862 F.3d 346 (3rd Cir. 2017), 16-3277, Susinno v. Work Out World Inc.

Docket Nº:16-3277
Citation:862 F.3d 346
Opinion Judge:HARDIMAN, Circuit Judge.
Party Name:NOREEN SUSINNO, individually and on behalf of all others similarly situated, Appellant v. WORK OUT WORLD INC.; JOHN DOES 1-25
Attorney:Keith J. Keogh, Timothy J. Sostrin [Argued], Keogh Law, Chicago, IL; Yitzchak Zelman, Ari H. Marcus, Marcus & Zelman, Ocean, NJ, Counsel for Appellant. Joshua S. Bauchner [Argued], Michael H. Ansell, Ansell Grimm & Aaron, Woodland Park, NJ, Counsel for Appellees. Andrew J. Pincus [Argued], Mayer ...
Judge Panel:Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, District Judge.[*].
Case Date:July 10, 2017
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
SUMMARY

Susinno alleged that on July 28, 2015, she received an unsolicited call on her cell phone from a fitness company called Work Out World (WOW). Susinno did not answer the call, so WOW left a prerecorded promotional offer that lasted one minute on her voicemail. Susinno filed a complaint, claiming WOW’s phone call and message violated the Telephone Consumer Protection Act (TCPA) prohibition of... (see full summary)

 
FREE EXCERPT

Page 346

862 F.3d 346 (3rd Cir. 2017)

NOREEN SUSINNO, individually and on behalf of all others similarly situated, Appellant

v.

WORK OUT WORLD INC.; JOHN DOES 1-25

No. 16-3277

United States Court of Appeals, Third Circuit

July 10, 2017

         Argued: March 8, 2017.

          On Appeal from the United States District Court for the District of New Jersey. (D.N.J. No. 3-15-cv-05881). District Judge: Honorable Peter G. Sheridan.

         Keith J. Keogh, Timothy J. Sostrin [Argued], Keogh Law, Chicago, IL; Yitzchak Zelman, Ari H. Marcus, Marcus & Zelman, Ocean, NJ, Counsel for Appellant.

         Joshua S. Bauchner [Argued], Michael H. Ansell, Ansell Grimm & Aaron, Woodland Park, NJ, Counsel for Appellees.

         Andrew J. Pincus [Argued], Mayer Brown, Washington, DC, Counsel for Amicus Chamber of Commerce in Support of Appellees.

         Brian Melendez, Dykema Gossett, Minneapolis, MN, Counsel for Amicus ACA International in Support of Appellees.

         Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL, District Judge.[*].

          OPINION

         HARDIMAN, Circuit Judge.

         Noreen Susinno appeals the District Court's order dismissing her Telephone Consumer Protection Act (TCPA) claim against Work Out World Inc. for lack of subject matter jurisdiction. Because the TCPA provides Susinno with a cause of action, and her alleged injury is concrete, we will reverse the order of the District Court and remand for further proceedings.

         I

         Susinno alleged that on July 28, 2015, she received an unsolicited call on her cell phone from a fitness company called Work Out World (WOW). Susinno did not answer the call, so WOW left a prerecorded promotional offer that lasted one minute on her voicemail.

         Susinno filed a complaint in the United States District Court for the District of New Jersey claiming WOW's phone call and message violated the TCPA's prohibition of prerecorded calls to cellular telephones, 47 U.S.C. § 227(b)(1)(A)(iii). WOW moved to dismiss Susinno's complaint for lack of subject matter jurisdiction.

         The District Court granted WOW's motion to dismiss. Its decision was based on two conclusions: (1) a single solicitation was not " the type of case that Congress was trying to protect people against," App. 38, and (2) Susinno's receipt of the call and voicemail caused her no concrete injury. Susinno filed this timely appeal.

         II

         The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.

          Our review of an order dismissing a complaint for lack of subject matter jurisdiction is plenary, McCann v. Newman Irrevocable Tr., 458 F.3d 281, 286 (3d Cir. 2006), as is our review of questions of statutory interpretation, United States v. Zavrel, 384 F.3d 130, 132 (3d Cir. 2004). " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted).

         III

         This appeal poses two distinct questions: Does the TCPA prohibit the conduct alleged by Susinno? And if it does, is the harm alleged sufficiently concrete for Susinno to have standing to sue under Article III of the United States Constitution?

         A

          The TCPA provides consumers with a private right of action for certain prohibited uses of automated telephone equipment. 47 U.S.C. § 227(b)(3). WOW argues that the TCPA does not prohibit a single prerecorded call to a cell phone if the phone's owner was not charged for the call. Susinno claims that it does.

         " As in all cases of statutory interpretation, our inquiry begins with the language of the statute and focuses on Congress' intent." United States v. Abbott, 574 F.3d 203, 206 (3d Cir. 2009). The relevant text of the TCPA reads: It shall be unlawful for any person within the United States . . .

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . .

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call . . . .

47 U.S.C. § 227(b)(1).

         WOW argues that the structure of this provision limits the scope of " cellular telephone service" to cell phone services...

To continue reading

FREE SIGN UP