Third DCA
Pet Supermarket, Inc. v. Eldridge
3d DCA
5/10/23
Topics: Class Action; Motion to Dismiss; Standing
Eldridge visited a Pet Supermarket store in December 2017 in Miami, Florida. During the visit, Eldridge learned about the store’s promotion in which customers could text the word “PETS” to the short code “65047” and be entered into a contest to win free dog food for a year. Eldridge gave his phone to one of Pet Supermarket’s employees, who texted “PETS” from Eldridge’s phone to the short code. He began receiving ads for the business via text, and all the texts included “Reply STOP to end.”
Eldridge filed a putative class action against Pet Supermarket in the Southern District of Florida alleging a violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b), which is a federal statute prohibiting use of “automatic telephone dialing systems to call residential or cellular telephone lines without the consent of the called party.”
The federal district court dismissed Eldridge’s complaint for lack of standing, finding that under binding authority from the United States Eleventh Circuit Court of Appeals in Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019), Eldridge’s allegations of loss of privacy, wasted time, and intrusion upon seclusion did not constitute a concrete injury in fact for Article III standing purposes.
Eldridge refiled in state court, filed as a class action, and alleged that the texts essentially destroyed his “domestic peace” and peace of mind with their frequency. Pet Supermarket opposed the class certification and moved for summary judgment based on lack of standing. Eldridge responded that Florida’s standing requirements had a lower bar than the Eleventh Circuit’s and that his new allegations—the allegations of disruptions to domestic peace—would even pass the federal test.
The trial court denied summary judgment, and Pet Supermarket appealed. The DCA agreed that Florida does have lower standing requirements than federal court even when addressing a federal statute. The DCA disagreed, however, that a plaintiff does not need to allege an actual injury to have standing in Florida court.
The DCA observed that there are three requirements that constitute the “irreducible constitutional minimum” for standing. First, a plaintiff must demonstrate an “injury in fact,” which is “concrete,” “distinct and palpable,” and “actual or imminent.” Second, a plaintiff must establish “a causal connection between the injury and the conduct complained of.” Third, a plaintiff must show “a ‘substantial likelihood’ that the requested relief will remedy the alleged injury in fact.”
The DCA then stated that Florida courts look to three familiar concepts—injury, causation, and redressability—to assess a plaintiff’s standing. Under these concepts, a plaintiff first must identify an actual or imminent injury that is concrete, distinct, and palpable. Furthermore, within the context of a class action claim, the class representative must illustrate that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the existence of the litigation. A case or controversy exists if a party alleges an actual or legal injury. If it is shown that the plaintiff who seeks class certification suffered no injury and, thus, has no cause of action against the defendant, the class should not be certified.
The DCA then stated that when a defendant merely violates a statute but the violation does not result in actual harm, there is no standing. Instead, for a statutory violation to matter, plaintiffs apparently have to prove that the statutory violation would ALSO violate some well established tort.
Eldridge argued that if violation of the statute was not enough to confer standing, his allegations that the texts intruded upon his seclusion were sufficient to allege an injury. The tort of “intrusion upon seclusion” or “invasion of privacy” requires that there is a reasonable expectation of privacy either physically or electronically. The intrusion must invade a private place, not just a private activity. The intrusion also must be one that would be highly offensive to a reasonable person. It must involve unacceptable conduct to a person with ordinary sensibilities. It has to go beyond all possible bounds of decency.
Here, there was only one allegation that could constitute an intrusion on his private space, but there were no facts that could constitute “highly offensive” instruction. Eldridge’s receipt of one text message while at home, during the weekend, simply does not rise to the level of outrageousness required for an invasion of privacy, i.e., that it is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency,” and therefore, Eldridge’s alleged statutory injury was not akin to Florida’s common law harm of intrusion upon seclusion. Thus, Eldridge had not alleged a concrete injury, and does not have standing on this basis either. Reversed and remanded with instructions to decertify the class and dismiss the complaint.
https://supremecourt.flcourts.gov/content/download/868396/opinion/211174_DC13_05102023_ 100750_i.pdf
Terry P. Roberts
Terry@YourChampions.com
Director of Appellate Practice Fischer Redavid PLLC
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