Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 20-60734-CIV-ALTMAN/Hunt ERIC MITTENTHAL, et al. ,
Plaintiffs ,
v.
FLORIDA PANTHERS HOCKEY CLUB, LTD. , et al.,
Defendants .
________________________________/
ORDER REMANDING CASE
The Plaintiffs initially brought this TCPA action in federal court. When a decision from the Eleventh Circuit suggested that they lacked standing to pursue their claim, the Plaintiffs— hoping to avoid the preclusive effect of a dismissal—voluntarily dismissed their case and refiled it in state court. The Defendants, presumably unhappy with the state forum, then removed the case—citing this Court’s original jurisdiction over federal statutory actions. The Plaintiffs have now moved to remand, arguing that they have no standing. This Order follows.
THE FACTS Eric Mittenthal, Anita Jairam, and Kevin Hillow (collectively, the “Plaintiffs”) are fans of the Florida Panthers Hockey Club who received text messages that (they allege) violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). See State Court Complaint (the “Complaint”) [ECF No. 1-2 at 10–31] ¶ 24. Seeking redress, the Plaintiffs sued the Florida Panthers Hockey Club, along with two of its executives (Jake Schreiber and David Brunson) and an affiliated corporate entity (PHGP, LLC) (collectively, the “Defendants” or the “Florida Panthers”). See id. at 1.
Mittenthal was first contacted by the Defendants in 2019, when he “learned that he could text the word ‘STUDENT’ to [the Florida Panthers at 64600] to receive a coupon to attend a Panthers hockey game at a discount.” Id. ¶ 27. Immediately after Mittenhal sent that text message, and while his identity and telephone number remained unknown to the Florida Panthers, the Defendants used an autodialing system to send Mittenthal two text messages. See id. ¶¶ 29–30. Those messages were sent without the need for “anyone to type them out,” to click “SEND” or “any other button,” and “without any human involvement whatsoever.” Id. ¶ 31.
The messages asked Mittenthal to “REPLY with your .edu email address” to collect the discounted tickets. Id. ¶ 33. He refused. See id. ¶ 33–34. Nevertheless, because the Florida Panthers stored Mittenthal’s phone number, he “began to regularly receive marketing text messages on his cell phone, each of which advertised the commercial availability of Defendants’ sports programming and/or sought to encourage Plaintiff to purchase Defendants’ good[s] or services.” Id. ¶ 35. Over the next two months, Mittenthal received around 10 such promotional messages. See id. at 6–9. Mittenthal never agreed to receive the Defendants’ text messages through this autodialing system. See id. ¶ 46.
Jairam and Hillow had similar experiences. The Plaintiffs attach to their Complaint selected screenshots of the “close to thirty text messages” Jairam and Hillow received. See id. at 9–12, ¶ 50. The Plaintiffs do not say when those messages were sent. But, based on the time stamps on the screenshots, they apparently were sent over a period of four months. See id. at 9–12. Neither Jairam nor Hillow ever consented to be contacted through the Defendants’ autodialing system. See id. ¶ 51.
The Complaint does not explain how receiving these messages harmed the Plaintiffs. The Plaintiffs say only that they “ have been impacted and harmed,” and that they have suffered a “legal injury.” Compl. ¶¶ 74, 17 (emphasis added).
The Plaintiffs initially sued the Florida Panthers in federal court for these alleged violations of the TCPA (the “federal court action”). See In re Florida Panthers TCPA Litigation , No. 20-CV- 60112-ALTMAN, ECF No. 1 (Jan. 17, 2020). A few months later, however—and for reasons that were, at that time, unclear—the Plaintiffs voluntarily dismissed the federal court action. See id. at [ECF No. 13]. The Plaintiffs then refiled their case in state court. See Compl. at 10. A few days later, the Defendants removed the action under this Court’s federal-question jurisdiction. See Notice of Removal [ECF No. 1] at 1. [1]
In their Motion to Remand, the Plaintiffs say that they dismissed the federal court action
because the Eleventh Circuit’s decision in
Salcedo v. Hanna
, 96 F.3d 1162 (11th Cir. 2019),
clarified that they lacked standing to pursue their claims in federal court.
See
Motion to Remand
(the “Motion”) [ECF No. 9] at 1–2 (“That dismissal and the re-filing of their case in state court
was prompted by the developing uncertainty within this Circuit as to whether recipients of text
messages have Article III standing to maintain a TCPA claim in federal court.” (citing
Eldridge v.
Pet Supermarket, Inc.
,
THE LAW
A federal court should remand to state court any case that has been improperly removed.
