likewise, Plaintiffs' causes of action have no connection to this jurisdiction. Plaintiffs offer bare allegations in their Amended Complaint that Ever contacted them, but these allegations are refuted by their own allegations.

"This Court cannot exercise personal jurisdiction over Ever simply because some of Plaintiffs' friends utilized the invitation process provided by Ever to invite Plaintiffs to use its app. Therefore, the Court holds that it lacks sufficient contacts with Ever and dismisses this action without prejudice."

White, however, declined to award attorneys' fees, costs and expenses to Ever, saying it was not warranted.

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