United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO DISMISS OR TO STAY
L. ROBART UNITED STATES DISTRICT JUDGE.
the court is Defendant Ocwen Loan Servicing, LLC's
(“Ocwen”) motion to dismiss Plaintiff William
Mix's amended complaint or to stay the case. (Mot. (Dkt.
# 24).) The court has considered the motion, the parties'
submissions in support of and in opposition to the motion,
the relevant portions of the record, and the applicable law.
Being fully advised,  the court GRANTS in part and DENIES in
part Ocwen's motion to dismiss or to stay for the reasons
set forth below.
case involves allegations that Ocwen used an automatic
telephone dialing system (“ATDS”) to call Mr.
Mix's cell phone at least 1, 346 times between 2011 and
2016 to collect a consumer debt. (Am. Compl. (Dkt. # 18)
¶¶ 28, 32, 35.) Mr. Mix alleges that he received
many of the calls after 9:00 p.m. (Id. ¶ 33.)
Mr. Mix asserts that even though as early as the fall of 2011
he expressly revoked any consent he had given for receiving
the calls, Ocwen continued to call Mr. Mix's cell phone.
(Id. ¶¶ 34, 36.) Mr. Mix alleges that the
calls negatively affected him by causing him frustration and
distress; disrupting his “daily activities and the
peaceful enjoyment of [his] personal and professional life,
” including his ability to use his cell phone; causing
him to become depressed and withdrawn; and intruding upon his
relationships with “close family members.”
(Id. ¶¶ 40-42.)
on these facts, Mr. Mix brings claims for (1) negligent
violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227 et seq.;
(2) knowing and/or willful violation of the TCPA; and (3)
negligence under Washington law. (Id. ¶¶
43-57.) He seeks statutory damages of $500.00 for each
negligent violation of the TCPA, statutory damages of $1,
500.00 for each knowing or willful violation of the TCPA, a
permanent injunction preventing Ocwen from further
communicating with him in a way that violates the TCPA,
common law damages, and attorneys' fees and costs.
(Id. at 9 (prayer for relief).) Mr. Mix asserts that
the statute of limitations is tolled on his negligence claim
based on a pending federal class action, Snyder v. Ocwen
Loan Servicing, LLC, No. 1:14-cv-8461 (N.D. Ill.).
(Id. ¶ 5.)
seeks dismissal of the complaint with prejudice under Federal
Rule of Civil Procedure 12(b)(6) or a stay of the action
pending the United States Circuit Court for the District of
Columbia's decision in ACA International v. Federal
Communications Commission, No. 15-1211 (D.C. Cir.)
(hereinafter, “ACA International”).
(Mot. at 1.) Ocwen argues that Mr. Mix's state law
negligence claim fails because it is time-barred
(id. at 4-6) and the TCPA does not provide a duty of
care for such a claim (id. at 6-7). Ocwen also
argues that Washington law does not allow punitive damages in
this instance. (Id. at 7-8.) Ocwen further argues
that Mr. Mix's TCPA claims fail because Mr. Mix fails to
allege a concrete injury related to Ocwen's use of an
ATDS. (Id. at 8-10.) Finally, Ocwen in the
alternative contends that the court should stay the case
because the D.C. Circuit will decide two issues
“central to this action”: (1) “whether
equipment constitutes an ATDS if it merely has the potential
to randomly or sequentially generate telephone numbers to be
dialed, ” and (2) “whether the [Federal
Communications Commission] unlawfully imposed an unworkable
regime for handling revocation of consent by ruling that any
revocation, whether verbal or written, would be sufficient so
long as it was ‘reasonable' under the
circumstances.” (Id. at 11.).
Ocwen challenges Mr. Mix's standing to assert a TCPA
violation-and therefore implicates the court's subject
matter jurisdiction-the court first addresses that issue.
III of the Constitution limits federal courts'
jurisdiction to certain ‘Cases' and
‘Controversies, '” which requires a plaintiff
to have standing. Clapper v. Amnesty Int'l USA,
568 U.S. 398, 407 (2013); see also Spokeo, Inc. v.
Robins, ___ U.S. ___, 136 S.Ct. 1540, 1547 (2016)
(“Standing to sue is a doctrine rooted in the
traditional understanding of a case or controversy.”).
To establish standing, a plaintiff must demonstrate three
elements: (1) a “concrete, particularized, and actual
or imminent” injury that is (2) “fairly traceable
to the challenged action” and (3) “redressable by
a favorable ruling.” Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 149 (2010). These requirements are
more succinctly referred to as injury, causation, and
redressability. Nw. Immigrant Rights Project v. United
States Citizenship & Immigration Servs., ___ F.R.D.
___, 2016 WL 5817078, at *6 (W.D. Wash. Oct. 5, 2016).
plaintiff, as the party invoking federal jurisdiction, bears
the burden of establishing these elements.”
Spokeo, 136 S.Ct. at 1547. When “a case is at
the pleading stage, the plaintiff must ‘clearly . . .
allege facts demonstrating' each element.”
Id. (quoting Warth v. Seldin, 422 U.S. 490,
518 (1975)). When a motion to dismiss attacks the court's
subject matter jurisdiction based on the face of the
complaint, “the court assumes the factual allegations
in the complaint are true and draws all reasonable inferences
in the plaintiff's favor.” City of L.A. v.
