WIN FOR DEFENSE!: Due to Lack of Subject Matter Jurisdiction — But Was it Qualitative or Quantitative?

The Duchess here with more Florida news to share coming straight out of the Middle District of the sunshine state, with a win for the defendant for lack of subject matter jurisdiction.

In Lawson v. Visionworks of America, the plaintiff filed a TCPA class action after receiving three text messages over the course of several months reminding him to schedule an eye exam. Plaintiff alleges these messages caused harm by “wasted approximately two minutes reviewing all of Defendant’s unwanted messages and responding in an attempt to stop such messages” and are an “invasion of privacy, aggravation, and intrusion on seclusion”. Lawson filed a class action against Visionworks claiming they violated the TCPA by placing calls [text] to consumers on the national Do-Not-Call Registry and by failing to maintain an internal do-not-call list.

Visionworks pushed back arguing that Lawson failed to meet the necessary requirements under Article III standings to state concrete harm, is judicially estopped, and did not state a cause of action under the TCPA.

The Court was left to assess the facial claims brought by the plaintiff.  On the matter of concrete harm, the Court goes on to cite that the Supreme Court has found “intangible injuries can nevertheless be concrete” and “[i]n determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles”. And with that, the Salcedo Court noted that “Congress’s legislative findings about telemarketing suggest that the receipt of a single text message is qualitatively different from the kinds of things Congress was concerned about when it enacted the TCPA….the TCPA show[s] a concern for privacy within the sanctity of the home that do[es] not necessarily apply to text messaging.” Id. Thus, the judgment of Congress “provide[d] little support for finding that [the plaintiff’s] allegations state a concrete injury in fact”.

Visionworks asks that the Court holds the findings in Salcedo and applies them to this matter in that the plaintiff’s allegation does not demonstrate an injury in fact and the defendant goes on to cite multiple cases in the Eleventh Circuit where the findings in Salcedo were successfully applied. In the Court’s analysis of those cases, the Court found

“Here, Plaintiff received three identical text messages of approximately 25 words in length over a five-month period. (Doc. 1 ¶ 18.) As a result of receiving those texts, Plaintiff alleges he suffered a cumulative waste of time of 2 minutes (id. ¶ 34), or an average of approximately 40 seconds of wasted time from receiving the three text messages over the course of several months. This includes time he was forced to waste by replying “STOP again” on two different occasions, in an unsuccessful attempt to opt-out of receiving the text messages. This is qualitatively insufficient to establish a concrete harm. Moreover, Plaintiff’s bare allegations of the additional harm of invasion of privacy, aggravation, and intrusion upon seclusion, without more, do not alter this analysis. After a close review of Salcedo and cases interpreting its effect, the undersigned concludes that the alleged harm here is “isolated, momentary, and ephemeral’”

 and therefore does not meet the Article III requirements. The Salcedo Court further found that “the assessment of harm must be “qualitative, not quantitative” in nature”. Plaintiff also failed to prove his claim of intrusion of seclusion by falling short of the standard to prove harm.

The Court ultimately found that Lawson did not in fact suffer concrete harm and therefore cannot make it past the judicial standing, granting the mothing to dismiss without prejudice.


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