Williams v. Myler Disability, LLC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

DOCKET NO. 3:20-cv-00275-FDW-DCK

ANNETTE WILLIAMS, individually and )

on behalf of all others similarly situated, )

)

Plaintiffs, )

)

vs. ) ORDER

)

MYLER DISABILITY, LLC, a Utah )

Company, )

)

Defendant. )

)

THIS MATTER is before the Court on Defendant’s Motion to Dismiss (Doc. No. 10),

seeking dismissal of Plaintiff’s complaint for lack of standing pursuant to Fed. R. Civ. P. 12(b)(1).

The motion has been fully briefed, (Docs. Nos. 11, 15, 16), and is ripe for ruling. For the reasons

below, Defendant’s Motion is DENIED.

I. BACKGROUND

Plaintiff filed this action on behalf of herself and others similarly situated seeking to

recover from Defendant for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227

(“TCPA”). In her Complaint, Plaintiff contends that during a two-week period, she received two

unsolicited text messages to her cell phone despite her registration on the National Do Not Call

Registry. Plaintiff alleges the unsolicited text messages directed Plaintiff to call Defendant to

apply for disability benefits. Plaintiff asserts she was harmed by this invasion of privacy and

nuisance. Defendant moves to dismiss the Complaint, asserting Plaintiff has not alleged any

concrete harm sufficient to confer Article III standing.

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II. STANDARD OF REVIEW

“In plain English, the TCPA prohibited almost all robocalls to cell phones.” Barr v. Am.

Ass'n of Political Consultants, Inc., 140 S. Ct. 2335, 2344, 207 L. Ed. 2d 784 (2020). The TCPA’s

prohibition on robocalls includes sending automated text messages. Id. n.1 (citing In re Rules and

Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014,

14115 (2003));1 see also Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 156, 136 S. Ct. 663, 667,

193 L. Ed. 2d 571 (2016), as revised (Feb. 9, 2016) (“A text message to a cellular telephone, it is

undisputed, qualifies as a “call” within the compass of § 227(b)(1)(A)(iii). For damages

occasioned by conduct violating the TCPA, § 227(b)(3) authorizes a private right of action.”

(citation omitted)).2

1 In enacting the TCPA in 1991, Congress authorized the Federal Communications Commission (“FCC”) to “prescribe

regulations to implement the requirements of this subsection.” 47 U.S.C. § 227(b)(2). Over a decade later, in 2003,

the FCC revisited the specifics of the TCPA in light of emerging technologies to “revise the current Telephone

Consumer Protection Act (TCPA) rules and adopt new rules to provide consumers with several options for avoiding

unwanted telephone solicitations.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,

18 F.C.C. Rcd. at 14017. The FCC explained:

It has now been over ten years since the Commission adopted a broad set of rules that respond to

Congress's directives in the TCPA. Over the last decade, the telemarketing industry has undergone

significant changes in the technologies and methods used to contact consumers. The Commission

has carefully reviewed the record developed in this rulemaking proceeding. The record confirms

that these marketplace changes warrant modifications to our existing rules, and adoption of new

rules if consumers are to continue to receive the protections that Congress intended to provide when

it enacted the TCPA.

Id. As part of that Order, the FCC made clear that text messages fall within the “call” restrictions covered by the

TCPA.

We affirm that under the TCPA, it is unlawful to make any call using an automatic telephone dialing

system or an artificial or prerecorded message to any wireless telephone number. Both the statute

and our rules prohibit these calls, with limited exceptions, “to any telephone number assigned to a

paging service, cellular telephone service, specialized mobile radio service, or other common carrier

service, or any service for which the called party is charged.” This encompasses both voice calls and

text calls to wireless numbers including, for example, short message service (SMS) calls, provided

the call is made to a telephone number assigned to such service.

Id. (Emphasis added.).

2 In addition to the Supreme Court and the FCC, Congress has also made clear the TCPA’s applicability to text

messages. Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act, PL 116-105,

December 30, 2019, 133 Stat 3274 (recognizing that text messages are covered in §227(b) in providing for streamlined

information sharing with the FCC relating to “a call made or a text message sent in violation of subsection (b)”).

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In order to seek redress under the TCPA, the requirement to sue is no different than any

other federal case: a party must have standing.

