IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF FLORIDA 

TODD BOBO, individually and on behalf 

of all others similarly situated, 

Plaintiff, 

v. 

CLOVER NETWORK, LLC, 

Defendant. 

Case No. 1:22-cv-22338-BB 

DEFENDANT CLOVER NETWORK, LLC’S MOTION TO DISMISS PLAINTIFF’S 

CLASS ACTION COMPLAINT AND INCORPORATED MEMORANDUM OF LAW 

Pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and 

supported by the incorporated Memorandum of Law, Defendant Clover Network, LLC 

(“Clover”) moves to dismiss Plaintiff Todd Bobo’s (“Plaintiff”) Class Action Complaint 

(“Compl.”) (ECF No. 1). 

I. INTRODUCTION 

Plaintiff’s one-count Telephone Consumer Protection Act (“TCPA”) class action 

complaint against Clover contains a fundamental flaw: Plaintiff fails to establish that he has 

Article III standing to bring a claim under the TCPA. The Eleventh Circuit in Salcedo v. Hanna 

held that “receiving a single text message” “is not the kind of harm that constitutes an injury in 

fact” under Article III. 936 F.3d 1162, 1173 (11th Cir. 2019). Indeed, courts in the Eleventh 

Circuit have since followed Salcedo finding that allegations of receiving even a handful of text 

messages do not give rise to the kind of harm that constitutes an injury in fact sufficient for 

standing to pursue a TCPA claim. The Court should therefore dismiss Plaintiff’s Complaint for 

lack of standing. 

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II. FACTUAL ALLEGATIONS FROM PLAINTIFF’S COMPLAINT 

On July 26, 2022, Plaintiff, a subscriber of the cellular telephone number ending in 3660, 

sued Clover Network LLC, a provider of point-of-sale systems for businesses. (See Compl. ¶ 3, 

19.) Plaintiff’s Complaint alleges a class action lawsuit containing a single claim under the 

TCPA, 47 U.S.C. § 227(c)(5). (Compl. ¶¶ 2, 35-42.) 

Plaintiff alleges that Clover “bombarded” him with telemarketing text messages to his 

cellular telephone number ending in 3660. (Compl. ¶ 11.) Despite this conclusory allegation, 

the Complaint only includes details of two text messages sent on May 3, 2022 at 7:30 AM (i.e., 

at the same time). (Id.) The two text messages state the following: 

 “Use the Clover app to get your points automatically next time. Tap the link to transfer 

your points. https//perka.app.link/4y0nqOsaJpb” 

 “You got it! Your balance is now 23 points. You need 77 more points for a $10 off any 

purchase. Privacy: clover.com/privacy” 

(Id.) Plaintiff alleges that he registered his 3660 number with the national do-not-call (“DNC”) 

registry and that the number was registered at all times relevant to the action. (Compl. ¶ 20.) 

Plaintiff alleges that receiving these two text messages caused him harm, “including 

invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and 

conversion.” (Compl. ¶ 23.) Plaintiff further alleges that the two text messages “inconvenience 

Plaintiff and caused disruption to his daily life” without any further detail. (Id.) Plaintiff seeks 

declaratory and injunctive relief against Clover and an award of $500.00 in statutory damages for 

each violation of the TCPA to Plaintiff and each member of the Class. 

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III. LEGAL STANDARD 

A. Standard on Rule 12(b)(1) Motion to Dismiss 

Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court’s subject matter 

jurisdiction. The standing requirement exists “to ensure that federal courts do not exceed their 

authority as it has been traditionally understood.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 

(2016). A federal court does not have the power to hear cases where Article III standing is 

lacking. See Worthy v. City of Phenix City, Ala., 930 F.3d 1206, 1213 (11th Cir. 2019). As the 

plaintiff, Bobo bears the burden of establishing standing and must allege facts clearly 

demonstrating that he has standing. See Flat Creek Transportation, LLC v. Fed. Motor Carrier 

Safety Admin., 923 F.3d 1295, 1300 (11th Cir. 2019). 

The Supreme Court has explained that at the pleading stage, the burden is on a plaintiff to 

clearly allege facts demonstrating that he has “(1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a 

favorable judicial decision.” Spokeo, 578 U.S. at 338. To establish injury in fact, “a plaintiff 

must show that he or she suffered an invasion of a legally protected interest that is concrete and 

particularized and actual or imminent, not conjectural or hypothetical.” Id. at 339 (internal 

quotation marks omitted). A plaintiff does not satisfy “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. Article III standing requires a concrete injury even in the context of a statutory 

violation.” Id. at 341. This is because a statutory violation “may result in no harm.” Id. at 342; 

see also Raines v. Byrd, 521 U.S. 811, 820 n. 3 (1997) (“It is settled that Congress cannot erase 

Article III standing requirements by statutorily granting the right to sue to a plaintiff who would 

not otherwise have standing.”). 

