Plaintiffs’ attempts to keep FTSA cases venued in Florida state courts are being upended by the Eleventh Circuit’s recent decision to revisit en banc its Article III standing precedent in single-text message cases. Previously, Florida district courts were generally remanding such cases to state court. Since then, a couple of district courts have remanded cases to state court, but several more have stayed cases pending the Eleventh Circuit’s decisions in two pending appeals, Drazen v. Pinto, No. 21-10199 (11th Cir.) and Muccio v. Global Motivation, Inc., No. 23-10081 (11th Cir.). And the momentum appears to be in favor of staying such cases.
On April 11, Judge Honeywell of the Middle District of Florida granted a defendant’s unopposed motion to stay in Read v. Coty DTC Holdings, LLC, pending the resolution of Drazen and Muccio. No. 8:23-cv-00662-CEH-MRM, 2023 WL 3431820 (M.D. Fla. Apr. 11, 2023). The plaintiff in Read had alleged receipt of a single text message in violation of the FTSA. Eleventh Circuit precedent on Article III standing holds that a plaintiff’s alleged receipt of a single unsolicited text message in violation of the TCPA does not meet the injury requirement for Article III standing. See Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019). However, the Eleventh Circuit recently vacated a panel decision that had reaffirmed that precedent to re-evaluate its application en banc. See Drazen. Additionally, another appeal before the Eleventh Circuit will address whether Article III injury exists for plaintiffs alleging receipt of multiple texts, not just one, and who allege a violation of the FTSA, not the TCPA. See Muccio. Against this backdrop, the Read court found that the Eleventh Circuit was an outlier with the holdings of other Courts of Appeal that have found standing does exist based on an unsolicited text message. Additionally, the court noted that the Eleventh Circuit’s precedent on this issue appears to have been called into question due to the pending appeals in Drazen and Muccio. As such, the court stayed the case.
Several other Federal courts in Florida have recently granted defendants’ motions to stay FTSA cases pending the Eleventh Circuit appeals. See, e.g., Valiente v. BB Entertainment, Ltd., No. 1:22-cv-22737-JEM, 2023 WL 3069260 (S.D. Fla. Apr. 20, 2023) (granting unopposed motion to stay pending the Eleventh Circuit’s opinion in Drazen); Grajales v. Genesco, Inc., No. 8:23-cv-00420-SCB (M.D. Fla. Apr. 28, 2023), ECF No. 31 (granting unopposed motion to stay pending the issuance of a mandate in Drazen). Another court in the Middle District of Florida, after requesting supplemental briefing on whether the case should be stayed pending resolution of Drazen, stayed a case even though the plaintiff opposed the stay as prejudicial (due to an inability to engage in third-party discovery) and one of the defendants contended the stay was unnecessary (because the plaintiff lacked standing). Simpson v. J.G. Wentworth Co., No. 8:23-cv-152-KKM-AEP, 2023 WL 3029820 (M.D. Fla. Apr. 17, 2023). Notably, at least three Southern District of Florida courts have granted sua sponte stays in FTSA cases due to the pending appeal in Drazen. See Garcia v. Spruce Servs., Inc., No. 1:23-cv-20881-CMA, 2023 WL 2589305 (S.D. Fla. Mar. 20, 2023); Roland v. City Beauty, No. 2:23-cv-14022-AMC (S.D. Fla. Mar. 23, 2023), ECF No. 12; Zononi v. CHW Group, Inc., No. 2:22-cv-14358-AMC, 2023 WL 2667914 (S.D. Fla. Mar. 24, 2023).
On April 13, however, Judge Berger of the Middle District took a completely different approach in Topalli v. Petsmart, remanding the case based on the existing Eleventh Circuit precedent. No. 6:22-cv-1670-WWB-EJK, 2023 WL 2928301 (M.D. Fla. Apr. 13, 2023). Judge Berger did not have the benefit of the arguments made before Judge Honeywell, as the briefing on the motion to remand concluded on November 18, 2022, prior to the appeal in Muccio (which was docketed on January 9, 2023) and the grant of rehearing en banc in Drazen (which occurred on March 13, 2023). It’s worth noting here that Topalli is also an example of plaintiff attorneys’ gamesmanship as they try to avoid Article III standing in FTSA cases. Plaintiff’s original complaint attached a screenshot of three text messages to plaintiff’s phone. However, plaintiff’s post-removal amended complaint removed the screenshot and instead included a single text message in the body of the amended complaint. Plaintiff’s motion to remand argued that because there was only a single violation, defendant failed to establish subject matter jurisdiction. The court granted remand, accepting plaintiff’s changes seemingly without question.
A week after the decision in Topalli, a district court in the Southern District of Florida followed suit, remanding Alvarez v. ExxonMobil Oil Corp. and rejecting the defendant’s request for a stay. No. 1:23-cv-20924-RNS, 2023 WL 3043408 (S.D. Fla. Apr. 21, 2023). The court noted that, while it was possible the Eleventh Circuit might ultimately decide that Salcedo was wrongfully decided, that was not the lay of the land at present. The court also held that staying the litigation would be inefficient as the case might needlessly be stalled for months while the Eleventh Circuit grapples with Salcedo.
As more and more FTSA cases are filed despite the uncertainty over Salcedo, it appears that most Florida district court judges favor staying cases where standing issues are raised, in order to conserve resources and preserve orderly processes (i.e., avoiding unnecessary motions, appeals, and/or subsequent removals).