FL Court Holds Texts Insufficient to Confer Article III Standing

Monday, December 14, 2020

The Southern District of Florida just lately dismissed a TCPA declare sua sponte for lack of material jurisdiction, discovering that the plaintiff had not alleged a concrete injury-in-fact. See Perez v. Golden Belief Insurance coverage, Inc., 470 F. Supp. 3d 1327 (S.D. Fla. 2020).

Perez alleged that Golden Belief had violated the TCPA when, with out his consent, it used an ATDS to ship two telemarketing textual content messages to his cellular phone. Golden Belief argued that the criticism ought to be dismissed as a result of Perez didn’t correctly allege using an ATDS.

Earlier than addressing Golden Belief’s argument, nonetheless, the courtroom discovered that Perez lacked standing. Perez alleged that the 2 textual content messages “interrupted enterprise calls” and that he was injured by “losing 60 seconds of his time reviewing the messages, inflicting aggravation and intrusion, losing 7 minutes researching Defendant and the supply of the messages on the web, and losing 5 minutes finding and retaining counsel. . . .”

The Courtroom analogized to Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), by which the Eleventh Circuit held that receiving a single textual content message doesn’t fulfill Article III standing. In Salcedo, the plaintiff alleged that one unsolicited textual content message “brought about him to waste his time addressing the message, made each the plaintiff and his telephone unavailable for in any other case authentic pursuits, and invaded his privateness and proper to benefit from the full utility of his mobile system.”

Although the Salcedo courtroom addressed the hurt allegedly brought on by one textual content message, the Perez courtroom utilized the identical reasoning to the hurt allegedly brought on by two textual content messages. The courtroom additionally famous that, opposite to Perez’s allegation that the textual content messages “interrupted enterprise calls,” incoming textual content messages don’t render a tool unusable for any time period.

The Perez determination is the most recent instance of a trial courtroom discovering that merely receiving textual content messages doesn’t quantity to an injury-in-fact. Circumstances like Eldridge v. Pet Grocery store Inc. and Perez clarify that even a number of textual content messages might not set up a concrete injury-in-fact. However courts within the Eleventh Circuit usually are not the one ones to deal with this challenge—courts in different jurisdictions have addressed the subject, with some reaching comparable conclusions. Whether or not it is a signal of issues to return is unclear. For now, rulings like this will likely have the impact of additional driving TCPA litigation to the Ninth Circuit, the place the usual for Article III standing is friendlier to plaintiffs like Perez.