O'Shea v. American Solar Solution, Inc.

Filing 100

ORDER denying 95 Defendant's Motion to Dismiss. Signed by Judge M. James Lorenz on 6/27/2017. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KERRY O'SHEA,

Case No.: 3:14-cv-00894-L-RBB
Plaintiff,

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v.

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ORDER DENYING DEFENDANT’S
MOTION [Doc. 95] TO DISMISS

AMERICAN SOLAR SOLUTION, INC.,
Defendant.

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Pending before the Court is Defendant American Solar Solution, Inc.’s motion to

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dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court decides the

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matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d)(1). For

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the reasons stated below, the Court DENIES Defendant’s motion.

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3:14-cv-00894-L-RBB

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I.

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BACKGROUND
This is a class action alleging Defendant American Solar Solution, Inc.

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(“Defendant”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §

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227 et seq., by using an automatic telephone dialer system (“ATDS”) to place

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telemarketing calls to cell phones. Defendant is in the business of selling solar energy

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equipment to residential and commercial customers. To market its products and services,

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Defendant used a ViciDial predictive dialer to contact phone numbers uploaded into the

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dialer. Defendant purchased these telephone numbers from several different companies

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that sell lists of phone numbers that connect to members of a population meeting certain

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demographic criteria. From November 22, 2012 to August 22, 2015, Defendant made

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897,534 such calls to 220,007 different cell phone numbers. (Hansen Decl. [Doc. 69-27]

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¶ 16.)

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Defendant placed fifteen calls to named Plaintiff Kerry O’Shea’s (“Plaintiff”) cell

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phone. Nine of these phone calls were for zero seconds, three were for one second, one

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was for twenty-five seconds, one was for thirty-seven seconds, and one lasted for almost

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five minutes. (Doc. 95-4, 3:16–4:6). There is no record of Plaintiff providing express

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consent, written or otherwise, to receive these calls. Accordingly, Plaintiff filed this class

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action1 alleging Defendant’s conduct violated the TCPA. Defendant now moves for an

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order of dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1). (See MTD [Doc.

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95].) Plaintiff opposes. (See Opp’n [Doc. 96].)

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This case has received class certification. (March 2, 2017 Order [Doc. 88].)
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3:14-cv-00894-L-RBB

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II.

LEGAL STANDARD

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Rule 12(b)(1) provides that a court may dismiss a claim for lack of subject matter

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jurisdiction. Fed. R. Civ. P. 12(b)(1). Although the defendant is the moving party on a

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motion to dismiss, the plaintiff is the party invoking the court’s jurisdiction. Therefore,

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the plaintiff bears the burden of proof on the necessary jurisdictional facts. McCauley v.

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Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001). To meet this burden and survive a

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motion to dismiss under Rule 12(b)(1), a plaintiff need only show that its claim is not “so

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unsubstantial, implausible, foreclosed by prior decisions of [the Supreme Court], or

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otherwise completely devoid of merit as not to involve a federal controversy within the

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jurisdiction of the District Court, whatever may be the ultimate resolution of the federal

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issues on the merits.” Oneida Indian Nation of N.Y. State v. Oneida County, New York,

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414 U.S. 661, 666-67 (1974) (internal citations omitted).

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Subject matter jurisdiction cannot be waived, and the court must dismiss an action

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whenever it determines that the court lacks subject matter jurisdiction. Fed. R. Civ. P.

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12(h)(3); see also Hansen v. Dep’t of Treasury, 528 F.3d 597, 600 (9th Cir. 2007). In

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ruling on a challenge to subject matter jurisdiction, the district court is ordinarily free to

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hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving

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factual disputes where necessary. See Thornhill Pub. Co., Inc. v. Gen. Tel. & Elecs.

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Corp., 594 F.2d 730, 733 (9th Cir. 1979).

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III.

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DISCUSSION
Defendant moves to dismiss for lack of standing. The doctrine of standing is

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rooted in the “cases or controversies” requirement of Article III § 2, Cl. 1 of the U.S.

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Constitution. To establish standing, a plaintiff must demonstrate (1) an injury in fact, (2)

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that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to

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be redressed by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S.

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560, 560–561 (1992). Defendant’s motion focuses solely on the first element: injury in

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fact.
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To qualify as an injury in fact, an injury must be “concrete”. Spokeo, Inc. v.

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Robins, 136 S. Ct. 1540, 1548 (2016).2 To qualify as concrete, an injury need not be

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tangible. Id. at 1549. Intangible injuries qualify as “concrete” so long as they are real

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and not abstract. Id. Put differently, a concrete injury, whether tangible or intangible, is

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simply an injury that actually exists. Id. Congress’s judgment is instructive and

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important in analyzing whether an intangible harm is concrete. Id. That said, Congress

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cannot confer standing by statute to a plaintiff who has suffered no concrete harm. Id.

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Thus, a bare procedural violation of a statute is, without more, not enough to establish

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standing. Id.

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A number of recent non-binding decisions have analyzed the concrete injury issue

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in the TCPA context. See Lemieux v. Lender Processing Ctr., No. 16-cv-1850-BAS-

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DHB, 2017 WL 1166430, at *3 (S.D. Cal., 2017) (collecting cases). Defendant relies

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heavily on Romero v. Dep’t Stores Nat’l Bank, 199 F. Supp. 3d 1256 (S.D. Cal. 2016). In

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Romero, the court held that the plaintiff lacked standing where defendants called the

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plaintiff’s cell phone over 290 times using an ATDS. Romero, 199 F. Supp. 3d at 1260.

