Carbajal v. Lowe's Companies Incorporated et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ivonne Carbajal,
Plaintiff,
v.
Lowe’s Home Centers, LLC, et al.,
Defendants.
No. CV-25-00041-PHX-DJH
ORDER
Plaintiff Ivonne Carbajal (“Plaintiff”) has filed a class action Complaint against
retailer Lowe’s and software company Salesforce, alleging violations of Arizona’s
Telephone, Utility and Communication Service Records Act (“TUCSRA”). On March 4,
2025, both Defendant Lowe’s Home Centers, LLC (“Lowe’s”) Inc. and Defendant
Salesforce, Inc. (“Salesforce”) (collectively, “Defendants”) moved to dismiss the
Complaint (Docs. 14, 15). Plaintiff filed Responses to each Motion (Docs. 22, 23), and
Defendants filed their respective Replies. (Docs. 24, 25). On November 14, 2025,
Defendants filed a Notice of Supplemental Authority (Doc. 26) in support of their Motions
to Dismiss.
TUCSRA protects public utility records, telephone records, and communication
service records. A.R.S. § 44-1376.01(A)(1). Plaintiff’s Complaint alleges a singular cause
of action under TUCSRA against Defendants. The claim is based on a theory that Lowe’s
marketing emails, containing Salesforce’s “spy pixels,” reported to Defendants how
individuals engaged with the content without their knowledge or authorization. (See
Case 2:25-cv-00041-DJH Document 27 Filed 11/18/25 Page 1 of 4

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generally Doc. 1-1 at 2–17).
Plaintiff has filed largely similar cases in this District. In Carbajal v. Home Depot
U.S.A., Inc., Plaintiff filed the same TUCSRA claim against a different home improvement
retailer, Home Depot. 2024 WL 5118416 (D. Ariz. 2024). The case was ultimately
dismissed for failure to state a claim under TUSCRA. Id. at *5. In Carbajal v. The Gap,
Inc., Case No. 24-CV-01056-PHX-ROS (“The Gap”), Plaintiff filed the same claim against
The Gap, Inc., but the parties later settled the case. (The Gap, ECF Doc. 22). In Carbajal
v. Lowe’s Companies, Inc., Case No. 24-CV-01030-PHX-DLR (“Lowes I”), Plaintiff filed
the same claim against the same Defendants, but the action was voluntarily dismissed after
Defendants each filed a motion to dismiss. (Lowes I, ECF Doc. 24)
Plaintiff is not alone in her efforts. Several other plaintiffs have also filed TUCSRA
claims aimed at marketing emails with tracking pixels. Such claims have been considered
in Williams v. Pac. Sunwear of Cal. LLC, 2025 WL 1135160, at *4 (D. Ariz. Apr. 16,
2025); Camp v. Sephora USA, Inc., No. 24-CV-07330 (N.D. Cal. Jan. 24, 2025) at ECF
No. 22 (order granting motion to dismiss); D’Hedouville v. H&M Fashion USA, Inc., No.
CV-20243386 (Ariz. Super. Ct. Oct. 11, 2024), appeal dismissed, No. 2 CA-CV 2024-0390
(Ariz. Ct. App. Mar. 26, 2025); and Mills v. Saks.com LLC, No. 23-CV-10638, 2025 WL
34828, at *6 (S.D.N.Y. Jan. 6, 2025). All of these TUSCRA claims have been dismissed
as conduct that falls outside the scope of the statute.1 See also Carbajal v. Home Depot
U.S.A., Inc., 2024 WL 5118416, *5 (D. Ariz. 2024). In her Responses, Plaintiff notes that
as of May 9, 2025, an Arizona appellate court had yet to weigh in on the issue. (See Doc. 22
at 7; Doc. 23 at 11–12). This is no longer true. (See Doc. 26).
On November 13, 2025, the Arizona Court of Appeals rendered a decision affirming
the dismissal of the plaintiff’s TUCSRA claim against Target Corporation. Smith v. Target
Corp., 2025 WL 3166035 (Ariz. App. Div. 1, 2025). The plaintiff there pursued a similar
claim to Plaintiff here, alleging that “Target embedded spy pixels in its marketing emails
1 In other jurisdictions, complaints have been dismissed for lack of standing. See Hartley
v. Urb. Outfitters, Inc., 740 F. Supp. 3d 410 (E.D. Pa. 2024); Campos v. TJX Companies,
Inc., 2025 WL 360677 (D. Mass. 2025)
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that were designed to extract email data without his consent, including when he opens the
email and if he forwards the email.” Id. at *1. In affirming the lower court’s dismissal,
the Arizona Court of Appeals stated:
Logs of email access, logs of associated email addresses, email client types,
email path data, recipient locations, IP addresses, email forwarding data, and
device information collected from a spy pixel on a marketing email from
Target are neither “access logs” nor “records of the path of an electronic
communication between the point of origin and the point of delivery.” And
because Smith does not allege that he is subscribed to a communication
service provider nor that Target unlawfully procured his subscriber
information from a communication service provider, Smith’s claims are not
covered by TUCSRA.
Id. at *3.
Federal courts “are bound by a state court’s construction of the laws of that state[.]”
Stephan v. Dowdle, 733 F.2d 642, 642 (9th Cir. 1984); Gentry v. MacDougall, 685 F.2d
322, 323 (9th Cir. 1982) (“Absent extraordinary circumstances, which do not obtain in this
case, a federal court is bound by a state court's construction of the laws of that state.”).
Pronouncements of the Arizona Supreme Court on applicable state law are binding, “but
in the absence of such pronouncements, [the Court follows] decisions of the [Arizona Court
of Appeals] unless there is convincing evidence that the [Arizona Supreme Court] would
hold otherwise.” Carvalho v. Equifax Info. Services, LLC, 629 F.3d 876, 889 (9th Cir.
2010).
With this Smith decision in mind, Plaintiff must show cause as to why her Complaint
should not be dismissed. Upon review, Plaintiff, in her Complaint, espouses the same
allegations and theory of liability under the TUCSRA as the plaintiff in Smith. The Arizona
Court of Appeals has just foreclosed this claim.
Accordingly,
IT IS ORDERED that Plaintiff must show cause, within seven (7) days of this
Order, as to why her Complaint should not be dismissed in light of the Arizona Court of
Appeals decision in Smith v. Target. Alternatively, the parties must meet and confer and
inform the Court whether they are able to reach a resolution on this matter within seven
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(7) days of this Order.
Dated this 18th day of November, 2025.
Honorable Diane J. Humetewa
United States District Judge
Case 2:25-cv-00041-DJH Document 27 Filed 11/18/25 Page 4 of 4