Heres v. Medicredit, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 23-cv-24815-BLOOM/Torres

ISAAC HERES,

Plaintiff,

v.

MEDICREDIT, INC.,

Defendant.

_________________________/

ORDER ON MOTION TO DISMISS

THIS CAUSE is before the Court upon Defendant Medicredit Inc.’s Motion to Dismiss

for Lack of Subject Matter Jurisdiction and Failure to State a Claim, ECF No. [13] (“Motion”).

Plaintiff Isaac Heres filed a Response in Opposition, ECF No. [22], to which Defendant filed a

Reply, ECF No. [25]. The Court has reviewed the Motion, the supporting and opposing

submissions, the record in this case, the applicable law, and is otherwise fully advised. For the

reasons set forth below, the Motion is granted.

I. BACKGROUND

A. Procedural History

Plaintiff filed his initial Complaint on December 19, 2023 and thereafter filed an Amended

Complaint on January 25, 2024. ECF No. [11]. Plaintiff asserts a Fair Debt Collection Practices

Act (“FDCPA”) claim against Defendant for sending Plaintiff a debt letter (“Collection Letter”)

that falsely represented he owes medical debt. See generally ECF No. [11]. The Amended

Complaint contains the following allegations:

Plaintiff suffered a workplace injury on January 3, 2021. Id. ¶ 7. On July 1, 2021, Plaintiff

sought emergency treatment for the workplace injury at Aventura Hospital and Medical Center.

Id. ¶ 12. Aventura Hospital is owned and operated by Miami Healthcare. Id. ¶ 15. Plaintiff received

treatment for his workplace injury at Aventura Hospital and Medical Center on July 1, 2021,

including an emergency surgery. Id. ¶¶ 16, 17. Miami Healthcare knew the medical services it

provided Plaintiff on July 1, 2021, were for the treatment of a workplace injury sustained by

Plaintiff on January 3, 2021, and that Plaintiff was therefore not financially responsible for the

treatment of his workplace injury. Id. ¶¶ 23, 25. Despite knowing Plaintiff was not financially

responsible for the treatment of the workplace injury rendered by Miami Healthcare on July 1,

2021, Miami Healthcare sent Plaintiff a bill, totaling $1,337.33, for the treatment Plaintiff received

on July 1, 2021. Id. ¶ 27, 29. On February 21, 2022, Plaintiff filed suit against Miami Healthcare

in Miami-Dade County Court, Case No. 2022-005946-CC-05, for, among other things, unlawfully

demanding payment from Plaintiff for the workplace injury and harm suffered by Plaintiff as a

result of the medical bill. Id. ¶ 35. On October 28, 2022, Plaintiff and Miami Healthcare reached

settlement in the state lawsuit.” Id. ¶ 39. Despite the resolution of the state lawsuit, of which

crystallized for Miami Healthcare that it could not attempt to collect the medical debt from

Plaintiff, Miami Healthcare contracted with Defendant to collect the medical debt from Plaintiff.

Id. ¶ 40. Defendant is a business entity engaged in the business of soliciting and collecting

consumer debts. Id. ¶¶ 41-42.

Plaintiff further alleges that Defendant knew that it did not have any statutory or contractual

right to attempt to collect the medical debt from Plaintiff because Florida law shields an employee

from financial responsibility. Id. ¶ 52. However, Defendant sent a collection letter, internally dated

July 29, 2023, to Plaintiff in an attempt to collect the medical debt. Id. ¶ 53. The Collection Letter

demands payment from Plaintiff for the medical debt. Id. ¶ 55.

Plaintiff received and reviewed the Collection Letter. Id. ¶ 58. The Collection Letter caused

Plaintiff to waste time, as well as lose sleep, because Miami Healthcare knew Plaintiff was not

responsible for the medical debt, yet Defendant was still trying to collect the medical debt from

Plaintiff. Id. ¶ 59. The Collection Letter caused Plaintiff to believe that Defendant was retaliating

against Plaintiff on behalf of Miami Healthcare for the state lawsuit. Id. ¶ 60. Plaintiff could not

afford to pay this debt, and he spent hours anxiously worrying about how he could pay the medical

debt, as well as lost sleep over the matter, as a result of the Collection Letter. Id. ¶ 62. The

Collection Letter disrupted and intruded upon Plaintiff’s solitude and peace at home by unlawfully

sending a letter to Plaintiff’s home address demanding payment of the medical debt. Id. ¶ 63. The

Collection Letter also caused Plaintiff to falsely believe the medical debt was his responsibility,

which caused Plaintiff to lose at least one night of sleep and to expend time and money delivering

the Collection Letter to the attorney handling Plaintiff’s worker’s compensation case. Id. ¶¶ 64-

66. Plaintiff sent the Collection Letter to his attorney because he anxiously needed feedback

regarding the medical debt demanded in the Collection Letter. Id. ¶ 66.

Count I asserts Defendant violated § 1692e and § 1692e(2)(A) of the FDCPA by falsely

representing the medical debt as Plaintiff’s personal responsibility, falsely representing the

character of the medical debt, and falsely representing the amount of the medical debt. Id. ¶ 76.

B. Motion to Dismiss

Defendant primarily argues Plaintiff’s Amended Complaint must be dismissed pursuant to

Federal Rule of Civil Procedure 12(b)(1) because Plaintiff fails to allege he suffered a concrete

injury and thus lacks standing to bring this lawsuit. Defendant alternatively contends the Amended

Complaint must be dismissed for failing to state an FDCPA claim. Plaintiff responds that he has

standing because he alleges the Collection Letter caused him to suffer several tangible and

intangible concrete injuries, his injuries are traceable and redressable, and he states a claim under

the FDCPA. Defendant replies that while Plaintiff identifies concrete injuries, the Amended

Complaint fails to sufficiently allege Plaintiff actually suffered any of those harms. Defendant also

argues Plaintiff fails to allege an FDCPA violation as only material misrepresentations are

actionable.