Standing to sue is a doctrine rooted in the traditional understanding of a case or

controversy. The doctrine developed in our case law to ensure that federal courts

do not exceed their authority as it has been traditionally understood. The doctrine

limits the category of litigants empowered to maintain a lawsuit in federal court to

seek redress for a legal wrong. In this way, the law of Article III standing . . . serves

to prevent the judicial process from being used to usurp the powers of the political

branches, . . . and confines the federal courts to a properly judicial role . . . .

Our cases have established that the “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. The plaintiff, as

the party invoking federal jurisdiction, bears the burden of establishing these

elements. Where, as here, a case is at the pleading stage, the plaintiff must clearly

. . . allege facts demonstrating each element.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016), as revised (May 24,

2016) (internal quotations and citations omitted); see also Krakauer v. Dish Network, L.L.C., 925

F.3d 643, 652 (4th Cir.) (“These traditional requirements of standing—injury-in-fact,

redressability, and traceability—apply to causes of action created by statute.”), cert. denied, 140

S. Ct. 676, 205 L. Ed. 2d 440 (2019).

A “concrete” injury must be “real” rather than “abstract”—that is, “it must actually exist.”

Spokeo, 136 S. Ct. at 1548. As the Fourth Circuit recognized in Krakauer, the Spokeo decision

reinforces the core requirement that litigants suffer a concrete injury and cannot bring suit based

solely on failure to act in accordance with the statute: “Private litigation, even if authorized by

statute to serve a range of public ends, must vindicate the plaintiffs’ interests, rather than serve

solely a vehicle for ensuring legal compliance.” Krakauer, 925 F.3d at 653; see also Baehr v. Creig

Northrop Team, P.C., 953 F.3d 244, 252 (4th Cir. 2020) (“[W]hen a plaintiff sues to vindicate a

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statutory right, she still must establish that she suffered a concrete injury from the violation of that

right. That is, a plaintiff cannot merely allege a bare procedural violation, divorced from any

concrete harm and satisfy the injury-in-fact requirement of Article III.”) (quotation omitted), cert.

denied sub nom. Baehr, Patrick, et ux. v. Creig Northrop Team, et al., No. 20-174, 2020 WL

5883390 (U.S. Oct. 5, 2020); Thole v. U. S. Bank N.A., 140 S. Ct. 1615, 1620–21, 207 L. Ed. 2d

85 (2020) (“The Court has emphasized that “Article III standing requires a concrete injury even in

the context of a statutory violation.” (citing Spokeo, 578 U. S., at ––––, 136 S.Ct., at 1549).

The issue before this Court is whether the two unsolicited text messages received by

Plaintiff establish a concrete injury under the TCPA. This is an issue of first impression in the

Fourth Circuit. Defendant urges this Court to adopt the reasoning from the Eleventh Circuit where

the court, after considering congressional judgment and historical practice, concluded the receipt

of a single, unsolicited text message was insufficient to confer standing for the plaintiff.

In sum, we find that history and the judgment of Congress do not support finding

concrete injury in Salcedo’s allegations. Salcedo has not alleged anything like

enjoying dinner at home with his family and having the domestic peace shattered

by the ringing of the telephone. Nor has he alleged that his cell phone was searched,

dispossessed, or seized for any length of time. Salcedo’s allegations of a brief,

inconsequential annoyance are categorically distinct from those kinds of real but

intangible harms. The chirp, buzz, or blink of a cell phone receiving a single text

message is more akin to walking down a busy sidewalk and having a flyer briefly

waived in one’s face. Annoying, perhaps, but not a basis for invoking the

jurisdiction of the federal courts. All told, we conclude that Salcedo’s allegations

do not state a concrete harm that meets the injury-in-fact requirement of Article III.

Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019).

Notably, the Second, Seventh, and Ninth Circuits have decided this issue differently,

instead explaining that Congress, by enacting the TCPA, recognized the receipt of unsolicited text

messages to be a concrete harm sufficient to confer standing to the plaintiffs who received the

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messages. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (holding the

plaintiff had standing under TCPA to sue for his receipt of two unsolicited text messages from the

defendant); Melito v. Experian Mtkg. Sols., Inc., 923 F.3d 85, 88 (2d Cir. 2019) (holding the

plaintiffs’ “receipt of unsolicited text messages, sans any other injury, is sufficient to demonstrate

injury-in-fact” under TCPA) cert. denied sub nom. Bowes v. Melito, 140 S. Ct. 677, 205 L. Ed. 2d

440 (2019); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020) (holding the plaintiff

had standing to sue under TCPA for her receipt of five unsolicited text messages from the

defendant).