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IV. ARGUMENT 

A. Plaintiff Failed to Plead He Suffered an Injury in Fact Sufficient to Confer 

Standing Under Salcedo

The Complaint should be dismissed for lack of Article III standing because Plaintiff has 

failed to plead that he suffered an injury in fact. The Eleventh Circuit held that the receipt of a 

single unsolicited text message on a cellular phone did not establish a concrete harm under the 

TCPA sufficient for Article III standing. Salcedo, 936 F.3d at 1173. 

In Salcedo, plaintiff alleged that receiving one text message to his cellular phone “caused 

[him] to waste his time answering or otherwise addressing the message” and while doing so, 

“both [he] and his cellular phone were unavailable for otherwise legitimate pursuits. Id. at 1167. 

Plaintiff further alleged that the single text message “resulted in an invasion of [his] privacy and 

right to enjoy the full utility of his cellular device.” Id. The Eleventh Circuit held these 

allegations were legally insufficient to support the requisite injury in fact because they 

constituted a mere “conclusory recitation.” Id. at 1168 (citing Iqbal, 556 U.S. 662 at 678 (“we 

are not bound to accept as true a legal conclusion couched as a factual allegation”)). 

The Eleventh Circuit went on to look to history and the judgment of Congress to see 

whether they support treating plaintiff’s allegations as a concrete injury in fact. The Eleventh 

Circuit found Congress was primarily concerned with “privacy within the sanctity of the home 

that do not necessarily apply to text messaging” because “cell phones are often taken outside of 

the home and often have their ringers silenced, presenting less potential for nuisance and home 

intrusion.” Id. at 1169. The court found nothing in the TCPA’s legislative history to support the 

argument that a concrete harm could result from a “single unwelcome text message” or that 

Congress intended for this to be actionable under the statute. Id. at 1170. 

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The Eleventh Circuit then turned to history to determine whether an alleged intangible 

harm had a “close relationship” with traditional theories of liability. The court looked at the torts 

of intrusion upon seclusion, trespass, nuisance, conversion, and trespass to chattel and found that 

none of these theories applied where the disturbance was “isolated, momentary, and ephemeral.” 

Id. at 1171. Ultimately, the court concluded: 

In sum, we find that history and the judgment of Congress do not support finding 

concrete injury in Salcedo's allegations. Salcedo has not alleged anything like 

enjoying dinner at home with his family and having the domestic peace shattered 

by the ringing of the telephone. Nor has he alleged that his cell phone was 

searched, dispossessed, or seized for any length of time. Salcedo’s allegations of 

a brief, inconsequential annoyance are categorically distinct from those kinds of 

real but intangible harms. The chirp, buzz, or blink of a cell phone receiving a 

single text message is more akin to walking down a busy sidewalk and having a 

flyer briefly waived in one’s face. Annoying, perhaps, but not a basis for 

invoking the jurisdiction of the federal courts. All told, we conclude that 

Salcedo’s allegations do not state a concrete harm that meets the injury-in-fact 

requirement of Article III. 

Id. at 1172. 

Precisely like the plaintiff in Salcedo, Plaintiff here has not pled facts that would 

demonstrate any concrete injury in fact caused by Clover’s alleged violation of the TCPA. 

Plaintiff’s allegations of injury are contained in two conclusory sentences. Plaintiff alleges that 

Clover’s texts “caused Plaintiff actual harm, including invasion of his privacy, aggravation, 

annoyance, intrusion on seclusion, trespass, and conversion” as well as “inconvenienced Plaintiff 

and caused disruption to his daily life.” (Compl. ¶ 23.) The Eleventh Circuit rejected most of 

these same allegations as a basis for standing in Salcedo, and the others are not sufficient to show 

that Plaintiff suffered an injury in fact. 936 F.3d at 1172. 

Although Plaintiff alleges that he was “bombarded” with text messages, this Court should 

look past conclusory recitations “to the actual substance” of Plaintiff’s allegations in the same 

way the Eleventh Circuit did in Salcedo. Id. at 1168. The Complaint alleges that Plaintiff 

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received – at most – two text messages, both of which arrived at the same time.1 Plaintiff’s 

conclusory allegations of harm, even if taken as true, are no different than the feelings that the 

Eleventh Circuit said could be evoked in response to a “flyer briefly waived in one’s face” and 

therefore is similarly not a basis to invoke this Court’s jurisdiction. Id. at 1172. 

