Tillman v. Ally Financial Inc.

Filing 58

OPINION AND ORDER denying 29 motion to dismiss and strike class allegations. Signed by Judge John E. Steele on 11/30/2016. (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 Motion to
Dismiss Plaintiff’s Complaint and Strike Class Allegations (Doc.
#29) filed on June 28, 2016.

Plaintiff filed a response (Doc.

#34) on July 18, 2016, and defendant filed a reply.

(Doc. #46.)

The parties submitted various supplemental authorities.
## 38, 39, 42, 43, 52, 56, 57.)

(Docs.

For the reasons set forth below,

the motion is denied.
I.
On April 28, 2016, plaintiff Donell L. Tillman (plaintiff or
Tillman) filed a one-count class-action complaint for relief,
alleging that defendant Ally Financial, Inc. (defendant or Ally)
violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C.
§ 227, by placing unauthorized calls to plaintiff’s (and others)
cellular phones using an “automatic telephone dialing system”

(ATDS), as that term is defined by the TCPA, 47 U.S.C. § 227(a)(1). 1
(Doc. #1.)
As

alleged

in

plaintiff’s

Complaint,

in

December

2015,

plaintiff began receiving calls on his cellular phone from Ally,
seeking to reach an individual named Phillip Everett (Everett).
(Id. at ¶ 9.)

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.

(Id. at ¶ 18.)

On at least one

occasion in December 2015, plaintiff notified Ally that he was not

1

The TCPA defines an ATDS as equipment which has the capacity
to both: (1) store or produce telephone numbers to be called, using
a random or sequential number generator, and (2) dial such numbers.
47 U.S.C. § 227(a)(1). Plaintiff claims that defendant violated
47 U.S.C. § 227(b)(1)(A)(iii), which 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).

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Everett, that Everett could not be reached at the number, and
requested that Ally cease further calls.

(Id. at ¶ 10.)

this,

approximately

Ally

continued

to

call

Tillman

throughout January, February, and March of 2016.

Despite
22

times

(Id. at ¶ 11.)

Plaintiff states that “several of the calls” were placed using an
artificial or pre-recorded voice message.

(Id. at ¶ 14.)

plaintiff did not answer, a pre-recorded voicemail was left.
at ¶ 14.)
were

If
(Id.

Any calls which did not use a pre-recorded voice message

connected

to

an

outsourced

connection to voicemail.

call

(Id. at ¶ 15.)

center

upon

answer

or

The Complaint does not

allege that plaintiff was charged for the calls. 2
As a result of these calls, plaintiff’s Complaint alleges the
following harm:
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. 3
2

The fact that plaintiff
of his claim.
See Osorio v.
1242, 1257-28 (11th Cir. 2014)
calls are not exempt from TCPA
charged for the call).

was not charged is not dispositive
State Farm Bank, F.S.B., 746 F.3d
(interpreting the TCPA to mean that
protections even if a party is not

3

In his response to the motion to dismiss, plaintiff states
that he has suffered “at least four distinct injuries in fact,”
although he only goes on to discuss three injuries, including: a
violation of plaintiff’s private, substantive rights under the
TCPA; invasion of privacy; and that defendant’s calls occupied
plaintiff’s cellular telephone line and device. (Doc. #34, pp.
7-16.)

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(Doc. #1, ¶ 40.)

Defendant believes that plaintiff’s Complaint

should be dismissed for lack of constitutional standing in light
of the Supreme Court’s recent decision in Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016).

Should the Court deny the dismissal

request,

in

defendant

moves

the

alternative

to

strike

the

Complaint’s “fail-safe” class definition.
II.
A. Plaintiff’s Article III Standing to Maintain this Action
“[T]he

core

component

of

standing

is

an

essential

and

unchanging part of the case-or-controversy requirement of Article
III.”

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

Constitutional

standing

sufficient

to

maintain

an

action

in

federal court requires, inter alia, that a plaintiff have “suffered
an injury in fact.”

Spokeo, 136 S. Ct. at 1547.

“To establish

injury in fact, a plaintiff must show that he or she suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and
particularized’
hypothetical.’”
The

party

and

‘actual

or

imminent,

not

conjectural

or

Id. at 1548 (quoting Lujan, 504 U.S. at 560).

invoking

federal

establishing injury-in-fact.

jurisdiction

has

the

burden

of

Lujan, 504 U.S. at 561.

