Hi TCPAWorld! The Baroness here and I have some really interesting news today.
In the Southern District of Florida, the Court granted Defendant Lend Smart Mortgage, LLC’s motion to dismiss for lack of subject matter jurisdiction.
Let’s dive in.
Stacey Frater brought a putative class action against Lend Smart Mortgage for alleged violations of the Florida Telephone Solicitation Act (FTSA). More specifically, Frater alleges Lend Smart sent multiple text messages to her phone without her express written consent. Facts are easy enough.
Lend Smart moves to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
The Court first addressed Lend Smart’s 12(b)(1) motion.
As a recap (because we discuss Article III standing issues here all the time), Article III consists of three elements: (1) the plaintiff must have suffered an actual or imminent injury, or a concrete “invasion of a legally protected interest”; (2) that injury must have been caused by the defendant’s complained-of actions; and (3) the plaintiff’s injury or threat of injury must likely be redressable by a favorable court decision. Lujan, 504 U.S. at 560–61.
The Court solely focused on the first element—injury. The Court found that, pursuant to Salcedo and Drazen, Plaintiff failed to allege a sufficient concrete injury-in-fact to demonstrate that she—or the members of the putative class—had standing to bring a claim under the FTSA.
Frater identified two unauthorized text messages that she received and stated those messages caused her “harm, including statutory damages, inconvenience, invasion of privacy, aggravation, annoyance, and wasted time.” The complaint did not elaborate how the text messages caused those harms or what specific injuries Frater suffered as a result. As such, the Court held Plaintiff failed to plead any concrete injury-in-fact stemming from those texts. The Court reasoned:
“The fact that the Plaintiff cannot identify a single specific harm she allegedly suffered, beyond offering a conclusory recitation of harms like “annoyance,” “aggravation,” and “wasted time,” means that she has still failed to clear the qualitative floor for a concrete injury and, therefore, she (and the putative class) lacks standing to bring a claim under FTSA.”
Frater’s argument was interesting. Frater argued that the standing analysis should be different under the FTSA than under the TCPA because the FTSA specifically identifies text messages where the TCPA does not. But the Court was not persuaded. Notably, the Court stated:
“Salcedo’s allegations of the receipt of an unauthorized text message were satisfactory to plead an actual, facial violation of the TCPA. To prove Article III standing, however, a plaintiff must demonstrate more than a simple statutory violation—a plaintiff must still demonstrate an injury-in-fact, and ‘an injury-in-fact must be concrete.’ Therefore, the Plaintiff’s allegations do not suffice to clear the bar for standing here simply because they state a facial violation of FTSA.”
The Court granted Lend Smart’s motion to dismiss for lack of subject matter jurisdiction and denied any pending motions as moot.
A great result for Lend Smart!
However, we do urge caution because it is unclear whether other courts will follow suit.
Happy to discuss.