Tillman v. Ally Financial Inc.
Filing
141
OPINION AND ORDER terminating 73 Motion for summary judgment as a duplicate; denying 88 Sealed Motion for Summary Judgment, or in the alternative, partial summary judgment. Signed by Judge John E. Steele on 5/11/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONELL
L.
TILLMAN,
individually and on behalf
of
all
others
similarly
situated,
Plaintiff,
v.
Case No: 2:16-cv-313-FtM-99CM
ALLY FINANCIAL INC.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s unredacted 1
Motion for Summary Judgment, or in the Alternative, Partial Summary
Judgment (Doc.
#88)
filed
on
February
6,
2017.
Plaintiff’s
Response in Opposition (Doc. #86) was filed on February 7, 2017.
Defendant submitted supplemental authority (Doc. #98) on February
22, 2017.
For the reasons set forth below, the motion is denied.
This is a consumer-protection case arising from the receipt
of autodialed calls to a cellular phone without consent.
On April
28, 2016, plaintiff Donell L. Tillman (plaintiff or Tillman) filed
a one-count class-action complaint, alleging that defendant Ally
Financial,
1
Inc.
(defendant
or
Ally)
violated
the
Telephone
This motion and its exhibits were initially filed in a
redacted version (Doc. #73) and duplicate, unredacted versions
were filed under seal (Doc. #88). The seal was lifted based upon
agreement of the parties (Doc. #94).
Consumer
Protection
unauthorized
calls
Act
to
(TCPA),
a
47
cellular
telephone dialing system” (ATDS).
U.S.C.
phone
§
227,
using
an
by
placing
“automatic
(Doc. #1.)
On November 30, 2016, the Court denied defendant’s Motion to
Dismiss
Complaint
and
Strike
Class
Allegations,
finding
in
relevant part that plaintiff had Article III standing to maintain
this action in light of the Supreme Court’s recent decision in
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).
(Doc. #58, Tillman
v. Ally Financial, Inc., Case No. 2:16-cv-313-FtM-99CM, 2016 WL
6996113 (M.D. Fla. Nov. 30, 2016)).
Defendant now moves for
summary judgment on the grounds that plaintiff lacks “statutory
standing” to assert a claim under the TCPA because he is not a
“called party.”
Defendant also re-raises Article III standing,
arguing that plaintiff is unable to prove that any of defendant’s
calls caused him concrete harm that is fairly traceable to Ally.
I.
As alleged in the Complaint, in December 2015, plaintiff began
receiving calls on his cellular phone from Ally seeking to reach
an individual named Phillip Everett (Everett).
Plaintiff is not
a party to any debt, contract, or obligation with Ally, and has
never provided his cellular telephone number to Ally for any
purpose.
On at least one occasion in December 2015, plaintiff
notified Ally that he was not Everett, that Everett could not be
reached at the number, and requested that Ally cease further calls.
- 2 -
Despite this, Ally continued to call Tillman approximately 22 times
throughout January, February, and March of 2016, and several of
the calls were placed using an artificial or pre-recorded voice
message.
If plaintiff did not answer, sometimes a pre-recorded
voicemail was left.
The Complaint alleges the following harm as
a result of these calls:
Ally has caused consumers actual harm, not only because
consumers were subjected to the aggravation that
necessarily accompanies these calls, but also because
consumers frequently have to pay their cell phone
service providers for the receipt of such calls; such
calls are also an intrusion upon seclusion, diminish
cellular battery life, and waste time.
(Doc. #1, ¶ 40.)
Plaintiff does not allege that he was charged
for the unwanted calls.
The
following
material
factual
details
are
generally
undisputed: Plaintiff obtained the telephone number ending in 5001 2 (“No. 5001” or “Phone”) in November 2015 from MetroPCS when
he upgraded his cellular phone.
49:4.)
(Doc. #86-2 at 38:4-8; 48:16-
At all times relevant to this case, No. 5001 was one of
two phone numbers on a MetroPCS family plan account in the name of
Joseph Charles, who is the father of plaintiff’s girlfriend,
Charnelle Charles.
Although
(Id. at 17:17; 24:19-22; 26:23-27:4.)
sometimes
inconsistent
in
deposition
testimony,
plaintiff generally testified that he is the main user of the
2
Although the phone number is oftentimes redacted throughout
the record, in other instances it is not.
- 3 -
Phone, but his girlfriend occasionally takes the Phone for a “day
or two” and uses it when plaintiff does not need it.
at 61:22-62:11 (“it’s not her phone.