II. LEGAL STANDARD

A. Motion to Dismiss

“Federal courts are courts of limited jurisdiction. They possess only that power authorized

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). Accordingly, “once a

federal court determines that it is without subject matter jurisdiction, the court is powerless to

continue.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). The party

bringing the claim has the burden to establish federal subject matter jurisdiction. United States ex

rel. Brown v. Walt Disney World Co., 361 F. App’x 66, 68 (11th Cir. 2010); Kokkonen, 511 U.S.

at 377 (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 (1799)); McNutt v. Gen. Motors

Acceptance Corp., 298 U.S. 178, 182-183 (1936)).

Rule 12(b)(1) motions challenging the district court’s subject matter jurisdiction come in

two forms: facial attacks and factual attacks. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260

(11th Cir. 2009); Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). A facial attack

“requires 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.” Lawrence, 919 F.2d at 1529 (quoting Menchaca v. Chrysler Credit Corp., 613 F.2d 507,

511 (5th Cir.), cert. denied, 449 U.S. 953 (1980)). A factual attack, on the other hand, “challenge[s]

‘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. When a defendant

launches a factual attack, “the trial court may proceed as it never could under 12(b)(6) or Fed. R.

Civ. P. 56. … 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. (quoting Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir. 1981)).

B. Standing

“[S]tanding is a threshold question that must be explored at the outset of any case.” Corbett

v. Transp. Sec. Admin., 930 F.3d 1225, 1232 (11th Cir. 2019). Moreover, “[b]ecause standing is

jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject

matter jurisdiction under Fed. R. Civ. P. 12(b)(1).” Cone Corp. v. Fla. Dep’t of Transp., 921 F.2d

1190, 1203 n.42 (11th Cir. 1991). The party invoking federal jurisdiction has “the burden of

demonstrating that he has standing.” TransUnion LLC v. Ramirez, 594 U.S. 413, 430-31. “To enjoy

standing, a plaintiff must satisfy three requirements. First, a plaintiff must establish that she

suffered an injury in fact ‘that is concrete, particularized, and actual or imminent.’ Second, she

must show that the defendant ‘likely caused’ her injury. And third, she must show that a favorable

judicial decision can likely redress her injury.” Drazen v. Pinto, 74 F.4th 1336, 1342 (11th Cir.

2023) (en banc) (quoting TransUnion LLC, 594 U.S. at 424).

“An injury is concrete if it actually exists—that is, if it is ‘real, and not abstract.’” Hunstein

v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1242 (11th Cir. 2022) (en banc)

(quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)). “The most obvious concrete harm is a

physical injury or financial loss.” Id. at 1243. “But intangible harms can satisfy Article III’s

concreteness requirement, too.” Drazen, 74 F.4th at 1342 (citing Hunstein, 48 F.4th at 1243).

“[O]nce Congress has identified an intangible harm, the question becomes whether that 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.” Id. (internal quotation omitted)).

III. DISCUSSION

Defendant mounts a facial attack against Plaintiff, arguing the Court lacks subject-matter

jurisdiction because Plaintiff fails to sufficiently allege that he has standing. Defendant contends

the Amended Complaint fails to allege Plaintiff suffered a concrete injury.1 Plaintiff responds that

he has standing because the Amended Complaint identifies several tangible and intangible harms,

each of which constitute concrete injuries. Defendant replies that although the Amended

Complaint identifies concrete injuries, it does not allege “any facts that would support an inference

that Plaintiff has suffered a tangible injury[.]” ECF No. [22].

A. Standing

Defendant focuses its facial attack on the injury in fact or concreteness requirement. Before

analyzing Plaintiff’s alleged injuries, a brief discussion of what kinds of injuries are considered

“real” or “concrete” is warranted. Concrete injuries are “de facto” injuries, namely, injuries that

are “real, and not abstract.” Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 996 (11th Cir.

2020) (quoting Spokeo, 578 U.S. at 340); see also Muransky v. Godiva Chocolatier, Inc., 979 F.3d

917, 924 (11th Cir. 2020) (en banc) (“A lot of ink has been spilled to explain what concrete means,

but the best word may also be the simplest—‘real.’”) (citation omitted)). “At the pleading stage of

a case, ‘general factual allegations of injury’ can suffice. But that is not a free pass—these general

factual allegations must ‘plausibly and clearly allege a concrete injury.’” Id. (quoting Lujan v.

Defs. of Wildlife, 504 U.S. 555, 561 (1992)).

1 As noted, Defendant argues in the alternative that Plaintiff also fails to state a claim under the

FDCPA. Because the Court concludes Plaintiff fails to sufficiently allege he has standing—and that the

Court thus lacks subject-matter jurisdiction over his FDCPA claim—it does not consider whether Plaintiff

also fails to state a claim under the FDCPA. See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410

(11th Cir. 1999) (“[O]nce a federal court determines that it is without subject matter jurisdiction, the court

is powerless to continue.”) (internal quotation omitted)).

Further, “Article III standing requires a concrete injury even in the context of a statutory

violation[.]” Spokeo, 758 U.S. at 341. In other words, a “bare procedural violation, divorced from

any concrete harm” does not constitute a concrete injury. Id. “Instead, a statutory violation gives

rise to an injury in fact only if the violation (1) inflicts some separate concrete harm on the plaintiff

or (2) creates a material risk of such harm to the plaintiff.” Muransky, 979 F.3d at 926-27. A

plaintiff also “cannot manufacture standing merely by inflicting harm on themselves[,]” Clapper

v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013), including by “bringing suit for the cost of bringing

suit[.]” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998).

