In Toney v. Advantage Chrysler-Dodge-Jeep, No. 6:20-cv-182-WWB-EJK, 2021 U.S. Dist. LEXIS 141242, at *8 (M.D. Fla. July 27, 2021), Judge Embry denied class certification in a “ringless” voicemail message TCPA class action.
In the Amended Complaint, Plaintiff alleges that he, and others similarly situated to him, received a “ringless” voicemail with a pre-recorded message from Advantage. (Doc. 40 ¶¶ 31, 59.) The Eleventh Circuit has yet to provide binding authority on the issue of standing with a ringless voicemail; however, this issue has been addressed on several occasions at the district court level and in unpublished appellate decisions. When a standing challenge to a “ringless” voicemail TCPA action is based on a legal argument, e.g., a “ringless” voicemail is not a “call” under the TCPA, courts routinely find the plaintiff has standing to bring the TCPA action. See Schaevitz v. Braman Hyundai, Inc., 437 F. Supp. 3d 1237, 1250-51 (S.D. Fla. 2019) (finding that a plaintiff alleged “injury in fact” when the complaint contained allegations about “invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, . . . conversion[,] . . . . disrupt[ion] [of] . . . daily life[,]” and the inability to block ringless voicemails) (collecting cases); Silbaugh v. CenStar Energy Corp., No. 1:18 CV 161, 2018 WL 4558409, at *2-3 (N.D. Ohio Sept. 21, 2018) (rejecting the defendant’s argument that the complaint should have contained allegations about loss of money or property to properly allege injury in fact). On the other hand, on a challenge to factual standing, the Eleventh Circuit has found, in an unpublished opinion, that there was no injury in fact in a “ringless” voicemail TCPA action. Grigorian v. FCA US LLC, 838 F. App’x 390, 394 (11th Cir. 2020) (finding that a plaintiff who “provided facts that she lost personal time listening to the voicemail . . . [but not] facts to show that the single prerecorded voicemail rendered her phone unavailable to receive legitimate calls or messages for any period of time.”) (unpublished). In sum: during a legal standing challenge to a “ringless” voicemail TCPA claim, a court determines whether a plaintiff alleged standing; in contrast, a court should evaluate the evidence pertinent to a plaintiff’s standing to bring the TCPA claim when there is a factual challenge. In the instant action, Advantage raises a factual standing challenge: because Plaintiff “routinely cleaned out his voicemail box and had room for additional messages,” he has failed to allege an injury in fact. (Doc. 127 at 6.) The Grigorian decision suggests that the Court must review any facts Plaintiff provided indicating whether he “was unable to receive legitimate calls or messages for any period of time.” 838 F. App’x at 394. Moreover, Grigorian must be considered in light of the Eleventh Circuit’s binding decision in Brown v Electrolux Home Prod., Inc., 817 F.3d 1225, 1234 (11th Cir. 2016). The Brown Court held that at the class certification stage, “if a question of fact or law is relevant to that determination, then the district court has a duty to actually decide it and not accept it as true or construe it in anyone’s favor.” 817 F.3d at 1234 (finding that the district court misstated the law that all allegations in the complaint are taken as true when evaluating whether to certify a class) (citing Comcast, 133 S. Ct. at 1432-33; Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir.2001); and Gariety v. Grant Thornton, LLP, 368 F.3d 356, 365-66 (4th Cir. 2004)). . . However, between the filing of his Amended Complaint and the instant Motion, Plaintiff changed his rendition of the events underlying his TCPA claim. Plaintiff now asserts in his Motion and during his January 2021 deposition that his phone rang, then he listened to the voicemail that was left on his phone from the telephone call. (Doc. 118 at 13); (Doc. 118-7 at 26:9-17; 32:21-25 (Plaintiff testified that he let an incoming phone call “go to voicemail.”)). In essence, Plaintiff states the voicemail was not “ringless.” Plaintiff does not attempt to reconcile this discrepancy in the Motion. Advantage implies that Plaintiff is stretching the truth when asserting his phone rang but does not provide any evidentiary support indicating otherwise. (Doc. 127 at 2, 10-11, 16.) Without competing evidence, the undersigned cannot conclusively find that Plaintiff’s phone did not ring prior to receiving the voicemail. It is notable that Plaintiff has yet to seek leave to amend his operative complaint to reflect this change in testimony; but out of an abundance of caution, the undersigned will also evaluate whether Plaintiff has standing under these new circumstances. Plaintiff argues that he has standing because “receipt of a single unsolicited phone call . . . and a voicemail recording constitute[s] an injury in fact for the purposes of standing” (Doc. 118 at 13 (citing Cordoba v DirectTV LLC, 942 F.3d 1259, 1270 (11th Cir. 2019) (internal quotations omitted).) While that quotation is accurate, it is not what the Cordoba Court actually held. What Plaintiff quotes is the Cordoba Court’s summary of a Third Circuit case that it relied upon in reaching its holding that “receipt of more than one unwanted telemarking call . . . is a concrete injury that meets the minimum requirements of Article III standing.” Cordoba, 942 F.3d at 1270. Plaintiff has not provided the undersigned with any evidence that he received “more than one unwanted telemarketing call” or binding authority that receipt of a single phone call with a voice message constitutes an injury in fact for Article III standing purposes. Thus, I conclude that Plaintiff does not have standing even under his alternative rendition of events.
Judge Embry held that Plaintiff’s claims were not typical of the class, anyway.
Plaintiff argues that there is typicality because he and the putative class members “were subjected to the almost identical prerecorded marketing messages [from Advantage] . . . through the Statics Platform in violation of the TCPA.” (Doc. 118 at 18.) Simply because both the putative class members and Plaintiff heard the same message does not mean that there is typicality. The undersigned recognizes that a ringless voicemail is considered a call under the TCPA schema. However, there is a difference between the “call” Plaintiff now claims to have received versus the “call,” i.e., the ringless voicemails, the remaining putative class members received. Plaintiff claims that his phone rang, as if he was receiving a regular telephone call, and when he did not answer, a voicemail was left on his telephone. The putative class members received “ringless voicemails.” Thus, their telephones never rang; instead, a voicemail just appeared in the voicemail box. Following Grigorian, the putative class members would have to show that the ringless voicemails rendered their phones inoperable for a period of time. Conversely, what Plaintiff must demonstrate is that he received more than one unsolicited phone call. Cordoba, 942 F.3d at 1270. Accordingly, I respectfully recommend that the Court deny the Motion for lack of typicality as well.