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.
Before addressing Golden Trust’s argument, however, the court found that Perez lacked standing. Perez alleged that the two text messages “interrupted business calls” and that he was injured by “wasting 60 seconds of his time reviewing the messages, causing aggravation and intrusion, wasting 7 minutes researching Defendant and the source of the messages on the internet, and wasting 5 minutes locating and retaining counsel. . . .”
The Court analogized to Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), in which the Eleventh Circuit held that receiving a single text message does not satisfy Article III standing. In Salcedo, the plaintiff alleged that one unsolicited text message “caused him to waste his time addressing the message, made both the plaintiff and his phone unavailable for otherwise legitimate pursuits, and invaded his privacy and right to enjoy the full utility of his cellular device.”
Though the Salcedo court addressed the harm allegedly caused by one text message, the Perez court applied the same reasoning to the harm allegedly caused by two text messages. The court also noted that, contrary to Perez’s allegation that the text messages “interrupted business calls,” incoming text messages do not render a device unusable for any period of time.
The Perez decision is the latest example of a trial court finding that merely receiving text messages does not amount to an injury-in-fact. Cases like Eldridge v. Pet Supermarket Inc. and Perez make clear that even multiple text messages may not establish a concrete injury-in-fact. But courts in the Eleventh Circuit are not the only ones to address this issue—courts in other jurisdictions have addressed the topic, with some reaching similar conclusions. Whether this is a sign of things to come is unclear. For now, rulings like this may have the effect of further driving TCPA litigation to the Ninth Circuit, where the standard for Article III standing is friendlier to plaintiffs like Perez.