VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff Robert Hossfeld ("Mr. Hossfeld") initiated this purported class action arising under the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227,
Pending before the Court is Compass's Motion To Dismiss for Lack of Standing Pursuant to the Supreme Court's Ruling in Spokeo, Inc. v. Robins (doc. 25) (the "Motion") filed on March 17, 2017. The Court has reviewed the parties' filings offered in support of and opposition to the Motion. (Docs. 25, 32, 35, 39, 45).
As the Eleventh Circuit has explained the standard on motions to dismiss for lack of subject matter jurisdiction:
Id. at 412-13 (quoting Mortensen, 549 F.2d at 891). Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (emphasis added); see also Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) ("The district court consequently has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.").
Here, the jurisdictional attack by Compass on Mr. Hossfeld's complaint is facial. (See Doc. 25 at 11 ("The allegations in the Amended Complaint, the documents specifically alleged in the Amended Complaint, and the public records (all of which may be properly considered in a motion to dismiss), show that [Mr.] Hossfeld has not suffered any injury in fact—and certainly none traceable to a TCPA violation.")). Consequently, the Court has accepted all allegations contained in Mr. Hossfeld's first amended complaint as true.
"The Constitution limits the exercise of the judicial power to cases and controversies." Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d 598, 604 (11th Cir. 1985). "The Art. III doctrine that requires a litigant to have `standing' to invoke the power of a federal court is perhaps the most important of these doctrines [that pertain to the case-or-controversy requirement]. `In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Allen v. Wright, 468 U.S. 737, 750-51 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014). An individual plaintiff has standing under the Constitution's case-or-controversy limitation in Art. III, § 2, when "(1) [the plaintiff] 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 the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
The doctrine of standing encompasses "both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Kowalski v. Tesmer, 543 U.S. 125, 128 (2004) (internal quotation marks omitted) (quoting Warth, 422 U.S. at 497). "[S]tanding in no way depends on the merits of the plaintiff's contention that particular conduct is illegal[.]" Warth, 422 U.S. at 500. Standing, instead, is based on whether the plaintiff has "`alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
From a prudential standpoint more particularly, "a party `generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'" Kowalski, 543 U.S. at 129 (2004) (quoting Warth, 422 U.S. at 499). "This rule assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental [or private] action and to do so with the necessary zeal and appropriate presentation." Kowalski, 543 U.S. at 129 (citing Warth, 422 U.S. at 500).
Compass's Motion is primarily premised upon the Supreme Court's examination of standing and the reversal of the Ninth Circuit in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), as revised (May 24, 2016). Spokeo, a company that "operates a `people search engine'", was sued in district court under the Fair Credit Reporting Act ("FCRA") when the plaintiff discovered that a search request concerning him contained inaccurate personal information. Id. at 1544. Determining that the plaintiff lacked standing, the district court dismissed the case. Id. On appeal, the Ninth Circuit reversed and the Supreme Court granted certiorari review of that standing determination. Id. at 1544-45, 1546.
Finding the Ninth Circuit's analysis of standing to be "incomplete," the Supreme Court "vacat[ed] the decision below and remand[ed] for the Ninth Circuit to consider both aspects of the injury-in-fact requirement." Id. at 1545 (emphasis in original). More specifically, "[t]he Ninth Circuit's analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness)." Id. The Supreme Court expressed no opinion "as to whether the Ninth Circuit's ultimate conclusion—that Robins adequately alleged an injury in fact—was correct." Id. at 1550.
As the Supreme Court explained the component of concreteness in Spokeo:
Id. at 1548-49 (some citations omitted).
The Spokeo Supreme Court further instructed:
Id. at 1549 (emphasis added).
Finally, in illustrating the meaning of these (and other) principles of concreteness, the Supreme Court provided two examples of conceivable violations of FCRA that would lack the level of concreteness necessary to satisfy Article III's injury-in-fact framework:
Id. at 1550 (emphasis added).
With the foregoing standards in mind, the Court turns to an evaluation of Mr. Hossfeld's TCPA allegations as they pertain to standing and the merits of Compass's Motion. Compass raises two primary issues in its initial brief. First, "[Mr.] Hossfeld has not suffered a concrete and particularized injury in fact, denying this Court subject matter jurisdiction over this case." (Doc. 25 at 12 (emphasis omitted)). Second, "[e]ven assuming [Mr.] Hossfeld has suffered an injury fact, such an injury is not traceable to any alleged violation of the TCPA and would occur anytime [Mr.] Hossfeld receives a phone call—even those that are TCPA compliant." (Id. at 16 (emphasis omitted)).