(Doc. #86-2
So I wouldn’t say we really
share the phone”); 67:11-14; 37:18-38:1 (referring to the Phone as
“my cell phone”).
Plaintiff elsewhere stated in his deposition
testimony that Charnelle “uses the phone, but does not take it.”
(Id. at 179:6-10.)
Plaintiff could not remember whether Charnelle
ever had the Phone in her possession during the timeframe in which
plaintiff alleges he received the 22 unwanted calls from Ally.
(Id. at 179:23-180:1.)
occasionally
call
her
Charnelle’s mother and brother would
at
No.
5001.
(Id.
at
69:23-70:4.)
Plaintiff provides No. 5001 to his employers so that they may reach
him, and he provides the number to his children’s mothers.
at 36:1-5; 37:13-15.)
(Id.
Plaintiff and Charnelle “split the bill”
when paying the monthly charges for the Phone, but sometimes
plaintiff would pay the entire bill.
(Id. at 25:1-9; 65:9-24.)
To plaintiff’s knowledge, Joseph Charles does not pay any of the
charges for the family plan account.
(Id. at 27:5-8.)
Plaintiff began receiving calls from Ally “as soon as he got
the phone,” asking to speak with Everett.
22; 71:6-22.)
was left.
(Doc. #86-2 at 70:16-
Sometimes the call was automated and a voicemail
(Id. at 72:12-18; 74:15-18.)
Plaintiff remembers
answering two of the calls and telling Ally they had the wrong
number.
(Id. at 72:23-24; 76:1-6; 101:8-10.)
- 4 -
In or about the end
of
2015
or
the
beginning
of
2016,
plaintiff
downloaded
an
application called Metro Block It (“Block It”) to prevent receipt
of Ally’s unwanted calls.
(Id. at 76:18-25.)
the application after a free trial period.
Plaintiff paid for
(Id. at 78:1-24.)
Plaintiff added Ally’s number to Block It on January 30, 2016,
after receiving a call from Ally.
87:1-22.)
(Id. at 76:18-25; 86:17-25;
MetroPCS’s records show that plaintiff received 22
calls from Ally between January 30, 2016 and March 31, 2016.
(Doc.
#88-3.)
Although Block It’s advertisements state that blocked numbers
are immediately disconnected and voicemails cannot be left (Doc.
#88-3),
the
testimony
of
both
plaintiff
and
the
corporate
representative of First Orion (the maker of Block It) established
that calls from blocked numbers can still be received and still go
to voicemail.
Plaintiff testified that the Phone would alert him
when a blocked number was calling by making a sound and flashing
on the screen, (Doc. #86-2 at 107:18-22; 120:10-24; 122:18-20;
122:25-123:25),
and
plaintiff
testified
receive voicemails from blocked calls.
that
he
would
still
(Id. at 214:11-12.)
David Rateliff, corporate representative for First Orion,
testified that some versions of Block It and some cellular phone
operating systems do not allow a blocked call to be disconnected;
rather, the call is sent to voicemail.
And in later versions of
the application, the user has the choice of whether the call is
- 5 -
disconnected immediately or sent to voicemail. 3
2:1-4; Doc. #88-7 at 12:3-8.)
(Doc. #86-3 at
Mr. Rateliff confirmed that users
might hear a partial ring and the phone might light up when a call
from a blocked number comes in.
(Doc. #86-3 at 3:15-18; 4:15-17;
5:10-13.)
II.
A court may grant summary judgment only if satisfied that
“there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
A fact is “material” if it goes to “a legal
element of the claim under the applicable substantive law” and
thus may impact the case’s outcome.
121 F.3d 642, 646 (11th Cir. 1997).
Allen v. Tyson Foods, Inc.,
“An issue of fact is ‘genuine’
if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.”
Hickson Corp. v. N. Crossarm
Co., 357 F.3d 1256, 1260 (11th Cir. 2004).
“The burden of establishing that there is no genuine issue of
material fact lies with the moving party.”
Walker v. Darby, 911
F.2d 1573, 1576 (11th Cir. 1990) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986)).
“[O]nce the moving party has met
that burden by presenting evidence which, if uncontradicted, would
entitle it to a directed verdict at trial,” the party opposing
3
The record does not state which version of Block It was used
by Tillman during the relevant time period.
- 6 -
summary judgment must “set forth specific facts showing that there
is a genuine issue for trial.