According to Defendant, the Amended Complaint is exactly that: a FDCPA claim alleging

a bare procedural violation, with conclusory harms that are reducible to “bringing suit for the cost

of bringing suit[.]” Steel Co., 523 U.S. at 107. Plaintiff does not dispute that bare procedural

violations fail to confer standing, or that the costs of bringing this action does not constitute a

concrete injury. However, Plaintiff contends the Amended Complaint sufficiently alleges

numerous tangible and intangible concrete injuries. Regarding tangible injuries, Plaintiff argues

he sufficiently alleges he (1) wasted time, (2) wasted money, and (3) suffered emotional distress

when he received the Collection Letter. Plaintiff also argues the Collection Letter caused him to

suffer an intangible injury, namely, an invasion of his privacy.

As noted, Plaintiff has the burden to demonstrate he has standing to bring his FDCPA

claim. TransUnion LLC, 594 U.S. at 430-31. To determine if Plaintiff has standing, the Court

accordingly must determine whether the Amended Complaint sufficiently alleges any of those

harms as a concrete injury. If it does, Plaintiff has standing. If it does not, the Amended Complaint

must be dismissed for failing to allege standing, and thus federal jurisdiction. Cone Corp, 921 F.2d

at 1203 n.42.

i. Tangible Harms

Plaintiff argues his allegations of wasted time, money spent, and emotional distress

constitute tangible injuries that “separately and independently” satisfy the injury-in-fact

requirement. ECF No. [22]. For support, Plaintiff relies on Walters v. Fast AC, Ltd. Liab. Co., 60

F.4th 642 (11th Cir. 2023) and Toste v. Beach Club at Fontainebleau Park Condo. Ass’n, Aventura,

P.A., Case No. 21-14348, 2022 WL 4091738 (11th Cir. 2022).

In Walters, the plaintiff brought a Truth in Lending Act (“TILA”) claim and related state

law claims alleging the defendant loan servicer misrepresented the sum and conditions of a loan.

60 F.4th 642 at 645. The district court granted summary judgment on the plaintiff’s TILA claim

after finding the plaintiff failed to allege a concrete injury and consequently lacked standing. Id.

at 647. The district court found the plaintiff’s testimony describing the following injuries failed to

establish the plaintiff suffered a concrete injury: “(1) he was forced to spend time disputing his

debt; (2) his credit took a hit, preventing him from making other purchases or refinancing his

home; (3) he spent money faxing documents to his attorney; and (4) he felt anxious, exploited,

embarrassed, and worthless.” Walters, 60 F.4th 642 at 648. The Eleventh Circuit reversed, finding

each of those harms constitute “garden-variety injuries under Article III.” Id. at 649. As Walters

explains:

Our precedent recognizes each of these harms as a concrete injury in fact. We have

held that such injuries include not only “straightforward economic injuries,” like

lost money, but also “more nebulous” ones, Tsao v. Captiva MVP Rest. Partners,

LLC, 986 F.3d 1332, 1338 (11th Cir. 2021), like wasted time … and emotional

distress. See, e.g., Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir.

2021) (“[T]here is no question that wasted time is a concrete harm….”).

Id. at 648. The Eleventh Circuit accordingly concluded the plaintiff’s “deposition testimony

describing his lost time, economic harm, and emotional distress was sufficient evidence of those

injuries to survive summary judgment.” Id. (citing Losch v. Nationstar Mortg. LLC, 995 F.3d 937

943 (11th Cir. 2021)).

In Toste, the plaintiff brought three FDCPA claims, including a claim asserting a law firm

falsely represented the amount of debt the plaintiff owed for missed condominium payments in a

collection letter. Toste, 2022 WL 4091738, at *1. The plaintiff believed the amount demanded in

the letter was excessive, consulted with an attorney and an accountant to determine what he owed

and the consequences of nonpayment, and proceeded to hire the same attorney to sue the

condominium association and law firm for violating the FDCPA. See id. The district court granted

the defendant’s motion to dismiss upon finding the plaintiff “had not demonstrated an injury in

fact.” Id., at *4. The court rested its conclusion in part on its finding that the plaintiff’s “emotional

damages and the time he spent trying to discover the true amount of his debt … [were] too

insubstantial.” Id.

The Eleventh Circuit reversed, finding that the plaintiff’s allegations of wasted time and

emotional distress constituted a concrete injury:

We have explained that a plaintiff’s wasted time, in particular, can be a concrete

injury for standing purposes. Salcedo, 936 F.3d at 1173; see Pedro v. Equifax, Inc.,

868 F.3d 1275, 1280 (11th Cir. 2017). For example, we have found that a plaintiff

stated a tangible injury for standing purposes where she alleged that she “lost time”

trying to correct inaccuracies in her credit report. Pedro, 868 F.3d at 1280. And

while we have not yet decided in a published opinion whether emotional distress

alone is a sufficiently concrete injury for standing purposes, we have found standing

where the plaintiff experienced both emotional distress manifesting in a loss of

sleep and wasted time spent resolving problems caused by the defendant’s

mistakes. See Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir. 2021).

Those are some of the same injuries Toste testified to here.

Id. The court also rejected the defendants’ argument that the plaintiff’s injury was insufficient

because it simply reflects the costs of bringing his lawsuit:

We recognize that, as the defendants have argued, the time and money that Toste

spent on the FDCPA lawsuit itself cannot give rise to a concrete injury for Article

III standing purposes. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107,

118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998) (“a plaintiff cannot achieve standing to

litigate a substantive issue by bringing suit for the cost of bringing suit”). But here,

Toste initially consulted with an attorney at least in part to help him accurately

calculate his debt to the association, to advise him of the legal consequences of

paying (or not paying) the sums demanded …. Time or money spent in defending

against a legal action taken by a debt collector against the debtor is separable from

the costs of bringing the debtor’s own lawsuit. “Because there is no question that

wasted time is a concrete harm, Toste has standing to pursue his claims so long as

even a small part of the injury is attributable to” the defendants.

Id. The Eleventh Circuit thus concluded the plaintiff had standing to bring his FDCPA claim

because “time spent trying to determine the correct amount of his debt, resolve the lien, and avoid

the threatened foreclosure,” as well as his accompanying “emotional distress manifesting in a loss

of sleep” constitutes a concrete injury. Id.

