Romero v. Department Stores National Bank, 15-cv-193-CAB-MDD (S.D. Cal. Aug. 5, 2016)

On the eve of trial, the Court dismissed Plaintiff’s claims for lack of standing relying on the Supreme Court case of Spokeo v. Robbins. At issue in the case was Plaintiff’s contention that Defendant called her more than 290 times using an Automatic Telephone Dialing System in violation of the TCPA. After the case was set for trial, Plaintiff prepared a pre-trial memorandum and the Court entered a pre-trial Order prepared by the parties. Neither document referenced any actual damages experienced by Plaintiff. As such, Defendant moved to dismiss the case for lack of standing.

In dismissing the case, the Court noted that each alleged violation of the TCPA is a separate claim, meaning that Plaintiff must establish standing for each violation, which in turn means that Plaintiff must establish injury in fact caused by each individual call. In other words, for each call Plaintiff must establish an injury in fact as if that was the only TCPA violation alleged in the Complaint. The Court characterized Plaintiff’s argument that she experienced the exact harm Congress wanted to eliminate (unwanted calls to her cell phone in violation of privacy), as relating to the particularity component of an injury in fact necessary to establish standing, not the concreteness component. The Court also rejected Plaintiff’s argument that her “lost time, aggravation, and distress” satisfied the concreteness component, analyzing it with respect to the three types of calls at issue: (1) Calls of which Plaintiff was unaware because her phone did not ring or she did not hear it ring; (2) Calls that Plaintiff heard ring but did not answer; and (3) Calls Plaintiff answered, speaking with a representative of Defendant.

With respect to calls of which Plaintiff was unaware, the Court noted that Plaintiff’s Complaint placed 276 calls at issue but through discovery learned that 290 calls were made, placing those at issue. It held that to the extent Plaintiff was unaware of Defendants’ calls either because her ringer was turned off, or because she did not have her phone with her when the calls occurred, none of her alleged injuries in fact were plausible or could be traceable to the alleged TCPA violation. That Defendant placed calls to Plaintiff’s cell phone using an ATDS is merely a procedural violation. For Plaintiff to have suffered “lost time, aggravation, and distress,” she must, at the very least, have been aware of the call when it occurred.

The Court also held that calls Plaintiff received but did not answer failed to provide her with standing, reiterating that proof of standing requires Plaintiff demonstrate she experienced an injury in fact solely as a result of the telephone ringing for that particular call, adding:

No reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing. When someone owns a cell phone and leaves the ringer on, they necessarily expect the phone to ring occasionally. Viewing each call in insolation, whether the phone rings as a result of a call from a family member, a call from an employer, a manually dialed call from a creditor, or an ATDS dialed call from a creditor, any ‘lost time, aggravation, and distress,” are the same.

Finally, the Court held that the two calls Plaintiff answered did not give rise to standing to prosecute a TCPA claim because she does not, and cannot, connect her claimed “lost time, aggravation and distress” with Defendants’ used of an ATDS to have called her. “Put differently, Plaintiff does not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA.”