See
28 U.S.C. § 1447(c). The party attempting to invoke the federal court’s jurisdiction bears the
burden of establishing that jurisdiction.
See McNutt v. Gen. Motors Acceptance Corp. of Ind., Inc.
,
298 U.S. 178, 189 (1936). “Not only does the language of the Act of 1887 evidence the
Congressional purpose to restrict the jurisdiction of the federal courts on removal, but the policy
of the successive acts of Congress regulating the jurisdiction of federal courts is one calling for the
strict construction of such legislation.”
Shamrock Oil & Gas Corp. v. Sheets
,
“The requirement that jurisdiction be established as a threshold matter . . . is ‘inflexible
and without exception.’”
Steel Co. v. Citizens for a Better Env’t
, 523 U.S. 83, 94–95 (1998)
(quoting
Mansfield, C. & L.M.R. Co. v. Swan
,
The “district courts . . . have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Because the TCPA is a
federal statute, this case “aris[es]” under the laws of the United States. That, however, is not the
end of the matter. The Plaintiffs must also have standing to bring their claim.
See Lujan v. Def.’s
of Wildlife
, 504 U.S. 555, 560 (1992). Under Article III of the Constitution, the subject-matter
jurisdiction of the federal courts is limited to “Cases” and “Controversies.” U.S. Const. art. III,
§ 2. And “the core component of standing is an essential and unchanging part of the case-or-
controversy requirement of Article III.”
Lujan
,
To establish their standing, the Plaintiffs “must have (1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.”
Spokeo, Inc. v. Robins
,
Proving an “injury in fact” is, as the Supreme Court has said, “[f]irst and foremost” among
these three elements.
Steel Co.
,
To establish an injury in fact, a plaintiff must show, not only “an invasion of a legally
protected interest,” but also a “concrete and particularized” injury that is “actual or imminent, not
conjectural or hypothetical.”
Lujan
,
ANALYSIS
To adjudicate the Motion to Remand, the Court must answer two questions: Do the Plaintiffs have Article III standing? And, if not, should this case be dismissed or remanded? Before reaching either question, however, the Court must address two threshold issues. The first is whether the Court may consider the original (now-dismissed) Complaint the Plaintiffs filed in the federal court action. The second is whether a defendant must plead his standing in the Notice of Removal .
I. The Admissibility of the Plaintiffs’ Prior Pleadings In their Response, the Defendants rely exclusively on jurisdictional averments the Plaintiffs made in the (now-dismissed) federal-court complaint. See Resp. at 9 (“Article III standing is apparent on the face of the prior consolidated amended complaint filed before this Court.”); id. at 5 (“Plaintiff eliminated all of these [standing] allegations from the complaint filed in this case in state court, since removed to this Court.”). Quoting from Doss v. Apache Powder Co. , 430 F.2d 1317, 1323 (5th Cir. 1970)—an Old Fifth Circuit case applying Texas law—and two out-of-circuit decisions, the Defendants contend that the abandoned pleadings are admissible as admissions against interest. See Resp. at 5. The Plaintiffs, for their part, cite two Northern District of California cases for the opposite proposition. See Mot. at 4–5 (citations omitted). Needless to say, the parties’ briefs leave much to chance. Texas law, after all, does not control us here. And this Court is not bound by decisions from the Northern District of California.
Fortunately, the Eleventh Circuit
has
addressed the question—if not altogether directly. As
“a general matter,” that court has said, “an amended pleading supersedes the former pleading; the
original pleading is abandoned by the amendment, and is
no longer a part of the pleader’s
averments
against his adversary.”
Pintando v. Miami-Dade Hous. Agency
,
This rule flows naturally from the proposition that subject-matter jurisdiction “depends on
the state of things at the time of the action brought.”
Mullan v. Torrance
,
the complaint courts look to the amended complaint to determine jurisdiction.”