A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice; there
must be enough of a showing that the jury could reasonably find
for that party.”
Id. at 1576–77.
In ruling on the motion, the
court must view all evidence and draw all reasonable inferences in
favor of the non-moving party.
Scott v. Harris, 550 U.S. 372, 380
(2007); Tana v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
Summary judgment should be denied not just where the parties
disagree on issues of material fact, but also “where the parties
agree on the basic facts, but disagree about the factual inferences
that should be drawn from these facts.”
Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983); see
also Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir.
2007) (“If a reasonable fact finder evaluating the evidence could
draw more than one inference from the facts, and if that inference
introduces a genuine issue of material fact, then the court should
not grant summary judgment.”).
Put simply, if the resolution of
a material fact or the inference to be drawn therefrom presents a
“he said, she said” scenario, and if the record has evidence
genuinely supporting both sides of the story, then summary judgment
is not appropriate.
- 7 -
III.
A. “Statutory Standing” Under the TCPA
The Complaint alleges that defendant’s conduct violated 47
U.S.C. § 227(b)(1)(A)(iii).
(Doc. #1, ¶ 34.)
This provision of
the TCPA provides in pertinent part that
[i]t shall be unlawful for any person within the United
States, or any person outside the United States if the
recipient is within the United States—
(A) to make any call (other than a call made for
emergency purposes or made with the prior express
consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded
voice —
...
(iii) to any telephone number assigned to a paging
service, cellular telephone service, specialized mobile
radio service, or other radio common carrier service, or
any service for which the called party is charged for
the call....
47
U.S.C.
§
227(b)(1)(A)(iii).
The
statute
also
creates
a
“private right of action” which authorizes “a person or entity” to
bring a claim to enjoin violation of the statute, or “to recover
for actual monetary loss from such a violation, or to receive $500
in damages for each such violation, whichever is greater” or both
such actions.
47 U.S.C. § 227(b)(3)(A), (B), (C).
Thus, a
private person may bring an action in federal or state court to
seek redress for violations of the TCPA.
Servs., LLC, 565 U.S. 368, 371 (2012).
- 8 -
Mims v. Arrow Fin.
Defendant
challenges
assert the TPCA claim.
plaintiff’s
“statutory
standing”
to
The Supreme Court noted in Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. ___, ___, 134 S.
Ct.
1377
(2014),
“statutory
that
standing”
misleading.
The
the
(also
question
longstanding
called
is
doctrinal
“prudential
whether
the
label
of
standing”)
is
statute
plaintiff the cause of action that he asserts.
grants
Id. at 1387.
the
In
answering this question, the Court “presume[s] that a statute
ordinarily provides a cause of action ‘only to plaintiffs whose
interests fall within the zone of interests protected by the law
invoked.’”
Bank of Am. Corp. v. City of Miami, Fla.,
S. Ct.
___, 2017 WL 1540509, at *6 (May 1, 2017) (quoting Lexmark, 134 S.
Ct. at 1388).
This inquiry is not a matter of standing, because
“the absence of a valid ... cause of action does not implicate
subject-matter
jurisdiction,
i.e.,
the
court’s
constitutional power to adjudicate the case.”
statutory
or
Lexmark, 134 S. Ct.
at 1387 n.4 (quoting Verizon Md. Inc. v. Public Serv. Comm’n of
Md.,
535
U.S.
635,
642–43
(2002)).
Instead,
it
straightforward question of statutory interpretation.”
is
“a
Id. at
1388.
Defendant argues that is it is entitled to summary judgment
as a matter of law because plaintiff was not a “called party” under
the TCPA.
This is so, defendant argues, because plaintiff was not
the subscriber of the cellular phone service, nor even the primary
- 9 -
user of the Phone.
But this argument focuses on the wrong portion
of the statute.
Any “person” whose interests fall within the zone of interests
protected by the TCPA provision has statutory standing to bring a
claim if there is a prohibited telephone call.
227(b)(3).
47 U.S.C. §
Under the relevant portion of the TCPA, a prohibited
telephone call is one made by any person within the United States
using any automatic telephone dialing system or an artificial or
prerecorded voice to any cellular telephone service.
227(b)(1)(A)(iii).
47 U.S.C. §
Exempted from this prohibition is a call made
for emergency purposes or made with the prior express consent of
the “called party.” 4
Id.
Thus, being a “called party” is only
relevant to the determination of whether the call violates the
substantive provision of the TCPA; the term does not impact who
may bring a lawsuit for TCPA violations.
