Anton Ewing v. SQM US, Inc., 3:16-cv-1609-CAB-JLB (S.D. Cal. Sept. 29, 2016)

Plaintiff filed suit, placing at issue a single call to his cell phone using an ATDS, and attempting to represent a class of similarly situated individuals. The only allegation in the Complaint arguably relating to injury was a claim that the cell phone Defendants called was “assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls.”

Noting this phrasing “mimics the language of the TCPA,” and assuming for purposes of the Motion to Dismiss that Plaintiff alleged he actually incurred a specific charge for Defendants’ call to his cellular telephone, the Court held Plaintiff lacked standing to assert the TCPA claim and dismissed the case with prejudice stating:

“Even with this assumption, the [First Amended Complaint] [did] not adequately allege standing because it [did] not, and cannot, connect this claimed charge with the alleged TCPA violation–Defendants’ use of an ATDS to dial his cellular telephone number. Put differently, Plaintiff does not, and cannot, allege that Defendants’ use of an ATDS 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. Therefore, Plaintiff did not suffer an injury in fact traceable to Defendants’ violation of the TCPA and lacks standing to make a claim for the TCPA violation here.”

Addressing argument in Plaintiff’s Opposition Brief, the Court pointed out that Plaintiff did not even contend the alleged charge he incurred as a result of the call was sufficient injury to establish standing, instead arguing he sustained injury when he wasted time answering and addressing the robo-call, and was injured insofar as the call depleted his phone’s battery, requiring recharging. Noting these purported injuries were not alleged in the Complaint, the Court concluded that even if leave to amend were granted to assert the alleged injuries, dismissal would be nonetheless warranted. Specifically, as with the charge Plaintiff allegedly incurred because of the call, these alleged injuries were not connected to Defendants’ use of an ATDS. Quoting Seventh Circuit precedent, the Court stated “‘A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.'”