In a victory for a Telephone Consumer Protection Act (TCPA) defendant, a Florida federal court judge sua sponte found that a plaintiff lacked standing to bring the case.
Royal Rose filed a TCPA action against MyComputerCareer, alleging that he received two calls on his cellphone that used prerecorded voice messages.
Without the parties raising the issue, U.S. Magistrate Judge Joel B. Toomey took the initiative and expressed concern about whether Rose had established Article III standing to bring the suit.
“In this case, it does not appear that plaintiff has alleged sufficient facts to establish standing,” the court wrote. “The complaint alleges few facts other than that plaintiff received two calls on his cellphone that used prerecorded voice messages. There is little background alleged, such as how defendant got plaintiff’s cellphone number in the first place. The allegations are brief, conclusory and appear to fall far short of alleging a ‘concrete’ harm, calling into question ‘whether plaintiff ha[s] identified a close historical or common law analogue for [his] asserted injury.”
Judge Toomey recognized that in Cordoba v. DirecTV, LLC, the U.S. Court of Appeals for the Eleventh Circuit held that the receipt of more than one unwanted telemarketing call made in violation of the TCPA is a concrete injury that satisfies the minimum requirements of Article III standing.
Despite this precedent, “there is still a standing issue in this case,” Judge Toomey said. He noted that the Supreme Court’s decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2200–08 (2021), which held that “plaintiffs have the burden of establishing Article III standing for statutory violations by alleging facts that would allow [a court] to find a common-law analogue to the injury in question[,]” called Cordoba and other Eleventh Circuit precedent into doubt given that they were decided before TransUnion.
Further, “it is not clear in this case that the subject calls were either ‘unwanted’ or ‘telemarketing’ calls,” Judge Toomey added. “The conclusory allegations of the complaint are insufficient for the court to make this determination. Moreover, defendant contends that the calls were actually solicited by plaintiff and also should not be considered telemarketing calls.”
Given the “significant” standing question presented, the court ordered briefing on the issue.
To read the order in Royal Rose v. MyComputerCareer, Inc., click here.
Why it matters: The court did the defendant a favor, raising the issue of standing of its own accord and expressing concern that the plaintiff’s conclusory allegations were insufficient to demonstrate an injury in fact for purposes of Article III standing. While courts in the Eleventh Circuit have determined that multiple text messages are insufficient to state a TCPA claim unless a plaintiff can identify some qualitative harm (however slight) from receipt of such messages, the application of this qualitative analysis to calls would be a boon for TCPA defendants in Florida. This case also adds to the debate in the Eleventh Circuit as to whether the number of calls or texts alone—i.e., more than two—is sufficient for TCPA standing, as courts in other circuits have held.