Steven Bell v. Redflex Traffic Systems Inc. ( 2010 )


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  •      Case: 09-40462     Document: 00511059739          Page: 1    Date Filed: 03/23/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    March 23, 2010
    No. 09-40462                      Charles R. Fulbruge III
    Summary Calendar                            Clerk
    STEPHEN BELL; TXPS, INC.; MOHAMMED AL MUSA
    Plaintiffs-Appellants
    v.
    REDFLEX TRAFFIC SYSTEMS, INC.
    Defendant-Appellee
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 4:08-CV-00444
    Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Appellants Stephen Bell, TXPS, Inc., and Mohammed Al Musa appeal
    from the district court’s dismissal of their negligence per se claim against
    Appellee Redflex Traffic Systems, Inc. (“Redflex”) for lack of standing. For the
    reasons provided below, we affirm the dismissal of Appellants’ suit.
    *
    Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
    R. 47.5.4.
    Case: 09-40462     Document: 00511059739      Page: 2    Date Filed: 03/23/2010
    No. 09-40462
    I.
    In the latter half of 2008, each Appellant ran a red traffic light in either
    the City of Plano or the City of Duncanville and received a notice of a traffic
    violation. The Cities issued these notices on the basis of photographs taken by
    traffic cameras installed and operated by Redflex in Plano and Duncanville.
    Redflex had contracted with the Cities to monitor compliance with traffic lights
    at certain intersections. Appellants did not contest the notices of violation and
    each paid fines of $75 to either Plano or Duncanville.
    Shortly thereafter, in November 2008, Appellants filed the present suit
    under a novel theory of recovery. They claim that Redflex is an “investigations
    company” that under Tex. Occ. Code Ann. § 1702.101 may not operate without
    a license from the State of Texas. See Tex. Occ. Code Ann. § 1702.104(2) (Vernon
    2004) (“A person acts as an investigations company for the purposes of this
    chapter if the person . . . engages in the business of securing . . . evidence for use
    before a court, board, officer, or investigating committee . . . .”). Since Redflex
    did not have a license when its cameras captured evidence of Appellants’ traffic
    violations, Appellants argue that Redflex’s conduct qualifies as negligence per
    se. Consequently, they seek injunctive relief to block Redflex from continuing
    to operate without a license, reimbursement of fines and related expenses,
    $3,000,000 in damages, and certification of a class of similarly situated
    individuals under Rule 23. The district court, however, dismissed Appellants’
    suit, concluding that it lacked subject matter jurisdiction over this case because
    Appellants did not have standing to bring their claim. We now affirm the
    district court’s dismissal, as we also conclude that Appellants do not have
    standing to challenge Redflex’s failure to acquire a license pursuant to section
    1702.101.
    2
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    No. 09-40462
    II.
    Whether a district court possesses subject matter jurisdiction is reviewed
    de novo on appeal. Sandoz v. Cingular Wireless LLC, 
    553 F.3d 913
    , 915 (5th Cir.
    2008). When a district court dismisses a case because lack of subject matter
    jurisdiction is apparent on the face of the plaintiff’s complaint, the factual
    allegations in the complaint must be accepted as if they were true.           See
    Williamson v. Tucker, 
    645 F.2d 404
    , 412 (5th Cir. 1981).
    “[S]tanding is an essential and unchanging part of the case-or-controversy
    requirement of Article III.” Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560
    (1992). When a plaintiff cannot satisfy the standing requirements imposed by
    Article III, courts lack subject matter jurisdiction over a case. See Cadle Co. v.
    Neubauer, 
    562 F.3d 369
    , 371 (5th Cir. 2009). To prove standing to bring a claim
    in federal court, “a litigant must demonstrate that it has suffered a concrete and
    particularized injury that is either actual or imminent, that the injury is fairly
    traceable to the defendant, and that it is likely that a favorable decision will
    redress that injury.”    Massachusetts v. EPA, 
    549 U.S. 497
    , 517 (2007).
    Appellants advance several theories of injury to demonstrate that they have
    standing to bring suit against Redflex for operating traffic light cameras without
    a license. However, none of these theories are sufficient to provide standing to
    advance the claims raised by Appellants.
