Hi TCPAWorld! The Baroness here. We have an interesting and fun case today.

Let’s dive in.

Doriz Fontanez allegedly received at least one unsolicited text message from Wolverine World Wide, Inc. and sued on behalf of herself and others similarly situated for violations of the FTSA. Doris Fontanez v. Wolverine World Wide, Inc., No. 8:22-CV-2538-KKM-TGW, 2022 WL 17959844 (M.D. Fla. Dec. 27, 2022).

Fontanez filed the putative class action in state court and Wolverine removed the case to federal court—the Middle District of Florida—under the Class Action Fairness Act. Fontanez now sought to remand the action back to state court.

The law.

The party removing a case to federal court bears the burden of establishing subject matter jurisdiction. See Mack v. USAA Cas. Ins. Co., 994 F.3d 1353, 1356 (11th Cir. 2021).

To demonstrate standing, the party invoking federal jurisdiction must prove three elements: the plaintiff must have suffered an injury in fact, the defendant must have caused that injury, and a favorable decision must be likely to redress it. Lujan, 504 U.S. at 560–61. (We should all know Lujan by now)

As to the first element, an injury in fact means “an invasion of a legally protected interest” that is both “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” The Court cited to Spokeo and stated the injury must be “real” and not “abstract.”

The Court noted that that applying this test to an alleged violation of the TCPA, the Eleventh Circuit has held that “history and the judgment of Congress do not support finding concrete injury” for receipt of a single unsolicited text message. Salcedo v. Hanna, 936 F.3d 1162, 1165, 1172 (11th Cir 2019).

Indeed, “[t]he 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.” Id. at 1172.

The Court found that Wolverine, as the removing party, failed to demonstrate Fontanez suffered an injury in fact. The Court stated, the facts in this case mirror that in Salcedo and “[i]f a single text message did not constitute a concrete injury under the federal statute, it cannot constitute a concrete injury under a state law analog.”

The Court goes further to state even if Fontanez received a handful of unsolicited text messages, she would still lack a concrete injury. Because the Court lacked subject matter jurisdiction over Fontanez’s claims, the Court remanded the case back to state court.

So, it appears that Salcedo still remains good law in the Eleventh Circuit. But interestingly here, the standing analysis worked against Wolverine on the motion to remand. Typically, we see defendant’s using Salcedo to their advantage on a motion to dismiss. It’ll be interesting to see now what happens at the state court level.

We will of course keep you updated TCPAWorld!