Well that’s interesting. 7th Cir. Refuses to Grant Petition to Compel Arbitration of FDCPA Claim Because Plaintiff Lacked Art. III Jurisdiction to Start.

In Nettles v. Midland Funding LLC, No. 19-3327, 2020 U.S. App. LEXIS 40012 (7th Cir. Dec. 21, 2020), the Court of Appeals for the 7th Circuit declined to address arbitration of an FDCPA case because of lack of Art. III jurisdiction to start.

Most of the briefing concerns the arbitration issue, but the parties also identify a possible problem with Nettles’s standing to sue. Their attention to the standing issue is belated; in the district court, no one addressed whether Nettles adequately pleaded an injury traceable to the alleged FDCPA violations. But Article III standing is jurisdictional and cannot be waived. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990); Freedom from Religion Found., Inc. v. Nicholson, 536 F.3d 730, 737 (7th Cir. 2008). The standing inquiry resolves this appeal. As the case comes to us, our analysis of Article III standing asks whether the complaint “clearly allege[s] facts” demonstrating that Nettles has “(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.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635 (2016). An injury in fact is an “invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 1548 (quotation marks omitted). A concrete injury is a real injury—that is, one that actually exists, though intangible harms as well as tangible harms may qualify. Id. at 1548-49. Nettles alleges that Midland’s collection letter violated her rights under the FDCPA. But a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1549. To the contrary, “Article III standing requires a concrete injury even in the context of a statutory violation.” Id. Our recent decisions in Casillas and Larkin applied these principles to claims alleging violations of the FDCPA. In Casillas the plaintiff alleged that the defendant debt collector violated her rights under § 1692g of the Act by sending her an incomplete collection letter omitting one part of the statutorily required notice about how to exercise her right to dispute her debt. Casillas, 926 F.3d at 332. We explained that the plaintiff lacked standing because she had not alleged that the incomplete notice harmed her or created any real risk of concrete harm to her. Id. at 334. She did not claim, for example, that she tried to dispute the debt or even considered contacting the defendant to dispute or verify the debt. Id. So there was no risk that the defendant’s error could have caused her to lose § 1692g’s statutory protections because she did not ever consider using them. Id. at 336. In Larkin we extended the reasoning of Casillas to claims under §§ 1692e and 1692f of the FDCAP. 2020 U.S. App. LEXIS 39058, 2020 WL 7332483, at *3-4. We acknowledged that § 1692g—the provision at issue in Casillas—imposes procedural obligations on debt collectors, while §§ 1692e and 1692f are substantive provisions prohibiting “false, deceptive, or misleading representations” and “unfair or unconscionable” debt-collection practices. 2020 U.S. App. LEXIS 39058, [WL] at *3. We held that the distinction between procedural and substantive statutes has no effect the standing analysis: “An FDCPA plaintiff must allege a concrete injury regardless of whether the alleged statutory violation is characterized as procedural or substantive.” Id. (citing Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1621, 207 L. Ed. 2d 85 (2020)). The plaintiffs in Larkin alleged that certain statements in the defendant debt collector’s dunning letters were false, misleading, and unfair, but the complaints contained no allegations of harm or “even an appreciable risk of harm” from the alleged statutory violations. 2020 U.S. App. LEXIS 39058, [WL] at *4. We concluded that the claims must be dismissed for lack of standing. Id. The same result is required here. Nettles alleges that Midland violated §§ 1692e and 1692f when it overstated the amount of her debt in its collection letter. But her complaint does not allege that the statutory violations harmed her in any way or created any appreciable risk of harm to her. Indeed, on appeal she admits that the letter didn’t affect her at all and that her only injury is receipt of a noncompliant collection letter. She invites us to reconsider Casillas under Circuit Rule 40(e). We decline the invitation.3 As something of an afterthought at oral argument, Nettles argued that becoming annoyed and consulting a lawyer suffice to establish injury for standing purposes. We rejected that argument in Gunn v. Thrasher, Buschmann & Voelkel, P.C., No. 19-3514, 2020 U.S. App. LEXIS 39267, 2020 WL 7350278, at *2 (7th Cir. Dec. 15, 2020). Larkin and Casillas are dispositive here. Because Nettles has not alleged that she suffered an injury from the claimed FDCPA violations, she has failed to plead facts to support her standing to sue. We VACATE the order denying Midland’s motion to compel arbitration and REMAND with instructions to dismiss the case for lack of jurisdiction.