NOREEN SUSINNO, individually and on behalf of all others similarly situated, Appellant
WORK OUT WORLD INC.; JOHN DOES 1-25
March 8, 2017
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
J. Keogh Timothy J. Sostrin [Argued] Keogh Law Yitzchak
Zelman Ari H. Marcus Marcus & Zelman Counsel for
S. Bauchner [Argued] Michael H. Ansell Ansell Grimm &
Aaron Counsel for Appellees
J. Pincus [Argued] Mayer Brown Counsel for Amicus Chamber of
Commerce in Support of Appellees
Melendez Dykema Gossett Counsel for Amicus ACA International
in Support of Appellees
Before: HARDIMAN and KRAUSE, Circuit Judges, and STENGEL,
HARDIMAN, Circuit Judge.
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.
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
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.
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.
District Court had jurisdiction under 28 U.S.C. § 1331.
We have appellate jurisdiction under 28 U.S.C. § 1291.
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 ...