Lacking Injury, Florida Federal Court Remands TCPA Case to State

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Finding that a defendant failed to carry the burden to establish federal subject matter jurisdiction as the removing party, a U.S. district court in Florida granted a Telephone Consumer Protection Act (TCPA) plaintiff’s motion to remand her suit to state court. In doing so, the court issued a useful ruling concerning what is required to show injury in fact under Article III.

Ashley Harris filed a one-count class action on April 20, 2020, in Florida federal court against Travel Resorts of America (Travel), alleging that she received at least 20 unsolicited cellphone calls and voicemails between January 29, 2020, and March 26, 2020.

Travel moved to dismiss the complaint, arguing that Harris failed to sufficiently allege that she suffered an injury in fact as required by Article III. Harris filed an amended complaint, but the defendant renewed its motion.

Harris then voluntarily dismissed her federal case and refiled it in Florida state court.

Two months later, Travel filed a motion to remove the case to federal court. Nothing in Harris’ complaint had changed since Travel’s initial motions to dismiss—Harris’ allegations and her requested relief remained the same.

The only difference: the Supreme Court’s intervening decision in Barr v. American Association of Political Consultants, where the Court severed the TCPA’s debt collection exception from the remainder of the statute because it violated the First Amendment.

Travel contended that it was “entitled to a ruling” on the threshold applicability of Barr to pre-Barr robocalls, again moving to dismiss the complaint, this time on the basis of Barr.

Harris filed a motion to remand the suit to state court. She contended that Travel—as the removing party—could not establish federal subject matter jurisdiction because of lack of injury in fact under Article III, citing for support the defendant’s prior filings.

U.S. District Judge Aileen M. Cannon agreed, ordering the case back to state court.

Cannon found that Travel failed to establish that Harris’ allegations satisfied the requirements under Article III. Harris herself disclaimed that she suffered a constitutional injury sufficient to confer Article III standing, and the defendant “conspicuously declines to admit that it caused Plaintiff a concrete and particularized injury,” Cannon wrote. “Taken together, these party positions frame the degree of purported injury at issue, even if they are not dispositive.”

Applying the decision of the U.S. Circuit Court of Appeals, Eleventh Circuit in Salcedo v. Hanna, where the federal appellate panel found that the time spent reviewing a single unsolicited text message was insufficient for federal standing, the court found that Harris’ allegations similarly fell short.

Harris’ operative complaint stated that she was “forced to expend time” listening to voicemails, and also that the voicemails and calls drained her phone battery and caused additional electricity expenses and wear and tear on her phone and battery.

“But she does not allege how much time was expended, how much electricity expense was incurred, what tangible damage her phone suffered from the receipt of these voicemails, or what lost opportunity she suffered as a result of the unauthorized communications,” Cannon wrote. “Added to these gaps is the additional reality, noted earlier, that Plaintiff herself abandons the presence of a concrete injury as required by Article III and Eleventh Circuit precedent.”

Finally, the court said that the burden fell on Travel as the removing party to establish federal subject matter jurisdiction. The defendant relied heavily on the Class Action Fairness Act (CAFA) and precedent rejecting an anti-removal presumption pursuant to the statute.

“But CAFA does nothing to relieve the removing party of establishing federal subject matter jurisdiction, and Article III is an indispensable part of that,” Cannon said, granting Harris’ motion to remand to state court.

She also held that Harris was entitled to reimbursement of her costs and fees incurred with regard to the motion to remand under the “unusual circumstances” of the case.

“Defendant twice argued before this court, in no uncertain terms, that Plaintiff lacked Article III standing to pursue her TCPA claim,” Cannon wrote. “Defendant took the odd step of bringing this case back to federal court [although] nothing about Plaintiff’s allegations had changed in the interim. … Under these unusual circumstances of unjustified litigation whiplash, Plaintiff is due to be reimbursed for its attorneys’ fees associated with the instant remand motion.”

To read the order in Harris v. Travel Resorts of America, click here.

Why it matters: The court was clear that the plaintiff’s indefinite allegations of expended time and electricity expenses were insufficient to establish an injury in fact as required for Article III, relying on Salcedo to hold that the federal court lacked subject matter jurisdiction over the case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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