Plaintiff argues Walters and Losch demonstrate his allegations of wasted time, wasted

money, and emotional distress in the form of anxiety and lost sleep are all concrete injuries. The

Amended Complaint identifies each of those harms, see ECF No. [11] ¶¶ 59, 62, 65-66, and makes

clear those harms were caused by Defendant sending the Collection Letter. Defendant replies that

it does not dispute that wasted time, wasted money, and emotional distress may constitute concrete

injuries under controlling precedent. However, Defendant contends Plaintiff’s allegations

regarding those harms are conclusory and thus fail to allege “sufficient factual matter

demonstrating an injury-in-fact.” ECF No. [25] at 3. The Court first analyzes Plaintiff’s allegations

regarding the time and money he spent upon receiving the Collection Letter.

1. Wasted Time and Money

Plaintiff accurately observes the tangible harms identified in the Amended Complaint are

concrete injuries —wasted time, wasted money, related emotional distress manifesting in a loss of

sleep. See Salcedo, 936 F.3d at 1173 (wasted time); Losch, 995 F.3d at 943 (wasted time and

emotional distress manifesting in loss of sleep); Toste, 2022 WL 4091738, at *9 (same); see also

Hunstein, 48 F.4th at 1243 (observing “financial loss” constitutes an “obvious concrete harm”).

As Defendant points out, however, Plaintiff’s allegations regarding those harms are conclusory.

Regarding wasted time and money, Plaintiff simply alleges he “expended time and money

delivering the Collection Letter to the attorney handling Plaintiff’s worker’s compensation case,

as Plaintiff anxiously needed feedback regarding the Medical Debt demanded in the Collection

Letter.” ECF No. [11] ¶ 66; see also id. ¶ 59 (“The Collection Letter caused Plaintiff to waste time,

as well as lose sleep, because … Defendant was still trying to collect the Medical Debt from

Plaintiff.”). The Amended Complaint is silent as to whether Plaintiff ever received any feedback,

however. It also entirely lacks allegations describing the amount of time and money spent or how

that time and money was spent. For example, other than Plaintiff’s reference to “anxiously

need[ing] feedback[,]” the Amended Complaint fails to allege whether Plaintiff later discussed the

Collection Letter with his attorney or how much time was spent doing so.

Plaintiff is correct that very little time or money must be spent for a plaintiff to suffer a

concrete injury. See, e.g., Losch v. Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir. 2021)

(observing a plaintiff who “spent at most an hour dealing with his dispute to Experian [ ]” suffered

a concrete injury because “there is no question that wasted time is a concrete harm ….”); Salcedo

v. Hanna, 936 F.3d 1162, 1173 (11th Cir. 2019) (noting Eleventh Circuit precedent “strongly

suggest[s] that concrete harm from wasted time requires, at the very least, more than a few

seconds.”) (citations omitted)). However, as Defendant observes, Walters and Toste each featured

plaintiffs who—depending on the procedural posture—provided specific allegations or evidence

regarding time spent, money wasted, and associated feelings of emotional distress. In both cases,

the Eleventh Circuit rejected arguments that the plaintiff merely alleged a bare procedural violation

with no underlying concrete injury. Unlike here, however, those plaintiffs supported their alleged

injuries with factual details, not conclusory allegations.

Toste aptly illustrates the Amended Complaint’s deficiencies. As discussed, the plaintiff in

Toste provided specific allegations regarding his alleged harms, namely, that he believed the sum

demanded in the debt letter was excessive, proceeded to consult with an attorney and an accountant

to determine what he actually owed, and later hired the same attorney to file his FDCPA claim.2

See 2022 WL 4091738, at *1, *4.

The Eleventh Circuit acknowledged “the time and money that Toste spent on the FDCPA

lawsuit itself cannot give rise to a concrete injury for Article III standing purposes.” Id., at *4

(citing Steel Co., 523 U.S. at 107). However, the court found the plaintiff’s allegations clearly

alleged concrete injuries in the form of wasted time and money:

But here, Toste initially consulted with an attorney at least in part to help him

accurately calculate his debt to the association, to advise him of the legal

consequences of paying (or not paying) the sums demanded …. Time or money

spent in defending against a legal action taken by a debt collector against the debtor

is separable from the costs of bringing the debtor’s own lawsuit.).

Id. The court thus concluded “‘[b]ecause there is no question that wasted time is a concrete harm,

Toste has standing to pursue his claims so long as even a small part of the injury is attributable to’

the defendants.” Id. (quoting Losch, 995 F.3d at 943).

The Court cannot similarly conclude Plaintiff’s allegations demonstrate he suffered a

concrete harm. As in Toste, Plaintiff “has standing to pursue his claims so long as even a small

2 Unlike here, “the defendant raised a factual challenge to subject matter jurisdiction (rather than a

facial challenge),” which prompted the plaintiff to file an affidavit in response to the defendant’s motion to

dismiss. Toste, 2022 WL 4091738, at *2. The plaintiff also relied on his deposition testimony detailing his

alleged injuries. Id. As the Eleventh Circuit observed, “the district court was free to go beyond the complaint

and examine record evidence such as depositions and affidavits, and we do the same.” Id., at *2 n.3. Because

Defendant launches a facial attack, the Court’s inquiry is limited to the sufficiency of Plaintiff’s allegations.

See Lawrence, 919 F.2d at 1529.

part of the injury is attributable to’ the defendants.”3 Id. (quoting Losch, 995 F.3d at 943). “[T]here

is no question that wasted time is a concrete harm,” Losch, 995 F.3d at 943, and Eleventh Circuit

precedent “strongly suggests” the amount of time wasted can be little “more than a few seconds.”

