Eastern District of Pennsylvania Court Holds Text Claim Satisfies Article III, Then Dismisses for Failure to Allege Enough Facts to Make Claim Plausible

A judge in the U.S. District Court for the Eastern District of Pennsylvania recently concluded that receipt of unwanted text messages in violation of the TCPA can constitute an injury-in-fact for purposes of Article III standing, but nevertheless dismissed the claim (without prejudice) pursuant to Rule 12(b)(6) based on its threadbare allegations.

In Camunas v. National Republican Senatorial Committee, the plaintiff (Rolando Camunas) alleged that he received no less than six unsolicited text messages from the defendant (NRSC) asking him to donate to a political party.  Civil Action No. 21-1005, 2021 WL 2144671, at *1 (E.D. Pa. May 26, 2021).  In his complaint, Camunas described the messages as “generic and obviously pre-written” and alleged that they were sent using an automatic telephone dialing system (ATDS), in violation of the TCPA.  Id.

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Fifth Circuit Finds Injury In Fact after Single Text Message

The Fifth Circuit recently held that a TCPA plaintiff who received a single text message suffered an Article III injury sufficient to support standing for his claim.  In Cranor v. 5 Star Nutrition, L.L.C., No. 19-51173, 2021 WL 2133433 (5th Cir. May 26, 2021), the plaintiff alleged that 5 Star Nutrition violated the Telephone Consumer Protection Act (TCPA) when it sent him several unsolicited advertising text messages.  The parties entered into a settlement agreement to avoid litigation.  After the settlement, 5 Star Nutrition sent one final promotional text message and the plaintiff filed suit, claiming that the single text message harmed him by invading his privacy, interfering with his right to his cellular phone and telephone line, and intruding upon his seclusion.

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S.D. Fla. Court Remands Case to State Court, Finding No Article III Injury

The Southern District of Florida recently remanded a case back to state court because the defendant that removed the case failed to establish that plaintiff suffered an Article III injury. Harris v. Travel Resorts of America, Inc., Civ. No. 2:20-14369-AMC (S.D. Fla. Mar. 31, 2021). Notably, the Court also found that plaintiff should be able to recover its attorneys’ fees in seeking remand given the defendant’s reversing its prior position on whether the Court had subject-matter jurisdiction over the case.

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Auto Service Contractor Not Subject to Court’s Jurisdiction in Texas Resident’s TCPA Claim, Holds State’s Federal Northern District

The Northern District of Texas handed down a decision exploring the jurisdictional limitations on TCPA plaintiffs’ ability to hale out-of-state defendants into a plaintiff’s local federal court.

The case, Horton v. Sunpath, Ltd., involved a Texas resident (Lucas Horton) who launched a TCPA suit against a Massachusetts-based corporation (Sunpath).  Horton alleged that Sunpath’s agent, Northcoast Warranty Services, placed several calls to his cell phone using an automatic telephone dialing system and pre-recorded messages, despite the number’s listing on the National Do-Not Call Registry.  No. 3:20-cv-1884-B-BH, 2021 WL 982344, at *1 (N.D. Tex. Feb. 16, 2021).  On the calls, Horton stated, Northcoast encouraged him to purchase an auto service policy administered by Sunpath.  Id.  The calls continued for about three months until Horton purchased a policy from Sunpath in May 2020.  Id.  Horton filed suit against Sunpath about a month later in the Northern District of Texas.  Id.

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TCPA Plaintiff Argues He Wasn’t Injured in Attempt to Dodge Federal Jurisdiction

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).

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Another Court Rejects Threadbare Allegations of So-Called Vicarious Personal Jurisdiction

The District of Arizona recently dismissed Winters v. Grand Caribbean Cruises, Inc., No. 20-0168, 2021 WL 511217 (D. Ariz. Feb. 11, 2021), for lack of personal jurisdiction, finding that the plaintiffs had failed to establish that the caller’s contact with Arizona could be imputed to Grand Caribbean.

The plaintiffs alleged that Grand Caribbean violated the TCPA by using a prerecorded voice to initiate calls to numbers on the Do-Not-Call Registry.  Grand Caribbean moved to dismiss for lack of personal jurisdiction, among other things.

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District Court (Again) Holds Text Messages Insufficient to Confer Article III Standing

The Southern District of Florida recently dismissed a TCPA claim sua sponte for lack of subject matter jurisdiction, finding that the plaintiff had not alleged a concrete injury-in-fact.  See Perez v. Golden Trust Insurance, Inc., 470 F. Supp. 3d 1327 (S.D. Fla. 2020).

Perez alleged that Golden Trust had violated the TCPA when, without his consent, it used an ATDS to send two telemarketing text messages to his cell phone.  Golden Trust argued that the complaint should be dismissed because Perez did not properly allege the use of an ATDS.

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Single Fax Received by E-Mail Deemed Insufficient to Confer Article III Standing

As we have reported here and here, courts throughout the country, including most notably the Eleventh Circuit in Salcedo v. Hanna, have grappled with the question of whether a single unsolicited text message may constitute sufficient injury to satisfy the constitutional standing requirement in Article III. The Salcedo court held that one text message does not suffice.

But what about a single fax? That was the question recently presented to the Middle District of Florida in Daisy, Inc. v. Mobile Mini, Inc., No. 20-0017 (M.D. Fla. Sept. 24, 2020). The court similarly found that, at least under the relatively unique circumstances of the case, a single fax did not confer standing.

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Court Issues Sua Sponte Dismissal of Serial Plaintiff’s Complaint

The Eastern District of Pennsylvania recently dismissed a serial TCPA plaintiff’s complaint sua sponte because the court concluded that it did not have personal jurisdiction over the defendant. Perrong v. REWeb Real Estate, LLC, No. CV 19-4228, 2020 WL 4924533 (E.D. Pa. Aug. 21, 2020).  The case demonstrates that courts are becoming increasingly frustrated with “professional plaintiffs” who repeatedly file TCPA claims against businesses and pressure them “to settle independent of the merits of the case.” Id. at *3.

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No Agency, No Personal Jurisdiction

We have previously written about decisions that dismissed TCPA claims because plaintiffs could not allege or prove facts establishing that the party making the offending calls was acting as an agent for the named defendant. The Northern District of Illinois recently applied these principles to dismiss claims against a defendant for lack of personal jurisdiction.

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