Moreover, as the Salcedo Court made clear, this standing decision is “qualitative, not 

quantitative.” 936 F. 3d at 1173. Thus, in following Salcedo, district courts throughout the 

Eleventh Circuit have found that allegations of receiving a small number of text messages do not 

constitute a concrete injury in fact. See, e.g., Eldridge v. Pet Supermarket Inc., 446 F. Supp. 3d 

1063, 1070 (S.D. Fla. 2020) (“Under the reasoning of Salcedo, Plaintiff’s allegations of wasted 

time from opening and reading five text messages . . . does not constitute a concrete injury-infact.”); Fenwick v. Orthopedic Specialty Institute, PLLC, No. 0:19-CV-62290, 2020 WL 913321, 

at *5 (S.D. Fla. 2020) (finding that plaintiff’s allegations of “invasion of privacy, aggravation, 

annoyance, intrusion on seclusion, trespass, and conversion” caused by receiving two text 

messages “closely align with the kinds of harm that the Court in Salcedo evaluated and 

ultimately found insufficient”); Perez v. Golden Trust Ins., Inc., 470 F. Supp. 3d 1327, 1329 

(S.D. Fla. 2020) (finding no concrete injury in fact where defendant sent “two text messages 

contain[ing] fifty words for the Plaintiff to read”). As Judge Williams held in Eldridge: “The 

Eleventh Circuit’s rationale for finding the plaintiff’s alleged loss of privacy and wasted time 

from receiving a single text message are not qualitatively ‘the kind of harm that constitutes an 

injury in fact’ applies equally here where Plaintiff received only one or two sporadic, short texts 

per month in a three-month period.” 446. F. Supp. 3d 1071-72. Plaintiff’s two text messages 

likewise cannot confer standing. 

1

 It is unclear from Plaintiff’s pleading whether this is in fact 2 text messages, or one message in 2 parts. For 

purposes of this motion, Defendant assumes, without conceding, that it is two messages. 

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Plaintiff has plead what was found insufficient in Salcedo, Eldridge and similar cases to 

establish standing. As a result, Plaintiff’s Complaint should be dismissed for lack of standing. 

B. The Court Should Dismiss Plaintiff’s Complaint Without Leave to Amend 

Because Amendment Would Be Futile 

Further, Clover also requests the Court dismiss Plaintiff’s TCPA claim without leave to 

amend. Although leave to amend is freely given when justice so requires, courts need not grant 

plaintiff a chance to amend when amendment would be futile. See Maynard v. Bd. of Regents, 

342 F.3d 1281, 1287 (11th Cir. 2003). Courts have found amendment to be futile when a 

plaintiff cannot establish standing. See, e.g., Day v. Trump, No. 8:20-CV-2477, 2021 WL 

3269242, at *4 (M.D. Fla. July 30, 2021) (“As Plaintiff has failed to establish standing, the Court 

finds that amending the complaint would be futile.”). As noted above, Plaintiff pleads at most 

only two text messages received on one instance. Plaintiff does not plead these two messages as 

examples of others received but rather appears to plead them as the only text messages he 

received. Accordingly, given that it appears from Plaintiff’s Complaint that Plaintiff cannot plead 

facts establishing he received more than these (at most) two text messages, the Court should 

dismiss without leave to amend. 

V. CONCLUSION 

For the above reasons, the Court should grant Defendant’s Motion to Dismiss Plaintiff’s 

Complaint with prejudice. 

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Dated: September 16, 2022 

Respectfully submitted, 

/s/ Andrew D. Atkins

Andrew D. Atkins 

Florida Bar No.: 92689 

TROUTMAN PEPPER HAMILTON 

SANDERS LLP 

301 S. College St., 34th 

Charlotte, NC 28202 

Telephone: (704) 998-4050 

Email: andrew.atkins@troutman.com

Steven D. Allison (admitted Pro Hac Vice) 

Samrah R. Mahmoud (admitted Pro Hac 

Vice) 

TROUTMAN PEPPER HAMILTON 

SANDERS LLP 

5 Park Plaza, Suite 1400 

Irvine, CA 92614 

Telephone: (949) 622-2700 

Email: steven.allison@troutman.com

samrah.mahmoud@troutman.com

Counsel for Defendant 

CLOVER NETWORK, LLC 

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