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Although the plaintiff alleged injuries of “lost time, aggravation, and distress,” which she

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claimed were “the exact harm[s] that Congress wanted to eliminate with the TCPA,” the

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court found that none of the calls caused a concrete injury. Id. at 1261–63.

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In reaching this conclusion, the Romero court considered three categories of phone

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calls. Romero, 199 F. Supp. 3d at 1261. First, scrutinizing missed calls that the plaintiff

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did not hear ring, the court held that the defendants’ use of an ATDS was a “mere

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procedural violation” and reasoned that the plaintiff could not have been injured by calls

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of which she was unaware at the time they were made. Id. at 1263. Second, examining

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calls the plaintiff heard ring but did not answer, the court “[v]iew[ed] each call in

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isolation,” asserting that “no reasonable juror could find that one unanswered phone call

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It must also be “particularized”. Id. However, that Plaintiff’s injuries were particularized is not in
dispute and therefore the court need not undertake this analysis.
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could cause lost time, aggravation, and distress, or any injury sufficient to establish

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standing.” Id. Third, addressing calls that the plaintiff answered and then spoke with

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defendants’ agents, the court found that because she did not present evidence that the

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defendants’ use of an ATDS “caused her greater lost time, aggravation, and distress than

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she would have suffered had the calls…been dialed manually,” the plaintiff did not suffer

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an injury in fact. Id.

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This Court is not bound by Romero and, like a majority of district court cases3 to

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consider the issue, disagrees with the reasoning in that decision. As the Supreme Court

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stated in Spokeo, the judgment of Congress on what harms constitute legally cognizable

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injuries merits great consideration. Spokeo, 136 S. Ct. at 1549. In enacting the TCPA,

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Congress noted that “[b]anning such automated or prerecorded telephone calls …is the

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only effective means of protecting telephone consumers from this nuisance and privacy

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invasion.” Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) (found as a note to 47 U.S.C. §

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227). This indicates Congressional intent was to shield the public from the harms

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associated with calls made by an ATDS. The holding in Romero would seem to thwart

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this purpose by eliminating TCPA recovery for all but the most egregious of violations.

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Thus, even though the facts of this case are highly analogous to those of Romero, the

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Court finds Plaintiff has adequately demonstrated a concrete injury.

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Specifically, Plaintiff has shown that Defendant called him fifteen times. (Doc.

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95-4.) One call lasted almost five minutes; two calls lasted about thirty seconds; three

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calls lasted one second; and nine calls lasted zero seconds, indicating no answer. (Id.)

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During the five minute call, Plaintiff stayed on the line talking to a phone operator in the

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hopes of convincing Defendant to stop calling him. (Doc. 95-6, 21–22.) That this five

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minute effort to end Defendant’s harassment caused Plaintiff inconvenience and

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annoyance sufficient to constitute a concrete injury is beyond reasonable dispute.

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See Lemieux v. Lender Processing Ctr., No. 16-cv-1850-BAS-DHB, 2017 WL 1166430, at *3 (S.D.
Cal., 2017) (collecting cases).
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3:14-cv-00894-L-RBB

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Defendant does not appear to argue with this fact. Rather, Defendant contends that, like

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the Plaintiff in Romero, Plaintiff here has not established standing because he has not

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proven that Defendant’s use of an ATDS resulted in more harm than would have

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occurred if Defendant manually dialed Plaintiff. This argument misses the mark. The

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proper inquiry is whether Plaintiff suffered any concrete harm, not whether he suffered

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greater harm as a result of Defendant’s decision to use an ATDS rather than manually

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dialing.

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As to the other calls, the Court finds it proper to consider them in the aggregate

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rather than analyzing each individual call in isolation and asking whether, standing alone,

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a call could constitute a concrete injury. See Juarez v. Citibank, N.A., 2016 WL 4547914

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*3 (N.D. Cal. 2016); Contra Romero, 199 F. Supp. 3d at 1263. In Juarez, the court found

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a concrete injury where defendants used an ATDS to call the plaintiff forty-two times

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over twelve days. Juarez, 2016 WL 4547914, *1 (N.D. Cal. Sept. 1). The plaintiff did

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not consent to the calls and requested that they stop calling, to no avail. Id. at *3.

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Defendant’s unwanted calls, the court found, wasted the plaintiff’s “time and energy” and

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were an “aggravation, nuisance, and invasion of privacy” sufficient to constitute standing

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under Spokeo. Id.

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This case is on all fours with Juarez. Like in Juarez, Plaintiff here received

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repeated telemarketing calls from Defendant despite his repeated requests to be left alone.

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Each individual call, regardless of whether Plaintiff heard the phone ring or answered it,

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surely contributed to the unpleasantness of the experience by either disturbing Plaintiff’s

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peace (whether he answered the phone or simply heard it ring), draining his cell phone

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battery, clogging up the line, or creating a missed call history informing him that the

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harassment continues despite his requests that it end. Accordingly, the Court finds

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Plaintiff has adequately demonstrated that Defendant’s repeated calls caused him

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concrete injury sufficient to confer standing.

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3:14-cv-00894-L-RBB

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IV.

CONCLUSION AND ORDER
For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss.

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IT IS SO ORDERED.

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Dated: June 27, 2017

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