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Mix v. Ocwen Loan Servicing, Inc.

United States District Court, W.D. Washington, Seattle

November 17, 2017

WILLIAM MIX, Plaintiff,




         Before 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, [1] the court GRANTS in part and DENIES in part Ocwen's motion to dismiss or to stay for the reasons set forth below.


         This 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personal and professional life, ” including his ability to use his cell phone; causing him to become depressed and withdrawn; and intruding upon his relationships with “close family members.”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.)

         Based 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.)

         III. ANALYSIS

         Ocwen 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.).

         Because 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.

         A. Standing

         “Article III of the Constitution limits federal courts' jurisdiction to certain ‘Cases' and ‘Controversies, '” which requires a plaintiff to have standing.[2] 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).

         “The 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. Cal. 2014).

         Ocwen 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.)

         To 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].”[3] 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.

         Since 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.”[4] 199 F.Supp.3d at 1265.

         However, 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 calls.”).

         Here, 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 denies ...

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