USCA11 Case: 21-14045 Date Filed: 11/29/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14045
____________________
COY EVANS,
JEFFREY ADAMS,
BERNARD BROWN,
ALBERT DUDLEY,
MICHAEL GIELLO, et al.,
Plaintiffs-Appellants,
versus
OCWEN LOAN SERVICING, LLC,
Defendant-Appellee.
____________________
USCA11 Case: 21-14045 Date Filed: 11/29/2022 Page: 2 of 4
2 Opinion of the Court 21-14045
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-81394-RLR
____________________
Before BRANCH and GRANT, Circuit Judges, and SCHLESINGER,∗
District Judge.
PER CURIAM:
This appeal arises under the Telephone Consumer
Protection Act,
47 U.S.C. § 227 (“TCPA”). Plaintiffs allege that
Ocwen Loan Servicing, LLC, violated the TCPA by calling them
using an automatic telephone dialing system (“ATDS”), which is
prohibited under the TCPA. 47 U.S.C § 227(b)(1)(A). The district
court dismissed plaintiffs’ claims for failure to state a claim,
concluding that Ocwen’s dialing system was not an ATDS under
the TCPA. Plaintiffs then appealed the district court’s dismissal to
this Court.
Upon review, we have discovered a significant jurisdictional
issue unaddressed by the district court—whether Article III
standing exists in this case. Article III of the Constitution
empowers federal courts to decide “Cases” or “Controversies.” To
have standing to bring a claim under Article III, a plaintiff must
∗ Honorable Harvey E. Schlesinger, United States District Judge for the
Middle District of Florida, sitting by designation.
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21-14045 Opinion of the Court 3
have suffered a concrete injury. Lujan v. Defs. of Wildlife,
504 U.S.
555, 560 (1992).
In this context, we have stated that “[t]he receipt of more
than one unwanted telemarketing call . . . is a concrete injury that
meets the minimum requirements of Article III standing.” Glasser
v. Hilton Grand Vacations Co., LLC,
948 F.3d 1301, 1306 (11th Cir.
2020) (quoting Cordoba v. DIRECTV, LLC,
946 F.3d 1259, 1270
(11th Cir. 2019)). These decisions make it clear that more than one
call is a concrete injury that confers standing, but neither Glasser
nor Cordoba address whether a single call is sufficient to confer
standing. Thus, the resolution of the standing question could differ
depending on how many calls each plaintiff is alleged to have
received.
Plaintiffs’ operative complaint alleges that each plaintiff
received a varying amount of calls from Ocwen. For eight of the
sixteen plaintiffs, the exact number of calls received is explicitly
stated in the complaint, ranging from 27 calls to 877 calls.
However, for the other eight plaintiffs, the complaint states that
the “[e]xact number of calls is not confirmed at this point.” This
language is ambiguous. For any of these plaintiffs, the “exact
number of calls” they received could be zero, one, or more than
one. Each of these scenarios would potentially present a different
resolution to the standing issue.
Because we cannot ascertain from the allegations in the
operative complaint how many calls each of those eight plaintiffs
received, and because additional briefing would not resolve this
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4 Opinion of the Court 21-14045
issue, we vacate the dismissal and remand this case to the district
court for a ruling on the issue of Article III standing in the first
instance. Remand is appropriate where, as here, the record before
us is incomplete and the question of standing was not litigated
before the district court. See Steele v. Nat’l Firearms Act Branch,
755 F.2d 1410, 1415 (11th Cir. 1985). Once the standing issue is
resolved, the district court may then reissue its decision (or rule
otherwise as it seems fit), and an appeal may again follow.
VACATED and REMANDED.
