As we discussed a couple of weeks ago, an NHL franchise recently argued to a federal court that its conduct of sending unwanted text messages definitely did cause harm to the recipients of the texts. As we explained at the time, this weird phenomenon occurred because the case law in federal court is quite favorable for TCPA defendants in certain jurisdictions, which may not be the case in state courts in the same forum. (Its weird technical procedural stuff that normal people don’t really need to worry about but that is critically important for TCPA class action litigators to understand.)

Well, another Defendant has recently suffered (?) the same fate of having a court conclude its conduct did not cause enough harm to allow the Defendant to stay in federal court.

In Jenkins v. Simply Healthcare Plans, Inc., CASE NO. 20-22677-CIV-ALTONAGA/Goodman, 2020 U.S. Dist. LEXIS 147433 (S.D. Fl. Aug. 17, 2020) the Defendant asked the federal court to exercise jurisdiction over a TCPA Plaintiff’s case involving unwanted text messages. The Plaintiff alleged receipt of only a single text from the Defendant and did not allege any particular harm stemming from the receipt of the message.

The Defendant, however, argued to the federal court that the text must have caused harm—exactly the opposite of what you’d expect a Defendant to argue in these cases. Again, however, the trick was to convince the Court that the case was essentially big enough to merit being made into a federal case. The Jenkins court disagreed and concluded that there was simply no evidence of concrete harm sufficient to keep the case and sent it back to state court.

The Court also declined to allow the Defendant’ discovery designed to prove—in true Bizarro-world fashion— that the Defendant had actually hurt the Plaintiff with its text message after all.

Fun stuff.