USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-14026 Non-Argument Calendar ____________________
MICHAEL DAVIS, individually and on behalf of all others similarly situated, Plaintiff-Appellant, versus PROFESSIONAL PARKING MANAGEMENT CORPORATION, YSA ARM LLC, d.b.a. Oxygen XL,
Defendants-Appellees.
____________________ USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 2 of 9
2 Opinion of the Court 22-14026
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:22-cv-61070-KMM ____________________
Before WILSON, BRASHER, and MARCUS, Circuit Judges. PER CURIAM: Professional Parking Management Corporation issued Mi- chael Davis an $85.00 charge for parking in one of its lots. Davis did not pay the charge because he believed it to violate a county ordinance, and Oxygen XL later sent him a letter to collect the debt on behalf of Professional Parking. Davis refused to pay and instead sued both companies under state and federal consumer protection laws. The district court dismissed his complaint with prejudice for lack of subject-matter jurisdiction because Davis did not allege an injury in fact. Davis now appeals that order. After careful review, we affirm the dismissal for lack of standing, but we remand with instructions for the district court to dismiss the case without preju- dice. I. On November 26, 2021, Davis parked his Volvo sedan at a lot owned by Professional Parking in Hollywood, Florida. About one week later, Professional Parking issued Davis a “Parking Charge Notice,” which imposed on him an $85.00 “Parking Charge.” Davis did not pay the charge, though. He believed that Broward County Ordinance No. 20-164.2, titled “Private parking USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 3 of 9
22-14026 Opinion of the Court 3
tickets and violations prohibited,” made this charge illegal. The or- dinance prohibits the issuance of private parking tickets, which it defines as “a citation, ticket, notice of violation, or other instru- ment issued by a nongovernmental entity for a parking violation that seeks to impose a monetary penalty or fine.” Several months later, on March 28, 2022, Oxygen XL sent Davis a debt collection letter to “collect a debt that [he] owe[d] to Professional Parking Management Corp.” because of the “Public Charge Notice.” Davis disputed the debt to Oxygen XL, but the company continued to assert that he was responsible for the charge. Davis then sued both Professional Parking and Oxygen XL in state court on April 26, 2022. He brought a claim against Profes- sional Parking under Florida’s Deceptive and Unfair Trade Prac- tices Act, and claims against both Defendants under the Florida Consumer Collection Practices Act and the federal Fair Debt Col- lection Practices Act (“FDCPA”). Defendants properly removed the case to the United States District Court for the Southern Dis- trict of Florida, and then moved to dismiss it for lack of subject- matter jurisdiction and for failure to state a claim. On October 31, 2022, the district court granted the motion to dismiss with prejudice. It did not decide whether the parking charge violated the county ordinance. Instead, it held that Davis failed to allege a concrete injury in fact to establish Article III stand- ing. Specifically, the court determined that because Davis was not USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 4 of 9
4 Opinion of the Court 22-14026
misled into making any debt payments, the debt collection letters themselves did not give rise to an injury. This timely appeal followed. II. We review de novo a district court’s decision to grant a mo- tion to dismiss for lack of subject-matter jurisdiction. McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1250 (11th Cir. 2007). We review a district court’s sua sponte decision to dis- miss a complaint with prejudice for abuse of discretion. Carruth v. Bentley, 942 F.3d 1047, 1063 n.3 (11th Cir. 2019). Among the requirements for subject-matter jurisdiction is Article III standing, which includes an “irreducible constitutional minimum . . . of three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quotations omitted). Those three elements are (1) an injury in fact (2) that is fairly traceable to the defendant’s con- duct and (3) that is likely to be redressed by a judicial decision for the plaintiff. Id. This case concerns only the first element. An injury in fact must be “concrete, particularized, and ac- tual or imminent.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). To determine whether a harm is concrete, “courts should assess whether the alleged injury to the plaintiff has a close rela- tionship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” Id. (quotations omitted). In other words, we look for a “close historical or common-law analogue for their asserted injury.” Id. The easiest Article III injuries to identify are “traditional tangible harms, such as physical harms and USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 5 of 9
