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Susinno v. Work Out World Inc.

United States Court of Appeals, Third Circuit

July 10, 2017

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

          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 Yitzchak Zelman Ari H. Marcus Marcus & Zelman Counsel for Appellant

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

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

          Brian Melendez Dykema Gossett 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 ...


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