United States District Court, N.D. Alabama, Southern Division
ROBERT HOSSFELD, individually and on behalf of all others similarly situated, Plaintiff,
COMPASS BANK and MSR GROUP, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge.
Robert Hossfeld (“Mr. Hossfeld”) initiated this
purported class action arising under the Telephone Consumer
Protection Act of 1991 (“TCPA”), 47 U.S.C. §
227,  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.
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,
For the reasons set out below, the Motion is
Rule 12(b)(1) Generally
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
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.
General Principles Governing Standing
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)).
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)).
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).
Spokeo's Examination of the Doctrine of
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.
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
Supreme Court explained the component of concreteness in
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
“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
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).
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
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).
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
Mr. Hossfeld's TCPA Allegations
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).
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).
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).
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.”
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:
Restrictions on use of automated telephone equipment
shall be unlawful for any person within the United States, or
any person outside the United States if the ...