Davis Neurology PA, on behalf of itself and all other entities and persons similarly situated, Plaintiff- Appellant,
DoctorDirectory.com LLC; Everyday Health Inc., Defendants - Appellees, John Does, 1-10, intending to refer to those persons, corporations or other legal Entities that acted as agents, consultants, Independent contractors or representatives, Defendants.
Submitted: January 11, 2018
from United States District Court for the Eastern District of
Arkansas - Little Rock
COLLOTON, BENTON, and ERICKSON, Circuit Judges.
COLLOTON, Circuit Judge.
district court entered judgment on the pleadings for the
defendants in this case, and the plaintiff appeals. There is
a preliminary issue, however, concerning whether the lawsuit
was properly removed from Arkansas state court to federal
court. We conclude that the removal was untimely, and that
the district court thus lacked jurisdiction to rule on the
merits, so we vacate the judgment on the pleadings and remand
with directions to return the case to state court.
a defendant must file a notice of removal in a civil action
within thirty days of the date on which the defendant
received a copy of the complaint. 28 U.S.C. §
1446(b)(1). But "if the case stated by the initial
pleading is not removable, a notice of removal may be filed
within 30 days after receipt by the defendant, through
service or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable." Id. § 1446(b)(3) (emphasis
added). The parties in this case dispute when it was first
ascertainable that the action was removable.
January 2016, Davis Neurology, PA, brought a putative class
action in Arkansas state court, alleging that defendants
DoctorDirectory.com, LLC and Everyday Health, Inc.
(collectively, "Doctor Directory"), violated the
Telephone Consumer Protection Act, 47 U.S.C. § 227
(TCPA). The alleged violation occurred when the defendants
sent Davis Neurology an unsolicited facsimile that contained
an invitation to participate in a research study. Doctor
Directory promptly removed the case to the United States
District Court for the Eastern District of Arkansas.
time, the law of this circuit took a broad view of Article
III standing. One decision held that the injury-in-fact
requirement could be met "solely by the
invasion of a legal right that Congress
created." Hammer v. Sam's E.,
Inc., 754 F.3d 492, 498 (8th Cir. 2014). Therefore, a
bare allegation that Doctor Directory violated the procedures
of the TCPA likely would have been sufficient to establish a
case or controversy in a district court of this circuit.
Inc. v. Robins, 136 S.Ct. 1540 (2016), however,
clarified that Article III "requires a concrete injury
even in the context of a statutory violation," and that
a plaintiff cannot "allege a bare procedural violation,
divorced from any concrete harm." Id. at 1549;
see also Braitberg v. Charter Commc'ns, Inc.,
836 F.3d 925, 930 (8th Cir. 2016). After Spokeo,
Doctor Directory moved in the district court for judgment on
the pleadings. The motion argued that Davis Neurology lacked
Article III standing because it had pleaded only a technical
violation of the TCPA and not a concrete injury in fact.
than rule on the motion, the district court remanded the case
to state court sua sponte on June 29, 2016. The
court thought Doctor Directory had taken a "contrarian
position" by removing the case to federal court and then
arguing that the federal court lacked subject matter
jurisdiction. Citing doubt as to whether Davis Neurology had
Article III standing, the district court concluded that
remand was the proper course.
state court, Doctor Directory moved for a more definite
statement about whether Davis Neurology was seeking damages
for a concrete and particularized injury. Davis Neurology
opposed the motion, but included the following footnote:
"Like other TCPA 'junk fax' cases,
plaintiff's Complaint makes clear that it seeks recovery
of actual injury-in-fact in addition to its statutory
remedy." This pleading was filed on September 2, 2016.
September 26, 2016, Doctor Directory filed a second notice of
removal, claiming that the footnote in Davis Neurology's
state-court filing was the first definitive notice that Davis
Neurology was alleging an injury in fact that was separate
and distinct from the alleged statutory violation. Doctor
Directory argued that its ability to remove the action was
first ascertainable from the pleading filed on September 2,
and that the notice of removal filed twenty-four days later
was timely under § 1446(b)(3). Davis Neurology responded
that the removal was untimely because the September 2
footnote added nothing to allegations of injury in the
complaint or in earlier briefing, and urged the district
court to remand the case to state court again.
district court denied the motion for remand, concluding that
"the Article III standing question was cured" when
Davis Neurology filed its state-court pleading on September
2, 2016. The court eventually granted judgment on the
pleadings for Doctor Directory on the ground that the
challenged facsimile was not an "unsolicited
advertisement" governed by the TCPA.
Neurology appeals the judgment. Before addressing the merits,
Davis Neurology continues to maintain that the second notice
of removal was untimely, and that the district court thus
lacked jurisdiction over the action. We review that issue