The Southern District of California has issued a post-Spokeo decision favorable to defendants. InRomero v. Dep’t Stores Nat’l Bank, No. 15-CV-193-CAB-MDD, 2016 U.S. Dist. LEXIS 110889 (S.D. Cal. Aug. 5, 2016), Judge Cathy Ann Bencivengo granted defendants’ motion to dismiss for lack of subject matter jurisdiction, finding that plaintiff failed to connect her claimed injuries in fact with any specifically alleged violations of the TCPA.
Plaintiff brought suit under the TCPA and California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq. (“RFDCPA”), alleging that defendants’ conduct in attempting to collect payment on plaintiff’s Macy’s charge account violated both statutes. Plaintiff claimed that defendants called her cellular telephone over 270 times using an ATDS between July and December 2014, and that on three occasions, she picked up the phone and told a representative to stop calling her. After discovery was conducted in the case, defendants obtained summary judgment with respect to plaintiff’s RFDCPA claims. Defendants then filed a motion to dismiss based on plaintiff’s alleged TCPA claims. As discovery had already been conducted, Judge Bencivengo evaluated each of plaintiff’s claims with specificity by dividing the calls into three separate categories: (1) calls that plaintiff did not hear and did not answer; (2) calls that plaintiff heard but did not answer; and (3) calls that plaintiff heard and answered.
With respect to the first category of calls, which plaintiff did not hear and did not answer, the court held that plaintiff had not, and likely could not, present evidence of an injury in fact. The court stated that “[f]or Plaintiff to have suffered ‘lost time, aggravation, and distress,’ she must, at the very least, have been aware of the call when it occurred.” Id. at *13.
With respect to the second category of calls, those that plaintiff heard and did not answer, or dialed back, the court found that plaintiff “must demonstrate that she suffered an injury in fact solely as a result of the telephone ringing for that particular call,” in order to establish a TCPA violation. Id. at *14. The court stated, “[n]o reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing.” Id. The court further analogized that any individual telephone call, be it from a family member, employer or creditor, dialed manually or via ATDS, is essentially the same in nature. Id.
Finally, the court analyzed the two calls that plaintiff actually heard and answered, and held that merely because the calls were made with an ATDS does not give plaintiff reason to claim injury. The court found that the two answered calls could not have caused the plaintiff greater harm than if they had been manually dialed, which would not have violated the TCPA. Id. at *15.
The court stated that it was unpersuaded by the reasoning of other district court decisions post-Spokeo that found individual plaintiffs to have suffered concrete injuries and therefore established standing under the TCPA. Judge Bencivengo made note that “regardless of Congress’ reason for enacting the TCPA, one singular call, viewed in isolation and without consideration of the purpose of the call, does not cause an injury that is traceable to the conduct for which the TCPA created a private right of action, namely the use of an ATDS to call a cell phone.” Id. at 18. The court ultimately held that any harm suffered by plaintiff was unconnected to the alleged TCPA violations.