22-14026 Opinion of the Court 5
monetary harms.” Id. Harder to pin down, but equally viable, are intangible harms, such as “reputational harms, disclosure of private information, and intrusion upon seclusion.” Id. Whether tangible or intangible, so long as there is a “close relationship to harms tra- ditionally recognized as providing a basis for lawsuits in American courts,” there can be an injury in fact. Id. The big takeaway from this analysis is that Congress may elevate certain nontraditional harms to “legally cognizable inju- ries,” but “it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.” Id. at 2204–05 (quotations omit- ted). Put simply, Congress cannot statutorily procure an injury from thin air. See Spokeo, 578 U.S. at 341 (“Article III standing re- quires a concrete injury even in the context of a statutory viola- tion.”); Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1242 (11th Cir. 2022) (en banc) (“A bare statutory violation is not enough, no matter how beneficial we may think the statute to be.” (quotations omitted)). So even if Congress says conduct is un- lawful, we must look for a traditional analogue to determine whether it is harmful. In this case, Davis alleged potentially unlawful conduct, but he failed to allege any harmful conduct. For starters, his complaint says that the Defendants violated several state and federal statutes, including Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq., and Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq., and the federal Fair Debt Collection Practices USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 6 of 9
6 Opinion of the Court 22-14026
Act, 15 U.S.C. § 1692 et seq.
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USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-14026 Non-Argument Calendar ____________________
MICHAEL DAVIS, individually and on behalf of all others similarly situated, Plaintiff-Appellant, versus PROFESSIONAL PARKING MANAGEMENT CORPORATION, YSA ARM LLC, d.b.a. Oxygen XL,
Defendants-Appellees.
____________________ USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 2 of 9
2 Opinion of the Court 22-14026
Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:22-cv-61070-KMM ____________________
Before WILSON, BRASHER, and MARCUS, Circuit Judges. PER CURIAM: Professional Parking Management Corporation issued Mi- chael Davis an $85.00 charge for parking in one of its lots. Davis did not pay the charge because he believed it to violate a county ordinance, and Oxygen XL later sent him a letter to collect the debt on behalf of Professional Parking. Davis refused to pay and instead sued both companies under state and federal consumer protection laws. The district court dismissed his complaint with prejudice for lack of subject-matter jurisdiction because Davis did not allege an injury in fact. Davis now appeals that order. After careful review, we affirm the dismissal for lack of standing, but we remand with instructions for the district court to dismiss the case without preju- dice. I. On November 26, 2021, Davis parked his Volvo sedan at a lot owned by Professional Parking in Hollywood, Florida. About one week later, Professional Parking issued Davis a “Parking Charge Notice,” which imposed on him an $85.00 “Parking Charge.” Davis did not pay the charge, though. He believed that Broward County Ordinance No. 20-164.2, titled “Private parking USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 3 of 9
22-14026 Opinion of the Court 3
tickets and violations prohibited,” made this charge illegal. The or- dinance prohibits the issuance of private parking tickets, which it defines as “a citation, ticket, notice of violation, or other instru- ment issued by a nongovernmental entity for a parking violation that seeks to impose a monetary penalty or fine.” Several months later, on March 28, 2022, Oxygen XL sent Davis a debt collection letter to “collect a debt that [he] owe[d] to Professional Parking Management Corp.” because of the “Public Charge Notice.” Davis disputed the debt to Oxygen XL, but the company continued to assert that he was responsible for the charge. Davis then sued both Professional Parking and Oxygen XL in state court on April 26, 2022. He brought a claim against Profes- sional Parking under Florida’s Deceptive and Unfair Trade Prac- tices Act, and claims against both Defendants under the Florida Consumer Collection Practices Act and the federal Fair Debt Col- lection Practices Act (“FDCPA”). Defendants properly removed the case to the United States District Court for the Southern Dis- trict of Florida, and then moved to dismiss it for lack of subject- matter jurisdiction and for failure to state a claim. On October 31, 2022, the district court granted the motion to dismiss with prejudice. It did not decide whether the parking charge violated the county ordinance. Instead, it held that Davis failed to allege a concrete injury in fact to establish Article III stand- ing. Specifically, the court determined that because Davis was not USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 4 of 9
