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Bell v. Survey Sampling International, LLC

United States District Court, D. Connecticut

March 15, 2017

APRIL BELL Plaintiff,


          Michael P. Shea, U.S.D.J.

         In this putative class action, Plaintiff April Bell alleges that Survey Sampling International, LLC (“SSI”), made a single, unwanted automated telemarketing call to her, and similar unwanted calls to many others throughout the country. Ms. Bell brings claims against SSI and twenty John Does allegedly acting as its agents for violation of the federal Telephone Consumer Protection Act, 47 U.S.C. §§ 227, et seq. (“TCPA”) (Counts One and Two), violation of the Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. §§ 42-110a, et seq. (“CUTPA”) (Count Three), and unjust enrichment (Count Five).[1]

         SSI has moved to dismiss the complaint for lack of subject matter jurisdiction in light of two recent U.S. Supreme Court decisions, Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016) and Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016), as well as for failure to state a claim. Following Spokeo, SSI argues, the receipt of a single robocall in violation of the TCPA is not a sufficiently concrete injury to establish constitutional standing. And following Campbell-Ewald, SSI argues, the case is moot because SSI tendered full payment for damages, sought to deposit settlement funds with the court, and consented to individual injunctive relief. For the reasons explained below, I conclude that I do have subject matter jurisdiction and Ms. Bell has adequately pled a TCPA claim, but that her CUTPA and unjust enrichment claims fail.

         The motion to dismiss (ECF No. 49) is therefore GRANTED in part and DENIED in part. I also DENY SSI's separate motion to strike (ECF No. 50) and DENY without prejudice its motion to deposit funds with the Court (ECF No. 38).

         I. Background

         According to the allegations in the first amended complaint, SSI is a company headquartered in Connecticut, and Ms. Bell is a resident of California. (ECF No. 47 ¶¶ 5-6.) On or around September 30, 2015, “Defendant contacted Plaintiff on her cellular telephone at (925) 465-****, in an attempt to communicate with Plaintiff regarding a survey questionnaire.” (Id. ¶ 10.) The call “came from what is believed to be an internet generated spoof number starting with area code prefix (925). Defendant is known to use the number (925) 438-0505.” (Id.) Ms. Bell did not consent to receive the call. (Id. ¶ 23.) Ms. Bell “distinctly heard a pause after answering the Defendants' intrusive phone call, resulting in a delay prior to a live person speaking indicative of an automated telephone dialing system.” (Id. ¶ 11.) According to Ms. Bell, SSI has a widespread practice of placing improper robocalls to cell phones. (Id. ¶¶ 15-18.) “[N]umerous other complaints confirm Defendants['] improper use of this very phone number for unwanted automated robocalls from 925-438-0505, ” and “Defendant's [sic] improper robocalling is not limited to the number that called Ms. Bell, but rather numerous places throughout the country.” (Id. ¶¶ 12, 14.)

         Ms. Bell initiated this putative class action on November 16, 2015. (ECF No. 1.) On February 8, 2016, SSI's counsel served Ms. Bell's counsel with an offer of judgment pursuant to Fed.R.Civ.P. 68, a settlement offer, and two bank checks totaling $20, 000. (ECF No. 49-2 at 1, 5-7, 9-10, 12-13.) Ms. Bell's counsel sent a rejection of the offer via email and then mailed back the two checks on February 11, 2016. (Id. at 1-2, 15-19.) On March 3, 2016, SSI filed a motion to dismiss. (ECF No. 35.) On March 9, 2016, SSI's counsel tendered and served a $2, 500 check on Ms. Bell's counsel and filed a motion to deposit $5, 000 in funds with the Court. (ECF Nos. 38; 49-2 at 2, 21-24.) Ms. Bell's counsel again sent a rejection of the offer and returned the check. (ECF No. 49-2 at 2, 26-29.) With leave of the Court, Ms. Bell filed a first amended complaint (the operative complaint in this case), on May 3, 2016. (ECF No. 47.) SSI then renewed its motion to dismiss on May 13, 2016, and also filed a motion to strike. (ECF Nos. 49; 50.) After the motion to dismiss was fully briefed, several courts across the country issued relevant decisions interpreting both Campbell-Ewald and Spokeo. The parties each filed motions for leave to file notice of these supplemental authorities (ECF Nos. 56; 57), which I GRANT.

