Opinion
No. CV-18-08140-PCT-DWL
12-28-2018
Kimberly Driesen, on behalf of herself and all others similarly situated, Plaintiff, v. RSI Enterprises Incorporated, Defendant.
ORDER
Kimberly Driesen ("Driesen") alleges that she received a voicemail on February 27, 2018 at 10:12 a.m. that provided as follows: "We have an important message from RSI Enterprises. This call is from a debt collector. Call 602-627-2301. Thank you." (Doc. 1 ¶¶ 21-22.) In this lawsuit, Driesen asserts a claim against RSI under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Specifically, Driesen alleges that RSI "violated 15 U.S.C. § 1692e(11) by failing to disclose in its initial communication with [her] that the communication was an attempt to collect a debt and any information obtained would be used for that purpose." (Doc. 1 ¶ 56.) RSI has, in turn, moved to dismiss under Rule 12(b)(6) on the ground that its alleged failure to comply with § 1692e(11) was immaterial. (Doc. 16.)
Before addressing RSI's motion to dismiss, the Court must assure itself that Driesen has standing, which is a prerequisite to jurisdiction. Moore v. Maricopa Cty. Sheriff's Office, 657 F.3d 890, 895 (9th Cir. 2011) ("[T]he Supreme Court has specifically instructed that a district court must first determine whether it has jurisdiction before it can decide whether a complaint states a claim."). Here, the complaint seems to allege that a debt collector causes a constitutionally-cognizable injury whenever it violates the FDCPA. (Doc. 1 ¶¶ 4-5). On the one hand, this assertion seems difficult to reconcile with the Supreme Court's holding in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), that "Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right," that "Article III standing requires a concrete injury even in the context of a statutory violation," and that a plaintiff therefore cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id. at 1549. On the other hand, it nevertheless appears that "the overwhelming majority of district courts to address standing in FDCPA cases have . . . rejected defendants' post-Spokeo standing challenges." Byrne v. Oregon One, Inc., 2017 WL 3568412, *4 (D. Or. 2017), report and recommendation adopted, 2017 WL 3568398 (D. Or. 2017).
Accordingly, IT IS ORDERED that the parties submit supplemental briefs on the following issue: whether Driesen has standing to pursue the claim asserted in her complaint. The deadline for the parties to submit simultaneous briefs on this issue shall be Friday, January 11, 2019. No responses or replies to the supplemental briefs are permitted. Each brief shall not exceed 7 pages in length.
Dated this 28th day of December, 2018.
/s/_________
Dominic W. Lanza
United States District Judge