Mr. Hossfeld asserts that Compass (with MSR acting as its agent) (doc. 12 at 4 ¶ 17) placed "unsolicited, automatically dialed calls to his cellular telephone from the number `855-271-7383.'" (Id. ¶ 20). This first occurred on April 2, 2016. Id. Mr. Hossfeld "does not have any current relationship with Defendants, and has not for over thirteen years, if ever." (Id. ¶ 21).
"[T]he operator named Molly asked whether [Mr. Hossfeld] ever visited BBVA Compass in Temple, Texas." Id. Mr. Hossfeld alleges that he "expressly notified MSR and Compass that they had reached the wrong person and requested not to be called during this first unsolicited call." (Id. at 5 ¶ 22).
During this same call, the representative informed Mr. Hossfeld "that the call had been made with an autodialer." (Id. ¶ 24). Mr. Hossfeld "warned [the representative] that the nonconsensual automated call was a violation of federal law." (Id. ¶ 25). Mr. Hossfeld also later in June 2016, "emailed Compass customer service and notified Compass that it had called him in violation of federal law, and threatened a lawsuit." (Id. ¶ 30).
On November 8, 2016, "Defendants again called [Mr. Hossfeld]'s cellular telephone number using an automatic telephone dialing system." (Id. at 6 ¶ 31). Mr. Hossfeld complains that "Defendants' calls were a nuisance which briefly deprived [him] of the use of his phone, invaded his personal privacy, and wasted his time." (Doc. 12 at 7 ¶ 40). "Additionally, [Mr. Hossfeld] incurred a reduction in his cellular battery life as a result of Defendants' calls." Id.
Mr. Hossfeld maintains that these two unsolicited automatic calls "did not have a marketing purpose" (doc. 12 at 4 ¶ 18) and violated 47 U.S.C. § 227(b)(1)(A)(iii). That section of the TCPA provides:
47 U.S.C. § 227(b)(1)(A)(iii).
In Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012), the Supreme Court described the congressional findings for passing the TCPA:
Mims, 565 U.S. at 372-73; see also H.R. REP. NO. 102-317, 1991 WL 245201, at *10 (Nov. 15, 1991) ("The preponderance of the evidence documents the existence of a national problem and argues persuasively in favor of federal intervention balancing the privacy rights of the individual and the commercial speech rights of the telemarketer.").
In Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), the Eleventh Circuit reversed the district court's absence of standing determination in the context of a pre-Spokeo TCPA complaint. The alleged facts involved one unsolicited fax sent to a line belonging to a plaintiff business that was neither seen nor printed by an employee of the plaintiff.
Post-Spokeo, the Eleventh Circuit reaffirmed its Palm Beach injury-in-fact holding in another junk-fax case arising under the TCPA and agreed with the district court that the plaintiff clinic had standing to bring the TCPA claim. See Florence Endocrine Clinic, PLLC v. Arriva Med., LLC, 858 F.3d 1362, 1366 (11th Cir. 2017) ("Under our precedent, the clinic suffered an injury in fact."); id. ("Because the clinic's fax machine was occupied and rendered unavailable for legitimate business while processing the unsolicited fax, the clinic established that it suffered a concrete injury."). After confirming the existence of standing, the Eleventh Circuit affirmed the district court's merits-based dismissal of the case for failure to state a claim. Id. at 1367. More specifically, the Eleventh Circuit found that "[t]he faxes sent by Arriva to the clinic are not `advertisements' within the meaning of the Act[; instead,] [e]ach fax relates to a specific order already placed by a patient of the clinic and requests only that the doctor of the patient fill out an order form to facilitate a purchase made by that patient." Id.
Consistent with Palm Beach and Arriva, Mr. Hossfeld has undoubtedly cleared the particularity hurdle and asserted a personal connection to the harm claimed that is sufficient to establish this prong of the standing requirement. The two unsolicited calls described in Ms. Hossfeld's first amended complaint were made to his personal cell phone number. (Doc. 12 at 4 ¶ 17). Mr. Hossfeld further alleges how those automatically-dialed calls impacted him personally-they temporarily deprived him from being able to use his cell phone, invaded his privacy, wasted his time, and reduced his cell phone's battery's life. (Doc. 12 at 7 ¶ 40).
