Opinion
Case No. 8:21-cv-0678-KKM-SPF
2022-03-30
Stephanie KLEIN, on behalf of herself and all others similarly situated, Plaintiff, v. RECEIVABLE MANAGEMENT GROUP, INC., Defendant.
Kaelyn Diamond, Ziegler Diamond Law, Clearwater, FL, for Plaintiff. Chantel Christine Wonder, Gordon Rees Scully Mansukhani, Tampa, FL, for Defendant.
Kaelyn Diamond, Ziegler Diamond Law, Clearwater, FL, for Plaintiff.
Chantel Christine Wonder, Gordon Rees Scully Mansukhani, Tampa, FL, for Defendant.
ORDER
Kathryn Kimball Mizelle, United States District Judge
Stephanie Klein received a letter from Receivable Management Group, Inc., seeking to collect a debt from her. In such letters, the Fair Debt Collection Practices Act (FDCPA) requires a debt collector to provide the debtor with a clear statement of her statutory right to dispute the debt. The back of Receivable's letter notified Klein that, if she wished to dispute the debt, she had the right to do so within thirty days. But the front of the letter also asked for her "prompt" attention to the debt. The combination of those two instructions allegedly confused Klein. And her confusion allegedly caused her not to dispute the debt within thirty days, thereby forfeiting her statutory right. Klein does not dispute the amount or origin of the debt, and she identifies no other harm suffered by Receivable's allegedly confusing letter other than the lost opportunity to contest a debt she agrees she owes.
Klein's confusion over the letter and the forfeiture of her procedural right, without a real harm or other "downstream consequence[ ]," cannot satisfy Article III's jurisdictional requirement that the plaintiff suffer a concrete injury. Trichell v. Midland Credit Mgmt., Inc. , 964 F.3d 990, 1004 (11th Cir. 2020). Because Klein does not allege a concrete harm, she lacks standing to proceed in federal court. The Court remands her action to state court.
I. BACKGROUND
In October 2019, Klein received medical treatment from Radiology Associates of Clearwater. (Doc. 1-2 ¶ 15.) After she fell behind on paying her medical bill, she owed Radiology Associates $507 for the treatment. (Id. ¶ 16.) On January 9, 2020, Receivable Management Group, LLC, sent Klein a two-sided letter concerning the debt. (Id. ¶¶ 17, 20, 22, 26.) The front of the letter explained that "[i]f [she] would like to satisfy [her] balance or set up a payment arrangement," she could call one of two numbers or "log onto [Receivable's] secure website to complete [her] payment transaction." (Id. ¶ 23 (first alteration in original).) The letter identified the three credit card companies that Receivable accepted and that, "[i]f [Klein] wish[ed] to charge this balance to [her] credit card, [to] please complete the credit card form below and return [it] to this office." (Id. ) The body of the letter closed by asking for Klein's "prompt attention to this matter." (Id. ¶ 24 (emphasis omitted).)
The bottom of the front page could be detached and used to send Receivable the requested payment. (Id. at 14.) Just above the detachable section, in a larger and bolded font, the letter informed Klein to "please see reverse side for important consumer information." (Id. (capitalization omitted).) On the back page, under the heading "Important Consumer Notice," Receivable informed Klein that it would "assume this debt is valid" unless she "notif[ied] this office within 30 days after receiving this notice that [she] dispute[d] the validity of this debt or any portion thereof." (Id. at 15.)
Klein alleges that Receivable's "demand for payment" on the front of the letter "overshadowed" her right to dispute and request verification on the back of the letter. (Id. ¶ 28.) She contends this violated the FDCPA by obscuring the notification of her statutory right to dispute the debt and, because she could not make payments to Receivable, she was confused about "whether she had any right to dispute or request verification of the [d]ebt." (Id. ¶ 29.) "As a direct and proximate result" of Receivable's letter, Klein did not dispute the debt or request verification of it, losing her only opportunity to dispute the debt before Receivable began collection efforts. (Id. ¶ 30); 15 U.S.C. § 1692g(b).
