We’re closely tracking the recent trend involving plaintiffs’ use of their lack of Article III standing as a basis to avoid federal jurisdiction. Last week we reported on a case in the Northern District of California that was remanded based on the plaintiff’s argument that the defendant could not establish Article III standing. Before that, the Eighth Circuit upheld the lower court’s decision to remand a case originally filed in state court after it granted the defendant’s motion to dismiss on Article III grounds.
Now we’ve got a third variation on the trend.
In Gonzalez v. TCR Sports Broad. Holding, LLP, No. 18-cv-20048, 2018 U.S. Dist. LEXIS 153705 (S.D. Fla. Sep. 10, 2018), the defendants removed a TCPA case filed in state court, and plaintiff moved to remand on the basis that defendants had failed to allege plaintiff’s Article III standing in their notice of removal. Specifically, plaintiff argued that the requirement under 28 U.S.C. § 1446(a) of a “short and plain statement of the grounds for removal,” meant defendant had to “allege Plaintiff has Article III standing,” in its notice of removal because standing “is a threshold jurisdictional question.” Id. at *5.
The court disagreed, holding this was not what the law required. Examining Supreme Court precedent, the court found that section 1446(a) only required a “plausible jurisdictional allegation – that is, a plausible allegation of either federal question jurisdiction or diversity jurisdiction.” Id. at *5-6 (discussing Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547 (2014)). And that was done by defendants in their notice of removal. However, the court found that, beyond this jurisdictional allegation, the law “clearly” did not require defendants to take the additional step of “alleg[ing] Plaintiff’s standing in their notice of removal.” Id. at *6.
Notably, the court left the issue open for later consideration, stating:
[I]t may turn out that Plaintiff does not have standing to bring its TCPA claims in this Court. At that time, remand may be an appropriate remedy . . . However, the issue of Plaintiff’s standing is a complex one and the Court is not prepared to rule on it in the absence of full briefing and argument in which the issue is squarely presented.
Id. The court here correctly recognized that plaintiff was essentially making a facial challenge to defendants’ notice of removal, similar to a Rule 12(b)(6) motion to dismiss. And although the court held defendants weren’t required to allege plaintiff’s Article III standing, it still recognized the issue remained in play. The court’s holding does suggest, however, that it will be up to plaintiff to affirmatively demonstrate his lack of standing in later proceedings.
So we’ve now seen this issue come out three different ways, and it will be interesting to see how things play out in the Gonazalez case. And we’re willing to bet this won’t be the last variation on this scenario that we’ll see.
Isn’t this stuff so interesting?