Susinno v. Work Out World Inc.

Citation862 F.3d 346
Decision Date10 July 2017
Docket NumberNo. 16-3277,16-3277
Parties Noreen SUSINNO, individually and on behalf of all others similarly situated, Appellant v. WORK OUT WORLD INC. ; John Does 1–25
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

862 F.3d 346

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.

Argued March 8, 2017
Filed: July 10, 2017


Keith J. Keogh, Timothy J. Sostrin [Argued], Keogh Law, 55 West Monroe Street, Suite 3390, Chicago, IL 60603, Yitzchak Zelman, Ari H. Marcus, Marcus & Zelman, 1500 Allaire Avenue, Suite 101, Ocean, NJ 07712, Counsel for Appellant

Joshua S. Bauchner [Argued], Michael H. Ansell, Ansell Grimm & Aaron, 365 Rifle Camp Road, Woodland Park, NJ 07424, Counsel for Appellees

Andrew J. Pincus [Argued], Mayer Brown, 1999 K Street, N.W., Washington, DC 20006, Counsel for Amicus Chamber of Commerce in Support of Appellees

Brian Melendez, Dykema Gossett, 4000 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402, Counsel for Amicus ACA International in Support of Appellees

Before: HARDIMAN and KRAUSE,

862 F.3d 348

Circuit Judges, and STENGEL, District Judge.*

OPINION OF THE COURT

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."

862 F.3d 349

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 where "the called party is charged for the call." WOW Br. 15 (emphasis omitted) (quoting 47 U.S.C. § 227(b)(1)(A)(iii) ). According to WOW, when Congress prohibited prerecorded calls to cell phones in the TCPA, it primarily was concerned with the cost of those calls. See WOW Br. 2, 4–5 (quoting the House and Senate reports for the TCPA).

WOW's reading of section 227(b)(1) is strained. As the Court of Appeals for the Eleventh Circuit explained: "[t]he rule of the last antecedent requires the phrase ‘for which the called party is charged for the call,’ [in § 227(b)(1) ], ‘to be applied to the words or phrase immediately preceding (i.e. "any service"), and not to be construed as extending to or including others more remote.’ " Osorio v. State Farm Bank, F.S.B. , 746 F.3d 1242, 1257 (11th Cir. 2014) (citation and alterations omitted).

But even apart from the grammatical analysis, we think another provision of the TCPA decisively rebuts WOW's reading of the statute. Section 227(b)(2)(C) provides that the Federal Communications Commission (FCC):

may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect.

If it were the case (as WOW suggests) that cell phone calls not charged to the recipient were not covered by the general prohibition, there would have been no need for Congress to grant the FCC discretion to exempt some of those calls. We also think it significant that this section states "calls to a [cell phone] ... not charged to the called party" can implicate "privacy rights" that Congress "intended to protect," even if the phone's owner is not charged for the call. 47 U.S.C. § 227(b)(2)(C).

WOW notes that the statute's congressional findings refer to "residential telemarketing practices" and "calls to the home." See Telephone Consumer Protection Act of 1991, Pub. L. 102–243, § 2, 105 Stat. 2394 (1991). Although it is true that the TCPA placed particular emphasis on intrusions upon the privacy of the home in 1991, this expression of particular concern for residential calls does not limit—either expressly or by implication—the statute's application to cell phone calls. Accordingly, the TCPA provides Susinno a cause of action for the conduct she alleged.1

862 F.3d 350

B

1

We turn next to the question of whether Susinno has alleged a sufficiently concrete injury to establish constitutional standing to sue. This issue implicates the Supreme Court's recent decision in Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016). There, the Court...

To continue reading

Request your trial
118 cases
  • Taylor v. Fred's, Inc.
    • United States
    • U.S. District Court — Northern District of Alabama
    • February 2, 2018
    ...satisfy the requirement of concreteness.").Although not arising under FACTA, this Court has previously relied on Susinno v. Work Out World Inc. , 862 F.3d 346 (3d Cir. 2017), when deciding a Spokeo dispute arising under the TCPA. See Hossfeld v. Compass Bank , No. 2:16-CV-2017-VEH, 2017 WL ......
  • Viernes v. DNF Assocs., LLC
    • United States
    • U.S. District Court — District of Hawaii
    • January 27, 2022
    ...not "technically false," and noting that the close-relationship test does not require "an exact duplicate"); Susinno v. Work Out World Inc. , 862 F.3d 346, 350–51 (3d Cir. 2017) (holding that a "close relationship existed even though the conduct alleged would not have give[n] rise to a caus......
  • Trichell v. Midland Credit Mgmt., Inc., No. 18-14144
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 6, 2020
    ...satisfy Spokeo, congressionally proscribed "conduct [need not] give rise to a cause of action under common law." Susinno v. Work Out World Inc., 862 F.3d 346, 351 (3d Cir. 2017) (emphasis added); see also Golan v. FreeEats.com, Inc., 930 F.3d 950, 958 (8th Cir. 2019) ("An alleged harm need ......
  • Muransky v. Godiva Chocolatier, Inc., No. 16-16486 & 16-16783
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 28, 2020
    ...See Spokeo II , 867 F.3d at 1115. Nor must the violation "give rise to a cause of action under common law." Susinno v. Work Out World Inc. , 862 F.3d 346, 351 (3d Cir. 2017). Rather, the harm need only bear a "close relationship to a harm that has traditionally been regarded as providing a ......
  • Request a trial to view additional results
3 firm's commentaries
  • TCPA Tracker - August 2021
    • United States
    • Mondaq United States
    • August 26, 2021
    ...should be sufficient for the injury-in-fact standing requirement. Defendant sought "to distinguish [Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017)], from the instant action by arguing that Susinno 'involved a phone call and a one-minute prerecorded voicemail - not a small numbe......
  • TCPA Tracker – August 2021
    • United States
    • LexBlog United States
    • August 31, 2021
    ...should be sufficient for the injury-in-fact standing requirement. Defendant sought “to distinguish [Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017)], from the instant action by arguing that Susinno ‘involved a phone call and a one-minute prerecorded voicemail – not a small numbe......
  • TCPA Tracker - August 2021
    • United States
    • Mondaq United States
    • August 26, 2021
    ...should be sufficient for the injury-in-fact standing requirement. Defendant sought "to distinguish [Susinno v. Work Out World Inc., 862 F.3d 346 (3d Cir. 2017)], from the instant action by arguing that Susinno 'involved a phone call and a one-minute prerecorded voicemail - not a small numbe......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT