Daisy, Inc. v. Mobile Mini, Inc.

489 F.Supp.3d 1287

DAISY, INC., a Florida corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff,

v.MOBILE MINI, INC., Defendant.

Case No.: 2:20-cv-17-FtM-38MRM

United States District Court, M.D. Florida, Fort Myers Division.

Signed September 24, 2020

Ross Michael Good, Ryan M. Kelly, Anderson & Wanca, Rolling Meadows, IL, for Plaintiff.

Jason Daniel Joffe, Squire Patton Boggs (US), LLP, Miami, FL, Petrina A. McDaniel, Pro Hac Vice, Brandon M. Howard, Pro Hac Vice, Squire Patton Boggs (US) LLP, Atlanta, GA, for Defendant.

OPINION AND ORDER ¹

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Mobile Mini, Inc.’s Motion for Summary Judgment (Doc. 38), Plaintiff Daisy, Inc.’s response in opposition (Doc. 58), and Mobile Mini's reply (Doc. 70). The Court grants the Motion in part.

BACKGROUND

This is a junk fax case. Mobile Mini sent one unwanted ad to Daisy's fax number. Daisy, however, receives faxes through an online service ("Vonage"). Vonage acts as a sort of middleman, collecting then sending Daisy its faxes attached to e-mails. The e-mail at issue read, "You have received a document. Sender's Caller ID: Restricted Date/Time: 12/18/2019 04:49:00 PM Number of Pages: 1." (Doc. 38-2 at 2). And attached as a PDF was the advertisement below:

(Doc. 1-1 at 2).

Daisy brought a class-action Complaint for violating the Telephone Consumer Protection Act ("TCPA"). (Doc. 1). Mobile Mini moves for summary judgment on the merits and for lack of standing. As a threshold jurisdictional issue, the Court must consider standing first. Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Because the analysis ends there, the Court need not reach the merits. Gardner v. Mutz , 962 F.3d 1329, 1338-40 (11th Cir. 2020).

LEGAL STANDARD

The parties dispute whether the motion to dismiss or summary judgment standard should apply. A motion to dismiss under Rule 12(b)(1) challenges a court's subject-matter jurisdiction. Under Rule 56(a), summary judgment is proper if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."

Given the facts and briefing, the result is the same regardless of which applies. Each side offers extrinsic evidence, so the jurisdictional challenge is a factual attack if Rule 12(b)(1) controls. Morrison v. Amway Corp. , 323 F.3d 920, 924 n.5 (11th Cir. 2003). Under either Rule 56 or 12(b)(1) (on a factual challenge), the Court considers matters outside the pleadings. Nat'l Parks Conservation Ass'n v. Norton , 324 F.3d 1229, 1242 (11th Cir. 2003). There are differences between those standards. Odyssey Marine Exp., Inc. v. Unidentified Shipwrecked Vessel , 657 F.3d 1159, 1169 (11th Cir. 2011). For instance, a 12(b)(1) factual attack, which Daisy argues for, gives a district court fact-finding power it does not possess at summary judgment. Morrison , 323 F.3d at 925. Likewise, "the manner and degree of evidence required at the successive stages of the litigation" applies to standing. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At summary judgment, therefore, a plaintiff "can no longer rest on mere allegations, but must set forth by affidavit or other evidence specific facts." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 412, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (alteration accepted, internal quotation marks omitted, and citation omitted). Even so, the parties here agree on all the relevant jurisdictional facts, which are separate from the merits, and simply dispute whether Daisy has Article III standing. So the result here is the same under either standard: dismissal without prejudice because Daisy lacks standing. See Gardner , 962 F.3d at 1343 & n.11 ; Sheely v. MRI Radiology Network, P.A. , 505 F.3d 1173, 1182 (11th Cir. 2007).

ANALYSIS

Federal courts can only hear "Cases" or "Controversies" U.S. Const. art. III, § 2. From that limitation, the standing doctrine grew. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). "The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court." Id. And in the process, standing ensures courts respect the separation-of-powers boundaries set out in the Constitution. Clapper , 568 U.S. at 408, 133 S.Ct. 1138.

To have standing, every plaintiff must show injury, causation, and redressability. Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130. But those three simple words are sometimes trickier to apply than it might seem, thrusting standing into the legal limelight these days. The difficulty is sometimes most apparent when it comes to "the ‘first and foremost’ of standing's three elements"—injury in fact. See Spokeo , 136 S. Ct. at 1547 (alteration accepted) (quoting Steel Co. , 523 U.S. at 103, 118 S.Ct. 1003 ).

