Another district court has dismissed a TCPA complaint based on lack of Article III standing. Following the Supreme Court’s holding in Spokeo, Inc. v. Robins, 578 U.S. __, 136 S. Ct. 1540 (2016), the Eastern District of Louisiana granted defendants’ motion to dismiss finding that plaintiff failed to plead an actual injury in fact in Sartin v. EKF Diagnostics, No. 2:16-cv-01816, 2016 U.S. Dist. LEXIS 86777 (E.D. La. July 5, 2016). Plaintiff Dr. Barry Sartin alleged that defendants Stanbio Laboratory and its parent company, EKF Diagnostics, violated the TCPA by sending unsolicited fax advertisements without proper opt-out notices to his office, as well as to the proposed class, to promote medical products and services. Defendants moved to dismiss plaintiff’s complaint, or alternatively to the strike the proposed class. The court found that as a threshold issue, plaintiff’s complaint failed to allege any facts indicating that plaintiff sustained a concrete injury in fact, as required under Spokeo and its predecessors. Judge Sarah S. Vance held that the only injury referenced in plaintiff’s complaint was to statutory damages, as opposed to any particularized injury. The court stated that “[w]hile a plaintiff need only provide ‘general factual allegations of injury’ to withstand dismissal at the pleading stage,” plaintiff’s “conclusory allegations lacks even general factual support.” Id. at *9. The court also found plaintiff’s attempt to raise new factual allegations or assert new claims as to specific injuries in his opposition papers to be inappropriate.
As this motion was pending before the Supreme Court issued Spokeo, the court denied defendants request to dismiss plaintiff’s complaint with prejudice, holding that “Dr. Sartin’s failure to adequately allege a concrete injury in fact may reflect mere pleading defect, rather than a more fundamental problem with his claims.” Id. at 11. It remains to be seen whether the court would permit a plaintiff that filed a post-Spokeo complaint to correct a similar pleading defect.