On January 8, 2021, Klein filed a class action lawsuit against Receivable in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida. (Doc. 1-2 at 1.) She alleges that Receivable violated the FDCPA by overshadowing the consumer notice of rights through a confusing demand letter. (Id. ¶¶ 41–52.) Receivable timely removed to this Court, (Doc. 1), and moves to dismiss Klein's complaint with prejudice, (Doc. 7). It contends that Klein failed to plausibly state a claim for relief under the FDCPA given the letter's clear consumer rights notification and no immediate demand for payment. (Id. at 7.) In essence, Receivable argues that the least sophisticated consumer would not have been confused. (Id. ) Klein opposes the motion, arguing this question is one for a jury. (Doc. 10.)
After reviewing the complaint and the motion to dismiss, the Court directed the parties to brief whether Klein has standing—in particular, whether she alleges a concrete harm—to bring her FDCPA claim in federal court. (Doc. 26.) In response, both parties press the position that Klein satisfies Article III concreteness because she "forfeited" her statutory right to dispute the debt she admits she owes. (Doc. 29; Doc. 30.) Klein further argues that her confusion over the letter was itself a concrete injury under Article III. (Doc. 30.) They are wrong, for the reasons explained below.
II. LEGAL STANDARD
Article III of the Constitution limits federal courts’ jurisdiction to "Cases" and "Controversies," see TransUnion LLC v. Ramirez , ––– U.S. ––––, 141 S. Ct. 2190, 2203, 210 L.Ed.2d 568 (2021) ; Lujan v. Defs. of Wildlife , 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), thereby "confin[ing] the federal courts to a properly judicial role," Spokeo, Inc. v. Robins , 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). As such, federal courts must independently assure themselves that they have jurisdiction over a case at every stage, regardless of whether the parties raise the issue or agree that jurisdiction exists. See Plains Com. Bank v. Long Fam. Land & Cattle Co. , 554 U.S. 316, 324, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008) ; United States v. Ross , 963 F.3d 1056, 1062 (11th Cir. 2020).
The case-or-controversy requirement permits federal courts to exercise their power only for "the determination of real, earnest, and vital controversy between individuals." Chi. & Grand Trunk Ry. Co. v. Wellman , 143 U.S. 339, 345, 12 S.Ct. 400, 36 L.Ed. 176 (1892). The doctrine of standing, which liquidates this constitutional limit, includes the "irreducible constitutional minimum" of three elements: the plaintiff must have suffered an injury in fact, the defendant must have caused that injury, and a favorable decision must be likely to redress it. Lujan , 504 U.S. at 560–61, 112 S.Ct. 2130.
An injury in fact means "an invasion of a legally protected interest" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Id. at 560, 112 S.Ct. 2130 (internal quotation marks and quotations omitted). Relevant here, a concrete injury must be "de facto ," meaning "it must actually exist"—it must be " ‘real,’ and not ‘abstract.’ " Spokeo , 578 U.S. at 340, 136 S.Ct. 1540 (quotation omitted); see TransUnion , 141 S. Ct. at 2204. To be concrete, the injury must (1) be a traditional tangible harm, such as physical or monetary harm; (2) be an intangible harm that bears a close relationship with an injury traditionally sufficient to serve as the basis for a lawsuit in American courts; or (3) be a de facto injury that was previously inadequate in law but which Congress has "elevate[d] to the status of legally cognizable." TransUnion , 141 S. Ct. at 2204–05.
But a "bare procedural violation, divorced from any concrete harm, [cannot] satisfy the injury-in-fact requirement of Article III." Spokeo , 578 U.S. at 341, 136 S.Ct. 1540. "In particular, a plaintiff does not ‘automatically satisfy[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.’ " Trichell , 964 F.3d at 997 (quoting Spokeo , 578 U.S. at 341, 136 S.Ct. 1540 ).