The Ninth Circuit was the first circuit court to consider standing under the TCPA as it

relates to receipt of unsolicited text messages. The Van Patten court explained:

The TCPA establishes the substantive right to be free from certain types of phone

calls and texts absent consumer consent. Congress identified unsolicited contact as

a concrete harm, and gave consumers a means to redress this harm. We recognize

that Congress has some permissible role in elevating concrete, de facto injuries

previously inadequate in law “to the status of legally cognizable injuries.” Spokeo,

136 S.Ct. at 1549 (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130). We defer in

part to Congress’s judgment, “because Congress is well positioned to identify

intangible harms that meet minimum Article III requirements.” Id. We also

recognize that “Congress’ role in identifying and elevating intangible harms does

not mean that a plaintiff automatically satisfies 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.” Id.

…

Unlike in Spokeo, where a violation of a procedural requirement minimizing

reporting inaccuracy may not cause actual harm or present any material risk of

harm, see id. at 1550, the telemarketing text messages at issue here, absent consent,

present the precise harm and infringe the same privacy interests Congress sought

to protect in enacting the TCPA. Unsolicited telemarketing phone calls or text

messages, by their nature, invade the privacy and disturb the solitude of their

recipients. A plaintiff alleging a violation under the TCPA “need not allege any

additional harm beyond the one Congress has identified.” Id. at 1549 (emphasis in

original).

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847 F.3d at 1043. The Second Circuit followed this reasoning: “First, the nuisance and privacy

invasion attendant on spam texts are the very harms with which Congress was concerned when

enacting the TCPA. Second, history confirms that causes of action to remedy such injuries were

traditionally regarded as providing bases for lawsuits in English or American courts. Plaintiffs

were therefore not required to demonstrate any additional harm.” Melito, 923 F.3d at 88. The

Seventh Circuit has explained the distinction of these lines of cases in contrast to the Eleventh

Circuit’s Salcedo decision:

The Eleventh Circuit treated the injury in its case as abstract partly because

common law courts generally require a much more substantial imposition—

typically, many calls—to support liability for intrusion upon seclusion. See, e.g.,

Sofka v. Thal, 662 S.W.2d 502, 511 (Mo. 1983). But when Spokeo instructs us to

analogize to harms recognized by the common law, we are meant to look for a

“close relationship” in kind, not degree. See 136 S. Ct. at 1549. In other words,

while the common law offers guidance, it does not stake out the limits of Congress’s

power to identify harms deserving a remedy. Congress’s power is greater than that:

it may “elevat[e] to the status of legally cognizable injuries concrete, de facto

injuries that were previously inadequate in law.” Id. (alteration in original) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992)). A few unwanted automated text messages may be too minor an annoyance

to be actionable at common law. But such texts nevertheless pose the same kind of

harm that common law courts recognize—a concrete harm that Congress has

chosen to make legally cognizable. Van Patten, 847 F.3d at 1043.

We therefore agree with the Second and Ninth Circuits that unwanted text messages

can constitute a concrete injury-in-fact for Article III purposes.

Gadelhak, 950 F.3d at 462–63 (citing Melito, 923 F.3d 85; Van Patten, 847 F.3d 1037).

Although the Fourth Circuit has not squarely addressed standing to sue under the TCPA

for receipt of unwanted text messages, this Court finds persuasive the Fourth Circuit’s favorable

citation to the Ninth Circuit’s Van Patten decision in analyzing standing for a recipient of a

telephone call under a different provision of the TCPA. Krakauer, 925 F.3d at 653 (“The

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straightforward application of Spokeo thus neatly resolves this matter, as many other courts have

held in similar settings.” (citing, inter alia, Van Patten, LLC, 847 F.3d at 1043)). In Krakauer, the

Fourth Circuit concluded the plaintiff (and class) had standing to sue for receipt of unsolicited

phone calls and explained: “[T]he TCPA affords relief to those persons who, despite efforts to

avoid it, have suffered an intrusion upon their domestic peace.” 925 F.3d at 650. The private right

of action under the TCPA “plainly satisfies the demands of Article III,” and the plaintiff’s alleged

harm is not required to reach a level that would support a common law cause of action. Id. at 653–

54. A court need not therefore scrutinize the level–or degree–of harm caused by the illegal

communication; instead the plaintiff’s alleged receipt of prohibited communications is paramount

in the standing analysis.

