The Southern District of Florida recently remanded a case back to state court because the defendant that removed the case failed to establish that plaintiff suffered an Article III injury. Harris v. Travel Resorts of America, Inc., Civ. No. 2:20-14369-AMC (S.D. Fla. Mar. 31, 2021). Notably, the Court also found that plaintiff should be able to recover its attorneys’ fees in seeking remand given the defendant’s reversing its prior position on whether the Court had subject-matter jurisdiction over the case.
Plaintiff originally filed suit in federal court alleging that defendant Travel Resorts of America, Inc. violated the TCPA when it placed over 20 unsolicited calls to her cell phone. Defendant filed two 12(b)(6) motions to dismiss challenging plaintiff’s Article III standing, and in response, plaintiff voluntarily dismissed her case and re-filed in Florida state court. Two months later, despite the fact that nothing had changed in plaintiff’s complaint, defendant “changed course” and removed the case back to federal court. Defendant argued that it was entitled to a ruling on the threshold applicability of Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335 (2020) (which we previously covered here) to pre-Barr robocalls, and moved to dismiss plaintiff’s complaint. Plaintiff then moved to remand the case back to state court because defendant failed to establish that plaintiff suffered an Article III injury.
The Court noted that plaintiff “disclaim[ed] that she suffered a constitutional injury sufficient to confer Article III standing in this case.” The Court went on to find that plaintiff’s allegations that she was “forced to expend time” listening to defendant’s voicemails and that defendant’s calls “drained her phone batteries and caused [her] additional electricity expenses and wear and tear on her phone and battery” were insufficient to establish Article III standing.
Of note, the Court also found that it was “appropriate to compensate plaintiff for its costs in seeking remand.” The Court highlighted that defendant had twice argued that plaintiff lacked Article III standing before removing the case back to federal court. Because the complaint had not changed at all since defendant made these arguments, the Court found that defendant engaged in “unjustified litigation whiplash” and that plaintiff should be reimbursed for its fees associated with its remand motion.
The decision is an important reminder that courts will closely scrutinize Article III standing when a case is removed to federal court and will take notice of a party’s inconsistent positions in litigation.