Usually, it is the plaintiff that argues he or she was injured, not the defendant. But, in an effort to stay in state court, some TCPA plaintiffs have taken the counterintuitive position that they did not suffer an injury in fact under Article III of the U.S. Constitution and, therefore, their claims cannot be heard in federal court.
“[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180–181 (2000).
In Walker v. Highmark BCBSD Health Options, Inc., the plaintiff filed a lawsuit in Pennsylvania state court alleging that the defendant had violated the TCPA by placing six unsolicited automated/prerecorded calls to his cell phone. No. 2:20-CV-01975-CCW, 2021 WL 396742, at *1 (W.D. Pa. Feb. 4, 2021). The defendant removed the case to federal court. Plaintiff then filed a motion for remand, arguing that the federal court lacked jurisdiction on the basis that he himself lacked a concrete injury-in-fact under Article III, having only received six calls. Defendant argued that the court had jurisdiction under multiple bases, but did not squarely address the injury-in-fact argument.
But the court focused almost exclusively on the injury-in-fact issue, relying heavily on the Third Circuit’s decision in Susinno v. Work Out World, Inc., 862 F.3d 346 (3d Cir. 2017). In Susinno, the Third Circuit found that a plaintiff had alleged a concrete injury-in-fact based on the receipt of a single, unanswered call that left a voicemail on her cellphone. The Walker court cited Susinno for the proposition that, in enacting the TCPA, Congress elevated a harm that would not have been previously adequate at law to a legally cognizable injury, and therefore receipt of a single call was a sufficient injury-in-fact to confer Article III standing.
Based on Susinno, the Walker court found that plaintiff’s allegation that he received six calls was sufficient to confer Article III standing, concluded it had jurisdiction, and denied the motion to remand.