Mo. Plaintiffs Seek Remand of Dismissed TCPA Count Under 8th Circuit Precedent

Sheila and Dennis Thompson seek to remand Count II of their first amended Telephone Consumer Protection Act complaint against Vintage Stock to St. Louis County Circuit Court where it originated before the home entertainment retailer removed it in January 2023, said the Thompsons' memorandum Monday (docket 4:23-cv-00042) in support of their remand motion in U.S. District Court for Eastern Missouri in St. Louis.

The remand motion came four days after U.S. District Judge Stephen Clark granted Vintage Stock’s motion to dismiss without prejudice that count of the Thompsons’ complaint (see 2402090027). The judge found that the plaintiffs lacked Spokeo standing to bring the Count II allegation that Vintage Stock failed to institute procedures for maintaining a list of persons who request not to be called, said the memorandum. The U.S. Supreme Court’s 2016 decision in Spokeo v. Robins held that a plaintiff must suffer an injury-in-fact that’s concrete and particularized to satisfy Article III standing. The 8th U.S. Circuit Court of Appeals has repeatedly ruled that if a litigant in a removed case lacks Spokeo standing, the case shouldn’t be dismissed but must be remanded to the state court from which it came, said the Thompsons’ memorandum.

In the instant case, the district court determined that Thompsons lacked Spokeo standing and that it lacked subject-matter jurisdiction over Count II, said the memorandum. But the district court improperly dismissed Count II without prejudice, it said. Based on 8th Circuit precedent, the district court should remand Count II to St. Louis County Circuit Court, it said.

When a district court determines it doesn’t have subject-matter jurisdiction under Spokeo over one of several claims, but does have jurisdiction over other claims, the district court should do a partial remand of the claim over which it lacks subject-matter jurisdiction, said the memorandum.

The district court found that the Thompsons didn’t sufficiently plead factual allegations to demonstrate that the injury they incurred by receiving unwanted text messages from Vintage Stock is “fairly traceable” to the retailer’s allegedly unlawful conduct of failing to meet the requirements of the TCPA’s Section 64.1200(d). It also found that the Thompsons’ complaint “contains no facts connecting Vintage Stock’s alleged failures with their receiving of text messages.”