Although Compass may not have intended for Mr. Hossfeld to personally receive these survey calls (doc. 25 at 6), liability for using an autodialing system under § 227(b)(1)(A)(iii) does not provide a statutory exception if someone other than the defendant's intended recipient answers or receives the call. Also, none of the standing cases cited by Compass evaluates particularity under the TCPA through the lens of what a defendant did or did not intend regarding the actual recipient of any unsolicited calls.
One of the post-Spokeo TCPA cases relied upon by Compass-Smith v. Aitima Med. Equip., Inc., No. ED CV 16-00339-AB (DTBx), 2016 WL 4618780 (C.D. Cal. July 29, 2016) (doc. 25 at 13)-underscores the existence of particularity here. As the court explained particularity under the TCPA in Smith:
2016 WL 4618780, at *3 (some citations omitted) (emphasis added) (alteration added to correctly reflect quoted language from Spokeo). Mr. Hossfeld's allegations that Compass made unsolicited, automatically dialed calls
Thus, particularity is established and the Court now considers the closer question of concreteness.
As Spokeo confirms, concreteness requires that Mr. Hossfeld allegedly endure a harm that is substantial in an Article III sense. Simply asserting facts that plausibly show a TCPA statutory violation is not enough to trigger constitutional concreteness. Instead, Spokeo cautions that whenever a plaintiff, like Mr. Hossfeld, is claiming intangible harm from a statutory violation, this Court must additionally consider: (i) whether such intangible injury is closely connected to harms that are traditionally cognizable under English and/or American jurisprudence; and (ii) whether such intangible (and otherwise constitutionally inadequate) injury is one that, in the judgment of Congress, should be elevated to a harm that meets the Article III threshold.
The thrust of Compass's contention is that Mr. Hossfeld has, at most, suffered a de minimis injury which falls way below a persistent pattern of invasive, unsolicited calling (necessary to plausibly support an invasion of privacy or nuisance common-law claim) that the TCPA is designed to cover. (Doc. 25 at 12-14); (see id. at 15-16 ("Two, isolated, non-telemarketing [calls], separated by six months do[] not rise to the level of a Constitutional `injury in fact' and plaintiff alleges no facts to establish such an `injury in fact' beyond a conclusory statement about `nuisance.'")). The parties have provided the Court with numerous cases to consider as persuasive authority when deciding this post-Spokeo issue under the TCPA. Ultimately, the Court rejects those cases that, utilizing a de minimis approach to evaluating concreteness, have found that a TCPA claim lacks that component when a plaintiff is complaining about only one or two unsolicited communications via a telephone call, voicemail message, text message, or facsimile. The Court, instead, adopts the Third Circuit's reasoning in Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017), and finds that Mr. Hossfeld's allegations of at least one unauthorized phone call show a sufficiently concrete injury.
Susinno involved a plaintiff suing under the TCPA for a "single solicitation" to her cell phone from a fitness company that resulted in the "receipt of [a] call and voicemail[.]" 862 F.3d at 348. The district court dismissed the plaintiff's case for lack of subject matter jurisdiction and the Third Circuit reversed. Id. The Third Circuit framed the two questions on appeal as: "Does the TCPA prohibit the conduct alleged by Susinno? And if it does, is the harm alleged sufficiently concrete for Susinno to have standing to sue under Article III of the United States Constitution?" Id.
After addressing the first question affirmatively,
862 F.3d at 351 (emphasis in original).
Then applying its Horizon framework to the TCPA allegations before it, the Third Circuit found the presence of concreteness for two reasons:
Susinno, 862 F.3d at 351 (emphasis added).
