VINTAGE: Court Remands TCPA Claim And It is an Odd Little Procedural Wrinkle That Could Cost Defendant Big

So first off, ya’ll are funny.

Last night I post a two word blog and over 500 of you read it within one minute.

Within one minute. 

TCPAWorld Afterdark always gets so much traffic so fast. Not sure why.

Regardless, quick one for you that will definitely NOT get 500 hits a minute… but still its an interesting case for real law nerds.

In Thompson v. Vintage Stock, Inc. 2024 WL 1636705 (E.D. Mo. April 16, 2024) the court considered the proper procedure where it had dismissed a federal claim for lack of subject matter jurisdiction while retaining jurisdiction on other pleaded claims.

Plaintiffs alleged receipt of unwanted text messages and claimed Defendant lacked an internal DNC list, as required by the TCPA’s CFR provisions. But since the Plaintiffs never actually requested calls to stop they lacked standing to pursue the CFR claim–they had never suffered concrete harm as a result of the lack of a list.

The Court initially dismissed the CFR claim without prejudice, but the Plaintiffs protested arguing that the proper procedure was to remand the claim back to state court since the Court was exercising removal jurisdiction.

The Court agreed:

As odd as it seems, precedent requires the Court to remand to state court a removed claim over which it lacks subject-matter jurisdiction, even if the Court will continue exercising jurisdiction over other claims. Id. In its order, the Court concluded that the Thompsons lacked standing to assert a section 64.1200(d) claim, which is a prerequisite for subject-matter jurisdiction. Thus, because Vintage Stock removed the section 64.1200(d) claim to federal court, doc. 1, the Court must remand the claim to state court.

So the claim must be remanded, as opposed to dismissed.

Great, but what does it matter?

Cost shifting.

If the claim was dismissed–even without prejudice–then the Defendant was the prevailing party in the suit and may be entitled to recover costs.

But check this out. Because the claim was remanded to state court after Defendant removed it, the Defendant actually lost in a sense– it represented to the federal court it had jurisdiction that it didn’t actually have.

Get it?

The Defendant forced the federal court to hear the claim–telling the court it had jurisdiction–then it turned around and told the federal court it did not have jurisdiction, thus essentially losing on the original effort to bring the case to federal court.

28 U.S.C. Section 1447(c) provides that the Plaintiff may be able to recover attorneys fees and costs occasioned by the remand effort: “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”

The current order of remand does not provide for such fees, but I suspect there will be a further effort here to obtain them.

Bottom line: cautious when removing claims to federal court that may lack standing. It is sometimes better to have those claims heard in state court– especially in jurisdictions like Florida or Missouri where the state-court standing laws mirror (or are tougher) than the federal standing rules.

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