    First, Appellants claim that they have been injured by their traffic
    citations and related fines and expenses. These injuries, however, cannot create
    standing. Appellants do not allege that they were improperly cited for traffic
    violations by the Cities of Plano and Duncanville; instead, they claim their
    violations would not have been discovered were it not for Redflex. This interest
    in evading the law cannot create standing—a plaintiff’s complaint that the
    defendant’s actions “will make his criminal activity more difficult lacks standing
    because his interest is not ‘legally protected.’” Initiative and Referendum Inst.
    3
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    No. 09-40462
    v. Walker, 
    450 F.3d 1082
    , 1093 (10th Cir. 2006) (citing 13 Charles Alan Wright
    et al., Federal Practice and Procedure § 3531.4 (2d ed. Supp. 2005)).
    Second, Appellants assert that they have been injured by the use of
    allegedly illegally obtained evidence to prove their traffic violations. However,
    illegally obtained evidence may be admitted in civil traffic violation proceedings,
    and therefore the use of such evidence against Appellants creates no injury. See
    Tex. Transp. Code Ann. § 707.002 (Vernon Supp. 2009) (“The governing body of
    a local authority by ordinance may implement a photographic traffic signal
    enforcement system and provide that the owner of a motor vehicle is liable to the
    local authority for a civil penalty if . . . the vehicle is operated in violation of the
    instructions of that traffic-control signal . . . .” (emphasis added)); United States
    v. Janis, 
    428 U.S. 433
    , 447 (1976) (“In the complex and turbulent history of the
    [exclusionary] rule, the Court never has applied it to exclude evidence from a
    civil proceeding, federal or state.”); In re Strategic Impact Corp., 
    214 S.W.3d 484
    ,
    488 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding [mand. denied]) (“In
    civil cases, even illegally obtained evidence may be admissible at trial.”); State
    v. Taylor, 
    721 S.W.2d 541
    , 551 (Tex. App.—Tyler 1986, writ ref’d n.r.e.)
    (appraisal conducted by unlicensed real estate broker held admissible in
    condemnation case). Consequently, this alleged injury to Appellants is illusory.1
    1
    Appellants claim that Collins v. Collins establishes that illegally obtained evidence
    is properly excluded in civil cases, even when the statute in question does not explicitly
    provide for exclusion. 
    904 S.W.2d 792
    (Tex. App.—Houston [1st Dist.] 1995, writ denied). In
    Collins, the Texas First Court of Appeals did not allow evidence obtained in violation of federal
    and state wiretap statutes to be introduced in a civil proceeding. 
    Id. at 799.
    Specifically, the
    court held that “[a]lthough the Texas wiretap statute does not specifically provide for the
    exclusion of illegally obtained ‘communications,’ the provisions for a cause of action for
    divulging wiretap information and the injunctive remedies . . . are sufficient to rebut the
    presumption of admissibility under [Texas Rule of Evidence] 402.” 
    Id. We find
    Collins
    inapposite in this case for several reasons. First, Collins is in tension with the weight of
    authority discussed above, which provides that illegally obtained evidence is admissible in civil
    proceedings. Second, unlike the Texas wiretapping statute considered in Collins, Texas law
    does not allow private citizens to sue to enforce section 1702.101’s licensing requirement or to
    seek injunctive relief against disclosure of information obtained without a license. Compare
    4
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    No. 09-40462
    Third, Appellants contend that Redflex’s collection of evidence without a
    license has injured their interest in privacy. Even assuming that taking a
    photograph of a vehicle moving through a public intersection could create an
    actionable privacy injury,2 we conclude that Appellants have not alleged
    sufficient facts to show causation between their purported privacy injury and
    Redflex’s failure to acquire a license. If an investigations license were akin to
    a warrant and meant to be a procedural means of protecting privacy, the
    plaintiffs would likely be able to show causation sufficient to proceed in this case.
    Cf. 
    Lujan, 504 U.S. at 573
    n.8 (1992) (explaining that plaintiffs can “enforce
    procedural rights . . . so long as the procedures in question are designed to
    protect some threatened concrete interest . . . that is the ultimate basis of [their]
    standing” (emphasis added)).           However, Texas case law reveals that mere
    investigation without a license, without more, does not in itself intrude on
    privacy. In Hudson v. Winn, a Texas appellate court considered an invasion of
    privacy claim filed against an unlicensed investigator. 