4 Opinion of the Court 22-14026
misled into making any debt payments, the debt collection letters themselves did not give rise to an injury. This timely appeal followed. II. We review de novo a district court’s decision to grant a mo- tion to dismiss for lack of subject-matter jurisdiction. McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244, 1250 (11th Cir. 2007). We review a district court’s sua sponte decision to dis- miss a complaint with prejudice for abuse of discretion. Carruth v. Bentley, 942 F.3d 1047, 1063 n.3 (11th Cir. 2019). Among the requirements for subject-matter jurisdiction is Article III standing, which includes an “irreducible constitutional minimum . . . of three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quotations omitted). Those three elements are (1) an injury in fact (2) that is fairly traceable to the defendant’s con- duct and (3) that is likely to be redressed by a judicial decision for the plaintiff. Id. This case concerns only the first element. An injury in fact must be “concrete, particularized, and ac- tual or imminent.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). To determine whether a harm is concrete, “courts should assess whether the alleged injury to the plaintiff has a close rela- tionship to a harm traditionally recognized as providing a basis for a lawsuit in American courts.” Id. (quotations omitted). In other words, we look for a “close historical or common-law analogue for their asserted injury.” Id. The easiest Article III injuries to identify are “traditional tangible harms, such as physical harms and USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 5 of 9
22-14026 Opinion of the Court 5
monetary harms.” Id. Harder to pin down, but equally viable, are intangible harms, such as “reputational harms, disclosure of private information, and intrusion upon seclusion.” Id. Whether tangible or intangible, so long as there is a “close relationship to harms tra- ditionally recognized as providing a basis for lawsuits in American courts,” there can be an injury in fact. Id. The big takeaway from this analysis is that Congress may elevate certain nontraditional harms to “legally cognizable inju- ries,” but “it may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is.” Id. at 2204–05 (quotations omit- ted). Put simply, Congress cannot statutorily procure an injury from thin air. See Spokeo, 578 U.S. at 341 (“Article III standing re- quires a concrete injury even in the context of a statutory viola- tion.”); Hunstein v. Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236, 1242 (11th Cir. 2022) (en banc) (“A bare statutory violation is not enough, no matter how beneficial we may think the statute to be.” (quotations omitted)). So even if Congress says conduct is un- lawful, we must look for a traditional analogue to determine whether it is harmful. In this case, Davis alleged potentially unlawful conduct, but he failed to allege any harmful conduct. For starters, his complaint says that the Defendants violated several state and federal statutes, including Florida’s Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq., and Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq., and the federal Fair Debt Collection Practices USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 6 of 9
6 Opinion of the Court 22-14026
Act, 15 U.S.C. § 1692 et seq. But our case law is clear that a statutory violation, by itself, does not create an injury. See Hunstein, 48 F.4th at 1245 (“Again -- no standing when the plaintiffs alleged a statutory violation that did not hurt them.”). Moreover, Davis does not provide an analogous traditional harm for these state or federal statutory violations. In fact, we have previously held that “the common law furnishes no analog[ue]” to claims brought under the FDCPA that are nearly identical to the claims Davis brought here. Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990, 999 (11th Cir. 2020). In Trichell, two plaintiffs received debt collection letters after their respective state’s statute of limita- tions had run on their debts. Id. at 995. They were not actually misled by the letters in any way. Id. Nevertheless, both plaintiffs sued the debt collection agencies and the owners of the debt under the FDCPA, and the district court dismissed the claims for failure to state a claim. Id. On appeal, a panel of this Court affirmed the dismissal, but it did so on standing grounds. Id. at 998. In relevant part, we determined that there was no common-law analogue to this sort of violation of the FDCPA. Id. “The closest historical comparison,” we explained, was “fraudulent or negligent misrep- resentation,” but we concluded that those “torts differ . . . in fun- damental ways” because they “required a showing of justifiable re- liance and actual damages.” Id. Likewise, there is simply no analogue for any of the statu- tory violations -- state or federal -- alleged by Davis. Even if we construe his complaint as alleging that he was injured by his receipt USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 7 of 9
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of Defendants’ letters, this harm is still purely statutory, without any allegations of justifiable reliance, actual damages, or other con- crete injury. Indeed, like the Trichell plaintiffs, Davis never said that “he made any payments in response to the defendants’ letters -- or even that he wasted time or money in determining whether to do so.” Id. at 997. Without a concrete injury, all Davis is left with is a letter allegedly misrepresenting his debt. But, as we’ve held, these “misrepresentations are not actionable absent reliance and ensuing damages.” Id. at 1000. We are unpersuaded by Davis’s arguments to the contrary. As for his reliance on Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017), and Church v. Accretive Health, Inc., 654 F. App’x 990 (11th Cir. 2016), he is mistaken to suggest that they support the proposition that allegations of a statutory violation are enough for a concrete injury. Perry properly followed this Circuit’s and the Su- preme Court’s precedent by inquiring into whether a statutory vi- olation had a common-law analogue and likening the Video Pri- vacy Protection Act -- a very different statute from the ones at issue here -- to invasion of privacy. 854 F.3d at 1340–41. And Church is an unpublished case that directly conflicts with, and is therefore ab- rogated by, the Supreme Court’s later decision in TransUnion. Com- pare Church, 654 F. App’x at 993 (“An injury-in-fact, as required by Article III, may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” (quotations omit- ted)), with TransUnion, 141 S. Ct. at 2205 (“[T]his Court has rejected the proposition that a plaintiff automatically satisfies the injury-in- fact requirement whenever a statute grants a person a statutory USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 8 of 9
8 Opinion of the Court 22-14026
right and purports to authorize that person to sue to vindicate that right.” (quotations omitted)). Thus, these cases fail to support Da- vis’s argument. Davis also now claims that he “wasted time” by disputing the debt, that he faced additional stress because of the debt, and that his credit score might be impacted by the debt. But the com- plaint does not include anything about wasted time, stress, or his credit score. Davis cannot amend his complaint at this late stage through his appellate briefing. Adams ex rel. Kasper v. Sch. Bd. of St. Johns Cnty., 57 F.4th 791, 799 n.2 (11th Cir. 2022) (en banc); see also Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (“A court’s review on a motion to dismiss is limited to the four cor- ners of the complaint.” (quotations omitted)). Accordingly, we af- firm the dismissal of Davis’s complaint for lack of standing. However, this dismissal was necessarily without prejudice. As we’ve held many times, a dismissal for lack of standing is equiv- alent to a dismissal for lack of subject matter jurisdiction. See Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). And “[i]f subject-matter jurisdiction does not exist, dismissal must be without prejudice.” McIntosh v. Royal Caribbean Cruises, Ltd., 5 F.4th 1309, 1313 (11th Cir. 2021). Therefore, we re- mand with instructions that the district court reenter its judgment accordingly. Muransky v. Godiva Chocolatier, Inc., 979 F.3d 917, 935 (11th Cir. 2020) (“The proper remedy is for us to remand to the district court for a dismissal without prejudice.”); see also McIntosh, 5 F.4th at 1313; Stalley, 524 F.3d at 1234–35. USCA11 Case: 22-14026 Document: 28-1 Date Filed: 07/14/2023 Page: 9 of 9
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AFFIRMED IN PART; REMANDED IN PART.