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Hossfeld v. Compass Bank

United States District Court, N.D. Alabama, Southern Division

November 3, 2017

ROBERT HOSSFELD, individually and on behalf of all others similarly situated, Plaintiff,


          VIRGINIA EMERSON HOPKINS United States District Judge.

         I. Introduction

         Plaintiff Robert Hossfeld (“Mr. Hossfeld”) initiated this purported class action arising under the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, [1] against Defendant Compass Bank (“Compass”) on December 15, 2016. (Doc. 1). On February, 24, 2071, Mr. Hossfeld filed a first amended complaint (doc. 12) that added a second defendant-MSR Group, LLC (“MSR”)-to this litigation.

         Pending before the Court is Compass's Motion To Dismiss for Lack of Standing Pursuant to the Supreme Court's Ruling in Spokeo, Inc. v. Robins (doc. 25) (the “Motion”) filed on March 17, 2017. The Court has reviewed the parties' filings offered in support of and opposition to the Motion. (Docs. 25, 32, 35, 39, 45).[2] For the reasons set out below, the Motion is DENIED.

         II. Standards

         A. Rule 12(b)(1) Generally

         As the Eleventh Circuit has explained the standard on motions to dismiss for lack of subject matter jurisdiction:

Attacks on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) come in two forms. “Facial attacks” on the complaint “require[] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). “Factual attacks, ” on the other hand, challenge “the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.” Id.
These two forms of attack differ substantially. On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion-the court must consider the allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). But when the attack is factual, the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Id. at 412-13 (quoting Mortensen, 549 F.2d at 891). Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (emphasis added); see also Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981) (“The district court consequently has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.”).[3]

         Here, the jurisdictional attack by Compass on Mr. Hossfeld's complaint is facial. (See Doc. 25 at 11 (“The allegations in the Amended Complaint, the documents specifically alleged in the Amended Complaint, and the public records (all of which may be properly considered in a motion to dismiss), show that [Mr.] Hossfeld has not suffered any injury in fact-and certainly none traceable to a TCPA violation.”)). Consequently, the Court has accepted all allegations contained in Mr. Hossfeld's first amended complaint as true.

         B. General Principles Governing Standing

         “The Constitution limits the exercise of the judicial power to cases and controversies.” Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 777 F.2d 598, 604 (11th Cir. 1985). “The Art. III doctrine that requires a litigant to have ‘standing' to invoke the power of a federal court is perhaps the most important of these doctrines [that pertain to the case-or-controversy requirement]. ‘In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'” Allen v. Wright, 468 U.S. 737, 750-51 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), abrogated on other grounds by Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377 (2014). An individual plaintiff has standing under the Constitution's case-or-controversy limitation in Art. III, § 2, when “(1) [the plaintiff] has suffered an ‘injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

         The doctrine of standing encompasses “both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Kowalski v. Tesmer, 543 U.S. 125, 128 (2004) (internal quotation marks omitted) (quoting Warth, 422 U.S. at 497). “[S]tanding in no way depends on the merits of the plaintiff's contention that particular conduct is illegal[.]” Warth, 422 U.S. at 500. Standing, instead, is based on whether the plaintiff has “‘alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf.” Warth, 422 U.S. at 498-99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

         From a prudential standpoint more particularly, “a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'” Kowalski, 543 U.S. at 129 (2004) (quoting Warth, 422 U.S. at 499). “This rule assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental [or private] action and to do so with the necessary zeal and appropriate presentation.” Kowalski, 543 U.S. at 129 (citing Warth, 422 U.S. at 500).

         C. Spokeo's Examination of the Doctrine of Standing

         Compass's Motion is primarily premised upon the Supreme Court's examination of standing and the reversal of the Ninth Circuit in Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016), as revised (May 24, 2016). Spokeo, a company that “operates a ‘people search engine'”, was sued in district court under the Fair Credit Reporting Act (“FCRA”) when the plaintiff discovered that a search request concerning him contained inaccurate personal information. Id. at 1544. Determining that the plaintiff lacked standing, the district court dismissed the case. Id. On appeal, the Ninth Circuit reversed and the Supreme Court granted certiorari review of that standing determination. Id. at 1544-45, 1546.

         Finding the Ninth Circuit's analysis of standing to be “incomplete, ” the Supreme Court “vacat[ed] the decision below and remand[ed] for the Ninth Circuit to consider both aspects of the injury-in-fact requirement.” Id. at 1545 (emphasis in original). More specifically, “[t]he Ninth Circuit's analysis focused on the second characteristic (particularity), but it overlooked the first (concreteness).” Id. The Supreme Court expressed no opinion “as to whether the Ninth Circuit's ultimate conclusion-that Robins adequately alleged an injury in fact-was correct.” Id. at 1550.[4]

         As the Supreme Court explained the component of concreteness in Spokeo:

A “concrete” injury must be “de facto”; that is, it must actually exist. See Black's Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete, ” we have meant to convey the usual meaning of the term-“real, ” and not “abstract.” Webster's Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization.
“Concrete” is not, however, necessarily synonymous with “tangible.” Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete.