[The plaintiffs’] claim under § 227(c)(5) accrues only once a telemarketer

disregards the registry and actually places multiple calls. Since that harm is both

particular to each person and imposes a concrete burden on his privacy, it is

sufficient to confer standing. The appellant’s suggestion otherwise is nothing more

than an attempt to dismember the TCPA, converting a simple remedial scheme into

a fact-intensive quarrel over how long a party was on the line or how irritated it

felt when the phone rang. Obviously, Congress could have created such a

cumbersome scheme if it wanted to. It instead opted for a more straightforward and

manageable way of protecting personal privacy, and the Constitution in no way

bars it from doing so.

Id. at 654 (emphasis added). This reasoning mirrors that of the Second, Seventh, and Ninth

Circuits where the courts considered standing under the TCPA specifically in the context of receipt

of text messages under §227(b). See Van Patten, 847 F.3d 1037; Melito, 923 F.3d 85; Gadelhak,

950 F.3d 458. The Krakauer analysis is also in stark contrast to the Salcedo reasoning focusing

on the lack of specifics related the TCPA violation. Where Krakauer instructs against a fact-

intensive quarrel, Salcedo found problematic the plaintiff’s failure to allege “anything like

enjoying dinner at home with his family and having the domestic peace shattered by the ringing

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of the telephone” or that “his cell phone was searched, dispossessed, or seized for any length of

time.” 936 F.3d at 1172. Absent precedent to the contrary, Krakauer’s reasoning and citation to

the Van Patten case signal the Fourth Circuit would likely agree with the reasoning from the

Second, Seventh, and Ninth Circuits as it pertains to standing to sue based on receipt of text

messages in violation of the TCPA. Bearing these principles in mind, the Court turns to the parties’

arguments.

III. ANALYSIS

Defendant contends the alleged TCPA violation of sending two unsolicited text messages

during a two-week period is an insufficient concrete injury to confer standing here. In support,

Defendant argues, much like the Seventh Circuit held in Salcedo, the “brief, inconsequential

annoyance” resulting from receipt of a text message fails to rise to the level of a “real but intangible

harm.” Salcedo, 936 F.3d at 1172. Plaintiff, on the other hand, follows the reasoning from the

Second, Seventh, and Ninth Circuits, arguing that receipt of automated text messages invade a

person’s privacy and are a nuisance that establish Article III standing to pursue TCPA claims. In

light of the allegations in the case at bar, this Court is persuaded by Plaintiff’s arguments and

authorities cited in support.

First, unlike the plaintiff in Salcedo who alleged a single text message conferred standing,

Plaintiff here alleges she received multiple unsolicited text messages within a two-week time

period. Indeed, Salcedo’s concurring opinion recognized the limitations of the court’s decision.

I agree with the majority opinion that we lack subject matter jurisdiction because

Salcedo has no standing to bring a TCPA claim. I write separately to emphasize my

understanding that the majority’s holding is narrow and the conclusion that Salcedo

lacks standing is driven by the allegations in his complaint that Hanna sent him

only one text message. The majority opinion—appropriately, in my view—leaves

unaddressed whether a plaintiff who alleged that he had received multiple unwanted

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and unsolicited text messages may have standing to sue under the TCPA. With this

understanding, I concur in the majority’s judgment.

936 F.3d at 1174 (Pryor, J., concurring). Others on the Eleventh Circuit have recognized this

distinction. Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 999 (11th Cir. 2020) (“[T]his

Court relied on those findings in holding that the receipt of unwanted phone calls is a concrete

injury, Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1270 (11th Cir. 2019), but the receipt of a

single unwanted text message is not, Salcedo, 936 F.3d at 1169–70.”) (emphasis added)). For this

reason, this Court finds Defendant’s reliance on Salcedo misplaced.

