27.  On August 23, 2018, Defendant caused the following automated text message to be  transmitted to Plaintiff’s cellular telephone number ending in 9070 (“9070 Number”):   29.  Specifically, Defendant asks the recipient of the text message to purchase a membership  for its gym.    30.  Upon information and belief, the hyperlink included in the text message led to a website  operated and owned by Defendant which was deleted after Defendant was notified of their TCPA  violations.    31.  Upon information and belief, the phone number included in the text message is owned  and operated by Defendant.    32.  Plaintiff received the subject text message within this judicial district and, therefore,  Defendant’s violation of the TCPA occurred within this district.     33.  Upon information and belief, Defendant caused similar text messages to be sent to  individuals residing within this judicial district.     34.  At no point in time did Plaintiff provide Defendants with his express consent to be  contacted by text messages using an ATDS.     35.  Plaintiff is the subscriber and sole user of the 9070 Number.    36.  The number used by Defendant (52236) is known as a “short code,” a standard 5-digit  code that enables Defendant to send SMS text messages en masse.   37.  Upon information and belief, the platform utilized by Defendant has the current capacity  to store numbers using a random or sequential number generator, and dial such numbers, as well as dial  numbers automatically without human intervention.   39.  Specifically, the text messages do not identify the intended recipient by name nor  provide any identifiable characteristic of the intended recipient. Instead the text message is drafted so  that it can be sent out en masse without variation.   40.  Defendant’s unsolicited text message caused Plaintiff actual harm, including invasion  of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion.  Defendant’s  text message also inconvenienced Plaintiff and caused disruption to his daily life.    41.  Plaintiff brings this case as a class action pursuant to Fed. R. Civ. P. 23, on behalf of  himself and all others similarly situated.   43.  Defendant and its employees or agents are excluded from the Class. Plaintiff does not  know the number of members in the Class but believes the Class members number in the several  thousands, if not more.  47.  The common questions in this case are capable of having common answers. If Plaintiff’s  claim that Defendants routinely transmits text messages to telephone numbers assigned to cellular  telephone services is accurate, Plaintiff and the Class members will have identical claims capable of  being efficiently adjudicated and administered in this case.  52.  Plaintiff re-alleges and incorporates the foregoing allegations as if fully set forth  herein.    53.  It is a violation of the TCPA to make “any call (other than a call made for  emergency purposes or made with the prior express consent of the called party) using any  automatic telephone dialing system … to any telephone number assigned to a … cellular telephone  service ….” 47 U.S.C. § 227(b)(1)(A)(iii).    54.  The TCPA defines an “automatic telephone dialing system” (hereinafter “ATDS”)  as “equipment which has the capacity – (A) to store or produce telephone numbers to be called,  using a random or sequential number generator; and (B) to dial such numbers.”  Id. at § 227(a)(1).   55.  Defendant – or third parties directed by Defendant – used equipment having the  capacity to store telephone numbers, using a random or sequential generator, and to dial such  numbers and/or to dial numbers from a list automatically, without human intervention, to make  non-emergency telephone calls to the cellular telephones of Plaintiff and the other members of the  Class.    57.  Defendant violated § 227(b)(1)(A)(iii) of the TCPA by using an automatic  telephone dialing system to make non-emergency telephone calls to the cell phones of Plaintiff  and the other members of the putative Class without their prior express consent.    58.  As a result of Defendant’s conduct and pursuant to § 227(b)(3) of the TCPA,  Plaintiff and the other members of the putative Class were harmed and are each entitled to a  minimum of $500.00 in damages for each violation. Plaintiff and the class are also entitled to an  injunction against future calls.   WHEREFORE, Plaintiff Daniel Gerstenhaber, on behalf of himself and the other  members of the Class, prays for the following relief:   a.  A declaration that Defendant’s practices described herein violate the Telephone  Consumer Protection Act, 47 U.S.C. § 227;   b.  A declaration that Defendant’s violations of the Telephone Consumer Protection  Act, 47 U.S.C. § 227, were willful and knowing;  c.  An injunction prohibiting Defendant from using an automatic telephone dialing  system to call and text message telephone numbers assigned to cellular telephones without the  prior express consent of the called party;   d.  An award of actual, statutory damages, and/or trebled statutory damages; and   e.  Such further and other relief the Court deems reasonable and just.  PROPOSED CLASS   Violations of the TCPA, 47 U.S.C. § 227(b)  (On Behalf of Plaintiff and the Class)  