Plaintiff established that he routinely received calls on the
Phone, paid the bills, treated the Phone as his own, and that he
received unwanted ATDS calls from Ally on the Phone.
4
This brings
In the Eleventh Circuit, the “called party” is the
subscriber of the cell phone service.
Breslow v. Wells Fargo
Bank, N.A., 755 F.3d 1265, 1267 (11th Cir. 2014); Osorio v. State
Farm Bank, F.S.B., 746 F.3d 1242, 1251 (11th Cir. 2014) (the
subscriber is “the person who pays the bills or needs the line in
order to receive other calls”).
Thus, if Joseph Charles had
consented to such calls as the subscriber, plaintiff would not
have a cause of action, not because of a lack of statutory
standing, but because the calls would not have been prohibited by
this portion of the statute.
- 10 -
plaintiff within the zone on interests protected by the TCPA
sufficient to give him statutory standing.
See, e.g., Manno v.
Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 682 (S.D.
Fla. 2013) (citing cases).
B. Article III Standing
Even a plaintiff who has statutory standing (i.e., has stated
a cause of action) must have constitutional standing to bring the
claim.
Defendant argues that the Complaint should be dismissed
because
plaintiff
lacks
Article
III
standing.
Specifically,
defendant asserts that plaintiff cannot establish standing for any
calls for which he has not suffered harm, such as calls that he
did not receive or those of which he was not aware.
Plaintiff
responds that the Court has already decided this issue in its
previous Opinion and Order denying defendant’s motion to dismiss
for lack of Article III standing.
Tillman, 2016 WL 6996113.
Constitutional standing always remains a “live” issue in a
case,
and
may
proceedings.
be
asserted
at
virtually
any
stage
of
the
Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006)(“The
objection that a federal court lacks subject-matter jurisdiction
may be raised by a party, or by a court on its own initiative, at
any stage in the litigation, even after trial and the entry of
judgment.”
(internal
citation
omitted)).
Thus,
the
Court’s
determination at the motion to dismiss stage does not compel the
same result at the summary judgment stage.
- 11 -
Even though raised
at
the
summary
judgment
stage,
however,
subject
matter
jurisdiction is treated as a request for dismissal under Fed. R.
Civ. P. 12(b)(1).
Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs
and Rafts of Logs, 709 F.3d 1055, 1058 (11th Cir. 2013).
To establish Article III standing, a “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.”
Spokeo, 136 S. Ct.
at 1547 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992)).
See also Bank of America Corp.,
2017 WL 1540509, at
*6; Nicklaw v. Citimortgage, Inc., 839 F.3d 998, 1001–02 (11th
Cir.
2016).
sufficiently
Defendant
establish
asserts
the
first
that
and
plaintiff
second
fails
requirements
to
of
constitutional standing.
(1)
Injury In Fact
Defendant argues that plaintiff must establish standing for
each of the 22 unwanted calls, which he cannot do because he did
not receive and/or was unaware of some of them.
Defendant believes
that calls made to the Phone while plaintiff was not using it and
calls
that
plaintiff.
were
blocked
by
Block
It
could
not
have
harmed
(Doc. #88-3.)
For standing purposes, the alleged injury must consist of
“‘an invasion of a legally protected interest’ that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural or
- 12 -
hypothetical.’”
Spokeo, 136 S. Ct. at 1548 (quoting Defs. of
Wildlife, 504 U.S. at 560).
This standard applies regardless of
whether the alleged injury is tangible or intangible.
Id. at
1549; Sierra Club v. Morton, 405 U.S. 727, 738 (1972).
The
Eleventh Circuit has summarized Spokeo as follows:
In Spokeo, the Supreme Court vacated the
decision of the Court of Appeals and remanded
the issue of whether a plaintiff sufficiently
alleged a concrete injury where the plaintiff
claimed a statutory violation of the Fair
Credit Reporting Act (“FCRA”). 136 S. Ct. at
1545–46. The plaintiff alleged that a website
had published inaccurate information about
him.
Id. at 1544.
The Supreme Court
emphasized
that
in
addition
to
being
particularized,
intangible
injuries,
including statutory violations, must still be
concrete. Id. at 1548 (“A ‘concrete’ injury
must be ‘de facto’; that is, it must actually
exist.”). The Supreme Court stated that “both
history and the judgment of Congress play
important roles” in determining whether an
intangible harm is concrete, explaining that
“it is instructive to consider whether an
alleged
intangible
harm
has
a
close
relationship to a harm that has traditionally
been regarded as providing a basis for a
lawsuit in English or American courts.” Id.
at 1549.
