District Court Holds Article III Standing Allegation Not Required to Remove
As we have frequently discussed, Article III standing is a recurring issue in TCPA cases. The Southern District of Florida recently added to the precedent in this area when it denied a plaintiff’s motion to remand, holding that defendants did not need to concede plaintiff’s Article III standing in their notice of removal. Gonzalez v. TCR Sports Broadcasting Holding, LLP, No. 18-cv-20048, 2018 WL 4292018 (S.D. Fla. Sept. 10, 2018).
Plaintiff brought a class action suit in Florida state court against four corporate defendants, alleging that they violated the TCPA by sending advertising text messages using an ATDS without the recipients’ consent. Shortly after being served, one defendant removed the action to federal court, asserting in its notice that the other three defendants had consented. On the same day, two of the other defendants filed notices of consent to removal. The third defendant, however, did not file its consent notice until five days after the deadline for removal. The next day, plaintiff moved to remand to state court, arguing that the notice of removal was untimely due to the late notice of consent filing and that the notice of removal was deficient because it did not include allegations regarding plaintiff’s Article III standing.
The court rejected both arguments. After noting that at least one case in the Eleventh Circuit has held that a notice of removal can be timely and technically sufficient if one defendant’s counsel files the notice with the express permission to sign on behalf of the co-defendants, id. at *2 (citing Boone v. JP Morgan Chase Bank, 447 F. App’x 961, 963 (11th Cir. 2011)), the court first held that regardless of whether the notice was technically deficient, those deficiencies had been cured. The court found that pursuant to Eleventh Circuit precedent, “‘technical defect[s] related to the unanimity requirement may be cured by opposing a motion to remand prior to the entry of summary judgment.’” Id. (citation omitted). Here, all defendants opposed the motion to remand, and as a result, the court “decline[d] to remand [the] action based on the alleged technical deficiency in the notice of removal.” Id.
Second, the court held that the law “clearly [does] not . . . require” a notice of removal to contain allegations concerning plaintiff’s Article III standing. Id. Plaintiff relied on 28 U.S.C. § 1446(a)’s requirement of a “short plain statement of the grounds for removal,” i.e. a statement setting forth the basis for the federal court’s original jurisdiction, to argue that that defendants were required to allege – and thereby concede – that plaintiff had Article III standing “because standing is a ‘threshold jurisdictional question.’” Gonzalez, 2018 WL 4292018, at *2. According to plaintiff, the Supreme Court’s decision in Dart Cherokee Basin Operating Co. LLC v. Owens, 135 S. Ct. 547 (2014) “compels this result.” Gonzalez, 2018 WL 4292018, at *2. But the court found that plaintiff misapplied Dart Cherokee. That case involved a discussion of the allegations and proof needed in a notice of removal regarding an amount in controversy assertion. As the court observed, it did not concern Article III standing allegations, and “[t]ellingly, nowhere in its notice of removal in Dart Cherokee did defendants address plaintiff’s standing.” Id. Rather, the court found that Dart Cherokeeonly stands “for the proposition that a defendant must make a plausible jurisdictional allegation—that is, a plausible allegation of either federal question jurisdiction or diversity jurisdiction—in its notice of removal.” Id. Highlighting that “[t]he claims in this action are entirely based on federal statute,” the court concluded that, while plaintiff’s standing could later be challenged, the notice of removal “plausibly alleged federal question jurisdiction.” Id. As a result, it denied plaintiff’s motion to remand.
This decision emphasizes that the requirements for removal are straightforward. The court’s unwillingness to read an allegation of Article III standing into those requirements and refusal to litigate such standing at this early stage exemplify the significant challenges plaintiffs face in keeping TCPA cases out of the federal courts.