On July 5, in Sartin v. EKF Diagnostics, Inc., No. 16-1816, 2016 WL 3598297 (E.D. La. July 5, 2016), the U.S. District Court for the Eastern District of Louisiana granted Defendant’s Rule 12(b)(1) motion to dismiss because the putative class action plaintiff failed to allege that he had incurred actual or concrete damage as a consequence of his receipt of a fax. This ruling is the first dismissal of a Telephone Consumer Protection Act (TCPA) case for failure to allege a “concrete” injury based on the U.S. Supreme Court’s opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). In Spokeo, the Supreme Court held that “Article III standing requires a concrete injury even in the context of a statutory violation” such as the TCPA. Id. at 1549. The Eastern District of Louisiana relied on that holding in dismissing the plaintiff’s complaint, where the plaintiff failed to allege anything more than a naked statutory injury.
The allegations in Sartin are straightforward. The plaintiff alleged that the defendants violated the TCPA by sending him a single unsolicited fax advertisement. The putative class action complaint was based on a theory that the single fax was part of a larger “junk fax campaign.” The plaintiff alleged that the defendants violated the TCPA by sending the fax, and that the defendants “caus[ed] Plaintiff and Plaintiff Class to sustain statutory damages, in addition to actual damages, including but not limited to those contemplated by Congress and the” Federal Communications Commission. 2016 WL 3598297 at *3.
The defendants moved to dismiss pursuant to Rule 12(b)(1) for lack of Article III standing based on plaintiff’s failure to show actual damage or, in the alternative, to strike the class allegations pursuant to Rule 12(f) for failure to allege an ascertainable class. In support of their Rule 12(b)(1) motion, the defendants pointed out that the plaintiff failed to plead any actual, concrete harm he had suffered as a result of receiving the defendants’ fax. That failure to comply with long-standing Supreme Court jurisprudence, including the recent Spokeo opinion, was ultimately fatal to the plaintiff’s complaint. The court found that the plaintiff “provides no factual material from which the Court can reasonably infer what specific injury, if any, Dr. Sartin sustained through defendants’ alleged statutory violations. Absent supporting factual allegations, Dr. Sartin’s bare assurance that an unspecified injury exists is insufficient to establish Article III standing.” Id.
The plaintiff argued, in his opposition to the motion to dismiss, that he sustained concrete injuries in the form of “wasted valuable time in reviewing the fax,” but the court noted that an opposition to a motion is not the proper time to amend a complaint. The court dismissed the complaint, without prejudice, and held that the defendants’ motion to strike was moot.
The defendants, EKF Diagnostics, Inc. and Stanbio Laboratory, L.P., are represented in this action by Lewis Wiener and Frank Nolan of Sutherland Asbill & Brennan LLP.
