Williams v. Myler Disability, LLC

ANNETTE WILLIAMS, individually andon behalf of all others similarly situated, Plaintiffs, v. MYLER DISABILITY, LLC, a Utah Company, Defendant.

DOCKET NO. 3:20-cv-00275-FDW-DCK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

November 12, 2020

ORDER

THIS MATTER is before the Court on Defendant's Motion to Dismiss (Doc. No. 10), seeking dismissal of Plaintiff's complaint for lack of standing pursuant to Fed. R. Civ. P. 12(b)(1). The motion has been fully briefed, (Docs. Nos. 11, 15, 16), and is ripe for ruling. For the reasons below, Defendant's Motion is DENIED.

I. BACKGROUND

Plaintiff filed this action on behalf of herself and others similarly situated seeking to recover from Defendant for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). In her Complaint, Plaintiff contends that during a two-week period, she received two unsolicited text messages to her cell phone despite her registration on the National Do Not Call Registry. Plaintiff alleges the unsolicited text messages directed Plaintiff to call Defendant to apply for disability benefits. Plaintiff asserts she was harmed by this invasion of privacy and nuisance. Defendant moves to dismiss the Complaint, asserting Plaintiff has not alleged any concrete harm sufficient to confer Article III standing.

II. STANDARD OF REVIEW

"In plain English, the TCPA prohibited almost all robocalls to cell phones." Barr v. Am. Ass'n of Political Consultants, Inc., 140 S. Ct. 2335, 2344, 207 L. Ed. 2d 784 (2020). The TCPA's prohibition on robocalls includes sending automated text messages. Id. n.1 (citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14115 (2003));¹ see also Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156, 136 S. Ct. 663, 667, 193 L. Ed. 2d 571 (2016), as revised (Feb. 9, 2016) ("A text message to a cellular telephone, it is undisputed, qualifies as a "call" within the compass of § 227(b)(1)(A)(iii). For damages occasioned by conduct violating the TCPA, § 227(b)(3) authorizes a private right of action." (citation omitted)).²

In order to seek redress under the TCPA, the requirement to sue is no different than any other federal case: a party must have standing.

Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. In this way, the law of Article III standing . . . serves to prevent the judicial process from being used to usurp the powers of the political branches, . . . and confines the federal courts to a properly judicial role . . . .

Our cases have established that the "irreducible constitutional minimum" of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a case is at the pleading stage, the plaintiff must clearly . . . allege facts demonstrating each element.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016), as revised (May 24, 2016) (internal quotations and citations omitted); see also Krakauer v. Dish Network, L.L.C., 925 F.3d 643, 652 (4th Cir.) ("These traditional requirements of standing—injury-in-fact, redressability, and traceability—apply to causes of action created by statute."), cert. denied, 140 S. Ct. 676, 205 L. Ed. 2d 440 (2019).

A "concrete" injury must be "real" rather than "abstract"—that is, "it must actually exist." Spokeo, 136 S. Ct. at 1548. As the Fourth Circuit recognized in Krakauer, the Spokeo decision reinforces the core requirement that litigants suffer a concrete injury and cannot bring suit based solely on failure to act in accordance with the statute: "Private litigation, even if authorized by statute to serve a range of public ends, must vindicate the plaintiffs' interests, rather than serve solely a vehicle for ensuring legal compliance." Krakauer, 925 F.3d at 653; see also Baehr v. Creig Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir. 2020) ("[W]hen a plaintiff sues to vindicate astatutory right, she still must establish that she suffered a concrete injury from the violation of that right. That is, a plaintiff cannot merely allege a bare procedural violation, divorced from any concrete harm and satisfy the injury-in-fact requirement of Article III.") (quotation omitted), cert. denied sub nom. Baehr, Patrick, et ux. v. Creig Northrop Team, et al., No. 20-174, 2020 WL 5883390 (U.S. Oct. 5, 2020); Thole v. U. S. Bank N.A., 140 S. Ct. 1615, 1620-21, 207 L. Ed. 2d 85 (2020) ("The Court has emphasized that "Article III standing requires a concrete injury even in the context of a statutory violation." (citing Spokeo, 578 U. S., at —, 136 S.Ct., at 1549).

The issue before this Court is whether the two unsolicited text messages received by Plaintiff establish a concrete injury under the TCPA. This is an issue of first impression in the Fourth Circuit. Defendant urges this Court to adopt the reasoning from the Eleventh Circuit where the court, after considering congressional judgment and historical practice, concluded the receipt of a single, unsolicited text message was insufficient to confer standing for the plaintiff.

In sum, we find that history and the judgment of Congress do not support finding concrete injury in Salcedo's allegations. Salcedo has not alleged anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone. Nor has he alleged that his cell phone was searched, dispossessed, or seized for any length of time. Salcedo's allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real but intangible harms. The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one's face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts. All told, we conclude that Salcedo's allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.

Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019).

Notably, the Second, Seventh, and Ninth Circuits have decided this issue differently, instead explaining that Congress, by enacting the TCPA, recognized the receipt of unsolicited text messages to be a concrete harm sufficient to confer standing to the plaintiffs who received themessages. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (holding the plaintiff had standing under TCPA to sue for his receipt of two unsolicited text messages from the defendant); Melito v. Experian Mtkg. Sols., Inc., 923 F.3d 85, 88 (2d Cir. 2019) (holding the plaintiffs' "receipt of unsolicited text messages, sans any other injury, is sufficient to demonstrate injury-in-fact" under TCPA) cert. denied sub nom. Bowes v. Melito, 140 S. Ct. 677, 205 L. Ed. 2d 440 (2019); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020) (holding the plaintiff had standing to sue under TCPA for her receipt of five unsolicited text messages from the defendant).

The Ninth Circuit was the first circuit court to consider standing under the TCPA as it relates to receipt of unsolicited text messages. The Van Patten court explained:

The TCPA establishes the substantive right to be free from certain types of phone calls and texts absent consumer consent. Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm. We recognize that Congress has some permissible role in elevating concrete, de facto injuries previously inadequate in law "to the status of legally cognizable injuries." Spokeo, 136 S.Ct. at 1549 (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130). We defer in part to Congress's judgment, "because Congress is well positioned to identify intangible harms that meet minimum Article III requirements." Id. We also recognize that "Congress' role in identifying and elevating intangible harms does not mean 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." Id.

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Unlike in Spokeo, where a violation of a procedural requirement minimizing reporting inaccuracy may not cause actual harm or present any material risk of harm, see id. at 1550, the telemarketing text messages at issue here, absent consent, present the precise harm and infringe the same privacy interests Congress sought to protect in enacting the TCPA. Unsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients. A plaintiff alleging a violation under the TCPA "need not allege any additional harm beyond the one Congress has identified." Id. at 1549 (emphasis in original).

847 F.3d at 1043. The Second Circuit followed this reasoning: "First, the nuisance and privacy invasion attendant on spam texts are the very harms with which Congress was concerned when enacting the TCPA. Second, history confirms that causes of action to remedy such injuries were traditionally regarded as providing bases for lawsuits in English or American courts. Plaintiffs were therefore not required to demonstrate any additional harm." Melito, 923 F.3d at 88. The Seventh Circuit has explained the distinction of these lines of cases in contrast to the Eleventh Circuit's Salcedo decision:

The Eleventh Circuit treated the injury in its case as abstract

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