In Lemieux v. Lender Processing Center, 2017 WL 1166430, at *3–4 (S.D.Cal., 2017), the District Court addressed whether a TCPA plaintiff had Art. III standing.
Finally, in Romero v. Department Stores National Bank, No. 15-cv-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016), the court began from the premise that “[a] plaintiff cannot have suffered an injury in fact as a result of a phone call she did not know was made.” Romero, 2016 WL 4184099, at *3. In that case, the plaintiff alleged the defendant debt collector had called her cellular telephone over 290 times in a six-month period, but she only answered the telephone call on two occasions, and frequently was unaware the defendant was calling her phone. The court continued, “[m]oreover, even for the calls Plaintiff heard ring or actually answered, Plaintiff does not offer any evidence of a concrete injury caused by the use of an ATDS, as opposed to a manually dialed call.” Id. Because the defendant was a debt collector attempting to collect a debt from the plaintiff by calling a cell phone number she gave as a contact number, any “lost time, aggravation or distress” she suffered was not because the defendant used an ATDS in violation of the TCPA, but because she was being contacted by a debt collector: “Defendants here were creditors of Plaintiff and were attempting to collect a debt. They were calling Plaintiff’s cell phone because that was the only telephone number she provided them. Although these calls seeking to collect debts may have been stressful, aggravating and occupied Plaintiff’s time, that injury is completely unrelated to Defendants’ use of an ATDS to dial her number. Plaintiff would have been no better off had Defendants dialed her telephone number manually.”
Id. at *6. Several courts have rejected the decision in Romero outright. See LaVigne v. First Cmty. BancShares, Inc., No. 1:15-cv-934-WJ-LF, 2016 WL 6305992, at *6 (D.N.M. Oct. 19, 2016) (“Romero is an outlier [.] ); Mbazomo v. Etourandtravel, Inc., No. 2:16-cv-2229 SB, 2016 WL 7165693 (E.D. Cal Dec. 8, 2016) (rejecting the reasoning of Romero); Wilkes v. CareSource Mgmt. Grp., Co., No. 4:16-cv-038-JD, 2016 WL 7179298, at *5 (N.D. Ind. Dec. 9, 2016) (“The injuries at issue are caused by the placing of unwanted phone calls….That the TCPA only proscribes such calls when made with auto-dialers…does not mean that the existence of an injury for Article III purposes depends on whether those means are used, but only that plaintiffs do not have a cause of action when they are not.”). Although this Court agrees that a bare allegation of a violation of the TCPA could be an insufficient allegation of injury to establish standing, such as when a telephone call is unheard or unanswered, this is not such a case. Plaintiff alleges he heard the call, answered the call, spoke with both Defendants who were attempting to solicit his business without his consent, incurred a charge for the incoming call, and suffered frustration, distress, and lost time because of the invasion of his privacy. (Compl. ¶¶ 21, 23-24, 28-30.) These facts are distinguishable from Romero, and the allegations are sufficient to show a concrete injury. Therefore, the motion to dismiss for lack of standing is DENIED.