"At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice...." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. If the plaintiff's complaint fails to allege facts that would give the court jurisdiction, the court need not undertake a factual investigation to determine whether facts exist that would, if pleaded, give the court jurisdiction. See Muransky v. Godiva Chocolatier, Inc. , 979 F.3d 917, 935 (11th Cir. 2020) (en banc) (holding that the district court must dismiss a case where the plaintiff fails to allege facts that would give the court jurisdiction); cf. Laufer v. Arpan LLC , No. 20-14846, slip op. at 12-13, ––– F.4th ––––, 2022 WL 906511 (11th Cir. Mar. 29, 2022) (concluding that the plaintiff sufficiently alleged jurisdiction but that the district court should determine whether there is a factual basis for those allegations).
Ordinarily, when the defendant removes a case from state court, he bears the burden of establishing jurisdiction. See Lowery v. Ala. Power Co. , 483 F.3d 1184, 1207 (11th Cir. 2007). But if the plaintiff seeks to remain in federal court after removal and thus "asserts federal jurisdiction," she can also satisfy the burden. See DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342 n.3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (assigning the burden to the party asserting federal jurisdiction).
III. ANALYSIS
"[U]nder Article III, an injury in law is not an injury in fact." TransUnion , 141 S. Ct. at 2205. Klein clearly alleges the former; she fails to allege the latter. Thus, absent an allegation of a concrete injury, she also lacks standing, and, by consequence, this Court lacks jurisdiction.
To understand why that is true, some statutory context is necessary. Section 1692g(a) of the FDCPA requires that a debt collector, either in the initial communication with the debtor or within five days of sending the initial communication, provide the debtor with several pieces of information. First, it must provide the amount of the debt and the name of the creditor to whom the debt is owed. § 1692g(a). Second, it must inform the debtor that it will assume the debt is valid unless the debtor disputes the debt's validity within thirty days of receiving the notice. Id. Third, it must notify the debtor that, if she disputes the debt, it will provide either verification of the debt or a copy of a judgment. Id. And finally, it must inform the debtor that, if she so requests, it will provide the debtor with the "name and address of the original creditor, if different from the current creditor." Id.
If the debtor disputes the debt or requests the name and address of the original creditor within thirty days after the debt collector sends the notice of rights, the debt collector must stop collection until he sends the debtor "verification of the debt or a copy of a judgment" or the "name and address of the original creditor." § 1692g(b). "The statute does not describe what it means to ‘obtain[ ] verification of the debt,’ " but the best reading of the statute requires merely that the "debt collector confirm[ ] in writing that the amount being demanded is what the creditor is claiming is owed." Walton v. EOS CCA , 885 F.3d 1024, 1027–28 (7th Cir. 2018) (Barrett, J.) (quotation omitted) (joining the Fourth and Ninth Circuits). And, critically for this case, during the thirty days after the debt collector sends the notice of rights, the collector may not take any collection activity that would "overshadow or be inconsistent with the disclosure of the consumer's right to dispute the debt." § 1692g(b). Regardless, a debtor's failure to dispute a debt "may not be construed by any court as an admission of liability by the [debtor]." § 1692g(c).
Some courts have ruled that an initial collection notice overshadows the letter's disclosure of rights if the collection demand conflicted with or rendered the notice of rights unclear. See McCray v. Deitsch & Wright, P.A. , 343 F. Supp. 3d 1209, 1217 (M.D. Fla. 2018) (Kovachevich, J.) (quoting Francis v. Snyder , 389 F. Supp. 2d 1034, 1040 (N.D. Ill. 2005) (Grady, J.)); Yunker v. AllianceOne Receivables Mgmt., Inc. , No. 10-61796-CIV, 2011 WL 13239460, at *5 (S.D. Fla. July 19, 2011) (Ungaro, J.); see also Jacobson v. Healthcare Fin. Servs., Inc. , 516 F.3d 85, 90 (2d Cir. 2008) (concluding that an accurate notice that would "make the least sophisticated consumer uncertain as to her rights" overshadows a notice of rights in violation of § 1692g ). For example, a letter indicating that a debtor could " ‘resolve [the] matter immediately’ by contacting [the debt collector] to make payment" and informing the debtor that it would take "additional action" if it did not receive payment "promptly" might "overshadow" the notice of rights. McCray , 343 F. Supp. 3d at 1217 (emphasis omitted).
