     Case: 09-10722     Document: 00511059292          Page: 1    Date Filed: 03/23/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 23, 2010

                                     No. 09-10722                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



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




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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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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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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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




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

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



      2
            We do not mean to suggest that a defendant’s use of public
photography against some interest of a plaintiff can never establish an injury-in-
fact 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).

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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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