Actionable injury in fact means plaintiff experienced "an invasion of a legally protected interest." Lujan , 504 U.S. at 560, 112 S.Ct. 2130. This injury must be (1) "concrete and particularized" and (2) "actual or imminent, not ‘conjectural’ or ‘hypothetical.’ " Id. (citation omitted). Only concreteness is at issue. An injury is concrete if it is "de facto " (i.e., "it must actually exist" and be "real," "not ‘abstract’ "). Spokeo , 136 S. Ct. at 1548 (citations omitted). The "bare procedural violation" of a statute, however, is not enough, even if Congress prescribed a cause of action. Id. at 1549. In other words, the Supremes "rejected the premise ... that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.’ "

Frank v. Gaos , ––– U.S. ––––, 139 S. Ct. 1041, 1045, 203 L.Ed.2d 404 (2019) (quoting Spokeo , 136 S. Ct. at 1549 ). So regardless of any TCPA violation, Daisy must show Mini Mobile's fax caused a concrete harm. Spokeo , 136 S. Ct. at 1549.

Importantly, it is undisputed Daisy received the fax by e-mail, not a fax machine. That distinguishes this case from others where the Eleventh Circuit found concrete injuries based on plaintiffs’ occupied fax machines and their lines or imposed printing costs.² Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A. , 781 F.3d 1245, 1252-53 (11th Cir. 2015) ; Florence Endocrine Clinic, PLLC v. Arriva Med., LLC , 858 F.3d 1362, 1366 (11th Cir. 2017). Likewise, almost every junk fax case Daisy cites differs because such injuries were present. If this were a regular fax case (like those situations) Daisy would have standing. See, e.g. , Bobo Drug's, Inc. v. Fagron, Inc. , 314 F. Supp. 3d 1240, 1243-44 (M.D. Fla. 2018). But this case is different.

Because Daisy cannot claim those injuries, it alleges only an intangible harm of wasted time. Specifically, a Daisy employee wasted one minute reviewing the fax, deciding it was junk, and dragging the e-mail to his spam folder. (Doc. 60). And the employee could have used that minute working, says Daisy.³ While tangible injuries are "easier to recognize," intangible injuries can be concrete too. Spokeo , 136 S. Ct. at 1549.

To be sure, the Eleventh Circuit clarified wasted time can be a concrete harm sometimes. Salcedo v. Hanna , 936 F.3d 1162, 1173 (11th Cir. 2019). For that proposition, it cited two previous cases and explained a "concrete harm from wasted time requires, at the very least, more than a few seconds." Id. And Salcedo emphasized the analysis is "qualitative, not quantitative." Id. In the end, however, Salcedo held general allegations of wasted time from receiving an unwanted text message do not amount to a concrete injury. Daisy contends Salcedo does not apply because it outlined the employee's sixty wasted seconds. This position, however, is a distinction without a difference. It boils down to arguing the quantitative difference in seconds distinguishes Salcedo . Yet there is no qualitative difference in harm between reading then answering an unwanted text and reviewing then deleting a junk fax sent by e-mail. The only difference is the few seconds longer that Daisy's employee said it took. But the quality of harm—not the counting of seconds—decides concreteness. Id.

The case Daisy relies on to distinguish Salcedo does not fit. Persichetti v. T-Mobile USA, Inc. , No. 1:19-CV-02424-JPB, 479 F.Supp.3d 1333, 1335–38 (N.D. Ga. Aug. 17, 2020). There, the allegations were not limited to general wasted time reviewing a few texts. Rather, that plaintiff took other actions reinforcing the conclusion the wasted time added up to a concrete injury. For instance, plaintiff changed his phone settings, called defendant's customer service, and even e-mailed defendant's CEO. In other words, the quality of the harm was different than it is here.

Applying Salcedo , many Southern District decisions dismissed unwanted text cases for no standing where the only identified injuries were short amounts of wasted time. Eldridge v. Pet Supermarket Inc. , 446 F. Supp. 3d 1063, 1069-71 (S.D. Fla. 2020) (holding plaintiff lacked standing for wasted time in reading five text messages for a few seconds each).⁴ All those cases, including Salcedo , involve unwanted texts. But this is case concerns a different intangible harm from a junk fax received by e-mail. The parties and Court only found two cases on TCPA standing for faxes received via e-mail. One occurred long before Spokeo . J2 Global Commc'ns, Inc. v. Protus IP Sols. , No. 06–00566 DDP (AJWx), 2010 WL 9446806 (C. D Cal. Oct. 1, 2010). The other is unpersuasive. Whiteamire Clinic, P.A. Inc. v. Cartridge World N. Am., LLC , No. 1:16CV226, 2017 WL 561832 (N.D. Ohio Feb. 13, 2017). Whiteamire held plaintiff had standing. In doing so, it relied on a pre- Spokeo , Sixth Circuit decision, which bound that court, but doesn't bind this one. Because Whiteamire relied on that opinion, it did not analyze the alleged harm under Spokeo . And...