833 F.3d 903 (8th Cir. 2016), 15-2453, Carlsen v. GameStop, Inc.
|Citation:||833 F.3d 903|
|Opinion Judge:||GRUENDER, Circuit Judge.|
|Party Name:||Matthew Carlsen, individually and on behalf of all others similarly situated, Plaintiff-Appellant v. GameStop, Inc., a Minnesota corporation; Sunrise Publications, Inc., doing business as Game Informer, a Minnesota corporation, Defendants-Appellees.|
|Attorney:||Counsel who presented argument on behalf of the appellant was Roger Perlstadt, of Chicago, IL. The following attorney also appeared on the appellant brief; Ryan D. Andrews, of Chicago, IL. Counsel who presented argument on behalf of the appellees was Paul G. Karlsgodt, of Denver, CO. The followin...|
|Judge Panel:||Before MURPHY, BEAM, and GRUENDER, Circuit Judges. BEAM, Circuit Judge, concurring and dissenting.|
|Case Date:||August 16, 2016|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Plaintiff, individually and purportedly on behalf of others similarly situated, filed suit against GameStop for breach of contract, unjust enrichment, money had and received, and violation of Minnesota’s Consumer Fraud Act (CFA), Minn. Stat. 325F.68, et seq. Plaintiff alleged that GameStop's disclosure of personally identifiable information (PII) to a third party (Facebook) violated an express... (see full summary)
Submitted: March 15, 2016
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from United States District Court for the District of Minnesota-Minneapolis
Counsel who presented argument on behalf of the appellant was Roger Perlstadt, of Chicago, IL. The following attorney also appeared on the appellant brief; Ryan D. Andrews, of Chicago, IL.
Counsel who presented argument on behalf of the appellees was Paul G. Karlsgodt, of Denver, CO. The following attorney(s) also appeared on the appellee brief; Teresa J. Kimker, of Minneapolis, MN., Casie D. Collignon, of Denver, CO., and Theodore J. Kobus, III, of New York, NY.
Before MURPHY, BEAM, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Matthew Carlsen, individually and purportedly on behalf of others similarly situated, brought claims against GameStop, Inc. and Sunrise Publications, Inc. (collectively, “ GameStop” ) for breach of contract, unjust enrichment, money had and received, and violation of Minnesota’s Consumer
Fraud Act (CFA), Minn. Stat. §§ 325F.68, et seq., for GameStop’s alleged disclosure of personal information to a third party in violation of an express agreement not to do so. GameStop filed a motion to dismiss Carlsen’s complaint for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim under Rule 12(b)(6). The district court 1 granted the motion to dismiss for lack of subject-matter jurisdiction, finding that Carlsen lacked standing. We affirm the district court on the basis that Carlsen’s complaint failed to state a claim upon which relief can be granted.
Based on these allegations, Carlsen’s amended complaint sought class certification and asserted four claims: (1) breach of contract; (2) unjust enrichment; (3) money had and received; and (4) violation of Minnesota’s CFA, Minn. Stat. §§ 325F.68, et seq. GameStop filed a motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. The district court granted the motion to dismiss for lack of subject-matter jurisdiction, finding that Carlsen lacked standing for failure to allege an injury in fact with respect to his overpayment and would-not-have-shopped
“ The existence of subject-matter jurisdiction is a question of law that this court reviews de novo.” ABF Freight Sys., Inc. v. Int’l Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011). “ A court deciding a motion under Rule 12(b)(1) must distinguish between a ‘ facial attack’ and a ‘ factual attack’ ” on jurisdiction. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In a facial attack, “ the court restricts itself to the face of the pleadings, and the non-moving party receives the same protections as it would defending against a motion brought under Rule 12(b)(6).” Id. (internal citations omitted). “ In a factual attack, the court considers matters outside the pleadings, and the non-moving party does not have the benefit of 12(b)(6) safeguards.” Id. (internal citation omitted). The method in which the district court resolves a Rule 12(b)(1) motion— that is, whether the district court treats the motion as a facial attack or a factual attack— obliges us to follow the same approach. BP Chemicals Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 680 (8th Cir. 2002).
Here, the district court discussed both standards but did not state which approach it followed. Toward the end of its opinion, however, the court stated that it was “ accepting as true all of Plaintiff’s allegations and construing all reasonable inferences in Plaintiff’s favor” — i.e., that it was following the Rule 12(b)(6) standard used for a facial attack. We thus examine the Rule 12(b)(1) motion as a facial attack on jurisdiction, affording Carlsen’s complaint Rule 12(b)(6) protection by “ accepting as true all facts alleged in the complaint.” See Trooien v. Mansour, 608 F.3d 1020, 1026 (8th Cir. 2010). As such, we “ consider[ ] only the materials that are ‘ necessarily embraced by the pleadings and exhibits attached to the complaint.’ ” Cox v. Mortgage Elec. Registration Sys., Inc., 685 F.3d 663, 668 (8th Cir. 2012) (quoting Mattes v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)).
We begin by addressing the sufficiency of the complaint with respect to Carlsen’s standing. “ Federal jurisdiction is limited by Article III of the Constitution to cases or controversies; if a plaintiff lacks standing to sue, the district court has no subject-matter jurisdiction.” ABF, 645 F.3d at 958. “ The ‘ irreducible constitutional minimum of standing’ is that a plaintiff show (1) an ‘ injury-in-fact’ that (2) is ‘ fairly ... trace [able] to the challenged action of the defendant’ and (3) is ‘ likely ... [to] be redressed by a favorable decision’ in court.” Id. (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). A plaintiff has suffered an injury-in-fact if he has experienced “ an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal citations and quotation marks omitted). Further, “ [a] ‘ legally protected interest’ requires only a ‘ judicially cognizable interest.’ ” ABF, 645 F.3d at 959.
The district court addressed the standing issue by evaluating Carlsen’s theories of damages. The court first discussed whether Carlsen’s alleged monetary damages based on a theory of “ overpayment” constituted a cognizable injury in fact. Under this theory, Carlsen alleged that he would not have paid as much as he did for his Game Informer subscription had he known GameStop would violate the terms
As we previously have cautioned, “ [i]t is crucial ... not to conflate Article III’s requirement of injury in fact with a plaintiff’s...
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