December 5, 2019Cybersecurity Attorney Kevin Mekler Joins Nelson Mullins in Tampa
August 2, 2019
The court’s opinion in Shuckett v. DialAmerica Marketing, Inc., reads like a suspenseful short story, pulling the reader into a mystery as the law and the evidence unfolds—the mystery being whether or not Shuckett was aware of a single missed telemarketing call, because if she was not aware, she may not have standing, and then her claims would be... dismissed. Spoiler alert: No standing.
Defendants for this opinion, CA No. 17-cv-2073-LAB (KSC), 2019 U.S. Dist. LEXIS 127049 (S.D. Cal. Jul. 30, 2019), were DialAmerica, a telemarketing company, and American Standard, on whose behalf DialAmerica was making calls. Shuckett received over 40 pre-recorded solicitation calls on behalf of DialAmerica but had not given them permission to call.
But DialAmerica had only called Shuckett once, and the parties did not dispute that Shuckett did not answer that call. DialAmerica asserted that Shuckett did not have Article III standing because that single missed telemarketing call was not a sufficient injury-in-fact.
The suspense builds in part due to Spokeo, Inc. v. Robins, 578 U.S. 1540 (2016), which found that “[a] plaintiff bringing a claim based on a statutory violation cannot satisfy the injury-in-fact requirement if they merely allege a procedural violation that is divorced from any concrete harm.” (Shuckett, *5.) Shuckett also had the burden to show she had suffered an injury-in-fact and had standing.
A flashback makes the current opinion more intriguing: The court explained that earlier in the case, it had addressed the same standing argument but allowed Shuckett to proceed. That decision was on a motion to dismiss, though, and was based on the premise that Shuckett had received and was aware of but had not answered the phone call. At that time, the court said that the missed call was like a text message, and though “[n]either requires an outlay of time or energy,” “both ‘disturb the solitude of their recipients.’” (*5.) Despite Shuckett’s argument that this earlier decision meant standing had been determined, the court recognized the well-founded proposition that standing must be addressed at any stage.
Making a seamless transition back to present time, the court pointed out that, “[w]hile at the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, in responding to a summary judgment motion, the plaintiff can no longer rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” (*6 (internal quotations omitted).)
Pulling on the threads of Spokeo, the court made clear that “[w]hether 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.’” (*7.) In denying the earlier motion to dismiss, the court said that “[h]ad the call [to Shuckett] gone entirely unnoticed, perhaps this would be a different case.” Setting up the next plot twist, the court says that for this summary judgment motion, “the evidence submitted by DialAmerica suggests that the call did go unnoticed and that this is, in fact, ‘a different case.’” Dun dun dun...
All heads in the courtroom swivel to DialAmerica to see what’s next.
And DialAmerica delivers. First, Shuckett’s Verizon statement showed no “talk activity” on the date and time of the call, which the court said showed the call went unanswered. Second, Shuckett’s deposition testimony showed she did not remember her phone ringing that day, which may be reasonable for a call over a year earlier, but Shuckett had no other evidence she was aware of that call. Third, Shuckett had produced screenshots showing missed calls from another telemarketer, but she had no screenshots showing the single missed call at issue. That she did not have those screenshots—and potentially had not preserved them when she knew the call history would be automatically deleted—supported an adverse inference. (*7-8.)
Shuckett is left with nothing to show. All she provided was a phone record showing a 14-second call from DialAmerica on the call date and her own testimony about what she was doing that day and that though she did not recall the call, she would have been aware of the call because of her usual practices in handling her phone.
But alas, says the court—“The injury that gives rise to standing must be ‘actual[,]... not conjectural or hypothetical.” (*10 (quoting Lujan).) None of this “what I usually do” business:
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.
Though Shuckett could not show she was concretely aware of the single call, the court provided a concluding safety message:
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.
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