Daniel Bock, Jr. v. Pressler & Pressler LLP, No. 15-1056 (3d Cir. 2016)

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NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 15-1056 _____________ DANIEL BOCK, JR. v. PRESSLER & PRESSLER, LLP, Appellant _____________________________________ On Appeal from the United States District Court for the District of New Jersey (District Court No.: 2-11-cv-07593) District Judge: Honorable Kevin McNulty _____________________________________ Argued on November 10, 2015 Before: CHAGARES, RENDELL and BARRY, Circuit Judges. (Opinion Filed: July 27, 2016) Manuel H. Newburger, Esquire (Argued) Barron & Newburger 1212 Guadalupe Suite 104 Austin, TX 78701 Mitchell L. Williamson, Esquire Pressler & Pressler, LLP 7 Entin Road Parsippany, NJ 07054 Counsel for Appellant Cary L. Flitter, Esquire (Argued) Andrew M. Milz, Esquire Flitter Milz 450 North Narberth Avenue Suite 101 Narberth, PA 19072 Deepak Gupta, Esquire Gupta Wessler 1735 20th Street, N. W. Washington, DC 20009 Philip D. Stern, Esquire Andrew T. Thomasson, Esquire Stern Thomasson 2816 Morris Avenue Suite 30 Union, NJ 07083 Counsel for Appellee Jeanne L. Zimmer, Esquire Carlson & Messer 5959 West Century Boulevard Suite 1214 Los Angeles, CA 90045 Counsel for Amicus-Appellants Kristin Bateman, Esquire (Argued) Consumer Financial Protection Bureau 1700 G Street, N. W. Washington, DE 20552 Counsel for Amicus-Appellee Consumer Financial Protection Bureau Theodore P. Metzler, Jr., Esquire Federal Trade Commission 600 Pennsylvania Avenue, N. W. Washington, DC 20580 2 Counsel for Amicus-Appellee Federal Trade Commission ____________ OPINION ____________ RENDELL, Circuit Judge: Defendant-Appellant Pressler and Pressler, LLP appeals the District Court’s order granting Plaintiff Bock’s motion for summary judgment. Bock alleged that Pressler and Pressler made a false or misleading representation in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692e, by filing a state complaint without meaningful attorney review. Although the issue of Article III standing was not raised by the District Court or by the parties, “we are required to raise issues of standing sua sponte if such issues exist.” Steele v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001). At the time of oral argument in this case, Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), was pending before the United States Supreme Court. It had the potential to impact cases like Bock’s, when the alleged injury to the plaintiff flows from the violation of a procedural right granted by statute. We asked the parties to address Spokeo at oral argument and requested written briefing after the opinion was published on May 16, 2016.1 The issue of standing is “an essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “The doctrine developed in our case law to ensure that federal courts do not 1 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331; we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review over an order granting summary judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). 3 exceed their authority as it has been traditionally understood.” Spokeo, 136 S. Ct. at 1547. Constitutional standing requires the party invoking jurisdiction to meet three elements: First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[.] Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be likely . . . that the injury will be redressed by a favorable decision. Lujan, 504 U.S. 560–61 (internal citations and quotation marks omitted). The issue presented in Spokeo was whether the violation of a procedural right granted by statute presents an injury sufficient to constitute an “injury-in-fact” and satisfy the “‘[f]irst and foremost’ of standing’s three elements.” Spokeo, 136 S. Ct. at 1547. While the Supreme Court did not change the rule for establishing standing in Spokeo, it used strong language indicating that a thorough discussion of concreteness is necessary in order for a court to determine whether there has been an injury-in-fact. Id. at 1545. The Court made it clear that the requirements of particularization and concreteness required separate analyses and that neither requirement alone was sufficient. Id. at 1548 (“Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be ‘concrete.’”). In determining whether there is a concrete injury, the presentation of an alleged statutory violation is not always sufficient. Id. at 1549 (“[Plaintiff] could not, for example, allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.”). However, the Court confirmed that “because Congress is well positioned to identify 4 intangible harms that meet minimum Article III requirements . . . . [it] may elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Id. (internal quotation marks omitted). Essentially, “the question framed by [the Court’s] discussion [is] whether the particular procedural violations alleged in [a] case entail a degree of risk sufficient to meet the concreteness requirement.” Spokeo, 136 S. Ct. at 1550. We recently discussed Spokeo’s impact on Article III standing in In re Nickelodeon Consumer Privacy Litig., No. 15-1441, 2016 WL 3513782 (3d Cir. June 27, 2016). There, we interpreted Spokeo to say that “even certain kinds of ‘intangible’ harms can be ‘concrete’ for purposes of Article III . . . . What a plaintiff cannot do . . . is treat a ‘bare procedural violation . . . [that] may result in no harm’ as an Article III injury-infact.” Id. at *7 (quoting Spokeo, 136 S. Ct. at 1550). We observed that “in some cases an injury-in-fact may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.” Nickelodeon, 2016 WL 3513782 at *6. Specifically, we addressed the Supreme Court’s deference to Congress, noting that “Spokeo directs us to consider whether an alleged injury-in-fact ‘has traditionally been regarded as providing a basis for lawsuit,’” and “Congress’s judgment on such matters is . . . ‘instructive and important.’” Id. at *7 (quoting Spokeo, 136 S. Ct. at 1549). Given the Supreme Court’s directive in Spokeo regarding the need for a court to specifically address concreteness and particularization, we will remand this case to the District Court to determine in the first instance whether Bock has Article III standing. 5

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