United States District Court, S.D. California
TREVER DECLUE and KATHERINE DECLUE, individually and on behalf of those similarly situated, Plaintiffs,
UNITED CONSUMER FINANCIAL SERVICES COMPANY, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS FIRST
JEFFREY T. MILLER United States District Judge
the court is Defendant United Consumer Financial Services
Company's motion to dismiss the first amended class
action complaint (“FAC”) of Plaintiffs Trever and
Katherine DeClue. (Doc. No. 14.) Plaintiffs oppose the
motion. The court finds the matter appropriate for decision
without oral argument pursuant to Local Rule 7.1(d)(1) and,
for the following reasons, denies Defendant's motion.
filed the FAC on February 2, 2017, alleging two causes of
action: (1) negligent violation of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227
et seq.; and (2) knowing and/or willful violation of
the TCPA. (Doc. No. 12.) In the FAC, Plaintiffs allege that
Defendant repeatedly called Mr. DeClue on his personal cell
phone, which was included as part of Ms. DeClue's
subscription with her service provider, after Mr. DeClue
revoked consent to do so. (Id. ¶¶ 13-24.)
Plaintiffs allege on information and belief that Defendant
used an automatic telephone dialing system
(“ATDS”) to make the calls. (Id.
¶¶ 25-29.) Plaintiffs claim that these calls
invaded their privacy interests, resulted in cellular
telephone charges, and generally “frustrated and
distressed” them. (Id. ¶¶ 35-38,
February 15, 2017, Defendant moved the court, pursuant to
Federal Rule of Civil Procedure 12(b)(1), to dismiss the FAC
for lack of subject matter jurisdiction.
courts are courts of limited jurisdiction. “Without
jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases
to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.”
Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 94 (1998). As the party putting the claims before
the court, Plaintiffs bear the burden of establishing
jurisdiction. Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994).
is no subject matter jurisdiction without standing, and the
“irreducible constitutional minimum” of standing
consists of three elements. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must
have (1) suffered an injury in fact, (2) which is fairly
traceable to the challenged conduct of the defendant, and (3)
which is likely to be redressed by a favorable judicial
decision. Id. at 560-61. “Where, as here, a
case is at the pleading stage, the plaintiff must clearly
allege facts demonstrating each element.” Spokeo,
Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016), as
revised (May 24, 2016) (internal quotations and
may make either a facial or factual attack on subject matter
jurisdiction. See, e.g., Warren v. Fox Family
Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). In
resolving a facial challenge, as Defendant makes here, the
court considers whether “the allegations contained in
[the] complaint are insufficient on their face to invoke
federal jurisdiction.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court
must accept the allegations as true and must draw all
reasonable inferences in the plaintiff's favor. Wolfe
v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).
argues that Plaintiffs lack standing because they have not
suffered a concrete injury fairly traceable to the alleged
TCPA violation. The crux of Defendant's argument is that
because Plaintiffs would have suffered the same harm had
Defendant dialed the phone “manually-with a rotary
phone, even-rather than through an ATDS[, ] [t]he alleged
harm is not sufficiently connected to the alleged violation
to satisfy Article III's requirements for
standing.” Or, “[p]ut differently, regardless of
how the calls were placed, the DeClues would have suffered
the same injuries that they allege. Those injuries are thus
insufficient to confer standing.” Defendant focuses its
argument almost entirely on two cases arising out of another
court in this district: Romero v. Department
Stores National Bank, 199 F.Supp.3d 1256 (S.D. Cal.
2016), appeal docketed, No. 16-56265 (9th Cir. Aug.
31, 2016), and Ewing v. SQM US, Inc., 2016 WL
5846494 (S.D. Cal. Sept. 29, 2016).
Romero, the court began from the premise that
“[a] plaintiff cannot have suffered an injury in fact
as a result of a phone call she did not know was made.”
199 F.Supp.3d at 1262. The plaintiff alleged that the
defendant debt collector had called her cell phone over 290
times in a six-month period, but she only answered the call
on two occasions, and she was often unaware the defendant was
calling. Id. The court found that even when the
plaintiff heard the phone ring or actually answered the
calls, however, she did “not offer any evidence of a
concrete injury caused by the use of an ATDS, as opposed to a
manually dialed call.” Id. Any injury the
plaintiff suffered was therefore not because the defendant
used an ATDS in violation of the TCPA, but because she was
being contacted by a debt collector. Id. In other
words, the plaintiff “would have been no better
off” had the defendant “dialed her telephone
number manually.” Id. at 1265. Around one
month later, the court employed the same reasoning in
Ewing. See 2016 WL 5846494, at *2-4.
relying almost exclusively on Romero and
Ewing, Defendant ignores the overwhelming weight of
authority that contradicts those cases. In fact, almost every
court to discuss Romero has rejected its analysis.
For example, in LaVigne v. First Cmty. BancShares,
Inc., 2016 WL 6305992, at *6 (D.N.M. Oct. 19, 2016), the
court observed that Romero “is an outlier in
holding that a violation of the TCPA is a bare procedural
violation and that some additional harm must be shown to
establish standing.” “Under
[Romero's] rather draconian analysis, a
plaintiff would find it almost impossible to allege a harm as
a result of these robocalls.” Id. The court in
LaVigne described Romero as conflating the
means through which the defendant allegedly violated the TCPA
with the harm resulting from that alleged violation.
Id. at *7.
court also respectfully disagrees with Romero.
“There is no legal rationale for [Defendant's]
argument under an Article III analysis: either a plaintiff
shows a concrete and particularized harm for Article III
standing because of telemarketing calls, or she does
not.” LaVigne, 2016 WL 6305992, at *6; see
also Lemieux v. Lender Processing Ctr., No. 16cv1850 BAS
(DHB), 2017 WL 1166430, at *3-5 (S.D. Cal. Mar. 29, 2017)
(rejecting the reasoning of Romero); Mbazomo v.
Etourandtravel, Inc., 2016 WL 7165693 (E.D. Cal Dec. 8,
2016) (stating that Romero “improperly
erodes” federal pleading standards, as a plaintiff
“need not establish the entirety of their case in ...