JPMorgan Chase & Co., 22 F.Supp.3d 1047, 1052 (C.D.
argues that Mr. Mix has not adequately pleaded a concrete
injury, instead alleging only a bare procedural violation.
(See Mot. at 8 (citing Ewing v. SQM US,
Inc., 211 F.Supp.3d 1289, 1292 (S.D. Cal. 2016);
Romero v. Dep't Stores Nat'l Bank, 199
F.Supp.3d 1256 (S.D. Cal. 2016)).) Mr. Mix counters that
“the Ninth Circuit has long recognized and affirmed the
TCPA's congressional purpose to protect telephone
consumers from the nuisance and privacy invasion of . . .
automated or prerecorded calls.” (Resp. at 10.)
establish an injury in fact, Mr. Mix must show that he
suffered “‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Spokeo, 136 S.Ct. at 1548
(quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)). An injury is concrete if it “actually
exist[s].” Id. Because of these
constitutional requirements, a plaintiff does not
automatically demonstrate an injury “whenever a statute
grants a person a statutory right and purports to authorize
that person to sue to vindicate that right.”
Id. at 1549.
the Supreme Court's ruling in Spokeo, a number
of courts in the Ninth Circuit have addressed what a
plaintiff must plead to allege a concrete injury in a TCPA
action. Ocwen relies on two of those cases-Ewing and
Romero. (See Mot. at 8.) In Ewing,
the court concluded that the plaintiff had not adequately
alleged a concrete injury because the defendants'
“use of an ATDS to dial [the plaintiff's] cellular
phone number” did not cause injury beyond what the
plaintiff “would have incurred had [the d]efendants
manually dialed his number, which would not have violated the
TCPA.” 211 F.Supp.3d at 1293. The court further stated
that the plaintiff “would have had to expend the same
amount of time answering and addressing [the d]efendants'
manually dialed telephone call and would have incurred the
same amount of battery depletion.” Id. The
court in Romero reached the same conclusion because
the plaintiff who asserted TCPA violations against a debt
collector “would have been no better off had [the
d]efendants dialed her telephone number
manually.” 199 F.Supp.3d at 1265.
a number of other courts in the Circuit-including this
court-have rejected that reasoning. See, e.g.,
DeClue v. United Consumer Fin. Servs. Co., No.
16cv2833 JM (JMA), 2017 WL 1400144, at *2 (S.D. Cal. Apr. 19,
2017) (“By relying almost exclusively on
Romero and Ewing, Defendant ignores the
overwhelming weight of authority that contradicts those
cases.”); Booth v. Appstack, Inc., No.
C13-1533JLR, 2016 WL 3030256, at *5 (W.D. Wash. May 25,
2016). Indeed, the vast majority of courts that have
addressed the question have concluded that invasion of
privacy, disruption of solitude and private life, and wasted
time dealing with the calls are concrete injuries. See
Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037,
1042 (9th Cir. 2017) (holding that “the telemarketing
text messages at issue here . . . present the precise harm
and infringe the same privacy interests Congress sought to
protect in enacting the TCPA” and stating that
“[u]nsolicited telemarketing phone calls or text
messages, by their nature, invade the privacy and disturb the
solitude of their recipients”); Abante Rooter &
Plumbing, Inc. v. Pivotal Payments, Inc., No.
16-cv-05486-JCS, 2017 WL 733123, at *7 (N.D. Cal. Feb. 24,
2017) (concluding that the plaintiff had sufficiently alleged
a concrete injury based on “an intrusion on [its]
occupation and capacity of its cell phones and waste of
time”); Quinones v. Ocwen Loan Servicing, LLC,
___F.3d ___, 2017 WL 4641083, at *2 (C.D. Cal. Oct. 16, 2017)
(holding that allegations of invasion of privacy,
frustration, distress, disruption of daily activities, and
intrusion on one's personal and professional lives are
“sufficiently concrete to confer Article III
standing”); see also Mey v. Got Warranty,
Inc., 193 F.Supp.3d 641, 644-45 (N.D. W.Va. 2016)
(describing intangible injuries from alleged TCPA violations
as invasion of privacy, intrusion upon the capacity of the
plaintiff's cell phone, wasting the plaintiff's time,
and causing a risk of personal injury from interruption and
distraction). In particular, this court has previously
determined that an alleged TCPA violation was sufficiently
concrete because it “required [p]laintiffs to waste
time answering or otherwise addressing widespread
robocalls.” Booth, 2016 WL 3030256, at *5.
Moreover, the Ewing and Romero decisions
are “draconian, ” making it “almost
impossible to allege a harm as a result of calls using an
ADTS.” See LaVigne v. First Cmty. Bancshares,
Inc., 215 F.Supp.3d 1138, 1143 (D.N.M. 2016)
(“Under Romero, it appears to be nearly
impossible for a plaintiff to allege a private right of
action under the TCPA for automated solicitation
Mr. Mix alleges that Ocwen's calls were a nuisance and
invasion of his privacy and caused him expense, frustration,
and distress. (Am. Compl. ¶¶ 20, 40-42.) Those
allegations sufficiently demonstrate a concrete injury in
fact for Article III standing. For this reason, the court