A District Court judge in California has denied a defendant’s motion to dismiss after it was sued for allegedly violating the Telephone Consumer Protection Act by making one call — which was not answered — to a plaintiff’s cell phone.
A copy of the ruling in Shuckett v. DialAmerica can be accessed by clicking here.
The plaintiff has standing to file suit because even though the call was not answered, the nuisance of having her privacy invaded rises to a concrete injury under Spokeo v. Robins, Chief Judge Larry Alan Burns of the District Court for the Southern District of California.
In applying the precedent of Van Patten v. Vertical Fitness, in which the plaintiff received a single unsolicited text message and was granted standing to sue, Judge Brooks noted “there is no meaningful difference between an unanswered phone call and a text message. Neither requires an outlay of time or energy, but both ‘disturb the solitude of their recipients.’ The invasion of privacy caused by unwanted telemarketing calls is not diminished simply because a plaintiff chooses to decline the call.”
The defendant admits it made the one call, but argued that because the plaintiff did not pick up the phone, she could not have suffered an injury, an argument that Judge Brooks said “has certain administrative appeal — if you pick up the phone, you’ve suffered an injury; if you don’t pick up the phone, you haven’t.” Nonetheless, he decided against granting the motion to dismiss.