In Torres v. National Enterprise Systems, Inc., 2012 WL 3245520 (N.D.Ill. 2012), Judge Der-Yeghiayan found a TCPA penalty-only lawsuit still conferred Article III ‘case-or-controversy’ jurisdiction over the case.
NES argues that this court lacks subject matter jurisdiction over the TCPA claim based upon NES’s contention that Torres lacks standing to bring a TCPA claim. Article III of the federal Constitution authorizes “federal courts to adjudicat[e] actual ‘Cases’ or ‘Controversies.’ ” Booker–El v. Superintendent, Indiana State Prison, 668 F.3d 896, 899 (7th Cir.2012) (quoting in part U.S. Const. art. III, § 2, cl. 1). In order to establish Article III standing, a plaintiff must establish: “(1) an injury in-fact; (2) fairly traceable to the defendant’s action; and (3) capable of being redressed by a favorable decision from the court.” Id. (quoting Parvati Corp. v. City of Oak Forest, Ill., 630 F.3d 512, 516 (7th Cir.2010)). NES argues that Torres has not alleged facts that indicate that she suffered an injury in-fact from the Phone Calls. NES asserts that Torres does not allege that she suffered any specific monetary or physical damages from the Phone Calls. Torres indicates in her amended complaint that the messages from the Phone Calls used up Torres’ cellular phone minutes, which were limited. (A Compl. Par. 20–21). A monetary value could be assessed based on the amount Torres paid for cellular services. Thus, Torres’ allegations suggest a monetary harm to Torres. NES argues that there are no facts in the amended complaint as to whether Torres ultimately exceeded her allotted cellular minutes or needed to pay for additional minutes. It is true that 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). However, an evidentiary analysis regarding issues such as whether Torres used up all her cellular minutes or whether the minutes used by NES’s message would have been otherwise used for other purposes by Torres is premature at this juncture. ¶ In addition, even aside from the potential monetary losses, Torres alleges that the Phone Calls were a nuisance and that they invaded her privacy. Article III standing can be premised upon such non-monetary and non-physical injuries. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (stating that “the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing”); Petit v. City of Chicago, 31 F.Supp.2d 604, 612 (N.D.Ill.1998) (indicating an “emotional injury” can be sufficient for Article III standing). The harm alleged by Torres is not some type of abstract and hypothetical injury. Torres clearly indicates that the unsolicited phone messages on her cell phone are directly connected to the alleged con-crete nuisance to her and the invasion of her privacy. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (stating that the injury must be “fairly traceable to the defendant’s allegedly unlawful conduct”); City of Los Angeles v. Lyons, 461 U.S. 95, 101–02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (stating that “[a]bstract injury is not enough”). Causing a nuisance to Torres and invading her privacy would be an injury to Torres. While NES may dispute whether it in fact engaged in such conduct and dispute whether the harm to Torres was anything more than a minimal inconvenience to Torres, such issues relate to the merits of Torres’ claims and the amount of dam-ages in this case, not to whether Torres has shown standing to bring the instant action. The court also notes that statutory damages are available under the TCPA. 47 U.S.C. § 227(b). ¶ In addition, the court notes that it is apparent that the injury alleged by Torres is exactly the type of injury that Congress created the TCPA in order to redress. Congress was clearly not intending the TCPA to cover only rare instances when a phone message by a defendant could somehow be tied to a direct mone-tary loss or physical harm to the plaintiff. Under such a standard, defendants such as NES would be virtually immune to TCPA claims. In fact, Congress created the TCPA to specifically address the nuisance and invasion of privacy resulting from phone calls such as those alleged in the instant action. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009) (explaining that “[t]he TCPA was enacted in response to an increasing number of consumer complaints arising from the increased number of telemarketing calls” and “[t]he consumers complained that such calls are a ‘nuisance and an invasion of privacy’ ”) (quoting in part S.Rep. No. 102–178, at 1 (1991), reprinted in 1991 U.S.C.C.A.N.1968). Torres has alleged sufficient facts to show that she has standing to bring the instant action. Therefore, this court has subject matter jurisdiction to hear the TCPA claim.
Judge Der-Yeghiayan also found that the TCPA claim adequately pleaded use of an ATDS.
NES argues that there are no allegations in the amended complaint that indicate that the Phone Calls were made using an automatic telephone dialing system. However, the TCPA also prohibits calls “using … an artificial or prerecorded voice,” which Torres alleges occurred in this case. In addition, Torres expressly alleges repeatedly in her amended complaint that NES used an automatic telephone dialing system. (A Compl. Par. 14–16, 18–19). NES argues that the amended complaint lacks sufficient details to plausibly suggest that NES used an automatic telephone dialing system. NES argues that the mere fact that Torres received messages with a pre-recorded voice does not necessarily mean that an automatic telephone dialing system was used. NES, however, is seeking to address evidentiary issues that are premature at this juncture. At the summary judgment stage, Torres will need to point to sufficient evidence showing that the manner in which the Phone Calls were made to Torres violated the TCPA. Torres’ allegations indicate that an “automatic telephone dialing system or an artificial or prerecorded voice” was used by NES, which is sufficient at this juncture. Id. Nor would it even be reasonable to hold plaintiffs in TCPA cases to the standard proposed by NES since it would be virtually impossible, absent discovery, for any plaintiff to gather sufficient evidence regarding the type of machine used for a communication left on a plaintiff’s voicemail. Under such a standard, defendants such as NES would be virtually immune to TCPA claims, which clearly is not what was intended by Congress in creating the TCPA. See, e.g., Satterfield, 569 F.3d at 954. Thus, Torres has stated a valid TCPA claim, and the motion to dismiss the TCPA claim is denied.