Regarding its second reason, the Susinno court further explained why applying a de minimis rule to determine concreteness under the TCPA is inappropriate under Spokeo because of Congress's power (in certain situations) to legislatively promote previously inadequate (i.e., de minimis) harms to legally adequate (i.e., non-de minimis) ones. As the Susinno court more specifically stated:
Susinno, 862 F.3d at 351-52 (footnote omitted) (emphasis added); see also Etzel v. Hooters of Am., LLC, 223 F.Supp.3d 1306, 1311, 1312 (N.D. Ga. 2016) (rejecting application of de minimis rule to "a lone text message after withdrawal of consent" (internal quotation marks omitted) given "the [unambiguous] language of the TCPA . . . that a violation can occur from a single call" under § 227(b)(1)(A) in contrast to § 227(c)(5) which requires more than one call); Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 859 (11th Cir. 2000) ("[W]hen Congress uses different language in similar sections, it intends different meanings." (citing United States v. Gonzales, 520 U.S. 1, 5 (1997))); compare 47 U.S.C. § 227(b)(1)(A) ("It shall be unlawful for any person . . . to make any call . . . using any automatic telephone dialing system or an artificial or prerecorded voice. . . ."), with 47 U.S.C. § 227(c)(5) (requiring that a person "receive[] more than one telephone call within any 12-month period. . . ." to bring a private right of action); cf. also Tillman v. Ally Fin. Inc., No. 2:16-CV-313-FTM-99CM, 2016 WL 6996113, at *4 (M.D. Fla. Nov. 30, 2016) (finding unpersuasive defendant's reliance upon a de minimis rule to TCPA in light of binding Supreme Court precedent rejecting a similar argument that "an injury must be `significant'; [and, instead, finding that] a small injury, `an identiable trifle,' is sufficient to confer standing" (quoting Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351 (11th Cir. 2009) (quoting in turn United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973))).
Guided by Susinno which comparably involved one unsolicited call to the plaintiff's cell phone and a related voicemail message, this Court similarly holds that the first unauthorized communication experience by Mr. Hossfeld-consisting of the call from Compass to his cell phone number and the subsequent telephone conversation with a representative-is not merely a procedural or technical violation of the TCPA. Instead, the contact falls squarely within the scope of what the TCPA makes unlawful under § 227(b)(1)(A)(iii)-a non-emergency call made to Mr. Hossfeld's cell phone number without his permission using an automatic telephone dialing system.
The Court acknowledges Compass's contention that Mr. Hossfeld's removal of all telemarketing allegations from his first amended complaint means he cannot show an injury in fact. (Doc. 25 at 2-7). Compass basis this argument upon the TCPA's critical focus on curbing intrusive telemarketing practices. (Doc. 25 at 2-7). However, in contrast to § 227(b)(1)(C) (the TCPA's junk-fax provision analyzed by the Eleventh Circuit post-Spokeo in Arriva, supra)
Consistent with this statutory distinction between § 227(b)(1)(C) and § 227(b)(1)(A)(iii), Compass concedes that "it is true that certain prescribed [sic] non-telemarketing calls can still be actionable under the TCPA. . . ." (Doc. 25 at 5). Further, the stated purpose of the call-whether driven by telemarketing or survey-related-is ultimately of no consequence to the Article III harm caused by the intrusion associated with such an unsolicited automated call.
The Court additionally agrees with Susinno's historical assessment that the intangible harm resulting from the alleged TCPA violation shares a "close relationship to[,]" Spokeo, 136 S. Ct. at 1549, and most closely mirrors an intrusion upon seclusion privacy claim. As set out in H.R. REP. NO. 102-317, concerning unauthorized automated calls:
Id., 1991 WL 245201, at *10 (emphasis added); cf. also Etzel, 223 F. Supp. 3d at 1312 (finding that, to the extent Palm Beach's junk-fax concreteness holding is inapplicable in the context of an unauthorized text, the plaintiff has alternatively satisfied concreteness in asserting an invasion-of-privacy injury and experiencing a "text . . . [that]
Furthermore, the Eleventh Circuit recently concluded that a claim arising under the Video Privacy Protection Act ("VPPA")
Perry v. Cable News Network, Inc., 854 F.3d 1336, 1340-41 (11th Cir. 2017) (footnote omitted) (emphasis added).
Finally, while Compass is correct that Mr. Hossfeld has not alleged a persistent pattern or "proliferation of intrusive" automated calls to his cell phone-a primary concern of Congress in passing the TCPA as observed in Mims-that argument ignores the plain wording of the statute and Spokeo's express reaffirmation of Lujan's earlier recognition that Congress may elevate an otherwise inadequate harm (having a sufficient nexus to a historically-recognized legal claim), such as a single unsolicited call (and resulting telephone conversation), to concrete status. Cf. Lexmark, 134 S. Ct. at 1388 ("We do not ask whether in our judgment Congress should have authorized Static Control's suit, but whether Congress in fact did so."); id. ("Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied,
Thus, concreteness is established and the Court now considers the injury-in-fact issue of traceability.