The Court also finds problematic Salcedo’s discussion of congressional intent regarding

text messaging where the Supreme Court has at least twice recognized text messaging to be

covered by the TCPA. Salcedo states:

On text messaging generally, then, the judgment of Congress is ambivalent at best;

its privacy and nuisance concerns about residential telemarketing are less clearly

applicable to text messaging. Any possible deference to the FCC’s interpretation of

the TCPA—the source of its application to text messaging—is not obviously

relevant where the Supreme Court has specifically instructed us to consider the

judgment of Congress. And congressional silence is a poor basis for extending

federal jurisdiction to new types of harm. We take seriously the silence of that

political branch best positioned to assess and articulate new harms from emerging

technologies. See Spokeo, 136 S. Ct. at 1549, 1170 (citing Lujan, 504 U.S. at 578,

112 S.Ct. 2130)).

Salcedo, 936 F.3d at 1169–70; but see Barr, 140 S. Ct. at 2344 n.1 (“The robocall restriction, as

implemented by the Federal Communications Commission, bars both automated voice calls and

automated text messages.”); Campbell-Ewald Co, 577 U.S. at 156 (“A text message to a cellular

telephone, it is undisputed, qualifies as a “call” within the compass of § 227(b)(1)(A)(iii).”).

Having concluded receipt of unsolicited text messages–just as the receipt of unsolicited

calls–can form the basis for suite under the TCPA, the Court turns to whether Plaintiff here has

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standing. The Fourth Circuit has recognized receipt of unwanted phone calls in violation of the

TCPA “plainly satisfies the demands of Article III.” Krakauer at 653–54. While analyzing a

different type of TCPA violation than alleged here, the court acknowledged the Article III standing

inherent within the statute as it relates to §227(c) and its protection of subscriber privacy rights.

“Traditional principles of statutory interpretation” leave no doubt as to the right

answer here. The private right of action allows suit by any “person” who

“received” calls that were placed “in violation of” the TCPA regulations. 47

U.S.C. § 227(c)(5). Its coverage is clear, as are its limits. The text of the TCPA

notes that it was intended to protect “consumers,” not simply “subscribers,” who

were “outraged over the proliferation of intrusive, nuisance calls to their homes

from telemarketers.” Pub. L. No. 102-243, § 2(6). It protects these persons from

“[u]nrestricted telemarketing,” which “can be an intrusive invasion of privacy.” Id.

§ 2(5). A non-subscriber who receives a call can suffer a privacy intrusion just as

easily as a subscriber can. The extensive legislative history accompanying the

TCPA confirms its broad reach. See Leyse v. Bank of Am. Nat’l Ass’n, 804 F.3d

316, 325-26 (3d Cir. 2015) (interpreting the TCPA’s robocalling cause of action).

Krakauer, 925 F.3d at 656–57 (emphasis added). In interpreting who and what the TCPA covers,

the Fourth Circuit recognized the “broad reach” of the statute and a “simple remedial scheme” for

the plaintiffs to recover for violations. Id. Krakauer leads this Court to believe the Fourth Circuit’s

analysis of standing for Plaintiff here under §227(b) would likely follow that of the Second,

Seventh, and Ninth Circuits where the courts found standing to exist under the TCPA specifically

in the context of receipt of text messages. See Van Patten, 847 F.3d 1037; Melito, 923 F.3d 85;

Gadelhak, 950 F.3d 458.

Reading together other courts’ interpretations of the TCPA and extending relevant Fourth

Circuit precedent related to receipt of calls under the TCPA, the Court finds Plaintiff’s receipt of

Defendant’s two unsolicited text messages asking Plaintiff to call Defendant to apply for disability

benefits are the kind of harm the TCPA protects against. The Complaint asserts that as a result of

Defendant’s TCPA violations, Plaintiff (and the proposed class) suffered intangible harm

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including “annoyance, nuisance and invasion of privacy” and “mental duress,” as well as tangible

harm including “wear and tear on the phone’s hardware (including the phone’s battery) and the

consumption of memory on the phone.” (Doc. No. 1, p.9.) Plaintiff's allegations here go beyond

asserting a bare statutory violation and allege: 1) an actual, individual, concrete injury that is the

kind of harm Congress chose to make legally cognizable under the TCPA; 2) that is “fairly

traceable to the challenged conduct” that Defendant is alleged to have committed; and 3) based on

the statutory remedies available, “is likely to be redressed by a favorable judicial decision.”

Spokeo, 1368S. Ct. at 1547. Plaintiff therefore has standing to sue.

IV. CONCLUSION

IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (Doc. No. 10) is

DENIED.

IT IS SO ORDERED.

Signed: November 12, 2020

Frank D. Whitney □□

United States District Judge ae

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