Weitz v. Genting New World LLC

• Decision Date: 28 February 2023
• Docket Number: 1:22-cv-23209-BLOOM
• Parties: BRANDON WEITZ, individually and on behalf of all others similarly situated, Plaintiff, v. GENTING NEW WORLD LLC, doing business as RESORTS WORLD BIMINI, Defendant.
• Court: U.S. District Court — Southern District of Florida

1

BRANDON WEITZ, individually and on behalf of all others similarly situated, Plaintiff, v. GENTING NEW WORLD LLC, doing business as RESORTS WORLD BIMINI, Defendant.

No. 1:22-cv-23209-BLOOM

United States District Court, S.D. Florida

February 28, 2023

ORDER ON MOTION TO DISMISS

BETH BLOOM UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant Genting New World LLC d/b/a Resorts World Bimini's Motion to Dismiss (“Motion”), ECF No. [23]. Plaintiff Brandon Weitz filed a Response, ECF No. [30], to which Defendant filed a Reply, ECF No. [36]. The Court has carefully considered the Motion, the Response, the Reply, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is denied as moot and the Court remands this action to the state court.

I. BACKGROUND

Plaintiff commenced this case by filing a Class Action Complaint in state court asserting claims against Defendant for violation of the Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059. See ECF No. [1-1] (“Complaint”). Defendant removed the case to this Court on October 3, 2022, under the Class Action Fairness Act, 28 U.S.C.§ 1332(d). ECF No. [1]. In the Complaint, Plaintiff alleges that Defendant engages in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA. ECF No. [1-1] ¶ 3.^[1]More specifically, the Complaint alleges that Defendant sent a text message to the Plaintiff and other proposed members of the Class that reads “Celebrate Labor Day Weekend at Resorts World Bimini! We're hosting comedian Mario Ramil September 2-4. You're [sic] weekend stay includes; show tickets, round-trip transportation, hotel stay, and complimentary entry to Resorts World Bimini Beach. Book now at [redacted].” Id. ¶ 11. Plaintiff alleges that he received an unsolicited text message from Defendant without his consent. Id. ¶¶ 11, 29. Plaintiff's FTSA claim is premised upon Defendant using an automated system to send Plaintiff a text message and without Plaintiff's express written consent in violation of Florida Statute § 501.059(8)(a). Id. ¶¶ 42-49 (“Count I”). Plaintiff asserts his claim on behalf of himself and a putative class. See id. ¶ 13. The class is defined as “[a]ll persons in Florida who, (1) were sent a telephonic sales call regarding Defendant's goods and/or services, (2) using the same equipment or type of equipment utilized to call Plaintiff,” but not including Defendant and its employees or agents. Id. ¶¶ 32-33.

In the Motion, Defendant requests dismissal of the Complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6) and asserts certain constitutional challenges to the FTSA. Plaintiff responds that an FTSA violation is sufficiently alleged based upon the Complaint's inclusion of the content of the text message and the inferred purpose therein. Plaintiff further defends against the constitutional claims, arguing: (1) the FTSA survives intermediate scrutiny challenges to the First Amendment, (2) the FTSA is not unconstitutionally vague, and (3) the FTSA does not violate the Dormant Commerce Clause. ECF No. [30]. Defendant replies that the FTSA does not apply to the text message at issue and reasserts its constitutional challenges. ECF No. [36].

While not addressed by the parties, the Court addresses the threshold issue of standing.

II. LEGAL STANDARD

A. Standing

“The jurisdiction of a court over the subject matter of a claim involves the court's competency to consider a given type of case, and cannot be waived or otherwise conferred upon the court by the parties. Otherwise, a party could work a wrongful extension of federal jurisdiction and give . . . courts power the Congress denied them.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (quoting Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 100001 (11th Cir. 1982)) (internal quotations omitted). Accordingly, “once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Id.; see also Miccosukee Tribe of Indians of Fla. v. United States, 698 F.3d 1326, 1332 (11th Cir. 2012) (“[E]very court has an independent duty to review standing as a basis for jurisdiction at any time, for every case it adjudicates.” (alteration in original) (quoting Fla. Ass' n of Med. Equip. Dealers v. Apfel, 194 F.3d 1227, 1230 (11th Cir. 1999))).