    859 S.W.2d 504
    , 507-08
    (Tex. App.–Houston [1st Dist.] 1993, writ denied). The investigator had lied to
    Tex. Occ. Code §§ 1702.381-383 (authorizing attorneys for state to file suit to seek injunctive
    relief and civil penalties for failure to acquire license), with § 1702.401 (authorizing private
    citizens to file complaints with Texas Private Security Board when entities acting as
    investigations companies fail to acquire licenses). Third, the exclusion of evidence endorsed
    by the Collins court has been called into question by another Texas appellate court. See Allen
    v. Mancini, 
    170 S.W.3d 167
    , 172 (Tex. App.—Eastland 2005, pet. denied) (explaining that
    Texas wiretapping statute “does not address the admissibility of . . . evidence absent an
    injunction prohibiting the divulgence or use of [the wrongfully obtained] information”).
    Consequently, we are confident that Redflex’s photographs of Appellants’ vehicles were
    properly admitted to prove Appellants’ traffic violations, even if these photographs were
    obtained without a license.
    2
    We do not mean to suggest that a defendant’s use of public photography against some
    interest of a plaintiff can never establish an injury-in-fact that would be actionable under
    Article III. There may be valid privacy concerns regarding such photography, but we do not
    reach this issue today. See, e.g., Andrew Lavoie, Note, The Online Zoom Lens: Why Internet
    Street-Level Mapping Technologies Demand Reconsideration of the Modern-Day Tort Notion
    of “Public Privacy”, 
    43 Ga. L
    . Rev. 575, 579-82 (2009) (discussing privacy concerns regarding
    Google Street View).
    5
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    No. 09-40462
    gain entry to the plaintiff’s home, and then allegedly investigated the nature of
    the plaintiff’s relationship with her deceased partner. 
    Id. at 505-06.
    The
    plaintiff claimed that the investigator’s failure to acquire a license established
    negligence per se, but the court held against the plaintiff, as it found that the
    evidence did not show how the failure to acquire a license caused any privacy
    injury. 
    Id. at 508.
    Similarly, in this case, Appellants have only made the bare
    allegation that Redflex collected evidence without a license, without alleging any
    facts to demonstrate how Redflex’s lack of a license contributed to any invasion
    of their privacy. Consequently, they have not shown the causation necessary to
    provide standing to advance their negligence per se claim in federal court. Cf.
    Warth v. Seldin, 
    422 U.S. 490
    , 518 (1975) (“It is the responsibility of the
    complainant clearly to allege facts demonstrating that he is a proper party to
    invoke judicial resolution of the dispute and the exercise of the court’s remedial
    powers.”).3
    III.
    For the foregoing reasons, we conclude that we are without subject matter
    jurisdiction over this case and AFFIRM the district court’s dismissal of
    Appellants’ claims for lack of standing.
    3
    Appellants also protest that the district court improperly dismissed their action solely
    on the basis of the allegations in their pleadings and instead should have reviewed evidence
    in the record before ruling. It is true that when there are factual disputes concerning subject
    matter jurisdiction, district courts may look beyond the pleadings and weigh the evidence in
    the record to resolve these disputes. See 
    Williamson, 645 F.2d at 412-13
    (quoting Mortensen
    v. First Fed. Sav. & Loan Ass’n, 
    549 F.2d 884
    , 891 (3rd Cir. 1977)). However, district courts
    are in no way bound to review the record if, as in this case, lack of jurisdiction is apparent on
    the face of the plaintiff’s complaint. See, e.g., Test Masters Educ. Servs., Inc. v. Singh, 
    428 F.3d 559
    , 570 n.2 (5th Cir. 2005). In the alternative, Appellants argue that the district court
    did review the record, and improperly based its dismissal on evidence beyond the pleadings.
    However, as Appellants themselves acknowledge, “[t]here is nothing in the District Court’s
    Order reflecting any review of the documents made part of the record, or its consideration of
    the record at all.”
    6