Defendant DialAmerica, a telemarketing company working on behalf of co-defendant American Standard, made one unanswered phone call to plaintiff Ariel Shuckett that she claimed violated the Telephone Consumer Protection Act (“TCPA”).
DialAmerica argued that Shuckett’s alleged harm—one missed telemarketing call—was insufficient to show any injury such that she had standing to bring her case. While the Court previously determined that Shuckett’s missed call was injury enough to constitute standing and bring suit, that finding was based on the premise that she was aware of the missed call at the time it occurred. The Court noted that whether she was aware of the call or not was important because unnoticed calls may “violate the TCPA but not cause any concrete injury.”
After reviewing the facts, the Court concluded that, at a minimum, the call went unanswered. More importantly, Shuckett testified at her deposition that she had no present recollection of her phone ringing on the day of the call. She also failed to submit any affirmative evidence demonstrating that she suffered a concrete injury as a result of DialAmerica’s single call.
While the Court explained that a missed call may be sufficient to confer standing if the plaintiff can demonstrate that he or she was aware of the call and it caused nuisance, it is not sufficient for a plaintiff to allege simply that he or she would have been aware of the call given what they were doing on that day. Thus, the injury that gives rise to standing must be “actual” and not “hypothetical”. Because Shuckett suffered no injury, the Court granted summary judgment for DialAmerica and American Standard and dismissed the case.
The case is Shuckett v. DialAmerica Mktg., No. 17-cv-2073-LAB (KSC) (S.D. Cal. July 30, 2019).