Defendant’s basis for dismissal relies primarily on Spokeo
for support, arguing that plaintiff has only alleged a violation
of the statute, without any resulting harm, which is per se

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insufficient to establish standing after Spokeo.
5-6.)

(Doc. #29, pp.

Plaintiff responds that he has standing based upon an

intrusion-upon-seclusion
procedural

violation,

tort
which

theory,

and

plaintiff

not

upon

concedes

a

bare

would

be

insufficient to confer standing under Spokeo.
In Spokeo, the plaintiff filed a class-action complaint,
alleging

certain

procedural

violations

of

the

Fair

Credit

Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., against an online
“people search engine” operator accused of creating inaccurate
consumer reports.
concerned

the

136 S. Ct. at 1544.

injury-in-fact

of

The Spokeo case primarily

standing’s

addressing the “concrete injury” requirement.

three

elements,

The Supreme Court

noted that a “concrete injury” “must be ‘de facto’; that is, it
must actually exist.”

136 S. Ct. at 1548.

But the Supreme Court

recognized that “concrete” does not necessarily mean “tangible,”
and “intangible injuries can nevertheless be concrete.”

Id.

“In

determining whether an intangible harm constitutes injury in fact,
both history and the judgment of Congress play important roles.”
Id. (emphasis added)

The Supreme Court further recognized that a

plaintiff

automatically

does

not

satisfy

the

injury-in-fact

requirement “whenever a statute grants a person a statutory right
and purports to authorize that person to sue to vindicate that
right.”

Id. at 1549.

For example, a plaintiff could not allege

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a “bare procedural violation” absent harm and satisfy the injuryin-fact requirement. 4

Id.

In this case, the injuries alleged in plaintiff’s Complaint
are not mere “procedural” statutory violations; rather, they are
precisely the kinds of harm the TCPA aims to prevent.

Both before

and after Spokeo, courts have recognized on multiple occasions
that in enacting the TCPA Congress was expressly concerned about
protecting consumers’ privacy rights to be free from unwanted
autodialed calls.

For example, in Osorio, the Eleventh Circuit

cited Senator Hollings, the TCPA’s sponsor, describing these calls
as “the scourge of modern civilization.

They wake us up in the

morning; they interrupt our dinner at night; they force the sick
and elderly out of bed; they hound us until we want to rip the
telephone out of the wall.”
Rec. 30,821 (1991)).

Id. at 1255-56 (quoting 137 Cong.

See also Hooters of Augusta, Inc. v. Am.

Global Ins. Co., 157 F. App’x 201, 206 (11th Cir. 2005) (noting
that unsolicited faxes are akin to unwanted telephone calls, and
quoting H.R. Rep. 102-317, at 5-6 (1991), which states that “[t]he
purpose of the bill (H.R. 1304) is to protect residential telephone
subscriber

privacy

rights

by

restricting

certain

commercial

solicitation and advertising uses of the telephone and related

4

The Spokeo
consumer zip code
the FCRA purports
too “abstract” to

court cited an agency’s dissemination of a wrong
as an example of a statutory violation for which
to provide redress, but which likely causes harm
confer standing. 136 S. Ct. at 1550.

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telecommunications equipment.... H.R. 1304 is designed to return
a measure of control to both individual residential telephone
customers and owners of facsimile machines.”); Palm Beach Golf
Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245,
1252-53 (11th Cir. 2015) (examining the legislative history of the
TCPA to find that the occupation of plaintiff’s fax machine by an
unsolicited fax advertisement was a cognizable right created by
Congress and established a particularized and concrete injury
under Article III, even though there was no evidence anyone printed
or saw the faxes); Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740,
745

(2012)

(noting

Congress’

findings

in

enacting

the

TCPA,

including that “unrestricted telemarketing [] can be an intrusive
invasion of privacy”); Bagg v. USHealth Group, Inc., Case No. 6:15cv-1666-Orl-37GJK, 2016 WL 1588666, *3 (M.D. Fla. Apr. 20, 2016)
(citing Park Univ. Enters., Inc. v. Am. Cas. Co. of Reading, PA,
442 F.3d 1239, 1249 (10th Cir. 2006) (collecting cases), abrogated
on other grounds by Magnus, Inc. v. Diamond State Ins. Co., 545 F.
App’x 750, 753 (10th Cir. 2014) (finding that sending a fax in
violation of the TCPA constitutes a tort, stating that “‘[c]ourts
have consistently held that the TCPA protects a species of privacy
interest in the sense of seclusion,’ and recognize that the sending
of an unsolicited fax constitutes an invasion of privacy”)).
Other district courts have also recognized that the receipt of
unwanted phone calls constitute a concrete injury under the TCPA.