With that statutory background in mind, Klein alleges that Receivable's letter violated § 1692g by failing to include a clear statement of her statutory right to dispute the debt and request verification. (Doc. 1-2 ¶¶ 28–29.) According to Klein, that omission in the letter combined with the request for "prompt attention" confused her "as to whether she had any right to dispute or request verification of the debt," causing her to forgo exercising her statutory right. (Doc. 30 at 2.) Thus, Klein alleges that she suffered confusion and the loss of a procedural right.
Confusion, by itself, is not a concrete harm. See Cooper v. Atl. Credit & Fin. Inc. , 822 F. App'x 951, 955 (11th Cir. 2020) (per curiam). And Klein does not allege that her confusion precipitating the forfeiture of her procedural right caused her a " ‘real,’ and not ‘abstract’ " harm. Spokeo , 578 U.S. at 340, 136 S.Ct. 1540. She knew the origin and the amount of the debt, and she does not allege she did not owe it—information she could have procured through exercising the procedural right to dispute the debt and request verification. (Doc. 1-2 ¶ 30; id. at 14 (identifying the debt amount and the name of the creditor).) Thus, she lost an opportunity to demand information, but she never alleges she lacked that information or suffered any harm by not having Receivable send her the information. She does not allege that she made improper payments in response to Receivable's allegedly confusing letter, that she wasted time or money determining whether she must make payments, or that she suffered anxiety or loss of sleep due to the allegedly confusing letter. In describing her "personal stake" in this action, her only response is the desire "to ensure defendant's ‘compliance with regulatory law’ (and, of course, to obtain some money via the statutory damages)." TransUnion , 141 S. Ct. at 2203, 2206 (cleaned up and quotations omitted); (see Doc. 30 at 23 (lamenting that, if the Court concludes Klein lacks standing, "then debt collectors would have the carte blanche right to disregard the plain language of a federal statute enacted by Congress"). That is not a concrete harm. Receivable's alleged procedural violation under § 1692g(b) —which in turn allegedly caused Klein's forfeiture of a procedural right—alone is not a concrete harm when divorced from a de facto injury.
A. Klein's Injury Is Not Closely Related to One Traditionally Recognized as Providing a Basis for a Lawsuit in American Courts
A plaintiff's intangible harm may be concrete if it bears a " ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in American courts." TransUnion , 141 S. Ct. at 2204 (quotation omitted). A party attempting to establish standing must "identif[y] a close historical or common-law analogue for the[ ] asserted injury." Id. Put simply, the party must show that "a new harm is similar to an old harm." Muransky , 979 F.3d at 931. Courts should not demand "an exact duplicate in American history and tradition," but neither should they "loosen Article III based on contemporary, evolving beliefs about what kinds of suits should be heard in federal courts." TransUnion , 141 S. Ct. at 2204.
A couple examples help to clarify when a plaintiff's harm bears a "close relationship" with one traditionally sufficient for a plaintiff to sue in American courts. A plaintiff suffers a concrete injury when a credit reporting agency violates the Fair Credit Reporting Act by releasing "untruthful disclosures" about the plaintiff because that new harm is similar enough to the old harm "at issue in common-law causes of action like defamation or libel per se." Robins v. Spokeo, Inc. , 867 F.3d 1108, 1115 (9th Cir. 2017), remanded from , 578 U.S. 330, 136 S.Ct. 1540, cited with approval in Trichell , 964 F.3d at 997. Likewise, a plaintiff suffers a concrete injury when a defendant violates the Video Privacy Protection Act by wrongfully disclosing the videos the plaintiff has viewed because the new harm that statute protected is close to the old harm protected by the tort of "intrusion upon seclusion." Perry v. Cable News Network, Inc. , 854 F.3d 1336, 1341 (11th Cir. 2017).
