Redbox Opposes Plaintiff's Motion to Remand FTSA Case to Fla. State Court

A plaintiff alleging Redbox violated Florida’s Telephone Solicitation Act (FTSA) is attempting to “walk back his allegations of harm to claim no Article III standing in order to run back to state court,” said Redbox’ Wednesday response (docket 3:23-cv-08760) opposing his May motion to remand the case to state court, after Redbox’ April removal to the U.S. District Court for Northern Florida in Pensacola under the Class Action Fairness Act.

Plaintiff Jamie Vargas filed his complaint in the First Judicial Circuit Court for Escambia County in April, alleging Redbox sent a number of texts to his cellphone. Despite alleging receipt of at least five text messages, Vargas’ argument is predicated on 11th Circuit U.S. Court of Appeals precedent that said receipt of a single “purportedly unsolicited text message was insufficient to establish Article III standing under the [Telephone Consumer Protection Act],” said Redbox’s response. Redbox confirmed that 28 such texts were sent to Vargas, and it referenced district courts in the 11th Circuit that found Article III standing where the plaintiff alleged the receipt of four or fewer text messages without consent.

Vargas’s complaint also alleges Redbox’s phone calls caused him and the putative class harm. It alleges “thousands” of such independent violations of the FTSA and identifies thousands of potential class members, said the response. Redbox’s notice of removal had a declaration from a Redbox marketing executive confirming the company sent more than 10,000 marketing texts to potential customers with Florida telephone numbers. The court sought additional briefing on whether Vargas’s allegations satisfy Article III standing, and directed the parties to file simultaneous briefings.

In response to the court’s order, Vargas, “without conferring with Redbox and in violation of Local Rule 7.1(B)," filed the motion to remand instead of the court-ordered response, Redbox said. The court’s order “did not invite Plaintiff to submit a motion seeking affirmative relief,” said Redbox, saying that was cause enough to deny his motion. Vargas also disregarded local rules by failing to meet and confer with Redbox, the response said.

Redbox established in its support for removal that Vargas alleged a putative class of several thousand and that alleged statutory damages surpassed CAFA’s $5 million threshold, assuming plaintiff’s minimum award of $500 in statutory damages for each Redbox marketing text or call. It also established that the parties are minimally diverse, with Vargas a resident of Florida and Redbox a citizen of Delaware, Illinois and Connecticut, said the response. “Because Redbox satisfied each of these threshold requirements, its removal was proper under CAFA.”

Redbox repeated its motion to stay the case that’s pending before the court, noting the 11th Circuit’s forthcoming en banc decision in Drazen v. Pinto, which it said will “almost certainly impact the very jurisdictional issue currently before this Court.” Its motion to stay should be granted because Vargas didn’t ever oppose it, Redbox said.

“Ironically,” Redbox said, if Vargas succeeds in remanding the case to state court, his success “will result in state court dismissal” because he has to establish that his alleged injury is “concrete,” “distinct and palpable" and “actual or imminent.”