Rockwell Int’l
Corp. v. United States
,
The Eleventh Circuit’s decision in Lowery v. Ala. Power Co. , 483 F.3d 1184, 1219–20 (11th Cir. 2007), is instructive. In that case, the defendant removed a class action the plaintiffs had filed in state court under the Class Action Fairness Act, 28 U.S.C. §§ 1711–15, et seq. (“CAFA”). Id . at 1219. Hoping to invoke the federal court’s diversity jurisdiction, the defendant relied on the original—and since-abandoned—iteration of the plaintiffs’ complaint. Id . Specifically, whereas the original complaint had sought $1,250,000 in damages for each plaintiff, the operative (amended) complaint included no damages computation at all. Id. In the defendant’s view, the plaintiffs’ decision to delete (but not replace) their original jurisdictional allegations opened the door for the defendants to use those abandoned allegations to establish the amount in controversy. See id. The Eleventh Circuit disagreed. As the court explained:
[I]t would be improper to bind plaintiffs by the prayer for relief in the initial pleading. Plaintiffs have since amended the prayer for relief, and this amended prayer for relief supersedes the one contained in the initial complaint. Under both Alabama and federal law, an amended complaint supersedes the initial complaint and becomes the operative pleading in the case. Moreover, the jurisdictional allegations in both complaints were subject to the requirements of Alabama Rule of Civil Procedure 11. We accordingly presume that the plaintiffs’ original demand of $1,250,000 reflected counsels’ good faith assessment of the full value of their claims at the time. We likewise must presume, however, that the plaintiffs’ amended, unspecified demand clause also reflects counsels’ revised good-faith determination regarding damages. The third amended complaint represents counsels’ belief that counsel could, in good faith, state only that the plaintiffs’ claims put in controversy an amount greater than the Alabama Circuit Courts’ jurisdictional minimum of $3,000. In short, we do not bind parties to a figure counsel cannot advance in good faith. The plaintiffs amended their complaint to remove the specific damages demand, and that amended pleading is the document we look to in determining whether jurisdiction exists. Id . at 1219–20 (cleaned up).
This rule makes sense. Binding plaintiffs to factual averments they have abandoned would create perverse incentives for plaintiffs’ lawyers in civil cases. The strictures of Rule 11 require lawyers to certify “that to the best of [their] knowledge, information, and belief . . . the factual contentions [in their papers] have evidentiary support.” F ED . R. C IV . P. 11(b). And this obligation continues throughout the pendency of the litigation. Indeed, “if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention .” Id. at advisory committee’s note (emphasis added). As the litigation progresses—and as new information becomes available through discovery—attorneys should be encouraged to withdraw or modify averments that no longer reflect the true state of affairs. Otherwise, counsel would face a veritable Catch-22. On the one hand, they could abandon their (now-untrue) allegations and face the evidentiary backlash at trial—where their opponents would inevitably deploy those forsaken averments against them. On the other hand, they could plow ahead with assertions they now know to be untrue and hope to avoid sanctions along the way. This Court will not force lawyers to choose between Scylla and Charybdis. Factual averments a party has abandoned—whether through emendation or refiling— should not be accepted as evidence.
II. The Notice of Removal and its Pleading Requirements
In the Plaintiffs’ view, as “the removing party, Defendants have the burden of proving all
federal subject-matter jurisdictional prerequisites are met, including the requirements of Article III
standing.” Mot. at 2. In support, they cite two cases—neither of which involved removal.
See id.
The Defendants, for their part, point the Court to
Gonzalez v. TCR Sports Broad. Holding, LLP
,
The Ninth Circuit’s view—which the Defendants have adopted—appears to be correct. Under 28 U.S.C. § 1441, any case that falls within the Court’s “original jurisdiction” is removable. And, under 28 U.S.C. § 1331, the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Because an action under the TCPA indisputably arises under the laws of the United States, this case is thus removable. The removal statute never requires a removing defendant to establish—or even allege—the plaintiff’s standing in the removal notice. And the Court is not free to add words to a statute that do not appear there. See A. S CALIA & B. G ARNER , R EADING L AW : T HE I NTERPRETATION OF L EGAL T EXTS 182 (2012) (“The familiar ‘easy-to-say-so-if-that-is-what-was-meant’ rule of statutory interpretation has full force here.”).
This finding, though, does not save the Defendants here. Irrespective of the pleading
requirements, both
Lee
and
Gonzalez
ultimately concluded that, if a plaintiff is found to lack
standing
at any point
in the case, the action must be remanded.
See Gonzalez
,
Where the district court has “original jurisdiction” . . . the case is removable and our inquiry ends. Only at the next step, when we ask whether the case should be remanded, need we address questions of standing and other aspects of “subject matter jurisdiction.” Compare 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed ....” (emphasis added)), with id. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” (emphasis added)).
Lee
,
Because the Plaintiffs have challenged their own standing, the Court must—as always—
address that issue now.
See Bochese
,
III. Standing
Having disposed of the preliminary procedural issues, the Court must now decide whether
the Plaintiffs have standing to pursue their claim. As discussed, in conducting this inquiry, the
Court may not consider assertions the Plaintiffs may have made in pleadings they have now
abandoned.