Here, Klein does not contend that she suffered the "traditional tangible harms" of physical or monetary harms that would "readily qualify as concrete injuries under Article III." TransUnion , 141 S. Ct. at 2204. Instead, she argues that her harm is closely related to the harm protected by the common law tort of negligent misrepresentation. (Doc. 30 at 20.) Historically, "misrepresentation torts have required a showing of justifiable reliance and actual damages." Trichell , 964 F.3d at 998. Klein alleges, albeit opaquely, that she relied on the representations from Receivable. (Doc. 1-2 ¶ 30 (alleging that she did not dispute the debt or request verification "[a]s a direct and proximate result of [Receivable's] January 9, 2020 letter").) But mere reliance is not enough. The harm protected by common law negligent misrepresentation includes damages. See Trichell , 964 F.3d at 998 (emphasizing the fact that the plaintiff alleged neither reliance nor damages in holding the plaintiff's injury was a dramatic departure from "centuries of tradition"). "Fraud without damage, or damage without fraud, gives no cause of action; but where these two concur, an action lies." Id. (quoting Pasley v. Freeman (1789) 100 Eng. Rep. 450, 453 (Buller, J.)). For misrepresentation claims under common law, "there can be no recovery if the plaintiff is none the worse off for the misrepresentation, however flagrant it may have been." Id. (quoting Prosser & Keeton on the Law of Torts § 110 (5th ed. 1984)).
Neither Klein nor Receivable identify any damages that Klein suffered that even loosely resemble those required to state a claim for negligent representation. See Restatement (Second) of Torts, § 311 (1965) (requiring "physical harm"); id. § 552B (awarding those damages "necessary to compensate the plaintiff for the pecuniary loss"). Klein's alleged injuries—confusion from the letter and the loss of her procedural right to dispute and verify the debt—do not bear a "close relationship" to pecuniary or physical damages. To be sure, Klein concedes the debt's validity by acknowledging she "encountered financial difficulties and fell behind on her payments towards the [debt she owed Radiology Associates]." (Doc. 1-2 ¶ 16.) Importantly, even assuming the letter caused Klein not to dispute the debt, she suffered no monetary harm (for example, she did not wrongfully repay the debt or expend financial resources to confirm she owed the debt) nor did she encounter physical injury. At best, Klein lost the opportunity to demand Receivable confirm that she owed Radiology Associates an amount she does not now dispute. See § 1692g(b). But the common law tort of negligent representation never protected against the loss of this kind of abstract procedural right. "The fit between a traditionally understood harm and a more recent statutory cause of action need not be perfect, but the association here is too strained." Muransky , 979 F.3d at 932.
B. Klein Suffered No De Facto Injury that Congress Elevated
Congress may also elevate a de facto—that is, "real"—injury that was inadequate at law to one that is legally cognizable by federal courts. Trichell , 964 F.3d at 998 (quoting Lujan , 504 U.S. at 578, 112 S.Ct. 2130 ); Spokeo , 578 U.S. at 340, 136 S.Ct. 1540. But Congress's role is "necessarily limited," in that although its judgment through enactment of statutory causes of action may inform "what injuries qualify as concrete," that assessment ultimately belongs to Article III courts. Trichell , 964 F.3d at 999.
One kind of harm that Congress has elevated through various statutes is the deprivation of certain information, which can sometimes be a "de facto" injury. See Spokeo , 578 U.S. at 342, 136 S.Ct. 1540 ; Fed. Election Comm'n v. Akins , 524 U.S. 11, 20–25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) ; Pub. Citizen v. U.S. Dep't of Just. , 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989). For example, Congress has given citizens the right to certain information so that they may better evaluate political candidates and judicial nominees. See Federal Election Campaign Act of 1971, Pub. L. No. 92-225, 86 Stat. 3 ; Federal Advisory Committee Act, Pub. L. No. 92-463, 86 Stat. 770 (1972). When plaintiffs could not access that information, the Supreme Court held the deprivation was a concrete injury because it inflicted the "downstream consequence" of hindering citizens’ ability to evaluate candidates. See Akins , 524 U.S. at 20–25, 118 S.Ct. 1777 (requiring disclosures related to political candidates); Pub. Citizen , 491 U.S. at 449, 109 S.Ct. 2558 (same related to judicial nominees). To establish a concrete harm under an informational injury theory, a party asserting federal jurisdiction must show both that the plaintiff's injury was "real" (that there were "downstream consequences") and that Congress made it "legally cognizable" by seeking to ameliorate the plaintiff's harm through a statute. Trichell , 964 F.3d at 998, 1004 (quoting Lujan , 504 U.S. at 578, 112 S.Ct. 2130 ); Spokeo , 578 U.S. at 340, 136 S.Ct. 1540. Klein falters at both steps.
