Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10722

Summary Calendar

STEPHEN BELL, Individually, and on behalf of others similarly situated;

ALEXIS MONRREAL, Individually, and on behalf of others similarly

situated; JACQUELINE MONRREAL, Individually, and on behalf of others

similarly situated

Plaintiffs-Appellants

v.

AMERICAN TRAFFIC SOLUTIONS, INC.

Defendant-Appellee

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:08-CV-2093-G

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Appellants Stephen Bell, Alexis Monrreal, and Jacqueline Monrreal appeal

from the district court’s dismissal of their negligence per se claim against

Appellee American Traffic Solutions, Inc. (“ATS”). We conclude that Appellants

United States Court of Appeals

Fifth Circuit

F I L E D

March 23, 2010

Charles R. Fulbruge III

Clerk

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No. 09-10722

2

lack standing to assert their claim and therefore affirm the district court’s

dismissal of this case, but vacate its ruling on the merits of Appellants’ claim.

I.

In the latter half of 2008, each Appellant ran a red traffic light in either

the City of Arlington or the City of Irving and received a notice of a traffic

violation. The Cities issued these notices on the basis of photographs taken by

traffic cameras installed and operated by ATS in Arlington and Irving. ATS had

contracted with the Cities to monitor compliance with traffic lights at certain

intersections. Appellants did not contest the notices of violation and each paid

fines of $75 to either Arlington or Irving.

Shortly thereafter, in November 2008, Appellants filed the present suit

under a novel theory of recovery. They claim that ATS is an “investigations

company” that under Tex. Occ. Code Ann. § 1702.101 may not operate without

a license from the State of Texas. See Tex. Occ. Code Ann. § 1702.104(2) (Vernon

2004) (“A person acts as an investigations company for the purposes of this

chapter if the person . . . engages in the business of securing . . . evidence for use

before a court, board, officer, or investigating committee . . . .”). Since ATS did

not have a license when its cameras captured evidence of Appellants’ traffic

violations, Appellants argue that ATS’s conduct qualifies as negligence per se.

Consequently, they seek injunctive relief to block ATS from continuing to

operate without a license, reimbursement of fines and related expenses,

$3,000,000 in damages, and certification of a class of similarly situated

individuals under Rule 23. 

The district court held that Appellants had standing under Article III to

assert their negligence per se claim. However, after reviewing the factors that

Texas courts consider when asked to create negligence per se liability for the

violation of a statute, the court also concluded that ATS’s alleged violation of

section 1702.101 could not establish negligence per se. As a result, it dismissed

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3

Appellants’ action under Rule 12(b)(6) for failure to state a claim. Appellants

now appeal this determination, but we affirm the district court’s dismissal, as

we find that Appellants lack standing to bring their negligence per se claim.

II.

Whether a district court possesses subject matter jurisdiction is reviewed

de novo on appeal. Sandoz v. Cingular Wireless LLC, 553 F.3d 913, 915 (5th Cir.

2008). When a district court dismisses a case because lack of subject matter

jurisdiction is apparent on the face of the plaintiff’s complaint, the factual

allegations in the complaint must be accepted as if they were true. See

Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981).

“[S]tanding is an essential and unchanging part of the case-or-controversy

requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). When a plaintiff cannot satisfy the standing requirements imposed by

Article III, courts lack subject matter jurisdiction over a case. See Cadle Co. v.

Neubauer, 562 F.3d 369, 371 (5th Cir. 2009). To prove standing to bring a claim

in federal court, “a litigant must demonstrate that it has suffered a concrete and

particularized injury that is either actual or imminent, that the injury is fairly

traceable to the defendant, and that it is likely that a favorable decision will

redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007). Although

Appellants have not briefed the standing issue on appeal, they advanced several

theories of injury in the district court to demonstrate that they have standing to

bring suit against ATS for operating traffic light cameras without a license.

However, none of these theories are sufficient to provide standing to advance

their claims.

First, Appellants claimed in the district court that they have been injured

by their traffic citations and related fines and expenses. These injuries,

however, cannot create standing. Appellants have not alleged that they were

improperly cited for traffic violations by the Cities of Arlington and Irving;

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instead, they have claimed their violations would not have been discovered were

it not for ATS. This interest in evading the law cannot create standing—a

plaintiff’s complaint that the defendant’s actions “will make his criminal activity

more difficult lacks standing because his interest is not ‘legally protected.’”

Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006)

(citing 13 Charles Alan Wright et al., Federal Practice and Procedure § 3531.4

(2d ed. Supp. 2005)).

Second, Appellants asserted in the proceedings below that they have been

injured by the use of allegedly illegally obtained evidence to prove their traffic

violations. Judge Fish concluded that this alleged injury was sufficient to

provide Appellants with standing. However, Judge Fish later reconsidered this

ruling in a subsequent case filed by a similar group of plaintiffs against another

red light camera operator, finding instead that this alleged injury could not

create standing. See Verrando v. ACS State and Local Solutions, Inc., No.

3:08-cv-02241-G, 2009 WL 2958370, at *3 (N.D. Tex. Sept. 15, 2009). In

Verrando, Judge Fish held that illegally obtained evidence may be admitted in

civil traffic violation proceedings and that therefore the use of such evidence

creates no injury. See Tex. Transp. Code Ann. § 707.002 (Vernon Supp. 2009)

(“The governing body of a local authority by ordinance may implement a

photographic traffic signal enforcement system and provide that the owner of a

motor vehicle is liable to the local authority for a civil penalty if . . . the vehicle

is operated in violation of the instructions of that traffic-control signal . . . .”