See Lowery
, 483 F.3d at 1219–20. And, other than the now-abandoned original
complaint, the Defendants have introduced
no evidence
of the Plaintiffs’ standing. Again, as the
party invoking this Court’s jurisdiction, it was
their
burden to establish that standing.
See Dart
Cherokee
,
In any event, the Plaintiffs are right that
Salcedo
controls the decision here. In
Salcedo
, the
plaintiff sued the defendant under the TCPA, alleging that he had received a “multimedia text
message from Hanna [a Florida attorney] offering a ten percent discount on his services.”
Salcedo
,
The court added that the text message Salcedo received did not cause any other harm either. It did not, for example, prevent the plaintiff from using his phone. See id. The plaintiff’s phone could, after all, “continue to use all of the device’s functions, including receiving other messages, while it is receiving a text message.” Id. And, the court added, an unconsented text message differs in kind from an unwanted phone call or junk fax—both of which would confer Article III standing. As the court explained:
Salcedo has not alleged anything like enjoying dinner at home with his family and having the domestic peace shattered by the ringing of the telephone. Nor has he alleged that his cell phone was searched, dispossessed, or seized for any length of time. Salcedo’s allegations of a brief, inconsequential annoyance are categorically distinct from those kinds of real but intangible harms. The chirp, buzz, or blink of a cell phone receiving a single text message is more akin to walking down a busy sidewalk and having a flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for invoking the jurisdiction of the federal courts. All told, we conclude that Salcedo’s allegations do not state a concrete harm that meets the injury-in-fact requirement of Article III.
Id. at 1172.
The
Salcedo
Court was careful to distinguish its unwanted text from the junk-fax scenario
presented in
Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A.
,
Notably,
Salcedo
did not turn on the fact that the plaintiff received only one text message.
Nor could it have. “Article III standing is not a ‘You must be this tall to ride’ measuring stick.”
Id.
at 1172. Put simply, “[t]here is no minimum quantitative limit required to show injury; rather, the
focus is on the qualitative nature of the injury, regardless of how small the injury may be.”
Saladin
v. City of Milledgeville
, 812 F.2d 687, 691 (11th Cir. 1987).
Salcedo
, in short, stands for the
proposition that, unless a complaint alleges some tangible or intangible harm, a TCPA plaintiff’s
receipt of unwanted text messages is, standing alone, insufficient to confer Article III standing.
With this principle in mind, the Court turns to the factual allegations of the operative
complaint. In it, the Plaintiffs do say that they “have standing to maintain this action because they
have suffered a legal injury as a result of Defendants’ violations of the TCPA.” Compl. ¶ 17;
see
also id
. ¶ 74 (“Plaintiffs and all Class Members have been impacted and harmed by the acts of
Defendants.”). But, as
Spokeo
teaches, the “invasion of a legally protected interest” is not enough
to establish injury in fact; the injury must also be “concrete and particularized.”
Spokeo
, 136 S. Ct.
at 1548;
see also Salcedo
,
Here, the Complaint never references any
tangible
harm the Plaintiffs may have suffered.
Nowhere, for example, does the Complaint allege that the Plaintiffs’ phone carriers
charged
them
for the text messages, or that they had to
pay
extra to store those messages. And, it goes without
saying, the Complaint’s allegations that the Plaintiffs “have standing,” that they “suffered a legal
injury,” and that they “were harmed by the acts of Defendants” are a far cry from the “concrete
and particularized” averments the Supreme Court required in
Spokeo
. Those allegations are, in
either case, conclusory—and are thus not entitled to the presumption of truth.
See Ashcroft v. Iqbal
,
The Plaintiffs likewise allege no intangible harm. Here, the focus of the inquiry is on wasted time. [3] See Resp. at 5. In Salcedo , the Eleventh Circuit observed that the complaint’s silence [3] The Defendants draw the Court’s attention to a separate—and quite novel—intangible harm they say the Plaintiffs suffered: battery depletion. See Resp. at 12. For this position, they cite two out- of-district decisions—one of which preceded Salcedo . See id. While the Defendants’ battery- depletion argument is, at first blush, alluring, there are two problems with it. First , the Plaintiffs make no mention of depleted battery power in their Complaint. Cf. FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231 (1990) (“It is a long-settled principle that standing cannot be ‘inferred on this question of “wasted time” doomed the plaintiff’s standing arguments. See Salcedo , 936 F.3d at 1168 (“In the absence of a specific time allegation, we decline to assume an equivalence to the facts of Palm Beach Golf when receiving a fax message is qualitatively different from receiving a text message.”). The Plaintiffs have alleged neither wasted time nor any other intangible harm in their Complaint. The Complaint never says, for example, that reviewing the text messages took an inordinate amount of time. Nor do the Complaint’s averments, taken together, suggest that each message took the Plaintiffs at least five seconds to read. Cf. id. at 1173 (noting that, in 47 U.S.C. § 227(d)(3)(B), the TCPA “instructs the FCC to establish telemarketing standards that include releasing the called party’s line within five seconds of a hang-up”). In fact, the Complaint does not even allege that the Plaintiffs ever read the messages at all .
