The District Court for the Southern District of California recently granted a motion to dismiss in a Telephone Consumer Protection Act case based on the Supreme Court’s decision in Spokeo, finding that the plaintiff failed to put forth evidence proving an injury-in-fact.  

In Romero v. Department Stores National Bank, the defendant creditors allegedly attempted to call the plaintiff on her cell phone number after she failed to make payments on her credit card.  Plaintiff claimed that Defendants called her on numerous occasions using an automated telephone dialing system (“ATDS”), but Plaintiff only answered three of those telephone calls.  Plaintiff’s complaint alleged that she suffered “severe and substantial emotional distress.”  Defendants subsequently filed a motion to dismiss, arguing that Plaintiff lacked Article III standing.  The Court agreed with Defendants.   

The Court first noted that because the TCPA provides for a separate statutory damage award for each call that violates the statute, a plaintiff “must establish standing for each violation, which in turn means that Plaintiff must establish an injury in fact caused by each individual call.”  The Court therefore considered whether Plaintiff had presented evidence of an injury-in-fact specific to each individual call, not the aggregate based on the total quantity of alleged calls.   

The Court then went on to reject Plaintiff’s argument that “she suffered the exact harm that Congress wanted to eliminate with the TCPA” – unwanted calls to her cell phone and violation of privacy.  Although this argument may satisfy the “particular” element of standing, it does not satisfy the “concrete” requirement, held the Court.  “Plaintiff does not offer any evidence of a concrete injury caused by the use of an ATDS, as opposed to a manually dialed call.”  In other words, “[u]nder Spokeo, if the defendant’s actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a plaintiff standing.” 

The Court additionally held that Plaintiff’s claim of “lost time, aggravation, and distress” was the only injury that could even possibly be an injury-in-fact for the purpose of standing.  However, “Plaintiff’s failure to connect any of these claimed injuries in fact with any (or each) specific TCPA violation is alone fatal to Plaintiff’s standing argument.” 

In sum, the Court held that “the mere dialing of a cellular telephone number using an ATDS, even if the call is not heard or answered by the recipient, does not cause an injury to the recipient.  That the TCPA allows private suits for such calls does not somehow elevate this non-injury into a concrete injury sufficient to satisfy Article III standing.”  As such, Plaintiff’s complaint was dismissed by the Court.