Compass alternatively contends that, even if Mr. Hossfeld satisfies the particularity and concreteness standards, he still lacks standing because he cannot show that his injury is "`tracebable to the challenged conduct of the defendant.'" (Doc. 25 at 16 (quoting Spokeo, 136 S. Ct. at 1547)). Compass defines the challenged conduct as calling Mr. Hossfeld's cell phone number by way of an automated system. Compass relies upon Ewing v. SQM US, Inc., 211 F.Supp.3d 1289 (S.D. Cal. 2016), and Romero v. Dep't Stores Nat'l Bank, 199 F.Supp.3d 1256 (S.D. Cal. 2016), appealed docketed, No. 16-56265 (9th Cir. Sept. 1, 2016),
In Ewing, the district court found that the TCPA complaint did not establish "an injury in fact traceable to Defendants' violation of the TCPA[.]" 211 F. Supp. 3d at 1293. More specifically, the Ewing court reasoned that a traceable injury could not be shown because the "Plaintiff does not, and cannot, allege that Defendants' use of an ATDS [or autodialer] to dial his number caused him to incur a charge that he would not have incurred had Defendants manually dialed his number, which would not have violated the TCPA." Id. When considering the plaintiff's other claimed injuries of wasting time and depleting his cell phone battery, the Ewing court similarly concluded that the plaintiff:
211 F. Supp. 3d at 1293.
The Romero court likewise found the absence of traceability:
Romero, 199 F. Supp. 3d at 1265 (emphasis added).
Mr. Hossfeld's opposition suggests that this Court should disregard Ewing and Romero as unpersuasive. Based upon the Supreme Court's discussion of traceability in Allen, Lujan, and the additional authorities discussed below, this Court agrees.
In Allen, the plaintiffs were challenging "the IRS's grant of tax exemptions to some racially discriminatory schools." 468 U.S. at 757. One of the injuries sought to be redressed in their lawsuit was "their children's diminished ability to receive an education in a racially integrated school[.]" Allen, 468 U.S. at 756. The Supreme Court rejected the plaintiffs' standing tied to this injury as "not fairly traceable to the Government conduct [being] challenge[d] as unlawful." Allen, 468 U.S. at 757. More specifically, the Supreme Court reasoned:
Allen, 468 U.S. at 757-58; see also id., 468 U.S. at 759 ("The links in the chain of causation between the challenged Government conduct and the asserted injury are far too weak for the chain as a whole to sustain respondents' standing.").
The Supreme Court also relied upon separation of powers concerns when explaining lack of traceability:
Allen, 468 U.S. at 759-760 (emphasis added).
Here, in contrast to Allen, the link between Mr. Hossfeld's intrusion injury and Compass's conduct is neither speculative, nor attenuated, nor indirect. Instead, Compass's use of the autodialer to call Mr. Hossfeld's cell phone number is the direct source that led to his claimed injury. See Ung v. Universal Acceptance Corp., 198 F.Supp.3d 1036, 1040 (D. Minn. 2016) ("In order to show traceability, Ung must show only that Universal's calls were the source of his harm."); id. ("It is readily apparent that the only harm alleged in this case resulted from Universal's conduct, and not from the actions of any third parties."); see also Lujan, 504 U.S. at 560 ("[T]here must be a causal connection between the injury and the conduct complained of—the injury has to be `fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.'" (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976))).
Additionally, unlike Allen, there is no separation of powers concern here. Mr. Hossfeld is challenging conduct by, a private actor, Compass, made unlawful by Congress when it passed the TCPA. While traceability is essential in all federal lawsuits, the Court's own research shows that the more common context for it to become a disputed issue is when a plaintiff contests governmental action, e.g., Warth, Simon, Allen, and Lujan.
