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Susinno v. Work Out World Inc.

United States Court of Appeals for the Third Circuit

March 8, 2017, Argued; July 10, 2017, Filed

No. 16-3277

Opinion

 [*348]  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.

Susinno alleged that on July 28, 2015, she received an unsolicited call on [**2]  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.

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 [**3]  face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (citation omitted).

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?

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862 F.3d 346 *; 2017 U.S. App. LEXIS 12253 **; 2017 WL 2925432

NOREEN SUSINNO, individually and on behalf of all others similarly situated, Appellant v. WORK OUT WORLD INC.; JOHN DOES 1-25

Prior History:  [**1] 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.

Susinno v. Work Out World, Inc., 2016 U.S. Dist. LEXIS 113664 (D.N.J., Aug. 1, 2016)

CORE TERMS

concrete, telephone, privacy, cause of action, prerecorded, cell phone, phone, close relationship, intangible injury, intangible, intrusion, injuries, courts

Civil Procedure, Appeals, Standards of Review, De Novo Review, Governments, Legislation, Interpretation, Preliminary Considerations, Jurisdiction, Subject Matter Jurisdiction, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Justiciability, Standing, Injury in Fact, Constitutional Law, Case or Controversy, Elements, Torts, Invasion of Privacy, Intrusions, Courts, Judicial Precedent