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See, e.g., Caudill v. Wells Fargo Home Mtg., Inc., Civ. No. 5:16–
066, 2016 WL 3820195, at *2 (E.D. Ky. July 11, 2016) (calls caused
harms “such as the invasion of privacy [that] have traditionally
been regarded as providing a basis for a lawsuit in the United
States”); Rogers v. Capital One Bank (USA), N.A., No. 1:15–CV–
4016, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016); Mey v. Got
Warranty, Inc., 5:15-cv-101, 2016 WL 3645195, at *7 (N.D. W. Va.
2016) (collecting cases).
Furthermore, the Federal Communication Commission (FCC) 5 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,

prerecorded

cost,
calls

and

inconvenience

generate.

Congress

that

autodialed

found

that

and

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).
“The actual or threatened injury required by Art. III may
exist solely by virtue of ‘statutes creating legal rights, the
invasion of which creates standing . . . .’”

5

Warth v. Seldin, 422

The FCC is the entity tasked with “prescrib[ing] regulations
to implement” the TCPA. Murphy v. DCI Biologicals Orlando, LLC,
797 F.3d 1302, 1305 (11th Cir. 2015) (quoting 47 U.S.C. §
227(b)(2)).

- 8 -

U.S. 490, 500 (1975) (quoting Linda R.S. v. Richard D., 410 U.S.
614, 617 n.2 (1973)).

Here, the TCPA is a consumer protection

statute in which Congress conferred upon all consumers the right
to be free from unwanted autodialed calls.
that

based

upon

the

allegations

that

Thus, the Court finds
plaintiff

received

unsolicited ATDP telephone communications which intruded upon his
seclusion, plaintiff has alleged a particularized and concrete
injury sufficient to confer Article III standing. 6

See Church v.

Accretive Health, No. 15-15708, 2016 WL 3611543, at *3 (11th Cir.
July 6, 2015) (per curium) (not receiving information to which one
is statutorily entitled is a “concrete” injury). 7

6

Because the Court has determined that intrusion-uponseclusion is a sufficient injury to establish constitutional
standing, plaintiff’s remaining allegations of harm, including
diminution of battery life and waste of time, need not be
addressed.
7

The post-Spokeo case cited in defendant’s Notice of
Supplemental Authority (Doc. #52) is inapposite. In Nicklaw v.
CitiMortgage, --- F.3d ---, No. 15-14216, 2016 WL 5845683, at *3
(11th Cir. Oct. 6, 2016), the court applied Spokeo to reject the
argument that “the intangible harm that occurs when the discharge
of a mortgage is not timely recorded constitutes a concrete
injury.” (emphasis added). There, the court found it dispositive
that Nicklaw failed to allege a harm nor a material risk of harm,
stating that “[h]is complaint does not allege that he lost money
because CitiMortgage failed to file the certificate. It does not
allege that his credit suffered. It does not even allege that he
or anyone else was aware that the certificate of discharge had not
been recorded during the relevant time period.” Id.
Because in this case plaintiff has alleged a harm that has
been recognized by the courts as particularized and concrete in
the context of the TCPA, Nicklaw is not directly applicable here.

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Defendant further argues that because the injuries alleged in
the Complaint are “de minimis” and do not constitute a “concrete
harm,”

plaintiff

does

not

have

standing

Defendant’s contention is unpersuasive.

under

Article

III.

“The Supreme Court has

rejected the argument that an injury must be ‘significant’; a small
injury,

‘an

standing.”

identifiable

trifle,’

is

sufficient

to

confer

Common Cause/Georgia v. Billups, 554 F.3d 1340, 1351

(11th Cir. 2009) (quoting United States v. Students Challenging
Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973)).
Defendant also argues that plaintiff must demonstrate he possesses
standing for each separate call and that plaintiff cannot recover
for all calls absent a showing that each call caused meaningful
harm.

(Doc. #29, pp. 2, 9-10.)

As the Court has discussed,

plaintiff has standing to proceed based upon the allegations that
he received autodialed calls.

