In Kalmbach v. National Rifle Association of America, Case No. C17-399-RSM, 2017 WL 3172836 (W.D. Wash. July 26, 2017), Judge Martinez rejected the Romero standing argument premised on the argument that manually dialed and automatically dialed calls are equally annoying.
Defendants argue Ms. Kalmbach lacks standing to bring a claim under the WADAD for lack of an injury because “Kalmbach would have suffered the same injuries (if any) whether InfoCision used an automatic dialing device or dialed her number manually,” or whether InfoCision used a prerecorded message or a live caller.” Dkt. #28 at 6 (citing two cases brought under the federal Telephone Consumer Protection Act (“TCPA”), Ewing v. SQM US, Inc., ––– F. Supp. 3d. ––––, No. 3:16-CV-1609-CAB-JLB, 2016 WL 5846494, at *2-3 (S.D. Cal. Sept. 29, 2016) and Romero v. Dep’t Stores Nat’l Bank, 199 F. Supp. 3d 1256, 1265 (S.D. Cal. 2016)). In Response, Ms. Kalmbach argues that Ewing and Romero, authored by the same judge, “misunderstand how calls made using an autodialer are more annoying than manually placed calls.” Dkt. #29 at 11. Ms. Kalmbach highlights how the injury comes from the fact that autodialed calls “are incessant,” and that when one answers such a call the first thing the person hears is either a computerized recording or dead air—neither of which allow the person to inform a human being to stop harassing them like a call placed by a person would allow.” Id. Ms. Kalmbach cites to other cases that have rejected the standing arguments of Romero and Ewing. Id. at 12 (citing LaVigne v. First Cmty. Bancshares, Inc., No. 1:15-CV-00934-WJ-LF, 215 F. Supp. 3d 1138, at 1147 (D.N.M. 2016); Abante Rooter & Plumbing, Inc. v. Pivotal Payments, Inc., No. 16-CV-05486-JCS, 2017 WL 733123, at *7 (N.D. Cal. Feb. 24, 2017); Mohamed v. Off Lease Only, Inc., No. 15-23352-CIV, 2017 WL 1080342, at *3 (S.D. Fla. Mar. 22, 2017); DeClue v. United Consumer Fin. Servs. Co., No. 16CV2833 JM (JMA), 2017 WL 1400144, at *2 (S.D. Cal. Apr. 19, 2017); Mbazomo v. Etourandtravel, Inc., No. 2:16-cv-02229-SB, 2016 WL 7165693, at *2 (E.D. Cal Dec. 8, 2016)). The Court agrees with Ms. Kalmbach. She has alleged an injury in fact, fairly traceable to the use of an autodialer and prerecorded message, which can be redressed by this Court. Ms. Kalmbach has adequately pled facts to reasonably infer that her injury would not have occurred without Defendants’ incessant autodialing and use of a prerecorded message, given that she had attempted to make it clear that Defendants were calling the wrong person. She has standing on this claim.