         II. Legal Standard

         A motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) should be granted “when the district court lacks the statutory or constitutional power to adjudicate” the case. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). For example, “[i]f plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claim.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005). Mootness also deprives the court of subject matter jurisdiction: it is “not enough that a dispute was very much alive when suit was filed; the parties must continue to have a personal stake in the ultimate disposition of the lawsuit.” Chafin v. Chafin, 133 S.Ct. 1017, 1023 (2013) (citation and quotation marks omitted).

         On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), I take the plaintiffs' factual allegations in the complaint “to be true and [draw] all reasonable inferences in” their favor. Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A court need not accept legal conclusions as true and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         III. Discussion

         A. Standing Under Spokeo

         SSI first argues that Ms. Bell lacked standing to bring this case because the alleged receipt of a single unwanted robocall was not a sufficiently concrete injury. For a plaintiff to have standing under Article III of the U.S. Constitution, the plaintiff must have suffered an “injury in fact” that is “fairly traceable to the challenged action of the defendant” and “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (citations, quotation marks, and alterations omitted). “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 and actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S.Ct. at 1548 (citation and quotation marks omitted).

         In Spokeo, the Supreme Court addressed the “concreteness” requirement of standing in the context of a violation of the Fair Credit Reporting Act, where the plaintiff alleged that a website operator generated a profile of him that included inaccurate information. The Court held that “Article III standing requires a concrete injury even in the context of a statutory violation” and “a plaintiff does not automatically satisfy the injury-in-fact requirement whenever a statute grants a right and purports to authorize a suit to vindicate it.” Id. at 1549. While “intangible harms” and “the risk of real harm” could satisfy the injury-in-fact requirement, “a bare procedural violation, divorced from any concrete harm, ” could not. Id. The Court explained that “[i]n determining whether an intangible harm constitutes injury in fact, both history and the judgment of Congress play important roles, ” and remanded the case for consideration of whether the alleged statutory violation met the concreteness requirement. Id.

         Answering a single robocall, as Ms. Bell did in this case, is the type of concrete injury-in-fact that has been upheld by the Second Circuit and U.S. Supreme Court. In another TCPA case, the Second Circuit held that receiving two voicemails and listening to them on an answering device “demonstrates more than a bare violation and satisfies the concrete-injury requirement for standing.” Leyse v. Lifetime Entm't Servs., LLC, 2017 WL 659894, at *1 (2d Cir. Feb. 15, 2017) (summary order). The court also favorably cited an Eleventh Circuit case “holding that injury under [a] similar TCPA provision may be shown by one-minute occupation of fax machine.” Id. (citing Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1252 (11th Cir. 2015)). And in Campbell-Ewald, although the Supreme Court's majority opinion did not expressly address standing, even the dissenters agreed that the receipt of a single unauthorized text message conferred standing. 136 S.Ct. at 679 (Roberts, J., dissenting) (“All agree that at the time Gomez filed suit, he had a personal stake in the litigation. In his complaint, Gomez alleged that he suffered an injury in fact when he received unauthorized text messages from Campbell.”) Answering a single unauthorized phone call lasting two minutes (ECF No. 52-1 at 2) is just as concrete a harm as listening to two voicemails, receiving a single minute-long fax, or reading a single text message.

         Many courts outside the Second Circuit have agreed that receiving a robocall is a concrete, intangible injury under Spokeo, even without actual financial harm. Thus, although Ms. Bell did not incur any charge for the phone call (ECF No. 52-1 at 2, 4), “[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017). See also Ung v. Universal Acceptance Corp., 198 F.Supp.3d 1036, 1038 (D. Minn. 2016) (“Cases… have repeatedly recognized that the receipt of unwanted phone calls constitutes a concrete injury sufficient to create standing under the TCPA.”). But see Sartin v. EKF Diagnostics, Inc., 2016 WL 3598297, at ...

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