Salcedo, 936 F.3d at 1173. Plaintiff also need not show he wasted substantial sums of money, as

financial losses are plainly concrete harms. Hunstein, 48 F.4th at 1243. As noted, however, the

Amended Complaint is silent as to how much time or money Plaintiff spent, or how he wasted that

time or money. Plaintiff alleges he “expended time … delivering the Collection Letter” to his

attorney because he “anxiously needed feedback[.]” ECF No. [11] ¶ 66. Plaintiff fails to allege

whether he ever received any feedback from his attorney, however, or whether he wasted any time

beyond simply sending the Collection Letter to his attorney. The same is true regarding wasted

money. See id. It is thus also unclear whether Plaintiff’s wasted money extends beyond simply

sending the Collection Letter to his attorney.

Those details are essential. As the Eleventh Circuit observed in Toste, “the time and money

that [Plaintiff] spent on the FDCPA lawsuit itself cannot give rise to a concrete injury for Article

III standing purposes.” 2022 WL 4091738, at *4 (citing Steel Co., 523 U.S. 83 at 107 (“a plaintiff

cannot achieve standing to litigate a substantive issue by bringing suit for the cost of bringing

suit”)). The plaintiff in Toste clearly alleged he wasted time “in defending against a legal action

taken by a debt collector[.]” Id. The court concluded the plaintiff suffered a concrete harm because

that wasted time was clearly “separable from the costs of bringing the debtor’s own lawsuit.” Id.

3 The Court is unpersuaded by Defendant’s argument that Plaintiff also lacks standing because his

alleged harms are not traceable to Defendant. As Losch makes clear, Plaintiff “has standing to pursue his

claims so long as even a small part of the injury is attributable to” Defendant. 995 F.3d at 943. The Amended

Complaint clearly alleges the Collection Letter caused Plaintiff to waste time, waste money, and suffer

anxiety because Defendant sent the Collection Letter. See ECF No. [11] ¶¶ 62-66. Although the Court

agrees Plaintiff fails to sufficiently allege those harms are concrete injuries, the Amended Complaint plainly

alleges at least “a small part” of those injuries can be attributed to Defendant sending the Collection Letter.

Losch, 995 F.3d at 943.

Here, the opposite is true. Plaintiff simply alleges he wasted time or money “delivering the

Collection Letter to his attorney.” ECF No. [11] ¶ 66. The Court accordingly cannot conclude that

Plaintiff wasted any time or money beyond “the cost of bringing suit.” Steel Co., 523 U.S. at 107.

Toste is thus instructive, as Plaintiff fails to sufficiently allege he suffered concrete harms in the

form of wasted time or money.

The Court is similarly unpersuaded by Plaintiff’s reliance on Walters. In Walters, the

Eleventh Circuit acknowledged “the ‘now-familiar admonition’ that a procedural statutory

violation, standing alone, does not amount to a concrete injury in fact.” 60 F.4th at 648 (quoting

Muransky, 979 F.3d at 929). However, the court found the plaintiff’s evidence of concrete injuries

established the plaintiff suffered more than a bare procedural violation:

These authorities do not support FTL’s position. They share a dispositive feature

that is missing here: they each involved a “bare procedural violation” and no

“concrete harm.” Spokeo, 578 U.S. at 341, 136 S.Ct. 1540. None involved a plaintiff

who, like Walters, identified concrete harms in addition to a statutory violation.

See, e.g., TransUnion, 141 S. Ct. at 2210 (holding “[t]he mere presence of an

inaccuracy in an internal credit file” in violation of federal statute inflicts “no

concrete harm” unless it is “disclosed to a third party”); Muransky, 979 F.3d at 929

(holding unlawfully printing customers’ credit card numbers on receipts was not

“by itself ... a concrete injury”). Walters’s injuries go beyond FTL’s noncompliant

disclosures—he provided evidence of lost time, money, and peace. These are

garden-variety injuries in fact under Article III.

Id. at 649. The court accordingly concluded “that when a plaintiff establishes that he personally

suffered an actual, concrete harm, as Walters did here, the injury-in-fact analysis is complete.” Id.

As noted, the Eleventh Circuit found the plaintiff suffered a concrete injury based on

“evidence of lost time, money, and peace[,]” namely, the plaintiff’s testimony detailing the time

he wasted, the money he spent, and his related feelings of emotional distress. See id. at 648-49. As

discussed, Plaintiff’s conclusory allegations of wasted time and money fail to allege a harm beyond

the costs of bringing this action. See ECF No. [11] ¶ 66. Plaintiff’s allegations are closer to the

authorities involving “a ‘bare procedural violation’ and no ‘concrete harm.’” Walters, 60 F.4th at

648 (quoting Spokeo, 578 U.S. at 341); see TransUnion, 594 U.S. at 434 (holding “[t]he mere

presence of an inaccuracy in an internal credit file” is “no concrete harm” unless and until it is

“disclosed to a third party”); see also Muransky, 979 F.3d at 929 (holding unlawfully printing

customers’ credit card numbers was not “by itself ... a concrete injury”). Plaintiff has clearly

alleged a procedural violation of the FDCPA. See generally ECF No. [11] ¶¶ 68-77. As discussed,

however, the additional harms identified in the Amended Complaint fail to show Plaintiff wasted

time or money outside of bringing this action. Walters accordingly fails to support finding Plaintiff

sufficiently alleges that he suffered a concrete injury.4

The Court is mindful that while Plaintiff “cannot establish constitutional standing based

solely on the defendant’s ‘bare violation of a statute,’ he can do so by showing that the violation

caused him some real harm[.]” Toste, 2022 WL 4091738, at *4. As the Eleventh Circuit observed,

“in this context, ‘very nearly any level of direct injury is sufficient to show a concrete harm.’” Id.

(citing Muransky, 979 F.3d at 920, 927; Salcedo, 936 F.3d at 1167 (“A concrete injury need be

only an ‘identifiable trifle.’”) (quoting United States v. Students Challenging Regul. Agency Procs.