(emphasis added)); United States v. Janis, 428 U.S. 433, 447 (1976) (“In the

complex and turbulent history of the [exclusionary] rule, the Court never has

applied it to exclude evidence from a civil proceeding, federal or state.”); In re

Strategic Impact Corp., 214 S.W.3d 484, 488 (Tex. App.—Houston [14th Dist.]

2006, orig. proceeding [mand. denied]) (“In civil cases, even illegally obtained

evidence may be admissible at trial.”); State v. Taylor, 721 S.W.2d 541, 551 (Tex.

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We note that one Texas appellate court has held that illegally 1

obtained evidence may be excluded in civil cases, even when the statute in

question does not explicitly provide for exclusion. In Collins v. Collins, the Texas

First Court of Appeals held that evidence obtained in violation of federal and

state wiretap statutes may be excluded in civil proceedings. 904 S.W.2d 792, 799

(Tex. App.—Houston [1st Dist.] 1995, writ denied). Specifically, it held that

“[a]lthough the Texas wiretap statute does not specifically provide for the

exclusion of illegally obtained ‘communications,’ the provisions for a cause of

action for divulging wiretap information and the injunctive remedies . . . are

sufficient to rebut the presumption of admissibility under [Texas Rule of

Evidence] 402.” Id. We find Collins inapposite in this case for several reasons.

First, Collins is in tension with the weight of authority discussed above, which

provides that illegally obtained evidence is admissible in civil proceedings.

Second, unlike the Texas wiretapping statute considered in Collins, Texas law

does not allow private citizens to sue to enforce section 1702.101’s licensing

requirement or to seek injunctive relief against disclosure of information

obtained without a license. Compare Tex. Occ. Code §§ 1702.381-383

(authorizing attorneys for state to file suit to seek injunctive relief and civil

penalties for failure to acquire license), with § 1702.401 (authorizing private

citizens to file complaints with Texas Private Security Board when entities

acting as investigations companies fail to acquire licenses). Third, the exclusion

of evidence endorsed by the Collins court has been called into question by

another Texas appellate court. See Allen v. Mancini, 170 S.W.3d 167, 172 (Tex.

App.—Eastland 2005, pet. denied) (explaining that Texas wiretapping statute

“does not address the admissibility of . . . evidence absent an injunction

prohibiting the divulgence or use of [the wrongfully obtained] information”).

Consequently, we are confident that ATS’s photographs of Appellants’ vehicles

were properly admitted to prove Appellants’ traffic violations, even if these

photographs were obtained without a license.

5

App.—Tyler 1986, writ ref’d n.r.e.) (appraisal conducted by unlicensed real

estate broker held admissible in condemnation case). Consequently, this alleged

injury to Appellants is illusory.

1

Third, in the district court Appellants suggested that ATS’s collection of

evidence without a license injured their interest in privacy. Even assuming that

taking a photograph of a vehicle moving through a public intersection could

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We do not mean to suggest that a defendant’s use of public 2

photography against some interest of a plaintiff can never establish an injury-infact that would be actionable under Article III. There may be valid privacy

concerns regarding such photography, but we do not reach this issue today. See,

e.g., Andrew Lavoie, Note, The Online Zoom Lens: Why Internet Street-Level

Mapping Technologies Demand Reconsideration of the Modern-Day Tort Notion

of “Public Privacy”, 43 Ga. L. Rev. 575, 579-82 (2009) (discussing privacy

concerns regarding Google Street View).

6

create an actionable privacy injury, we conclude that Appellants have not 2

alleged sufficient facts to show causation between their purported privacy injury

and ATS’s failure to acquire a license. If an investigations license were akin to

a warrant and meant to be a procedural means of protecting privacy, the

plaintiffs would likely be able to show causation sufficient to proceed in this case.

Cf. Lujan, 504 U.S. at 573 n.8 (1992) (explaining that plaintiffs can “enforce

procedural rights . . . so long as the procedures in question are designed to

protect some threatened concrete interest . . . that is the ultimate basis of [their]

standing” (emphasis added)). However, Texas case law reveals that mere

investigation without a license, without more, does not in itself intrude on

privacy. In Hudson v. Winn, a Texas appellate court considered an invasion of

privacy claim filed against an unlicensed investigator. 859 S.W.2d 504, 507-08

(Tex. App.–Houston [1st Dist.] 1993, writ denied). The investigator had lied to

gain entry to the plaintiff’s home, and then allegedly investigated the nature of

the plaintiff’s relationship with her deceased partner. Id. at 505-06. The

plaintiff claimed that the investigator’s failure to acquire a license established

negligence per se, but the court held against the plaintiff, as it found that the

evidence did not show how the failure to acquire a license caused any privacy

injury. Id. at 508. Similarly, in this case, Appellants have only made the bare

allegation that ATS collected evidence without a license, without alleging any

facts to demonstrate how ATS’s lack of a license contributed to any invasion of

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their privacy. Consequently, they have not shown the causation necessary to

provide standing to advance their negligence per se claim in federal court. Cf.

Warth v. Seldin, 422 U.S. 490, 518 (1975) (“It is the responsibility of the

complainant clearly to allege facts demonstrating that he is a proper party to

invoke judicial resolution of the dispute and the exercise of the court's remedial

powers.”).

III.

For the foregoing reasons, we VACATE the district court’s dismissal of

Appellants’ action for failure to state a claim under Rule 12(b)(6). See Walters

v. Edgar, 163 F.3d 430, 437 (7th Cir. 1998) (“Since . . . the district court never

acquired jurisdiction over the present suit, all previous rulings in this litigation

in the district court should be vacated . . . .”). However, we AFFIRM the district

court’s dismissal of this action, as we conclude that Appellants are without

standing to assert their negligence per se claim.

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