Relying on the Supreme Court case of Spokeo v. Robbins, (136 S.Ct. 1540 (2016), on August 5th United States District Court Judge Cathy Ann Bencivengo dismissed a plaintiff’s Telephone Consumer Protection Act (TCPA) claim for lack of standing.

The case is Romero v. Department Stores National Bank, (Case No. 15-cv-193-CAB-MDD (Southern District of California, August 5, 2016). A copy of the Order granting Defendant’s motion to dismiss for lack of subject matter jurisdiction can be found here.


In 2014, Plaintiff failed to make payments on the amount owing on her Macy’s credit card. To collect that debt, Defendants, who were the creditors, called Plaintiff on her cellular telephone, which is the only telephone number Plaintiff had provided for her account. Plaintiff contends that Defendants called her over 290 times using an automated telephone dialing system (“ATDS”) over the course of six months between July and December 2014. Plaintiff answered only three of these telephone calls: one in July, one in September, and one in December.

In January 2015, Plaintiff filed this lawsuit, asserting claims for violation of California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § 1788 et seq. (“RFDCPA”), intrusion upon seclusion, negligent infliction of emotional distress, and violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).

After the close of discovery, Defendants’ moved for summary judgment on the RFDCPA, intrusion upon seclusion, and negligent infliction of emotional distress claims, and the Court granted the motion. The court granted that motion. After the Court’s order, only the TCPA claim remained in the lawsuit.

The Court held a pretrial conference on April 8, 2016, at which it set this matter for trial to begin on June 13, 2016, on the TCPA claim. Plaintiff also filed a pre-trial memorandum of facts and law, and the Court entered a pre-trial order prepared by the parties. Neither of these documents make any mention of any actual damages suffered by Plaintiff.

On May 26, 2016, Defendants filed a motion to dismiss, which they state was prompted, at least in part, by the Supreme Court’s May 16, 2016 decision in Spokeo v. Robins.  Plaintiff filed an opposition brief on May 31, 2016, and the Court held oral argument on June 2, 2016. Due to the condensed briefing schedule and specific issues raised by the Court at oral argument that were not addressed in the briefs, the Court vacated the pending trial date and gave the parties an opportunity for supplemental briefing on the motion. After considering those briefs, the Court determined that further oral argument was unnecessary and took the motion under submission.

The Court’s Decision

Judge Bencivengo’s decision began with an analysis of Spokeo –  she wrote:

“The standing to sue doctrine is derived from Article III of the Constitution’s limitation of the judicial power of federal courts to “actual cases or controversies. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. [T]he irreducible constitutional minimum’ of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. This case primarily concerns the first element.

The first element, injury in fact, “is a constitutional requirement, and it is settled that Congress cannot erase Article III’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing. To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’”

For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way. Therefore, a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation. A “bare procedural violation, divorced from any concrete harm,” does not satisfy the injury-in-fact requirement of Article III.”

The Court also determined that each alleged violation of the TCPA is a separate claim, meaning that Plaintiff must establish standing for each violation, which means that Plaintiff must establish injury in fact caused by each individual call. In other words, for each call Plaintiff must establish an injury in fact as if that was the only TCPA violation alleged in the Complaint.

The court wrote:

“The determination of standing to bring a TCPA claim based on a call made using an ATDS does not change whether it is the only call alleged to have violated the TCPA or 1 of 290 calls that allegedly violated the TCPA. Accordingly, the Court must determine whether Plaintiff has evidence of an injury in fact specific to each individual call, and not in the aggregate based on the total quantity of calls.”

Judge Bencivengo determined that the Plaintiff did not meet this burden of proof.

The Court evaluated Plaintiff’s claims of injury in fact with more specificity by dividing the calls into the following categories:

(1) calls of which Plaintiff was not aware either because her phone did not ring or she did not hear it ring;

(2) calls that Plaintiff heard ring on her phone but that she did not answer; and

(3) calls that Plaintiff answered and spoke with a representative of Defendants.

Judge Bencivengo addressed all three categories in detail.

Calls of which Plaintiff was not aware because her phone didn’t ring or she didn’t hear it ring

“The record is unclear as to how many of these 290 calls Plaintiff was aware of when they were made. To the extent Plaintiff was unaware of any of Defendants’ calls either because her ringer or phone were turned off, or because she did not have her phone with her when the calls occurred, none of her alleged injuries in fact are plausible or could be traceable to the alleged TCPA violation. That Defendants placed a call to Plaintiff’s cell phone using an ATDS is merely a procedural violation. For Plaintiff to have suffered “lost time, aggravation, and distress,” she must, at the very least, have been aware of the call when it occurred. Accordingly, because Plaintiff has not, and likely could not, present evidence of an injury in fact as a result of calls placed by Defendants to Plaintiff’s cell phone of which Plaintiff was not aware, Plaintiff lacks standing to assert a claim for a TCPA violation based on any of these calls.”

Calls that Plaintiff heard ring on her phone but that she did not answer

“Plaintiff asserts that for many of Defendants’ calls, she heard the phone ring but did not answer the call. For each of these calls, to establish a TCPA violation, Plaintiff must demonstrate that she suffered an injury in fact solely as a result of the telephone ringing for that particular call. Plaintiff has not, and cannot, do so. No reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing. When someone owns a cell phone and leaves the ringer on, they necessarily expect the phone to ring occasionally. Viewing each call in isolation, whether the phone rings as a result of a call from a family member, a call from an employer, a manually dialed call from a creditor, or an ATDS dialed call from a creditor, any “lost time, aggravation, and distress,” are the same. Thus, Defendants’ TCPA violation (namely, use of an ATDS to call Plaintiff) could not have caused Plaintiff a concrete injury with respect to any (and each) of the calls that she did not answer. Accordingly, Plaintiff lacks Article III standing for her TCPA claims based on calls she heard ring but did not answer.”

Calls that Plaintiff answered and spoke with a representative of Defendants

Plaintiff once again does not, and cannot, connect her claimed “lost time, aggravation, and distress” with Defendants’ use of an ATDS to have called her. Put differently, Plaintiff does not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA. Therefore, Plaintiff did not suffer an injury in fact traceable to Defendants’ violation of the TCPA, and lacks standing to make a claim for any violation attributable to the calls she actually answered.”

insideARM Perspective

The decision in this case is thoughtful and well-reasoned. It provides a glimmer of hope to TCPA defendants going forward. It will be interesting to see what courts in the future will follow the logic of Judge Bencivengo. You can be sure that Defendants will use these arguments and cite this case.

However, to be clear, as outlined in today’s insideARM article by David Kleber on the current history of Spokeo, (See here) the courts are not at all consistent in their interpretation of Spokeo.

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