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The Trend Continues: Court Denies Pro Se Plaintiff’s Motion to Remand TCPA Case Based on Lack of Article III Standing

As the Baron reported last month, we’ve seen a recent trend in which plaintiffs have been using their own lack of Article III standing as a means to avoid federal jurisdiction. Yet again, we have another culprit… this time, a pro se plaintiff.

In Laccinole v. ADT LLC, No. 18-481 WES, 2018 U.S. Dist. LEXIS 171591 (D.R.I. Oct. 4, 2018), Defendant removed a TCPA case filed in Rhode Island state court, and filed an answer which included an affirmative defense generally asserting that Plaintiff “lacks standing to assert any claims against ADT.”  Plaintiff moved to remand the case arguing that Defendant “had no reasonable basis for removing this case,” because Defendant had asserted in its affirmative defenses that “the federal court never had jurisdiction over his claims.”  In response, however, Defendant clarified that its affirmative defenses “put into dispute Plaintiff’s statutory standing and his ability to identify a compensable injury, not Plaintiff’s Article III standing or this Court’s jurisdiction.”

The Court agreed, and held that the Defendant had otherwise properly removed the case since “Plaintiff’s Complaint expressly invokes the TCPA, and as such, it contains a ‘claim to relief’ that ‘rests upon a federal right.’”

Easy enough.  But let’s take a moment to take a closer look.  Did the Court implicitly acknowledge in its ruling that an affirmative defense based on a lack of Article III standing would be enough to send the case back down to state court?  Maybe.  But that’s probably reading too much into the ruling.  The more logical explanation here is that the Defendant’s disclaimer of any challenge based on a lack of Article III standing gave the court the easiest path to its ruling without having to touch the more elaborate issue of whether the mere assertion of a lack of Article III standing in an affirmative defense is enough to deprive the Court of federal jurisdiction.

But in any event, what the Laccinole case shows is that trend of using Article III standing as a sword to avoid federal jurisdiction is alive and well – and now has even been picked up by pro se plaintiffs!

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About this Author

Susan Nikdel, Womble, litigation attorney

Susan represents clients in commercial and financial services litigation, particularly Telephone Consumer Protection Act (TCPA) cases. She is part of a team that has handled more than 600 TCPA cases, including more than 50 national class actions.

Prior to beginning her legal career, Susan served as a Judicial Extern for the Honorable Theodor C. Albert in the U.S. Bankruptcy Court, Central District of California.  She is a Certified Mediator.

Susan is fluent in Farsi/Persian and conversational in Spanish.