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David B. Rosenbaum, 009819 

Hayleigh S. Crawford, 032326 

OSBORN MALEDON, P.A. 

2929 North Central Avenue, 21st Floor 

Phoenix, Arizona 85012-2793 

(602) 640-9000 

(602) 640-9050 Fax 

drosenbaum@omlaw.com

hcrawford@omlaw.com

Attorneys for Defendant Aaron’s, Inc. 

Kristine McAlister Brown 

(admitted pro hac vice) 

Derin B. Dickerson 

(admitted pro hac vice) 

ALSTON & BIRD LLP 

1201 West Peachtree Street 

Atlanta, Georgia 30309-3424 

(404) 881-7000 

(404) 881-7777 Fax 

kristy.brown@alston.com

derin.dickerson@alston.com

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

 

Tee Foster, on behalf of himself and 

all others similarly situated, 

 Plaintiff, 

v. 

Aaron’s, Inc., 

Defendant. 

 CASE NO.: 2:15-cv-01637-SRB 

 

DEFENDANT’S MOTION FOR 

JUDGMENT ON THE PLEADINGS 

(Oral Argument Requested)

 

 

Defendant Aaron’s, Inc. (“Aaron’s”) moves for judgment on the pleadings 

under Federal Rule of Civil Procedure 12(c). The authorities supporting Aaron’s 

Motion are thoroughly set forth in the following Memorandum of Law. Pursuant to 

Local Rule 7.1, Aaron’s is separately submitting a Proposed Order. 

MEMORANDUM OF POINTS AND AUTHORITIES 

I. INTRODUCTION 

Plaintiff’s Class Action Complaint (“Complaint”) does not allege an actual, 

concrete injury that is sufficient to confer Article III standing. Plaintiff alleges a 

violation of the federal Telephone Consumer Protection Act (“TCPA”) based on calls 

that Aaron’s purportedly placed to his cell phone using an automatic telephone dialing 

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system (“ATDS”) and/or an automated or prerecorded voice. Plaintiff does not allege 

that these calls caused him any actual injury; instead, he merely alleges that Aaron’s 

violated the TCPA when it called him. 

In a recent decision, the Supreme Court confirmed that violation of a statute 

alone does not confer Article III standing. In Spokeo v. Robins, 136 S.Ct. 1540, 1547-

48 (2016), the Supreme Court made clear “that Congress cannot erase Article III’s 

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

not otherwise have standing’” (quoting Raines v. Bird, 521 U.S. 811, 818 (1997)). 

That holds true even when the statute at issue provides for statutory damages as the 

TCPA does. See id. at 1545. 

If the TCPA had never been enacted, Plaintiff would not have Article III 

standing to sue because he has not alleged a single concrete harm “divorced from” his 

claim that Aaron’s violated the TCPA. Id. at 1549. Indeed, Plaintiff’s Complaint 

contains no allegation that Plaintiff suffered any injury from the conduct alleged – 

much less an actual, concrete injury of the kind required to establish standing. Under 

Spokeo, the enactment of the TCPA does not provide Plaintiff with standing he 

otherwise lacks. Aaron’s is therefore entitled to judgment on the pleadings. 

II. ARGUMENTS AND AUTHORITIES 

A. Standard of Review. 

“‘“A judgment on the pleadings is properly granted when, taking all the 

allegations in the pleadings as true, the moving party is entitled to judgment as a 

matter of law.”’” Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042 

(9th Cir. 2005) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 

(9th Cir.2001) (quoting Nelson v. City of Irvine, 143 F.3d 1196, 1200(9th Cir.1998))). 

The standard applied to a Rule 12(c) motion is essentially the same as that 

applied to a Rule 12(b)(6) motion to dismiss. See Hal Roach Studios, Inc. v. Richard 

Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1989). Thus, the allegations of the nonmoving party are accepted as true. Id. However, conclusory allegations and 

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unwarranted inferences are insufficient to defeat a motion for judgment on the 

pleadings. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir.1996). 

An argument that a party lacks standing “may be raised at any time,” including 

in a motion for judgment on the pleadings. See Ore. v. Legal Servs. Corp., 552 F.3d 

965, 969; Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing may be 

resolved on the pleadings, on summary judgment, or at trial). 

B. Plaintiff Lacks Standing to Pursue His Claims. 

The “irreducible constitutional minimum” of standing has three elements: the 

plaintiff must have (1) suffered an injury of 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. Id. at 560-61. As the party invoking federal jurisdiction, 

Plaintiff bears the burden of establishing these elements. FW/PBS, Inc. v. Dallas, 493 

U.S. 215, 231 (1990). Where, as here, a case is at the pleading stage, the plaintiff 

must “clearly . . . allege facts demonstrating each element.” Warth v. Seldin, 422 U.S. 

490, 498-99 (1975). 

The Supreme Court’s opinion in Spokeo last month confirmed that the bar for 

pleading injury-in-fact is higher than Plaintiff has plead (or can plead) in this case. 

“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.’” Spokeo, 136 S. Ct. at 1548 (quoting 

Lujan, 504 U.S. at 560). Article III’s injury-in-fact component “requires a concrete 

injury even in the context of a statutory violation.” Id. at 1549. “Congress’ role in 

identifying and elevating intangible harms does not mean that a plaintiff automatically 

satisfies 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.” Id. “‘It is 

settled that Congress cannot erase Article III’s standing requirements by statutorily 

granting the right to sue to a plaintiff who would not otherwise have standing.’” Id. at 

1547-48 (quoting Raines, 521 U.S. at 818). 

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Like the plaintiff in Spokeo, Plaintiff here has pled only that the defendant 

violated his statutory rights, not that he suffered concrete injury as a result. Plaintiff 

cannot “allege a bare procedural violation [of the TCPA], divorced from any concrete 

harm, and satisfy the injury-in-fact requirement of Article III.” Id. at 1549. In most 

TCPA cases, such as this one, a procedural violation of the statute “may result in no 

harm.” Id. at 1550. Plaintiffs’ factual allegations are limited to eight bare boned 

paragraphs in his Complaint, none of which identifies any concrete harm. Dkt. 1 ¶¶ 

14-21. Rather than describing an injury-in-fact, Plaintiff simply states that Aaron’s 

called him in an attempt to collect a debt of one of his acquaintances. Id. ¶ 16. His 

factual allegations merely trace the language of the statute without describing any 

harm that he personally suffered that would allow him to bring suit against Aaron’s. 

Without more these allegations do not confer standing. 

IV. CONCLUSION 

Plaintiff would not have standing to sue Aaron’s without the existence of the 

TCPA. His lack of a concrete injury outside of any alleged procedural violation of the 

statute requires a finding that he lacks Article III standing. Spokeo, 136 S. Ct. at 

1549. Aaron’s is therefore entitled to a judgment on the pleadings in this matter. 

Dated this 6th day of June, 2016. 

OSBORN MALEDON, P.A. 

By: s/ David B. Rosenbaum 

David B. Rosenbaum 

Hayleigh S. Crawford 

2929 North Central Ave., Suite 2100 

Phoenix, Arizona 85012-2793 

ALSTON & BIRD LLP 

Kristine McAlister Brown (pro hac vice) 

Derin Dickerson (pro hac vice) 

1201 West Peachtree Street 

Atlanta, Georgia 30309-3424 

Attorneys for Defendant Aaron’s, Inc. 

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CERTIFICATE OF SERVICE 

THIS IS TO CERTIFY that on June 6, 2016, a copy of the foregoing was 

filed with the Clerk of the Court through the CM/ECF system, which sent notice of 

filing to all counsel of record. 

 /s/Kelly Dourlein 

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