Starting with the second step, in passing the FDCPA, Congress sought to curb the "[a]busive debt collection practices [that] contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy." 15 U.S.C. § 1692(a) ; see Salcedo v. Hanna , 936 F.3d 1162, 1168 n.6 (11th Cir. 2019) (foregoing legislative history and instead using "the congressionally enacted findings" to determine "the judgment of Congress" for purposes of concreteness (quoting Spokeo , 578 U.S. at 340, 136 S.Ct. 1540 )). The parties—since both assert federal jurisdiction—must show that Klein's injuries somehow implicate these "serious harms." Trichell , 964 F.3d at 999.
The parties fail to make that showing. They do not argue that Klein encountered any harm like bankruptcy, marital instability, the loss of a job, or an invasion of individual privacy. Receivable does not argue that Klein's harm was similar to those protected by the statute. (Doc. 29 at 2–5.) And Klein offers undifferentiated concerns about "unfair, harassing, and deceptive debt collection practices." (Doc. 30 at 5 (quotation omitted).) These general grievances might be fair characterizations of Congress's aims in passing the FDCPA. See § 1692(a). And while Klein might take issue with Receivable's alleged FDCPA violation, "that is akin to taking offense that the government has violated other statutes—an injury that is canonically abstract as opposed to concrete." Trichell , 964 F.3d at 1000. As such, this Court cannot accept "broad overgeneralization[s] of the judgment of Congress" and must instead focus "specifically" on the way in which Klein alleges Receivable harmed her. Salcedo , 936 F.3d at 1170. Confusion from Receivable's letter and the forfeiture of her procedural right to dispute the debt pre-collection are the sole harms offered up as Klein's specific injuries by both parties. (Doc. 29 at 5; Doc. 30 at 2–3.) But this Court cannot expand the list of harms that Congress addressed through the FDCPA, and the parties fail to identify where Congress attempted to elevate these kinds of harm.
Klein also argues that Congress passed the FDCPA to "insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged." (Doc. 30 at 6–7 (quoting Bishop v. Ross Earle & Bonan, P.A. , 817 F.3d 1268, 1271 (11th Cir. 2016).) Perhaps. But like the general grievance already discussed, this too fails unless specific to Klein. And any competitive harm lawful-debt collectors suffer from other debt collectors violating the FDCPA is not a concrete or particularized harm that Klein suffered here. See Spokeo , 578 U.S. at 339, 136 S.Ct. 1540 (requiring an injury be "particularized, ... affect[ing] the plaintiff in a personal and individual way" (quotation marks omitted)).
The parties also fail at step one, as they do not identify any "downstream consequences" of Klein's injuries that would make her injury "real." See Spokeo , 578 U.S. at 340, 136 S.Ct. 1540 (defining "de facto" as "real"). For example, Klein never alleges that Receivable's alleged violation caused her to be at risk of making unnecessary or harmful payments on time-barred debt. See Trichell , 964 F.3d at 1000 (rejecting plaintiffs’ standing argument that unsophisticated consumers might be misled to make those kinds of payments because the plaintiffs were not at risk). Klein, instead, contends that the downstream consequences of her injury were her confusion from the letter and, more importantly, losing "her opportunity to dispute or verify the [d]ebt." (Doc. 30 at 19.) The first is too abstract an injury unless she alleges some "actual harms that arose from her confusion." Cooper , 822 F. App'x at 955. And the harms that "arose from her confusion," id. , the loss of Klein's procedural right, get her no closer to a "real" injury, Spokeo , 578 U.S. at 340, 136 S.Ct. 1540.