“Standing for Article III purposes requires a plaintiff to provide evidence of an injury in fact, causation and redress[a]bility.” Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “Because standing is jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1).” Cone Corp. v. Fla. Dep't of Transp., 921 F.2d 1190, 1203 n.42 (11th Cir. 1991). “If at any point in the litigation the plaintiff ceases to meet all three requirements for constitutional standing, the case no longer presents a live case or controversy, and the federal court must dismiss the case for lack of subject matter jurisdiction.” Fla. Wildlife Fed'n, Inc. v. S. Fla. Water Mgmt. Dist., 647 F.3d 1296, 1302 (11th Cir. 2011) (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1277 (11th Cir. 2006)). When a plaintiff lacks 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). In the context of removal, when a plaintiff lacks standing, a remand rather than dismissal is appropriate. See 28 U.S.C. § 1447(c); McGee v. Solic. Gen. of Richmond Cnty., Ga., 727 F.3d 1322, 1326 (11th Cir. 2013).

A plaintiff does not automatically demonstrate the first element of standing-the existence of an injury in fact-by demonstrating that a statutory right has been violated. See TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2205 (2021); Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 997 (11th Cir. 2020). “Article III standing requires a concrete injury even in the context of a statutory violation,” and a “bare procedural violation, divorced from any concrete harm” does not suffice. Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016); see also Hunstein v. Preferred Collection and Mgmt. Servs., 48 F.4th 1236, 1242 (11th Cir. 2022) (“A ‘bare statutory violation' is not enough, no matter how beneficial we may think the statute to be.”) (quoting Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 936 (11th Cir. 2020)).

B. Failure to state a claim

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration All., 304 F.3d 1076, 1084 (11th Cir. 2002). However, this tenet does not apply to legal conclusions, and courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” BellAtl. Corp. v. Twombly, 550 U.S. 554, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006).

III. DISCUSSION

While not raised by Defendant, the Court addresses whether Plaintiff has Article III standing. See Lujan, 504 U.S. at 560 (explaining that “the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III”). As stated, the Supreme Court has held that standing requires a concrete injury, id. at 560-61, and a bare statutory violation is not enough to constitute a concrete injury, see TransUnion, 141 S.Ct. at 2205 (rejecting the proposition that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right), see also Spokeo, 578 U.S. at 341 (“Article III standing requires a concrete injury even in the context of a statutory violation.”). The Court thus considers whether the Complaint's allegation that he received one unwanted text message advertising a vacation package at Defendant's resort describes a concrete injury.

The Eleventh Circuit has applied Spokeo and TransUnion to hold that the mere receipt of text messages in violation of a statute does not constitute a concrete injury. See Salcedo v. Hanna, 936 F.3d 1162, 1172-73 (11th Cir. 2019); see also Drazen v. Pinto, 41 F.4th 1354, 1362 (11th Cir. 2022) (the receipt of “a single unwanted text message is not sufficient to meet the concrete injury requirement for standing”). The holdings in Salcedo and Drazen thus apply in the FTSA context because the “requirement of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Salcedo, 936 F.3d at 1167 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009)). As such, a claim seeking relief for an FTSA violation based solely on the receipt of a single, unwanted text message is nonjusticiable. See Muccio v. Global Motivation, Inc., No. 22-81004, 2022 WL 17969922, at *2 (S.D. Fla. Dec. 27, 2022) (rejecting argument that standing analysis differs between claims under the FTSA and the Telephone Consumer Protection Act, 47 U.S.C. § 227, by explaining that injuries may not simply be legislatively enacted into existence (citing Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1243 (11th Cir. 2022))).

Here the Complaint alleges that Plaintiff received one text message, which reads: “Celebrate Labor Day Weekend at...