The Supreme Court held that the
plaintiff there had only alleged a “bare
procedural violation” of the FRCA because the
violation, on its own, may not cause any harm
or present a material risk of harm. Id. at
1550.
Perry v. Cable News Network, Inc., ___ F.3d ___, 2017 WL 1505064,
at *2 (11th Cir. Apr. 27, 2017).
- 13 -
In Perry, plaintiff brought suit under the Video Privacy
Protection Act (VPPA) 5 and did not allege any additional harm
beyond the statutory violation.
The Eleventh Circuit held that
this was sufficient to allege a concrete injury for standing
purposes.
The Court found that the structure and purpose of the
VPPA provided actionable rights, and that violation of the VPPA
constituted a concrete harm.
Id. at *3.
In Church v. Accretive Health, Inc., 654 F. App’x 990 (11th
Cir. 2016), the Eleventh Circuit examined whether a plaintiff had
standing to bring a claim under the FDCPA arising from receipt of
a letter advising her that she owed a debt, but not including
certain disclosures required by the FDCPA.
The Eleventh Circuit
first addressed defendant’s argument that “Church’s injury [was]
not sufficiently concrete to support Article III standing because
Church
incurred
no
actual
violation of the FDCPA.”
damages
from
Id. at 992.
Accretive
Health’s
The Eleventh Circuit
stated:
The FDCPA creates a private right of action,
which Church seeks to enforce.
The Act
requires that debt collectors include certain
disclosures in an initial communication with
a debtor, or within five days of such
communication.
The FDCPA authorizes an
aggrieved debtor to file suit for a debt
collector’s failure to comply with the Act.
5
The VPPA prohibits the wrongful disclosure by a video tape
service provider of video tape rental or sale records, and creates
a cause of action for “[a]ny person aggrieved by any act of a
person in violation of this section.” 18 U.S.C. § 2710(c)(1).
- 14 -
Thus, through the FDCPA, Congress has created
a new right — the right to receive the required
disclosures in communications governed by the
FDCPA — and a new injury — not receiving such
disclosures.
It is undisputed that the letter Accretive
Health sent to Church did not contain all of
the FDCPA’s required disclosures. Church has
alleged that the FDCPA governs the letter at
issue, and thus, alleges she had a right to
receive
the
FDCPA-required
disclosures.
Thus, Church has sufficiently alleged that she
has sustained a concrete — i.e., “real” —
injury because she did not receive the
allegedly required disclosures. The invasion
of Church’s right to receive the disclosures
is not hypothetical or uncertain; Church did
not receive information to which she alleges
she was entitled. While this injury may not
have resulted in tangible economic or physical
harm that courts often expect, the Supreme
Court has made clear an injury need not be
tangible to be concrete. Rather, this injury
is one that Congress has elevated to the
status of a legally cognizable injury through
the
FDCPA.
Accordingly,
Church
has
sufficiently alleged that she suffered a
concrete injury, and thus, satisfies the
injury-in-fact requirement.
Id. at 994-95 (internal footnotes and citations omitted).
The Court finds a similar result in this case.
Congress has
prohibited the making of certain prohibited calls, and plaintiff
has a right under the TCPA to be free of such prohibited calls.
The Court finds that receipt of such calls made in violation of
the statute is an injury that Congress has elevated to the status
of a legally cognizable injury through the TCPA.
- 15 -
The record clearly establishes that at least some (if not
all) of the 22 calls at issue were not in fact “blocked” by Block
It.
Plaintiff testified that even if the calls were “blocked” by
Block
It,
he
still
received
both
an
auditory
and
on-screen
notification that the call from Ally was coming in and then the
calls went to voicemail.
This testimony was supported by First
Orion’s corporate representative.
Thus, contrary to defendant’s
argument, the Phone did “receive” these calls, even if plaintiff
did not answer them.
Even if plaintiff was away from his Phone
at the time of the unwanted call and the call went to voicemail,
plaintiff would still receive notification of a voicemail and
plaintiff would sometimes listen to the voicemails. 6
In any
scenario, plaintiff would have been aware of the calls because
they were not completely blocked, which is an intrusion upon
seclusion that the Court previously identified as sufficient to
establish
Article
III
standing.
See,
e.g.,
Palm
Beach
Golf
Garden-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245,
1252
(11th
Cir.