Because the Plaintiffs have alleged neither a tangible nor an intangible injury in fact—and given that the Defendants have failed to adduce a single admissible piece of evidence to substantiate their standing contentions—the Court finds that the Plaintiffs lack standing to pursue their TCPA claims in federal court.
IV. Remand This is the odd case in which the Plaintiffs insist that the Defendants’ wrongful actions did not harm them—even as the Defendants maintain that they have. In their papers, the Defendants hone in on this peculiarity and suggest—not without cause—that the Plaintiffs are propagating a argumentatively from averments in the pleadings,’ but rather ‘must affirmatively appear in the record.’” (citations omitted)). And the Defendants point to no evidence of battery depletion anywhere in the record. Second , on this record, the Court cannot say that the text messages, in fact, caused any such depletion. If, for instance, the Plaintiffs’ phones were charging—or turned off— when they received the offending text messages, those messages would have caused no depletion at all. The Defendants’ battery-depletion theory—though clever—is thus insufficient to establish the Plaintiffs’ standing.
clever ruse in the hopes of “circumvent[ing] federal jurisdiction.” Resp. at 12. As redress, the Defendants urge the Court to deny the Plaintiffs’ Motion to Remand, see id. ; to permit jurisdictional discovery, see id. at 12–13; and to dismiss the Complaint, see generally Motion to Dismiss [ECF No. 8].
But, when—as here—a plaintiff lacks standing, “a court is not free to opine in an advisory
capacity about the merits of a plaintiff’s claims.”
Warth
,
[T]he constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or, in this case, a federal statute.
Id.
“In the scheme of the Constitution, [the states] are the primary guarantors of constitutional
rights, and in many cases they may be the ultimate ones.” H. Hart,
The Power of Congress to Limit
the Jurisdiction of Federal Courts: An Exercise in Dialectic
, 66 H ARV . L. R EV . 1362, 1401 (1953).
Ins. Corp.
,
[T]he defendant, by removing the action, has represented to the court that the case belongs before it. Having made this representation, the defendant is no less subject to Rule 11 than a plaintiff who files a claim originally. Thus, a defendant that files a notice of removal prior to receiving clear evidence that the action satisfies the jurisdictional requirements, and then later faces a motion to remand, is in the same position as a plaintiff in an original action facing a motion to dismiss. The court should not reserve ruling on a motion to remand in order to allow the defendant to discover the potential factual basis of jurisdiction. Such fishing expeditions would clog the federal judicial machinery, frustrating the limited nature of federal jurisdiction by encouraging defendants to remove, at best, prematurely, and at worst, in cases in which they will never be able to establish jurisdiction.
Lowery
,
Finally, the Defendants’ request for dismissal is denied as moot. Even in federal-question
cases, when the Court in a removed case lacks standing, it should
remand
the action—not
dismiss
it.
See, e.g.
,
Mcgee
,
***
The Defendants removed this case to federal court under 28 U.S.C. § 1446. In doing so, they invoked this Court’s federal-question jurisdiction under 28 U.S.C. § 1331. Although the Defendants did not have to plead the Plaintiffs’ standing in their Notice of Removal, they must establish that standing now by a preponderance of the evidence. Because they have failed to do so, “it appears that the district court lacks subject matter jurisdiction,” and “the case shall be remanded.” 28 U.S.C. § 1447(c).
Accordingly, the Court hereby
ORDERS AND ADJUDGES as follows:
1. The Plaintiffs’ Motion to Remand [ECF No. 9] is GRANTED . This Court lacks subject-matter jurisdiction to hear this case.
2. This case is REMANDED to the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida.
3. The Clerk of Court is directed to CLOSE this case. Any pending motions are DENIED AS MOOT .
DONE AND ORDERED in Fort Lauderdale, Florida this 10th day of July 2020. _________________________________ ROY K. ALTMAN UNITED STATES DISTRICT JUDGE cc: counsel of record
Notes
[1] The Defendants removed the case solely under 28 U.S.C. § 1331. Nowhere in their Notice of Removal, in other words, did the Defendants mention any other jurisdiction-conferring statute.