(SCRAP), 412 U.S. 669, 689 n.14 (1973))). However, “statutory violations do not—cannot—give

us permission to offer plaintiffs a wink and a nod on concreteness.” Muransky, 979 F.3d at 924

(citing Spokeo, 578 U.S. at 340-41). Plaintiff instead “must show, and the courts must ensure, that

an alleged injury is concrete, or else we have no jurisdiction to consider it.” Id. Plaintiff fails to

sufficiently allege he suffered even a trifling harm here.

4 Losch and Pedro are also instructive. As in Toste, and unlike here, the plaintiffs in both cases

were clearly harmed by wasting time that was separable from the costs of bringing suit. See Losch v.

Nationstar Mortg. LLC, 995 F.3d 937, 943 (11th Cir. 2021) (the plaintiff “testified that he spent at most an

hour dealing with his dispute to Experian ....”) (record citation omitted)); Pedro v. Equifax, Inc., 868 F.3d

1275, 1280 (11th Cir. 2017) (“Pedro also alleged a concrete injury because she alleged that she lost time ...

attempting to resolve the credit inaccuracies.”) (internal quotation omitted)).

2. Emotional Distress – Anxiety, Loss of Sleep

Plaintiff’s remaining “tangible” harm consists of experiencing emotional distress, namely,

anxiety manifesting in a loss of sleep. The Amended Complaint alleges “[t]he Collection Letter

caused Plaintiff to waste time, as well as lose sleep, because Miami Healthcare knew Plaintiff was

not responsible for the Medical Debt, yet Defendant was still trying to collect the Medical Debt

from Plaintiff.” Id. ¶ 59; see also id. ¶ 62 (“Plaintiff spent hours anxiously worrying about how he

could pay the Medical Debt, as well as lost sleep over the matter, as a result of the Collection

Letter.”); id. ¶ 65 (“The Collection Letter caused Plaintiff to lose at least one night of sleep.).

Unlike Plaintiff’s allegations of wasted time and money, the Amended Complaint thus provides

some details on those harms: Plaintiff “spent hours anxiously worrying” about the Collection

Letter and lost “at least one night of sleep.” Id. ¶¶ 62, 65.

Plaintiff argues “the time wasted by Plaintiff through hours of emotional distress and lost

sleep as a direct result of the Collection Letter” also constitutes a concrete injury. ECF No. [22] at

12. Plaintiff again relies on Toste for support. As Defendant correctly points out, however, Toste

found emotional distress manifesting in lost sleep is properly considered a concrete harm because

the plaintiff “experienced both emotional distress manifesting in a loss of sleep and wasted time

spent resolving problems caused by the defendant’s mistakes.” 2022 WL 4091738, at *4 (citing

Losch, 995 F.3d at 943) (emphasis added)). The Eleventh Circuit explicitly noted it has “not yet

decided in a published opinion whether emotional distress alone is a sufficiently concrete injury

for standing purposes.” Id. As discussed, the Court concludes Plaintiff fails to sufficiently allege

he suffered a concrete harm in the form of wasted time. Toste and Losch accordingly fail to support

finding Plaintiff’s emotional distress, without more, constitutes a concrete harm.

Plaintiff otherwise fails to support his position that the emotional distress he experienced

is properly characterized as a concrete injury. For its part, Defendant observes courts in this District

have found feelings of distress and anxiety alone fail to demonstrate a plaintiff suffered a concrete

injury. See Luce v. LVNV Funding LLC, 2023 WL 1472582, at *5 (S.D. Fla. Jan. 18, 2023), report

and recommendation adopted, 2023 WL 1466815 (S.D. Fla. Feb. 2, 2023) (“Without more,

Plaintiff’s statements that he feels stress, worry, anxiety, frustration, and anger because Defendant

failed to remove the dispute notation is not sufficiently concrete and particularized to establish

Article III standing.”) (citations omitted)); Preisler v. Eastpoint Recovery Group, Inc., 2021 WL

2110794, at *3 (S.D. Fla. 2021) (holding the alleged injury of “distress and anxiety” caused by the

word “enforce” included in a letter was insufficient to establish standing) (citing Trichell, 964 F.3d

at 997; Spokeo, 136 S. Ct. at 1549)). Plaintiff accordingly fails to show he suffered a concrete

injury where, as here, he alleges experiencing feelings of emotional distress without sufficiently

alleging he suffered related tangible injuries.5

ii. Intangible Harm – Invasion of Privacy

Plaintiff also argues the Collection Letter caused him to suffer an intangible concrete

injury, namely, the invasion of his privacy. Defendant’s Motion acknowledges invasions of

privacy may constitute intangible harms. However, Defendant contends Plaintiff’s allegation that

“[t]he Collection Letter disrupted and intruded upon Plaintiff’s solitude and peace at home[,]” ECF

No. [11] ¶ 63, fails to demonstrate Plaintiff suffered a concrete injury. According to Defendant,

this allegation fails to establish Plaintiff suffered a concrete intangible injury because (1) Plaintiff

5 Plaintiff asserts his anxiety and lost sleep stem from two distinct beliefs: (1) his belief Defendant

sent the Collection Letter to retaliate against him, and (2) his false belief that he owed the medical debt

described in the Collection Letter. As discussed, however, Plaintiff fails to provide any support for his

position that feelings of anxiety manifesting in lost sleep constitutes a distinct, tangible concrete injury.

Plaintiff accordingly fails to show his anxiety and lost sleep constitutes a concrete injury regardless of the

source of those symptoms.

does not allege he suffered a substantial intrusion, and (2) receiving a piece of mail is distinct from

the type of non-physical intrusions upon seclusion recognized at common law. Plaintiff responds

that the Collection letter is analogous to the kind of privacy intrusions recognized at common law,

which demonstrates the Collection Letter caused him to suffer a concrete privacy invasion

regardless of its degree of intrusiveness. Plaintiff relies on the Eleventh Circuit’s recent decision

in Drazen v. Pinto, 74 F.4th 1336 (11th Cir. 2023) (en banc) for support. Defendant replies that

Drazen is distinguishable, and that Plaintiff lacks support for his position that receiving a debt

letter constitutes an actionable invasion of privacy.

