Daniel Bock, Jr. v. Pressler & Pressler LLP

Filing

NOT PRECEDENTIAL OPINION Coram: CHAGARES, RENDELL and BARRY, Circuit Judges. Total Pages: 5. Judge: RENDELL Authoring.

Case: 15-1056

Document: 003112364980

Page: 1

Date Filed: 07/27/2016

NOT PRECEDENTIAL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

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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
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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
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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).
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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
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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.

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