Mittenthal v. Fla. Panthers Hockey Club, Ltd.

• Decision Date: 10 July 2020
• Docket Number: CASE NO. 20-60734-CIV-ALTMAN/Hunt
• Citation: 472 F.Supp.3d 1211
• Parties: Eric MITTENTHAL, et al., Plaintiffs, v. FLORIDA PANTHERS HOCKEY CLUB, LTD., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

472 F.Supp.3d 1211

Eric MITTENTHAL, et al., Plaintiffs,

v.FLORIDA PANTHERS HOCKEY CLUB, LTD., et al., Defendants.

CASE NO. 20-60734-CIV-ALTMAN/Hunt

United States District Court, S.D. Florida.

Signed July 10, 2020

Filed July 14, 2020

David Philip Milian, Juan Jose Rodriguez, Ruben Conitzer, Carey Rodriguez Milian Gonya LLP, Miami, FL, Manuel Santiago Hiraldo, Hiraldo P.A., Fort Lauderdale, FL, Scott Adam Edelsberg, Edelsberg Law PA, Aventura, FL, for Plaintiffs.

Brandon T. White, Nicole Langesfeld, Sujey Scarlett Herrera, Edward Maurice Mullins, Reed Smith, LLP, Miami, FL, for Defendants Florida Panthers Hockey Club, Ltd., Jake Schreiber, David Brunson.

Brandon T. White, Nicole Langesfeld, Edward Maurice Mullins, Reed Smith, LLP, Miami, FL, for Defendant PHGP, LLC.

ORDER REMANDING CASE

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

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 Mittenthal 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 , 936 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. , 446 F.Supp.3d 1063, 1065–66 (S.D. Fla. Mar. 9, 2020) )). In opposing remand, the Defendants claim that they "are not required to allege Article III standing in their Notice of Removal," Opposition to Motion to Remand (the "Response") [ECF No. 17] at 1—and, even if they were, that "Article III standing is apparent on the face of the prior consolidated amended complaint," id. at 9.

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, 56 S.Ct. 780, 80 L.Ed. 1135 (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 , 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). Indeed, "[d]ue regard for the rightful independence of state governments, which should actuate federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits which the statute has defined." Healy v. Ratta , 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934). "Defendant's right to remove and plaintiff's right to choose his forum are not on equal footing; for example, unlike the rules applied when plaintiff has filed suit in federal court with a claim that, on its face, satisfies the jurisdictional amount, removal statutes are construed narrowly; where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand." Burns v. Windsor Ins. Co. , 31 F.3d 1092, 1095 (11th Cir. 1994).

"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, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quoting Mansfield, C. & L.M.R. Co. v. Swan , 111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462 (1884) ). Even when a party fails to raise the issue of subject-matter jurisdiction, its "delineations must be policed by the courts on their own initiative." Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 583, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (citations omitted); accord Fitzgerald v. Seaboard Sys. R.R., Inc. , 760 F.2d 1249, 1251 (11th Cir. 1985) ("A federal court not only has the power but also the obligation at any time to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises." (citation omitted)).

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 , 504 U.S. at 560, 112 S.Ct. 2130. Thus, standing is a "threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin , 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiff's claims." Bochese v. Town of Ponce Inlet , 405 F.3d 964, 974 (11th Cir. 2005).

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 , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) ; see also Lujan , 504 U.S. at 560, 112 S.Ct. 2130 (describing these three elements as the standing inquiry's "irreducible constitutional minimum").

Proving an "injury in fact" is, as the Supreme Court has said, "[f]irst and foremost" among these three elements. Steel Co. , 523 U.S. at 103, 118 S.Ct. 1003. "It is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing." Raines v. Byrd , 521 U.S....