Id. at 1548-49 (some citations omitted).[5]

         The Spokeo Supreme Court further instructed:

In determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles. Because the doctrine of standing derives from the case-or-controversy requirement, and because that requirement in turn is grounded in historical practice, it is instructive to consider whether an alleged intangible harm has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 775-777, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). In addition, because Congress is well positioned to identify intangible harms that meet minimum Article III requirements, its judgment is also instructive and important. Thus, we said in Lujan that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” 504 U.S., at 578, 112 S.Ct. 2130. Similarly, Justice Kennedy's concurrence in that case explained that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Id., at 580, 112 S.Ct. 2130 (opinion concurring in part and concurring in judgment).

Id. at 1549 (emphasis added).

         Finally, in illustrating the meaning of these (and other) principles of concreteness, the Supreme Court provided two examples of conceivable violations of FCRA that would lack the level of concreteness necessary to satisfy Article III's injury-in-fact framework:

On the one hand, Congress plainly sought to curb the dissemination of false information by adopting procedures designed to decrease that risk. On the other hand, Robins cannot satisfy the demands of Article III by alleging a bare procedural violation. A violation of one of the FCRA's procedural requirements may result in no harm. For example, even if a consumer reporting agency fails to provide the required notice to a user of the agency's consumer information, that information regardless may be entirely accurate. In addition, not all inaccuracies cause harm or present any material risk of harm. An example that comes readily to mind is an incorrect zip code. It is difficult to imagine how the dissemination of an incorrect zip code, without more, could work any concrete harm.

Id. at 1550 (emphasis added).

         III. Analysis

         With the foregoing standards in mind, the Court turns to an evaluation of Mr. Hossfeld's TCPA allegations as they pertain to standing and the merits of Compass's Motion. Compass raises two primary issues in its initial brief. First, “[Mr.] Hossfeld has not suffered a concrete and particularized injury in fact, denying this Court subject matter jurisdiction over this case.” (Doc. 25 at 12 (emphasis omitted)). Second, “[e]ven assuming [Mr.] Hossfeld has suffered an injury fact, such an injury is not traceable to any alleged violation of the TCPA and would occur anytime [Mr.] Hossfeld receives a phone call-even those that are TCPA compliant.” (Id. at 16 (emphasis omitted)).

         A. Injury-In-Fact Assessment

         1. Mr. Hossfeld's TCPA Allegations

         Mr. Hossfeld asserts that Compass (with MSR acting as its agent) (doc. 12 at 4 ¶ 17) placed “unsolicited, automatically dialed calls to his cellular telephone from the number ‘855-271-7383.'” (Id. ¶ 20). This first occurred on April 2, 2016. Id. Mr. Hossfeld “does not have any current relationship with Defendants, and has not for over thirteen years, if ever.” (Id. ¶ 21).

         “[T]he operator named Molly asked whether [Mr. Hossfeld] ever visited BBVA Compass in Temple, Texas.” Id. Mr. Hossfeld alleges that he “expressly notified MSR and Compass that they had reached the wrong person and requested not to be called during this first unsolicited call.” (Id. at 5 ¶ 22).

         During this same call, the representative informed Mr. Hossfeld “that the call had been made with an autodialer.” (Id. ¶ 24). Mr. Hossfeld “warned [the representative] that the nonconsensual automated call was a violation of federal law.” (Id. ¶ 25). Mr. Hossfeld also later in June 2016, “emailed Compass customer service and notified Compass that it had called him in violation of federal law, and threatened a lawsuit.” (Id. ¶ 30).

         On November 8, 2016, “Defendants again called [Mr. Hossfeld]'s cellular telephone number using an automatic telephone dialing system.” (Id. at 6 ¶ 31). Mr. Hossfeld complains that “Defendants' calls were a nuisance which briefly deprived [him] of the use of his phone, invaded his personal privacy, and wasted his time.” (Doc. 12 at 7 ¶ 40). “Additionally, [Mr. Hossfeld] incurred a reduction in his cellular battery life as a result of Defendants' calls.” Id.

         Mr. Hossfeld maintains that these two unsolicited automatic calls “did not have a marketing purpose” (doc. 12 at 4 ¶ 18) and violated 47 U.S.C. § 227(b)(1)(A)(iii). That section of the TCPA provides:

         (b) Restrictions on use of automated telephone equipment

         (1) Prohibitions

         It shall be unlawful for any person within the United States, or any person outside the United States if the ...

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