In a resounding victory for a Telephone Consumer Protection Act defendant, a California court held that a plaintiff was required to demonstrate she suffered a concrete injury for each individual call that she alleged violated the statute to establish standing.

As the plaintiff was unable to do so, the court dismissed the suit.

Elisa Romero failed to make payments on an amount owed to her Macy’s credit card. In an effort to collect on the debt, Department Stores National Bank began calling her cell phone, the only phone number Romero had provided for her account. According to her California federal court complaint, the defendants called her more than 290 times using an automated telephone dialing system over the course of six months.

Romero said she answered only three of the calls (one each in July, September, and December) and asked the defendant to stop calling her on each occasion. She also claimed that the phone calls caused her “severe and substantial emotional distress, including physical and emotional harm,” including “anxiety, stress, headaches … back, neck and shoulder pain, sleeping issues … anger, embarrassment, humiliation, depression, frustration, shame, lack of concentration, dizziness, weight loss, nervousness and tremors,” and “family and marital problems that required counseling.”

The defendant filed a motion to dismiss, contending that Romero lacked Article III standing. Emphasizing that a plaintiff must demonstrate standing for each claim, U.S. District Court Judge Cathy Ann Bencivengo agreed.

“Each alleged violation is a separate claim, meaning that Plaintiff must establish standing for each violation, which in turn means that Plaintiff must establish an injury in fact as if that was the only TCPA violation alleged in the complaint,” the court said. “Plaintiff does not satisfy this burden.”

A statutory violation alone does not eliminate the requirement that a plaintiff establish a concrete injury caused by that statutory violation, Judge Bencivengo wrote, citing the recent U.S. Supreme Court decision on standing, Robins v. Spokeo.

“Although a defendant violates the TCPA by dialing a cell phone with an ATDS, it is possible that the recipient’s phone was not turned on or did not ring, that the recipient did not hear the phone ring, or the recipient for whatever reason was unaware that the call occurred,” the court said. “A plaintiff cannot have suffered an injury in fact as a result of a phone call she did not know was made.”

The court then analyzed Romero’s claims of injury in fact by considering the calls in three categories: calls the plaintiff was not aware of because her phone did not ring or she did not hear it ring; calls she heard ring on her phone but did not answer; and the calls she answered and in which she spoke with a representative of the defendants.

With regard to the calls the plaintiff did not hear ring—either because her ringer was off or she did not have her phone with her when the calls occurred—“none of her alleged injuries in fact are plausible or could be traceable to the alleged TCPA violation,” the court said. “That Defendants placed a call to Plaintiff’s cell phone using an ATDS is merely a procedural violation.”

For Romero to have actually suffered an injury in fact, “she must, at the very least, have been aware of the call when it occurred,” Judge Bencivengo wrote. “Accordingly, because Plaintiff has not, and likely could not, present evidence of an injury in fact as a result of calls placed by Defendants to Plaintiff’s cell phone of which Plaintiff was not aware, Plaintiff lacks standing to assert a claim for a TCPA violation based on any of these calls.”

The court reached a similar conclusion with regard to the calls the plaintiff heard ring but did not answer.

“No reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing,” the court said. “When someone owns a cell phone and leaves the ringer on, they necessarily expect the phone to ring occasionally. Viewing each call in isolation, 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. Thus, Defendants’ TCPA violation (namely, use of an ATDS to call Plaintiff) could not have caused Plaintiff a concrete injury with respect to any (and each) of the calls that she did not answer.”

Finally, the court turned to the calls Romero answered and again found she lacked a concrete injury. “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,” the court said, and therefore, she “did not suffer an injury in fact traceable to Defendants’ violation of the TCPA.”

Judge Bencivengo was not persuaded by case law proffered by the plaintiff where the courts considered the calls as a whole, not evaluating standing separately for each call alleged, finding the reasoning circular.

“Under 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,” she wrote. “[T]he 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 create Article III standing.”

Romero’s harm was divorced from the alleged violations of the TCPA, the court added, because she “would have been no better off had Defendants dialed her telephone number manually.”

Granting the motion to dismiss, the court closed the case.

To read the order in Romero v. Department Stores National Bank, click here.

Why it matters: TCPA defendants can find a lot to like in the Romero decision, beginning with the court’s position that a plaintiff must demonstrate an injury in fact for each call listed in the complaint that allegedly violated the statute. In addition, the court was adamant that a plaintiff cannot establish standing for calls that she did not hear and calls that she did hear ring but did not answer.