In Drazen, the Eleventh Circuit held “[a] plaintiff who receives an unwanted, illegal text

message suffers a concrete injury.” Id. at 1339. The plaintiffs in Drazen alleged the defendant

committed class-wide violations of the Telephone Consumer Protection Act (“TCPA”). Id.

Relying on the Eleventh Circuit’s decision in Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019),

“which held that the ‘receipt of a single text message’ is not a concrete injury[,]” id. at 1340, both

the district court and the Eleventh Circuit initially concluded class members who only received a

single text message did not suffer a concrete injury, and thus lacked standing. Id. at 1340-42.

However, the Eleventh Circuit granted the plaintiff’s motion for an en banc rehearing in order to

revisit its prior holding in Salcedo. See id.

As Drazen explains, “intangible harms can satisfy Article III’s concreteness requirement,

too.” Id. at 1342. “[O]nce Congress has identified an intangible harm, the question becomes

whether that ‘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.’” Id. (citing Hunstein, 48 F.4th at

1243). Moreover, “[t]he Supreme Court has acknowledged the harm associated with the common-

law tort of intrusion upon seclusion as an example of a harm ‘traditionally recognized as providing

a basis for lawsuits in American courts.’” Id. (quoting TransUnion, 141 S. Ct. at 2204).

The Eleventh Circuit found the harm identified by the TCPA—protecting consumers from

invasions of privacy caused by unwanted telemarketing texts and phone calls—has a close

relationship with the tort of intrusion upon seclusion. Id. at 1345. In so doing, the en banc court

rejected the defendant’s argument that receiving a single text message is insufficient because it

lacks the same degree of offensiveness as the underlying harm of intrusion upon seclusion. See id.

at 1343. The Eleventh Circuit instead adopted the approach of most Circuits, which requires asking

“whether the harms are similar in kind but not degree[.]” Id. at 1344 (emphasis added). Because

the court found the TCPA provides a remedy for the same kind of harms as the tort of intrusion

upon seclusion—invasions of privacy that are generally considered offensive—it concluded the

plaintiffs suffered concrete injuries even if those injuries were of a lesser degree than intrusions

upon seclusion recognized at common law. See id. at 1343-45.

Plaintiff argues the Collection Letter caused him to suffer a concrete harm because, like

the receipt of a single unwanted text message, receiving a single unwanted debt letter is the same

kind of harm as an intrusion upon seclusion. As Plaintiff accurately observes, both the TCPA and

FDCPA identify invasions of privacy as harms the statutes seek to remedy. See 47 U.S.C. §

227(b)(1)(A)(iii); 15 U.S.C. 1692(a). Like the defendant in Drazen, Plaintiff argues Defendant’s

contention that receiving a single unwanted debt letter is too insubstantial of an intrusion amounts

to a concession that unwanted letters are the same kind of harm as intrusions upon seclusion.

Plaintiff thus contends Drazen supports finding receiving a single unwanted debt letter constitutes

a concrete intrusion upon seclusion regardless of the number of letters, or degree of that intrusion.

Defendant replies that receiving an unwanted debt letter is not the same kind of harm as an

intrusion upon seclusion, and that Plaintiff accordingly fails to allege he suffered a concrete

intangible injury.

The Court agrees with Defendant. Plaintiff is correct that “the degree of offensiveness

required to state a claim for intrusion upon seclusion at common law” is irrelevant for standing

purposes. Drazen, 74th F.4th at 1344 (emphasis in original). The proper inquiry is instead to

determine whether the harm identified by the FDCPA—here, prohibiting debt collectors from

sending false debt letters—attempts to remedy the same kind of harm as an intrusion upon

seclusion. See id. (“[W]e should ask whether the harms share “a ‘close relationship’ in kind, not

degree.”) (quoting Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 2020) (Barrett, J.)).

The differences between Plaintiff’s FDCPA claim and the TCPA claim in Drazen illustrate

the problems with Plaintiff’s theory. As Drazen observes, “the relationship between the harms we

compare is too attenuated when a plaintiff ‘completely fails to allege an element essential to the

harm set out as a common-law comparator.’” Id. at 1343 (quoting Hunstein, 48 F.4th at 1249).

Here, we must compare the tort of intrusion upon seclusion to the privacy invasion caused by

receiving unsolicited debt letters. “Intrusion upon seclusion consists of an (i) intentional intrusion

(ii) into another’s solitude or seclusion, (iii) which would be highly offensive to a reasonable

person.” Id. at 1345 (citing Restatement (Second) of Torts, § 652B; Jackman v. Cebrink-Swartz,

334 So. 3d 653, 656 (Fla. 2nd DCA 2021)).

Drazen proceeded to compare unwanted text messages with those elements, as well as

harms traditionally recognized as intrusions upon seclusion at common law. The Eleventh Circuit

notes most of its sister Circuits also found “receiving either one or two unwanted texts or phone

calls resembles the kind of harm associated with intrusion upon seclusion.” Id. at 1344 (collecting

cases). As Drazen points out, “[u]nwanted phone calls, as we’ve noted, are among the privacy

intrusions that give rise to liability for intrusion upon seclusion.” (citing Restatement (Second) of

Torts, § 652B cmt. d; W. Page Keeton et al., Prosser & Keeton on the Law of Torts 855 (5th ed.

1984)); see also Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1270 (11th Cir. 2019) (finding

receiving “more than one unwanted telemarketing call” causes a harm that has “a close relationship

to the kind of harm” caused by intrusions upon seclusion)). Drazen relied on these well-established

findings to readily conclude unwanted text messages present similar intrusions upon seclusion.