Klein relies on a Seventh Circuit decision addressing a similar violation under § 1692g that held a plaintiff lacked a concrete injury because the plaintiff never alleged she would have disputed the debt if there had been an adequate consumer notice. See Casillas v. Madison Ave. Assocs., Inc. , 926 F.3d 329, 334 (7th Cir. 2019) (Barrett, J.). The Seventh Circuit concluded that, without an allegation by the debtor that she would have exercised the rights to dispute and to verify under § 1692g, the lack of disclosure cannot place the debtor in "any risk of losing her statutory rights." Id. Admittedly, Klein goes one step further than the plaintiff in Casillas , alleging that she did not dispute the debt or request verification "[a]s a direct and proximate result of [Receivable's] January 9, 2020 letter." (Doc. 1-2 ¶ 30; see Doc. 30 at 18–19.) But forgoing a procedural right to confirm a debt one does not contest she owes, without more, is not a concrete injury. See TransUnion , 141 S. Ct. at 2205 ("[Congress] may not simply enact an injury into existence, using its lawmaking power to transform something that is not remotely harmful into something that is." (quoting Hagy v. Demers & Adams , 882 F.3d 616, 622 (6th Cir. 2018) (Sutton, J.))). Stated simply, Receivable's "bare procedural violation" that caused Klein's lost opportunity to exercise a different procedural right—without alleging a de facto injury to her—does not create standing. Spokeo , 578 U.S. at 341, 136 S.Ct. 1540 ; cf. id. at 340, 342–43, 136 S.Ct. 1540 (noting that the plaintiff alleged the violation of multiple procedural rights but nonetheless remanding to the Ninth Circuit to determine whether the plaintiff alleged a concrete injury).
Klein argues her confusion and the loss of her procedural right constitute "downstream consequences" by comparing her injuries to emotional distress from a collection letter, an injury the Eleventh Circuit has held sufficiently concrete. (Doc. 30 at 18–19 (citing Rivas v. Midland Funding, LLC , 842 F. App'x 483, 486 (11th Cir. 2021) ).) But Klein's mere confusion, a simple variation of an informational injury that cannot establish standing on its own, see Cooper , 822 F. App'x at 955, is different in kind from the emotional distress suffered by the plaintiff in Rivas that caused him to be "so ‘stressed and worried’ that he ‘couldn't sleep.’ " 842 F. App'x at 486. And the loss of Klein's procedural right is an injury wholly different from the emotional distress the plaintiff in Rivas suffered.
In her final attempt to establish a concrete injury, Klein cites an unpublished Eleventh Circuit opinion concluding that the mere deprivation of the right to disclosures under § 1692g is a concrete injury even absent a downstream consequence. See Church v. Accretive Health, Inc. , 654 F. App'x 990, 995 (11th Cir. 2016) (per curiam). But that unpublished opinion directly conflicts with subsequent binding decisions of the Supreme Court and the Eleventh Circuit. See TransUnion , 141 S. Ct. at 2214 (concluding the plaintiffs lacked standing because asserted "informational injury that causes no adverse effects cannot satisfy Article III"); accord Trichell , 964 F.3d at 1004. The Court is not permitted to follow an unpublished Eleventh Circuit decision when it conflicts with precedent. See 11th Cir. Rule 36-2 ("Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.").
IV. CONCLUSION
In the absence of an alleged concrete harm suffered by Klein, the Court lacks jurisdiction and remands the case to state court. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Accordingly, the Court directs the Clerk to REMAND this action to the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida, and to transmit a certified copy of this order to the clerk of that court; to TERMINATE any pending motions and deadlines; and to CLOSE this case.
ORDERED in Tampa, Florida, on March 30, 2022.