2015)
(transmission
of
fax
advertising
was
sufficient even if not seen or printed by recipient).
6
Ally argues that plaintiff must have been aware of the call
when it occurred to be harmed, citing Romero v. Dep’t Stores Nat’l
Bank, 199 F. Supp. 3d 1256 (S.D. Cal. 2016). The Court disagrees.
Although hearing the phone ring and being interrupted might be
more of an intrusion, noticing that a voicemail was left or that
numerous calls were missed can be intrusive as well.
- 16 -
The Court here, like Palm Beach, has found that the record
shows that transmission of the unwanted call would notify plaintiff
that Ally was attempting to contact him, which is an intrusion
upon seclusion that is an injury intended to be prevented by the
statute.
See Tillman, 2016 WL 6996113, at *4.
The FCC has stated
that “[t]he intent of Congress, when it established the TCPA in
1991, was to protect consumers from the nuisance, invasion of
privacy, cost, and inconvenience that autodialed and prerecorded
calls generate.
Congress found that consumers consider these
kinds of calls, ‘regardless of the content or the initiator of the
message, to be a nuisance and an invasion of privacy.’”
Rules &
Regulations Implementing the TCPA, 30 F.C.C.R. 7961, 7979-80 (July
10, 2015) (quoting S. Rep. No. 102-178, 1st Sess., 102nd Cong.
(1991) at 2, 4-5).
Finally,
defendant
argues
that
plaintiff
cannot
show
an
injury in fact because Tillman was not charged for the calls.
Defendant acknowledges that the Eleventh Circuit has held that a
party need not be charged for a call to have “statutory standing”
under the TCPA, Osorio, 746 F.3d at 1258, but defendant believes
that the lack of economic harm undercuts any real, concrete harm
required for Article III standing.
Plaintiff responds that he did
pay for Block It in an attempt to stop Ally’s unwanted calls.
Because
an
economic
injury
is
standing, this argument fails.
not
required
for
Article
III
The actual or threatened injury
- 17 -
required by Article III may exist solely by virtue of statues
creating legal rights, the invasion of which creates standing.
Spokeo, 136 S. Ct. at 1549-50 (citing Federal Election Comm’n v.
Akins, 524 U.S. 11, 20–25 (1998) (confirming that a group of
voters’
“inability
to
obtain
information”
that
Congress
had
decided to make public is a sufficient injury in fact to satisfy
Article III); Public Citizen v. Dep’t of Justice, 491 U.S. 440,
449 (1989) (holding that two advocacy organizations’ failure to
obtain
information
subject
to
disclosure
under
the
Federal
Advisory Committee Act “constitutes a sufficiently distinct injury
to provide standing to sue”)).
Furthermore, the statute actually
contemplates a lack of actual damages, since it gives plaintiff
the option of seeking actual or statutory damages of $500 per
violation.
47 U.S.C. § 227(b)(3).
(2)
Fairly Traceable
The
Court
next
determines
whether
fairly traceable to Ally’s action.
WL 1540509, at *6.
plaintiff’s
injury
is
See Bank of Am. Corp., 2017
This requirement is satisfied when the claimed
injury flows from defendant’s conduct.
Mulhall v. UNITE HERE
Local 355, 618 F.3d 1279, 1290 (2010).
“Even a showing that a
plaintiff’s injury is indirectly caused by a defendant’s actions
satisfies the fairly traceable requirement.”
Inc., 693 F.3d 1317, 1324 (11th Cir. 2012).
- 18 -
Resnnick v. AvMed,
Plaintiff’s allegations are sufficient to “fairly trace” his
injuries to Ally’s unwanted calls.
Although defendant argues that
plaintiff could not have been harmed by Ally’s calls that did not
receive, or was unaware of, as the Court has discussed, the record
shows that the calls were not in fact blocked, and that plaintiff
was otherwise aware of nearly all of the 22 calls, undisputedly
placed by Ally without consent.
Thus, plaintiff has satisfied
this element of standing.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Defendant’s Motion for Summary Judgment, or, in the
Alternative, Partial Summary Judgment (Doc. #88) is DENIED.
2.
The Clerk is directed to terminate Defendant’s Motion
for Summary Judgment, or, in the Alternative, Partial Summary
Judgment (Doc. #73), as it is duplicative of Doc. #88.
DONE and ORDERED at Fort Myers, Florida, this
of May, 2017.
Copies:
Counsel of Record
- 19 -
11th
day
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