In Hewlett v. Consolidated World Travel, Inc., 2016 WL 4466536, at *3 (E.D.Cal., 2016), Judge Shubb found Article III standing for multiple texts received by a TCPA Plaintiff.
In support of its argument that plaintiff here does not sufficiently state a concrete injury, defendant relies on a ruling in a similar TCPA class action in Smith v. Aitima Medical Equipment, Inc., Civ. No. 16-339 AB DTB (C.D. Cal. July 29, 2016). (Reply at 4, Ex. A (Docket No. 22).) In Smith, the court held that the plaintiff failed to allege a concrete injury because she could not “allege more than a de minimis injury given the fact that she received only one call.” (Reply Ex. A at 6-7.) The court reasoned that the plaintiff there “only alleged the receipt of one phone call from Defendant,” which at most “lasted for a few seconds.” (Id. at 5-6.) The Supreme Court, however, recently confirmed that allegations of a single TCPA violation can be sufficient to confer Article III standing. In Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014), aff’d, 136 S. Ct. 663 (2016), the plaintiff received a single unsolicited text message from the defendant’s agent and filed suit against the defendant “seeking compensation for the alleged violation of the TCPA.” Id. at 873-74. Plaintiff “also sought to represent a putative class of other unconsenting recipients of the [defendant’s] text messages.” Id. at 874. The Ninth Circuit held that “Congress has expressly created a federal cause of action affording individuals like Gomez standing to seek compensation for violations of the TCPA.” Id. at 880. The Supreme Court affirmed, holding that “the District Court retained jurisdiction to adjudicate Gomez’s complaint.” Gomez, 136 S. Ct. at 672. Additionally, unlike in Smith, plaintiff here alleges that defendant called her “nearly daily” in March 2016 from multiple numbers despite plaintiff’s repeated requests for the calls to stop. (FAC ¶¶ 12-17.) The FAC also suggests that defendant’s calls lasted more than a few seconds: “When [plaintiff] answered calls from Defendant and/or its agents, she heard a pause or dead air before a robotic-sounding recorded voice began, indicating use of an [ATDS] and artificial or prerecorded voice. After the robotic-sounding voice concluded, a live person came onto the phone as well. The agent attempted to sell [plaintiff] a ‘free cruise’ [and plaintiff] has repeatedly made requests to Defendant and/or its agent for the calls to stop.” (Id. ¶¶ 16-17.) Plaintiff’s factual allegations, which the court must construe in the light most favorable to plaintiff on a motion to dismiss, there is a reasonable inference that defendant or its agents placed more than one call to plaintiff here. This reasonable inference is sufficient to make plaintiff’s TCPA claim plausible and thus survive dismissal at this stage. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (holding that dismissal is granted only where reasonable inferences drawn from the plaintiff’s allegations fail to state a plausible claim for relief). Smith is therefore inapplicable here. In fact, the Smith court acknowledged “the injury multiple phone calls can cause” and observed that “[c]ourts have found allegations of ‘systematic rather than episodic’ unauthorized conduct to be more than a de minimis injury, and thus sufficient to confer standing.” (Reply Ex. A at 6.) These are exactly the circumstances alleged in the present action. The reasoning in Smith thus supports–rather than undermines–the conclusion that plaintiff has alleged a concrete injury under Article III here. Lastly, plaintiff has traced her alleged injury to defendant: “[Defendant] and/or its agents made unsolicited and harassing telemarketing calls to Plaintiff on her cellular telephone using an automatic telephone dialing system and an artificial or prerecorded voice [without plaintiff’s] prior express written consent to make these calls.” (FAC ¶ 1.) Plaintiff’s allegations are therefore sufficient to confer Article III standing. Accordingly, the court has subject matter jurisdiction over this action.