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Salcedo v. Hanna

United States Court of Appeals for the Eleventh Circuit

August 28, 2019, Decided

No. 17-14077

Opinion

 [*1165]  BRANCH, Circuit Judge:

Is receiving a single unsolicited text message, sent in violation of a federal statute, a concrete injury in fact that establishes standing to sue in federal court? To answer that question, we have examined the statute, our precedent, and—following the Supreme Court's guidance—history and the judgment of Congress, and we conclude that the allegations in this suit do not establish standing.

I. BACKGROUND

At 9:56 a.m. on August 12, 2016, John Salcedo, [**2]  a former client of Florida attorney Alex Hanna and his law firm,2 received a multimedia text message from Hanna offering a ten percent discount on his services.

Salcedo filed suit in the district court as the representative of a putative class of former Hanna clients who received unsolicited text messages from Hanna in the past four years, alleging violations of the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii).3 He sought, among other relief, statutory damages of $500 per text message and treble damages of $1,500 per text message sent willfully or knowingly. See 47 U.S.C. § 227(b)(3).

Hanna moved to dismiss the complaint for lack of standing, arguing in the alternative that it should be dismissed as to Mr. Hanna for failure to state a claim against him and that certain parts of the complaint should be stricken. The district court disagreed, finding in relevant part that Salcedo had standing under Mohamed v. Off Lease Only, Inc., No. 15-23352-Civ-COOKE/TORRES, 2017 U.S. Dist. LEXIS 41023, 2017 WL 1080342 (S.D. Fla. Mar. 22, 2017). However, finding that its order "involves a controlling question of law as to which there is a substantial ground for difference of opinion," the court allowed Salcedo to pursue an interlocutory appeal and stayed its proceedings pending appeal. A panel of our [**3]  Court granted Hanna's petition for permission to appeal under 28 U.S.C. § 1292(b). We now consider his appeal.

II. STANDARD OF REVIEW

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936 F.3d 1162 *; 2019 U.S. App. LEXIS 25967 **; 28 Fla. L. Weekly Fed. C 217; 2019 WL 4050424

JOHN SALCEDO, individually and on behalf of others similarly situated, Plaintiff - Appellee, versus ALEX HANNA, an individual, THE LAW OFFICES OF ALEX HANNA, P.A., a Florida Professional Association, Defendants - Appellants.

Prior History:  [**1] Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:16-cv-62480-DPG.

Salcedo v. Hanna, 2017 U.S. Dist. LEXIS 91337 (S.D. Fla., June 14, 2017)

CORE TERMS

text message, allegations, message, intrusion, concrete, telephone, fax, nuisance, injury in fact, cell phone, telemarketing, harms, unsolicited, privacy, chattel, phone, intangible, trespass, invasion of privacy, establish standing, cellular, federal court, qualitatively, residential, unavailable, consumers, invasion, machine, silence

Civil Procedure, Appeals, Standards of Review, De Novo Review, Preliminary Considerations, Justiciability, Standing, Antitrust & Trade Law, Consumer Protection, Telemarketing, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Communications Law, Regulated Entities, Telephone Services, Cellular Services, Governments, Legislation, Interpretation, Constitutional Law, The Judiciary, Jurisdiction, Separation of Powers, Case or Controversy, Standing, Injury in Fact, Elements, Personal Stake, Class Actions, Prerequisites for Class Action, Typicality, Class Members, Named Members, Burdens of Proof, Pleadings, Complaints, Requirements for Complaint, Standards of Review, Appellate Jurisdiction, Jurisdiction, Subject Matter Jurisdiction, Torts, Invasion of Privacy, Intrusions, Premises & Property Liability, Trespass to Real Property, Real Property Law, Nuisance, Types of Nuisances, Private Nuisances, Intentional Torts, Conversion, Dismissal, Involuntary Dismissals, Subject Matter Jurisdiction, Jurisdiction Over Actions