In Shuckett v. DialAmerica Mktg., No. 17cv2073-LAB (KSC), 2019 U.S. Dist. LEXIS 127049, at *6 (S.D. Cal. July 29, 2019), Judge Burns dismissed a TCPA plaintiff’s claim for lack of standing because the TCPA Plaintiff was not aware of the violative call at the time that it was made.

Although the Court previously determined that Shuckett’s missed call was a sufficiently concrete harm to permit [*7]  her to bring suit, that finding was based on the premise that she was aware of the missed call at the time it occurred. Whether she was aware of the call or not is important because, as other courts in this circuit have noted, an unnoticed call may “violate the TCPA but not cause any concrete injury.” Juarez v. Citibank, N.A., 2016 U.S. Dist. LEXIS 118483, 2016 WL 4547914, at *3 (N.D. Cal. 2016); see also Lemieux v. Lender Processing Ctr., 2017 U.S. Dist. LEXIS 47139, 2017 WL 1166430, at *4 (S.D. Cal. 2017) (“[A] bare allegation of a violation of the TCPA could be an insufficient allegation of injury to establish standing, such as when a telephone call is unheard or unanswered . . . .”). Signaling the centrality of this question to whether Shuckett has standing, the Court noted in its previous order that “[h]ad the call [to Shuckett] gone entirely unnoticed, perhaps this would be a different case.” Dkt. 92 at 4. Now at summary judgment, the evidence submitted by DialAmerica suggests that the call did go unnoticed and that this is, in fact, “a different case.” . . .the Court finds that she has not met her burden of demonstrating that she suffered concrete harm from DialAmerica’s call. While a missed call may be sufficient to confer standing if the plaintiff can demonstrate that he or she was aware of the call and it caused nuisance, it is not sufficient for a plaintiff to allege  simply that he or she would have been aware of the call given what they were doing on that day. The injury that gives rise to standing must be “actual[,] . . . not conjectural or hypothetical.” Lujan, 504 U.S. at 560. Shuckett’s evidence here only supports a finding of conjectural or hypothetical injury, and that does not give the Court subject-matter jurisdiction. For example, without a more detailed account of the events, it’s impossible for the Court to know whether the phone was Shuckett’s possession or a nurse’s possession at the time the call came in. If the latter, was Shuckett actually aware of the call and did it cause her an injury? Further, without screenshots or other evidence that the call manifested itself in some way on her phone, another possibility is that DialAmerica made the call—a fact that’s demonstrated by the Verizon cell tower records, Dkt. 111-4—but that it never reached Shuckett’s phone. In that case, she’s suffered no harm at all because she never “received” a call. The point here is not to downplay the harm associated with robodialing or to nitpick the details of Shuckett’s story. The point is simply that Shuckett bears the burden of demonstrating that she suffered a concrete, non-conjectural injury. Without something more definitive than what she has provided, she cannot meet that burden.  In short, the Court finds that summary judgment is warranted because Shuckett lacks standing to pursue her claims against DialAmerica and American Standard.