In Ewing v. SQM US, Inc., 2016 WL 5846494, at *2–3 (S.D.Cal., 2016), Judge Bencivengo dismissed a TCPA claim because the alleged harm — a charge for the call – would have been incurred whether the call was properly placed (manually) or improperly placed (autodialed).  Accordingly, it did not confer “concrete injury” sufficient to confer Article III standing.

The only allegation in the FAC that arguably relates to any injury to Plaintiff is the claim that the cellular telephone Defendants’ called is “assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls.” This phrasing mimics the language of the TCPA, which makes it unlawful to make a call using an ATDS “to any telephone number assigned to a … cellular telephone service … for which the called party is charged for the call ….” 47 U.S.C. § 227(b)(1)(A)(iii). For the purposes of this motion, the Court assumes that Plaintiff is alleging that he actually incurred a specific charge for Defendants’ call to his cellular telephone.  Even with this assumption, the FAC does not adequately allege standing because it does not, and cannot, connect this claimed charge with the alleged TCPA violation—Defendants’ use of an ATDS to dial his cellular telephone number. Put differently, Plaintiff does not, and cannot, allege that Defendants’ use of an ATDS to dial his number caused him to incur a charge that he would not have incurred had Defendants manually dialed his number, which would not have violated the TCPA. Therefore, Plaintiff did not suffer an injury in fact traceable to Defendants’ violation of the TCPA and lacks standing to make a claim for the TCPA violation here.  Notably, in his opposition brief, Plaintiff does not even argue that the alleged charge he incurred as a result of the call was a sufficient injury in fact to establish standing. Instead, Plaintiff’s only arguments supporting the existence of standing are premised on purported injuries or harm that are not alleged in the FAC. Specifically, Plaintiff argues that he “sustained injury when he had to waste time answering and addressing the robo-call,” and that he was injured insofar as the call depleted his phone’s battery, requiring him to recharge it. [Doc. No. 19 at 14-15.]   Even if the Court were to grant Plaintiff leave to amend to include these purported injuries that were not alleged in the FAC, Plaintiff would not overcome a facial attack on standing. As with the charge Plaintiff allegedly incurred because of the call, these injuries are not connected to Defendants’ alleged use of an ATDS to dial his number. “A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.” McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir. 1998). Here, Mr. Ewing would have been no better off had Defendants dialed his number manually (in which case they would have refrained from violating the TCPA). He would have had to expend the same amount of time answering and addressing Defendants’ manually dialed telephone call and would have incurred the same amount of battery depletion. Further, that the use of an ATDS may have allowed Defendants to place a greater number of calls more efficiently did not cause any harm to Plaintiff. See Silha v. ACT, Inc., 807 F.3d 169, 174-75 (7th Cir. 2015) (“[A] plaintiff’s claim of injury in fact cannot be based solely on a defendant’s gain; it must be based on a plaintiff’s loss.”).  In sum, to use the language from Spokeo, Plaintiff’s alleged concrete harm (and the harm he argued in his opposition but did not allege in the FAC) was divorced from the alleged violation of the TCPA. See Spokeo, 136 S.Ct. at 1549 (holding that “a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III”). Accordingly, Plaintiff has not and cannot satisfy the standing to sue requirements of Article III.