The Eleventh Circuit accordingly found that “as with ‘the unwanted ringing of a phone from a

phone call,’ the ‘undesired buzzing of a cell phone from a text message ... is an intrusion into peace

and quiet in a realm that is private and personal.’” Id. (quoting Gadelhak, 950 F.3d at 462 n.1). In

short, because the difference between the harms caused by unwanted texts and intrusions upon

seclusion was simply one of degree, not kind, Drazen concluded receiving a single text message

constitutes a concrete injury.

Plaintiff fails to show the same is true here. Unlike telemarking calls and text messages,

Plaintiff lacks support for his position that receiving an unwanted debt letter causes the same kind

of harm as an intrusion upon seclusion at common law. As Defendant points out, Plaintiff fails to

provide a single case where a court found receiving a single letter constitutes an intentional

intrusion upon one’s seclusion. Drazen is therefore distinguishable, as the Eleventh Circuit rested

its finding on numerous decisions finding telemarketing text messages and telephone calls

constitute similar privacy intrusions. Id. at 1344 (collecting cases). Moreover, unlike telephone

calls, unsolicited mailings are generally not considered intrusions upon one’s seclusion. Compare

Restatement (Second) of Torts § 652B cmt. d (explaining telephone calls demanding “payment of

a debt” can constitute intrusions upon seclusion) with id. at rep. n. to cmt. d (“Unsolicited mailings

do not constitute an actionable intrusion.”) (citations omitted)).

Plaintiff does not articulate how receiving a single letter is akin to the “undesired buzzing

of a cell phone from a text message” such that the Collection Letter can be considered a similar

“intrusion into peace and quiet in a realm that is private and personal.” Gadelhak, 950 F.3d at 462

n.1 (Barrett, J.). As noted, the Amended Complaint simply alleges “[t]he Collection Letter

disrupted and intruded upon Plaintiff’s solitude and peace at home[,]” ECF No. [11] ¶ 63. Even

assuming a debt letter could constitute a similar privacy invasion as an intrusion upon seclusion—

a position Plaintiff does not support—Plaintiff’s conclusory allegation fails to show he suffered

such a harm.

Drazen does not support finding Congress elevated receiving a single debt letter to the

level of a concrete harm simply because the FDCPA generally identifies privacy invasions as

harms it seeks to remedy.6 As discussed, Plaintiff fails to show receiving a single debt letter is like

receiving an unwanted telephone call, text message, or other acknowledged intrusion upon one’s

seclusion. Accordingly, although Plaintiff is correct that the Court’s inquiry focuses on whether

these harms are similar in kind, not degree, Plaintiff fails to show the Collection Letter establishes

he suffered a similar privacy invasion here.

B. No Futility in Amended Complaint

District courts “have broad discretion in permitting or refusing to grant leave to amend.”

6 The Eleventh Circuit’s en banc decision in Hunstein v. Preferred Collection & Mgmt. Servs., Inc.,

48 F.4th 1236 (11th Cir. 2022) reinforces this conclusion. Hunstein rejected the argument that “a creditor

sending information” about a plaintiff’s “debt to a mail vendor” is “analogous to the common-law tort of

public disclosure.” Id. at 1240. The court acknowledged Congress “targeted ‘invasions of individual privacy

‘when it passed’” the FDCPA. Id. at 1248 (citing 15 U.S.C. § 1692(a)). However, as Hunstein observes,

“even assuming—which we do not—that Congress was attempting to target the workaday vendor

relationships alleged here, congressional intent does not automatically transform every arguable invasion

of privacy into an actionable, concrete injury.” Id. The same is true here. Plaintiff assumes the FDCPA

targets unsolicited debt letters because they are invasions of privacy without supporting this idea, let alone

his position that sending a debt letter is sufficiently intrusive to constitute “an actionable, concrete injury.”

Id. Plaintiff instead attempts to hammer a “square cause of action into [a] round tort[ ].” Muransky, 979

F.3d at 931. Consistent with Hunstein, the Court concludes “it just does not fit.” Id. at 1241.

Garfield v. NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006) (quoting Foman v. Davis,

371 U.S. 178, 182 (1962)). Leave to amend should be “freely given” absent a showing of “futility

of amendment.” Id. at 1270 (citing Foman, 371 U.S. at 182). When an amended complaint would

still be “properly dismissed or be immediately subject to summary judgment for the defendant,” a

district court could determine that leave to amend the complaint is futile. Cf. Rivas v. Bank of N.Y.

Mellon, 777 F. App’x 958, 965 (11th Cir. 2019) (citing Cockrell v. Sparks, 510 F.3d 1307, 1310

(11th Cir. 2007)).

As discussed above, Plaintiff fails to sufficiently allege he suffered either a tangible or

intangible concrete harm. However, the Amended Complaint does identify cognizable concrete

harms, particularly wasted time and money. Further, “in this context, ‘very nearly any level of

direct injury is sufficient to show a concrete harm.’” Toste, 2022 WL 4091738, at *4 (citing

Muransky, 979 F.3d at 920, 927); see also Salcedo, 936 F.3d at 1167 (“A concrete injury need be

only an ‘identifiable trifle.’”) (quoting SCRAP, 412 U.S. at 689 n.14)). Accordingly, while

Plaintiff’s conclusory allegations fail to show he suffered a concrete harm, it is certainly plausible

that he has. The Court thus concludes Plaintiff should be granted leave to amend. If Plaintiff indeed

suffered a concrete injury that is separable from both a “bare procedural violation,” Spokeo, 758

U.S. at 341, and “the cost of bringing suit[,]” Steel Co., 523 U.S. at 107, then leave to amend is

proper.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Dismiss, ECF No. [13], is GRANTED.

2. Plaintiff’s Amended Complaint, ECF No. [11], is DISMISSED WITHOUT

PREJUDICE.

Case No. 23-cv-24815-BLOOM/Torres

3. Plaintiff shall file a Second Amended Complaint consistent with this Order by July

16, 2024.

DONE AND ORDERED in Chambers at Miami, Florida, on July 2, 2024.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies To:

Counsel of Record

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