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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-15026
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-24364-MGC
MARIAM GRIGORIAN,
Plaintiff - Appellant,
versus
FCA US LLC,
a Michigan Limited Liability Company,
Defendant - Third Party Plaintiff - Appellee,
MUDD, INC.,
Third Party Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 9, 2020)
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Before MARTIN, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Mariam Grigorian appeals from the district court’s order dismissing her case
for lack of standing. Grigorian filed this action under the Telephone Consumer
Protection Act (“TCPA”) on behalf of a class of similarly situated people, alleging
that the prerecorded message transmitted on behalf of FCA US, LLC (“FCA”) to
the voice mailbox on her cell phone violated the TCPA. After careful review, we
affirm.
I.
FCA manufactures motor vehicles and sells those vehicles to dealerships. In
2018, FCA contracted with a third party to transmit prerecorded calls to consumers
to advertise FCA’s Chrysler Pacifica Hybrid minivan. Pursuant to this agreement,
Grigorian’s and the putative class members’ cellular telephone numbers were
purchased from a third party to use in advertising FCA’s vehicles. On July 17,
2018, Grigorian received the following prerecorded voicemail message on her cell
phone:
On behalf of Chrysler brand headquarters with some
exciting information about the new Chrysler Pacifica
Hybrid during Chrysler’s summer clearance event.
Alternative fuel vehicle owners are eligible to receive an
additional $1000 bonus cash above and beyond all
current manufacturer and dealer incentives. This $1000
bonus cash is applicable to the lease or purchase of the
new 2018 Chrysler Pacifica Hybrid. This incentive is
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available for a limited time so please do not delay. Visit
your closest Chrysler dealership and take advantage of
your additional $1000 bonus cash.
In addition to Grigorian, over 89,000 people received FCA’s prerecorded message.
Grigorian alleged that neither she nor any member of the putative class
consented to FCA contacting them via prerecorded marketing calls. The
prerecorded voicemails were delivered through what the industry calls a “ringless”
voicemail, meaning the ability to answer or block the phone call is bypassed
because the messages are automatically deposited into the recipient’s voice
mailbox. This technology operates like other automated processes for delivering
prerecorded messages in that the transmission consists of a landline-to-landline
connection between the text messaging platform and the cellular carrier’s short
message service center.
Grigorian filed this action on behalf of herself and all consumers who
received FCA’s prerecorded message solicitations. She alleged that FCA’s
unsolicited and prerecorded message caused her harm, including invasion of her
privacy, aggravation, annoyance, and intrusion on seclusion. As a result of this
harm, Grigorian sought injunctive relief and an award of statutory damages, as
well as any legal or equitable remedies available as a result of FCA’s TCPA
violations.
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FCA repeatedly argued that Grigorian lacked standing throughout the district
court proceedings. In its motion to dismiss Grigorian’s amended complaint, which
was filed after the parties engaged in discovery, FCA again argued Grigorian
lacked standing and submitted evidence to support the argument. Though it
framed its argument as one under Rule 12(b)(6), FCA explained that it was
asserting a “factual attack,” such that the district court must look beyond the
pleadings to evidence in the record. This motion was pending when FCA moved
for summary judgment on several grounds, including lack of standing. But, after
submitting its summary judgment motion, FCA withdrew the motion to dismiss,
explaining that those issues and arguments presented had been subsequently
submitted “on a more-complete factual record via its motion for summary
judgment.”
The district court then held a hearing on standing. At the hearing, the
district court noted that “I don’t think either of you filed a motion on this issue
related to standing.” FCA, however, explained that the issue was raised in the
summary judgment motion pending before the court. At the end of the hearing, the
district court found Grigorian suffered “no concrete injury despite what might be
seen as a technical violation of the statute.” It then entered an order dismissing the
case without prejudice. Grigorian timely appealed.
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II.
Whether Grigorian lacked standing is dispositive of all issues raised in
relation to the dismissal of her complaint. A plaintiff bears the burden of
establishing she has standing. City of Miami Gardens v. Wells Fargo & Co.,
956
F.3d 1319, 1320 (11th Cir. 2020) (William Pryor, J., respecting the denial of
rehearing en banc). “[T]hat burden increase[s] with the successive stages of
litigation: although mere allegations suffice[] at the pleading stage, actual evidence
[is] required to withstand summary judgment.”
Id. Article III standing has three
elements: the plaintiff must have “(1) suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.’” Hallums v. Infinity Ins. Co.,
945 F.3d
1144, 1147 (11th Cir. 2019) (quoting Spokeo, Inc. v. Robins, 578 U.S. ___,
136 S.
Ct. 1540, 1547 (2016)). We review de novo the district court’s determination that
a plaintiff lacked standing. BBX Capital v. Fed. Deposit Ins. Corp.,
956 F.3d
1304, 1312 (11th Cir. 2020) (per curiam).
The injury-in-fact element is the “first and foremost” of the Article III
requirements. Hallums, 945 F.3d at 1147 (quotation marks omitted). To establish
injury in fact, Grigorian must show that she “suffered an invasion of a legally
protected interest that is concrete and particularized and actual or imminent, not
conjectural or hypothetical.” Id. (quotation marks omitted). FCA’s theory is that
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Grigorian alleged only a “bare procedural violation” of the TCPA, which is not
sufficiently concrete to constitute an injury-in-fact.
