Missed Calls Don’t Cut It: Injury in Fact is Required for Each Call and Must Be Traceable to the Use of an ATDS
In the latest dismissal of a TCPA case for lack of Article III standing, a District Court in California held that a plaintiff does not suffer an injury in fact from calls she did not hear, calls she heard but did not answer, and calls she answered but did not result in an injury traceable to the use of an ATDS.
The Court in Romero v. Dep’t Stores Nat’l Bank, No. 15-CV-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016) granted the defendant’s motion to dismiss where the plaintiff failed to establish an injury in fact caused by each of the alleged 290 individual calls. It was not enough for the plaintiff to argue injury “in the aggregate based on the total quantity of calls.” Rather, the Court held that “for each call Plaintiff must establish an injury in fact as if that was the only TCPA violation alleged in the complaint.”
At the outset, the Court rejected the plaintiff’s theory that “invasion of privacy” and “trespass to chattels” could be an “injury in fact” for the purpose of Article III standing. The Court held these “are torts, not injuries in and of themselves. Injury is merely an element of these claims.” Only the plaintiff’s alleged “’lost time, aggravation, and distress,’ could possibly be an ‘injury in fact’ for the purpose of standing.”
The Court analyzed the calls at issue in three buckets: 1) calls the plaintiff did not hear; 2) calls the plaintiff heard, but did not answer; 3) and calls the plaintiff answered.
The Court held the plaintiff did not have standing to assert a TCPA violation for calls she did not hear because, “[f]or Plaintiff to have suffered ‘lost time, aggravation, and distress,’ she must, at the very least, have been aware of the call when it occurred.”
Calls the plaintiff heard, but did not answer were also insufficient to confer standing. Viewing each call in isolation, the Court held that “[n]o reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing.” It reasoned that “[w]hen someone owns a cell phone and leaves the ringer on, they necessarily expect the phone to ring occasionally.” Whether the phone rings “as a result of a call from a family member, a call from an employer, a manually dialed call from a creditor, or an ATDS dialed call from a creditor, any ‘lost time, aggravation, and distress,” are the same. Thus, the defendants’ use of an ATDS “could not have caused Plaintiff a concrete injury with respect to any (and each) of the calls that she did not answer.”
Even the two calls the plaintiff answered did not confer Article III standing because the plaintiff “[did] not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA.” Although the debt collection calls to the plaintiff “may have been stressful, aggravating, and occupied Plaintiff’s time, that injury is completely unrelated to Defendant’s use of an ATDS to dial her number. Plaintiff would have been no better off had Defendants dialed her telephone number manually.”
The Court was unpersuaded by other post-Spokeo decisions cited by the plaintiff because most of the decisions “consider the calls received by the plaintiff as whole” rather than “evaluating standing separately for each call alleged to violate the TCPA.”