Any arguments concerning whether

plaintiff and consumers were harmed by calls they did not receive
or

notice

is

more

appropriately

addressed

at

the

class

certification stage.
B. Plaintiff’s Proposed “Fail-Safe” Class
Finally, defendant moves in the alternative to strike the
Complaint’s class allegations on the ground that plaintiff has
proposed an impermissible “fail-safe” class.

A fail-safe class

is one whose definition incorporates the elements of a successful
legal claim, such that determining whether an individual or entity

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is a member of the class “front-ends a merits determination on
[the defendant’s] liability.”

Alhassid v. Bank of Am., N.A., 307

F.R.D. 684, 694 (S.D. Fla. 2015); see Kamar v. RadioShack Corp.,
375 F. App’x 734, 736 (9th Cir. 2010) (“The fail-safe appellation
is simply a way of labeling the obvious problems that exist when
the class itself is defined in a way that precludes membership
unless the liability of the defendant is established.”).

Being

granted membership in the class is thus synonymous with a victory
on the underlying claim.

Young v. Nationwide Mut. Ins. Co., 693

F.3d 532, 538 (6th Cir. 2012) (“[A] ‘fail-safe’ class is one that
includes only those who are entitled to relief. . . . [E]ither
those ‘class members win or, by virtue of losing, they are not in
the class’ and are not bound [by the judgment].” (quoting Randleman
v. Fid. Nat. Title Ins. Co., 646 F.3d 347, 352 (6th Cir. 2011))).
The class and subclasses proposed in plaintiff’s Complaint
consist of:
All persons in the United States to whose cellular
telephone number Ally made a non-emergency telephone
call using the same dialing system(s) used to call
Plaintiff or an artificial or prerecorded voice within
4 years of the complaint where Ally did not have express
consent to call said cellular telephone number.
Sub-Class A
All persons in the United States to whose cellular
telephone number Ally made a non-emergency telephone
call using the same dialing system(s) used to call
Plaintiff or an artificial or prerecorded voice within
4 years of the complaint who was not the person alleged
to owe the debt in question.

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Sub-Class B
All persons in the United States to whose cellular
telephone number Ally made a non-emergency telephone
call using the same dialing system(s) used to call
Plaintiff or an artificial or prerecorded voice within
4 years of the complaint after that person had instructed
Ally to cease calls to that number.
(Doc. #1, ¶¶ 37-39.)

The Court agrees that, as written, the

proposed class and sub-classes appear “fail-safe.”

Rather than

simply requiring, for example, that an individual have received
the

same

autodialed

call

plaintiff

received,

the

class

incorporates the elements of a viable autodialed call claim,
including the applicable statute of limitations.
227(b)(1)(A)(iii);

28

U.S.C.

§

1658(a).

See 47 U.S.C. §

Analyzing

whether

a

particular individual is a proper member of plaintiff’s class will,
therefore, result in a merits-based determination on defendant’s
liability under the TCPA to that individual.
It

is

less

“impermissible.”

clear,

however,

that

such

a

class

is

The Eleventh Circuit has not yet addressed

whether a fail-safe class can nevertheless be certified, and there
is a split of authority among the Circuit Courts that have decided
the issue.

See Zarichny v. Complete Payment Recovery Servs.,

Inc., 80 F. Supp. 3d 610, 624 (E.D. Pa. 2015) (collecting cases).
Notwithstanding, this Court recently agreed with those district
courts that have held that such argument is more appropriately
raised at the class-certification stage.

See JWD Automotive, Inc.

v. DJM Advisory Group LLC, --- F. Supp. 3d ---, 2016 WL 6835986,

- 12 -

at

*5

(M.D.

Fla.

Nov.

21,

2016)

(citing

Arkin

v.

Innocutis

Holdings, LLC, No. 8:16-cv-321-T-27TBM, 2016 WL 3042483, at *7
(M.D. Fla. May 26, 2016); Mauer v. Am. Intercontinental Univ.,
Inc., No. 16 C 1473, 2016 WL 4698665, at *3 (N.D. Ill. Sept. 8,
2016); Haghayeghi v. Guess?, Inc., No. 14-CV-00020 JAH-NLS, 2015
WL 1345302, at *6 (S.D. Cal. Mar. 24, 2015)).

Consequently, the

Court denies defendant’s request to strike plaintiff’s proposed
class at this time.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant’s

Motion

to

Dismiss

Plaintiff’s

Complaint

and

Strike Class Allegations (Doc. #29) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of November, 2016.

Copies:
Counsel of Record

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30th

day