To support that she has standing, Grigorian pointed to excerpts from her
deposition testimony, among other things. Grigorian testified that she first became
aware of the voicemail while she was studying for the Florida bar exam. She did
not remember hearing her phone ring or hearing a sound to indicate she had a
voicemail; rather, she saw the number 1 next to the voicemail icon. Grigorian said
her phone was still able to receive data and calls, but she was not able to use her
phone or access any other applications while she was listening to the voicemail.
She did not incur any financial loss as a result of the voicemail. But she did incur a
loss of time—Grigorian said she had to stop studying in order to listen to the
voicemail, and she spent time afterwards trying to figure out how her information
was obtained and why she was being called.
To determine if these facts support a concrete injury, we must review our
TCPA precedent. See Bochese v. Town of Ponce Inlet,
405 F.3d 964, 976 (11th
Cir. 2005) (recognizing that standing “often turns on the nature and source of the
claim asserted” (quotation marks omitted)). Under the TCPA, we have held that a
plaintiff suffers an injury in fact when she receives an unwanted fax that occupies
the fax machine during the time the unwanted fax is being sent and shoulders the
cost of printing the unsolicited fax. See Florence Endocrine Clinic, PLLC v.
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Arriva Medical, LLC,
858 F.3d 1362, 1366 (11th Cir. 2017). And, like a fax, an
unwanted phone call is intrusive—in some ways more intrusive, “since a ringing
phone requires immediate attention,” and the recipient of the call “may also bear
the cost of telephone minutes.” Cordoba v. DIRECTV, LLC,
942 F.3d 1259,
1269–70 (11th Cir. 2019). Thus, because an unwanted call “uses some of the
phone owner’s time and mental energy, both of which are precious,” the recipient
of “more than one unwanted telemarketing call” has suffered an injury under the
TCPA.
Id. (quotation marks omitted); see also Glasser v. Hilton Grand Vacations
Co., LLC,
948 F.3d 1301, 1305–06 (11th Cir. 2020) (holding that plaintiffs who
received “over a dozen unsolicited phone calls to their cell phones” established
injury-in-fact).
However, this Court has also recognized that receiving a single text message
does not cause the recipient to incur tangible costs as in the case of receiving a fax.
See Salcedo v. Hanna,
936 F.3d 1162, 1167–68 (11th Cir. 2019). But we have
recognized that intangible costs, such as the loss of time and unavailability of the
device, may suffice to show standing. See
id. at 1167–68 (distinguishing one text
message from one fax in Palm Beach Golf Center-Boca, Inc. v. John G. Sarris,
DDS, PA,
781 F.3d 1245, 1252 (11th Cir. 2015)). In its analysis, Salcedo treated
loss of time separate from the unavailability of the device. See id. at 1168.
However, Salcedo relied on Palm Beach Golf Center, which considered the loss of
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time and unavailability as one and the same. 1 See Palm Beach Golf Center, 781
F.3d at 1250–52 (holding that plaintiff lost one available minute to receive
legitimate faxes while an unwanted fax occupied the machine).
Here, Grigorian has provided facts that she lost personal time listening to the
voicemail. She has not, however, provided facts to show that the single
prerecorded voicemail rendered her phone unavailable to receive legitimate calls or
messages for any period of time. Without more, we cannot say that she met her
burden to show she had standing, particularly in light of this Court’s holdings in
Palm Beach Golf Center and Salcedo. 2 And because “this court lacks the power to
create jurisdiction by embellishing a deficient allegation of injury,” we must leave
in place the district court’s dismissal of Grigorian’s case.3 See Bochese,
405 F.3d
at 976 (quotation marks omitted).
1
In Palm Beach Golf Center, this Court agreed with the plaintiff’s theory that “the specific
injury targeted by the TCPA is the sending of the fax and resulting occupation of the recipient’s
telephone line and fax machine.” 781 F.3d at 1250 (emphasis added). We held that the plaintiff
had Article III standing because the injury took “the form of the occupation of its fax machine
for the period of time required for the electronic transmission of the data (which, in this case,
was one minute).” Id. at 1251. This one-minute transmission occupied the plaintiff’s fax
machine and rendered it “unavailable for legitimate business messages.” Id. at 1252 (quotation
marks omitted) (alteration omitted)).
2
This analysis may be different if a plaintiff alleges multiple ringless voicemails. See Salcedo,
936 F.3d at 1174 (Jill Pryor, J., concurring in judgment) (noting that Salcedo “leaves
unaddressed whether a plaintiff who alleged that he had received multiple unwanted and
unsolicited text messages may have standing to sue under the TCPA”).
3
The parties argue over whether a “ringless” prerecorded voicemail is a call covered by the
TCPA. However, because we may affirm on any ground that is supported by the record, we
decline to reach this issue.
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III.
The only remaining issue is whether the district court erred by dismissing
Grigorian’s Rule 59 motion, in which she sought leave to amend her complaint.
Grigorian admits that the district court dismissed her complaint without prejudice,
but says because the order directed the clerk to close the case, she believed that
order was a final and appealable order and thus submitted a notice of appeal.
Unfortunately for Grigorian, our precedent requires us to conclude that she
waived any right to amend her complaint when she filed her notice of appeal. See
Briehler v. City of Miami,
926 F.2d 1001, 1002–03 (11th Cir. 1991) (per curiam)
(holding that when a plaintiff has the choice of either pursuing a permissive right
to amend a complaint after dismissal or appealing the order, she waives her right to
amend upon filing a notice of appeal). And, because she waived the right to
amend, “there is nothing left for the district court to do”; the dismissal order
becomes final and the district court is stripped of jurisdiction. See
id. at 1003. For
that reason, the district court did not err in denying Grigorian’s Rule 59 motion.
AFFIRMED.
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