Therefore, the Court is in agreement with those other district courts that have found Romero and Ewing to be unpersuasive. See, e.g., LaVigne v. First Cmty. Bancshares, Inc., 215 F.Supp.3d 1138, 1147 (D.N.M. 2016) (agreeing with the plaintiff that Romero improperly "conflates the means through which [the defendant] (allegedly) violated the TCPA with the harm resulting from that alleged violation") (emphasis omitted); Mohamed v. Off Lease Only, Inc., No. 15-23352-CIV, 2017 WL 1080342, at *3 (S.D. Fla. Mar. 22, 2017) ("respectfully disagree[ing] with the Romero and Ewing decisions" and quoting LaVigne's reason for rejecting Romero regarding traceability). Indeed, taking the traceability conclusion reached in Romero and Ewing to its logical extreme, this Court (like others) has doubts that any plaintiff would ever meet the traceability threshold under the TCPA. Cf. LaVigne, 215 F. Supp. 3d at 1143 ("Under Romero, it appears to be nearly impossible for a plaintiff to allege a private right of action under the TCPA for automated solicitation calls.").
Thus, this Court concludes that Mr. Hossfeld's intrusion injury is fairly traceable to Compass's alleged violation of the TCPA's automated-dialing provision.
In its reply, Compass reasserts that Mr. Hossfeld's first amended complaint lacks particularity, concreteness, and traceability. (Doc. 35 at 2-9). Compass additionally questions Mr. Hossfeld's reliance upon Palm Beach as it pertains to the issues of concreteness and traceability. (Doc. 35 at 9-10). Finally, relying upon Stoops v. Wells Fargo Bank, N.A., 197 F.Supp.3d 782 (W.D. Pa. 2016), Compass expressly invokes the concept of prudential standing-more specifically, the zone-of-interests prong-as an additional reason to dismiss this action.
Rather than restating its reasoning for those issues already addressed exhaustively above, the Court summarizes that, consistent with Palm Beach, Arriva, and Smith, Mr. Hossfeld's intrusion injury is sufficiently particularized in that it pertains to him. Relying primarily upon Susinno and bolstered by Perry's acknowledgment that traditional privacy rights are an appropriate source of law to bestow concreteness post-Spokeo, Mr. Hossfeld's intrusion injury-in the form of a single unauthorized and automatically-dialed telephone call to his cell phone (and the related telephone conversation)-is sufficiently concrete.
The Court is not persuaded to follow the traceability holding first adopted in Romero and subsequently followed in Ewing.
Finally-as discussed in greater detail below-the Court is not persuaded to dismiss this action on the basis of Stoops or the doctrine of prudential standing. In Stoops, the plaintiff "bought and activated prepaid cell phones[.]" 197 F. Supp. 3d at 787. The district court found the absence of an injury in fact on the basis of the plaintiff's claimed privacy interests because she admitted in her deposition that "her only purpose in using her cell phones [wa]s to file TCPA lawsuits[.]" 197 F. Supp. 3d at 800. Compass points to Mr. Hossfeld's "filing of seven TCPA class actions"
While Compass's attorney suggests that Mr. Hossfeld is "someone clearly not annoyed but instead pleased when he is called" (doc. 25 at 10), "[s]tatements by counsel in briefs are not evidence." Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir. 1980). Thus, until Mr. Hossfeld's deposition is taken (or other discovery is conducted), the Court can only speculate why Mr. Hossfeld has been a plaintiff in multiple cases and why he did not provide an accurate phone number in his June 7, 2016, email to Compass.
After deciding that the plaintiff in Stoops lacked constitutional standing, the district court alternatively determined that the plaintiff lacked prudential standing:
Stoops, 197 F.Supp.3d 782, 803-04; cf. also Graden v. Conexant Sys. Inc., 496 F.3d 291, 295 (3d Cir. 2007) ("Constitutional and prudential standing are about, respectively, the constitutional power of a federal court to resolve a dispute and the wisdom of so doing.").
The Stoops court focused on the third element and found the absence of prudential standing because "Plaintiff's interests, which include purchasing cell phones with the hope of receiving calls from creditors for the sole purpose of collecting statutory damages, are not `among the sorts of interests [the TCPA was] specifically designed to protect.'" 197 F. Supp. 3d at 805 (quoting Chem Serv., Inc. v. Envtl. Monitoring Sys. Lab.-Cincinnati, 12 F.3d 1256, 1262 (3d Cir. 1993) (internal quotations omitted)); see also Stoops, 197 F. Supp. 3d at 798 ("As the parties recognize, however, the facts of the instant case have not arisen in other TCPA actions because
Thus, Compass's Motion is
Doc. 25 at 8 n.7.
