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Declue v. United Consumer Financial Services Co.

United States District Court, S.D. California

April 19, 2017

TREVER DECLUE and KATHERINE DECLUE, individually and on behalf of those similarly situated, Plaintiffs,


          JEFFREY T. MILLER United States District Judge

         Before 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.


         Plaintiffs 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, 44.)

         On 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.


         Federal 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).

         There 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 alterations omitted).

         A party 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).


         Defendant 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[1] 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).

         In 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.

         By 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.

         This 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 ...

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