Steven Bell v. American Traffic Solutions , 371 F. App'x 488 ( 2010 )


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  •      Case: 09-10722     Document: 00511059292          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. 09-10722                      Charles R. Fulbruge III
    Summary Calendar                            Clerk
    STEPHEN BELL, Individually, and on behalf of others similarly situated;
    ALEXIS MONRREAL, Individually, and on behalf of others similarly
    situated; JACQUELINE MONRREAL, Individually, and on behalf of others
    similarly situated
    Plaintiffs-Appellants
    v.
    AMERICAN TRAFFIC SOLUTIONS, INC.
    Defendant-Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:08-CV-2093-G
    Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Appellants Stephen Bell, Alexis Monrreal, and Jacqueline Monrreal appeal
    from the district court’s dismissal of their negligence per se claim against
    Appellee American Traffic Solutions, Inc. (“ATS”). We conclude that Appellants
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10722    Document: 00511059292       Page: 2    Date Filed: 03/23/2010
    No. 09-10722
    lack standing to assert their claim and therefore affirm the district court’s
    dismissal of this case, but vacate its ruling on the merits of Appellants’ claim.
    I.
    In the latter half of 2008, each Appellant ran a red traffic light in either
    the City of Arlington or the City of Irving 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 ATS in Arlington and Irving. ATS 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 Arlington or Irving.
    Shortly thereafter, in November 2008, Appellants filed the present suit
    under a novel theory of recovery. They claim that ATS 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 ATS did
    not have a license when its cameras captured evidence of Appellants’ traffic
    violations, Appellants argue that ATS’s conduct qualifies as negligence per se.
    Consequently, they seek injunctive relief to block ATS 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 held that Appellants had standing under Article III to
    assert their negligence per se claim. However, after reviewing the factors that
    Texas courts consider when asked to create negligence per se liability for the
    violation of a statute, the court also concluded that ATS’s alleged violation of
    section 1702.101 could not establish negligence per se. As a result, it dismissed
    2
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    No. 09-10722
    Appellants’ action under Rule 12(b)(6) for failure to state a claim. Appellants
    now appeal this determination, but we affirm the district court’s dismissal, as
    we find that Appellants lack standing to bring their negligence per se claim.
    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). Although
    Appellants have not briefed the standing issue on appeal, they advanced several
    theories of injury in the district court to demonstrate that they have standing to
    bring suit against ATS for operating traffic light cameras without a license.
    However, none of these theories are sufficient to provide standing to advance
    their claims.
    First, Appellants claimed in the district court that they have been injured
    by their traffic citations and related fines and expenses.       These injuries,
    however, cannot create standing. Appellants have not alleged that they were
    improperly cited for traffic violations by the Cities of Arlington and Irving;
    3
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    instead, they have claimed their violations would not have been discovered were
    it not for ATS. 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. 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 asserted in the proceedings below that they have been
    injured by the use of allegedly illegally obtained evidence to prove their traffic
    violations.   Judge Fish concluded that this alleged injury was sufficient to
    provide Appellants with standing. However, Judge Fish later reconsidered this
    ruling in a subsequent case filed by a similar group of plaintiffs against another
    red light camera operator, finding instead that this alleged injury could not
    create standing. See Verrando v. ACS State and Local Solutions, Inc., No.
    3:08-cv-02241-G, 
    2009 WL 2958370
    , at *3 (N.D. Tex. Sept. 15, 2009). In
    Verrando, Judge Fish held that illegally obtained evidence may be admitted in
    civil traffic violation proceedings and that therefore the use of such evidence
    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.
    4
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    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
    Third, in the district court Appellants suggested that ATS’s collection of
    evidence without a license injured their interest in privacy. Even assuming that
    taking a photograph of a vehicle moving through a public intersection could
    1
    We note that one Texas appellate court has held that illegally
    obtained evidence may be excluded in civil cases, even when the statute in
    question does not explicitly provide for exclusion. In Collins v. Collins, the Texas
    First Court of Appeals held that evidence obtained in violation of federal and
    state wiretap statutes may be excluded in civil proceedings. 
    904 S.W.2d 792
    , 799
    (Tex. App.—Houston [1st Dist.] 1995, writ denied). Specifically, it 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 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 ATS’s photographs of Appellants’ vehicles
    were properly admitted to prove Appellants’ traffic violations, even if these
    photographs were obtained without a license.
    5
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    create an actionable privacy injury,2 we conclude that Appellants have not
    alleged sufficient facts to show causation between their purported privacy injury
    and ATS’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
    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 ATS collected evidence without a license, without alleging any
    facts to demonstrate how ATS’s lack of a license contributed to any invasion of
    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).
    6
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    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.”).
    III.
    For the foregoing reasons, we VACATE the district court’s dismissal of
    Appellants’ action for failure to state a claim under Rule 12(b)(6). See Walters
    v. Edgar, 
    163 F.3d 430
    , 437 (7th Cir. 1998) (“Since . . . the district court never
    acquired jurisdiction over the present suit, all previous rulings in this litigation
    in the district court should be vacated . . . .”). However, we AFFIRM the district
    court’s dismissal of this action, as we conclude that Appellants are without
    standing to assert their negligence per se claim.
    7