Salcedo v. Hanna et al

Filing 42

ORDER granting in part Defendants' Motion for Reconsideration of Endorsed Order Denying Defendants' Motion to Dismiss Amended Complaint and to Strike or, in the Alternative, for Certification of Interlocutory Appeal [ECF No. 38]. Signed by Judge Darrin P. Gayles (hs01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 16-cv-62480-GAYLES
JOHN SALCEDO,
Plaintiff,
v.
ALEX HANNA and THE LAW
OFFICES OF ALEX HANNA, P.A.,
Defendants.
_______________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendants’ Motion for Reconsideration of
Endorsed Order Denying Defendants’ Motion to Dismiss Amended Complaint and to Strike or, in
the Alternative, for Certification of Interlocutory Appeal [ECF No. 38]. The Court has reviewed the
Motion and the record and is otherwise fully advised. Based thereon, the Motion is GRANTED in
part.
The Court finds that an interlocutory appeal is appropriate in light of the Supreme Court’s
ruling in Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1549 (2016), the Eleventh Circuit’s ruling in
Nicklaw v. Citimortgage, 839 F.3d 998 (11th Cir. 2016), and the concurring opinions of Judges Pryor
and Marcus in the Eleventh Circuit’s denial of a rehearing en banc of Nicklaw. See Nicklaw v.
Citimortgage, 855 F.3d 1265, 1266 (11th Cir. 2017) (noting that, in the context of violation of a New
York state property statute, a “bare allegation of a statutory violation that has since been remedied is
not sufficient to satisfy the requirement of concreteness in Article III). In Palm Beach Golf CenterBoca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015), the Eleventh Circuit held

that the unsolicited receipt of a one-page fax advertisement was a cognizable, particularized, and
personal injury under the Telephone Consumer Protection Act (“TCPA”) sufficient to confer Article
III standing. Id. at 1253. However, the Eleventh Circuit decided Palm Beach Golf, before the
Supreme Court’s ruling in Spokeo and the Eleventh Circuit’s rulings in Nicklaw. While Palm Beach
Golf is binding on this Court, the Court questions whether receipt of the one text message at issue
here is sufficient to constitute a concrete injury-in-fact such that Plaintiff has Article III standing
under Spokeo and Nicklaw.
In limited circumstances, the Court may certify an order for interlocutory appeal pursuant to
28 U.S.C. § 1292 (b). That statute provides:
When a district judge, in making in a civil action an order not otherwise appealable
under this section, shall be of the opinion that such order involves a controlling
question of law as to which there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially advance the ultimate
termination of the litigation, he shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal of such action may thereupon, in
its discretion, permit an appeal to be taken from such order, if application is made to
it within ten days after the entry of the order: Provided, however, That application for
an appeal hereunder shall not stay proceedings in the district court unless the district
judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C.A. § 1292 (b). The Court finds that the issue of standing in this case involves an unsettled
and controlling question of law. Resolving this issue will materially advance the termination of this
litigation and potentially eliminate the need for protracted and expensive litigation over one text
message. Based thereon it is
ORDERED AND ADJUDGED that Defendants’ Motion for Reconsideration of Endorsed
Order Denying Defendants’ Motion to Dismiss Amended Complaint and to Strike or, in the
Alternative, for Certification of Interlocutory Appeal [ECF No. 38] is GRANTED in PART. It is
further

ORDERED AND ADJUDGED that the Court’s April 28, 2017 Endorsed Order Denying
Defendants’ Motion to Dismiss and to Strike [ECF No. 37] shall be amended under separate order to
include a certification that an immediate appeal is necessary. It is further
ORDERED AND ADJUDGED that this matter is STAYED pending appeal and CLOSED
for administrative purposes.
DONE AND ORDERED in Chambers at Miami, Florida, this 14th day of June, 2017.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE