Jenkins v. National Grid USA et al
MEMORANDUM & ORDER granting 183 Motion to Dismiss for Lack of Jurisdiction; For the foregoing reasons, Defendants' motion for lack of subject matter jurisdiction (Docket Entry 183) is GRANTED. Plaintiffs' GBL claim on behalf of Royal, S teele, and the putative class (Count III of the Revised Second Amended Complaint) is DISMISSED WITHOUT PREJUDICE. Additionally, the Court DENIES leave to amend at this time. So Ordered by Judge Joanna Seybert on 9/22/2017. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JARRETT JENKINS, EMMOT STEELE, and
FRANCES ROYAL, on behalf of
themselves and all others similarly
MEMORANDUM & ORDER
NATIONAL GRID USA SERVICE
COMPANY, INC., KEYSPAN GAS EAST
CORPORATION, NIAGARA MOHAWK POWER
CORPORATION, and THE BROOKLYN UNION
Daniel M. Hutchinson, Esq.
Lieff Cabraser Heimann & Bernstein LLP
275 Battery Street, 29th Floor
San Francisco, California 94111
Douglas Ian Cuthbertson, Esq.
Jonathan D. Selbin, Esq.
John T. Nicolaou, Esq.
Lieff Cabraser Heimann & Bernstein LLP
250 Hudson Street, 8th Floor
New York, New York 10003
Joseph S. Tusa, Esq.
53345 Main Road, Suite 10-1
Southhold, New York 11971
Richard H. Brown, Esq.
Day Pitney LLP
7 Times Square
New York, New York 10036
Anthony Joseph Marchetta, Esq.
Day Pitney LLP
1 Jefferson Road
Parsippany, New Jersey 07054
SEYBERT, District Judge:
Jenkins (“Jenkins”), Emmot Steele (“Steele”) and Frances Royal
(“Royal” and collectively “Plaintiffs”) allege that Defendants
Niagara Mohawk Power Corporation, Keyspan Gas East Corporation,
the Brooklyn Union Gas Company, and National Grid USA Service
Company, Inc. (collectively “Defendants”)1 violated the Telephone
Consumer Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”) and
New York General Business Law (“GBL”) § 399-p.
before the Court is Defendants’ motion to dismiss Plaintiffs’ GBL
claims for lack of subject matter jurisdiction.
Docket Entry 183.)2
For the following reasons, Defendants’ motion
The Court previously dismissed the following twelve defendants
for lack of subject matter jurisdiction: (1) National Grid PLC;
(2) National Grid North America Inc.; (3) National Grid USA; (4)
Massachusetts Electric Company; (5) The Narragansett Electric
Company; (6) Boston Gas Company; (7) National Grid Electric
Services LLC; (8) Colonial Gas Company; (9) Essex Gas Company;
(10) Nantucket Electric Company; (11) Keyspan Corporation; and
(12) Niagara Mohawk Holdings, Inc. (See Mar. 2016 M&O, Docket
Entry 152, at 15.)
As of January 2016, the undersigned’s Individual Practices
require that a party request a pre-motion conference before
moving to dismiss under Rule 12. See Individual Rule IV.G.
Despite Defendants’ failure to do so, the Court will consider
procedural history of this case, which are detailed in this Court’s
Orders dated March 31, 2016, (March 2016 M&O at 3-5.), and March
31, 2017, Jenkins v. Nat’l Grid USA, No. 15-CV-1219, 2017 WL
1208445, *2 (E.D.N.Y. Mar. 31, 2017).
utility company that provides gas and electricity to consumers in
the northeast United States.
(Rev. Sec. Am. Compl., Docket Entry
225, ¶¶ 17-19, 22.) The company has a complex corporate structure,
Defendants--Niagara Mohawk Power Corporation (“Niagara Mohawk”),
Keyspan Gas East Corporation (“Keyspan East”), and the Brooklyn
electricity and/or natural gas and subsidiaries of National Grid.
(Rev. Sec. Am. Compl. ¶¶ 23-25.) The remaining Defendant, National
“render[s] . . . services, to companies in the National Grid USA
customer services and property acquisition and management.
Sec. Am. Compl. ¶ 26.)
For regulatory purposes, National Grid has
National Grid is “the only name used for customer interaction.”
(Rev. Sec. Am. Compl. ¶ 20.)
In other words, “regardless of the
technical legal corporate name of the company involved,” National
Grid operates as a “single utility company” and uses the National
Grid “name for all public-facing purposes--including marketing,
billing, and service matters.”
(Rev. Sec. Am. Compl. ¶ 20.)
violated the TCPA by calling customers’ cellular telephone numbers
prerecorded voice messages without prior consent.
Compl. ¶ 1.)
(Rev. Sec. Am.
In addition to calls made by Defendants on their own
behalf, Plaintiffs maintain that Defendants are vicariously liable
for violations of the TCPA by third parties hired by Defendants,
including debt collectors hired to collect outstanding bills.
(Rev. Sec. Am. Compl. ¶¶ 3-4, 6.)
Additionally, Plaintiffs allege
cellular telephone numbers and left prerecorded messages that
violated NY GBL Section 399-p.
(Rev. Sec. Am. Compl. ¶ 2.)
Plaintiffs filed the Revised Second Amended Complaint.3
Plaintiffs filed the Revised Second Amended Complaint after the
Court directed them to file a revised complaint consistent with
its determinations on the various motions to dismiss. See
Jenkins, 2017 WL 1208445, at *6.
causes of action: (1) violations of the TCPA, specifically 47
U.S.C. § 227(b)(1)(A), on behalf of Plaintiffs Royal and Steele4
and a class of customers directly contacted by National Grid (the
specifically 47 U.S.C. § 227(b)(1)(A), on behalf of Plaintiffs and
a class of customers contacted by third parties (the “TCPA AgentDialed Class”); and (3) violations of NY GBL § 399-p on behalf of
Plaintiffs Steele and Royal and a class of New York customers
directly contacted by National Grid (the “GBL § 399-p DirectDialed Class”).
(Rev. Sec. Am. Compl. ¶¶ 113-159.)
For ease of
reference, the Court will refer to the claims as Count I, Count II
and Count III.
The pending motion is directed at Count III, which
for purposes of this order, the Court will refer to as to the GBL
On November 4, 2016, Defendants filed a motion to dismiss
the GBL Claim for lack of subject matter jurisdiction.5
The Court previously dismissed Jenkins’ Count I claim.
Jenkins, 2017 WL 1208445, at *9.
Defendants moved to dismiss Plaintiffs’ GBL claims before the
Court dismissed one of Plaintiffs’ GBL claims on March 31, 2017.
See Jenkins, 2017 WL 1208445, at *6-7. Accordingly, the Court
construes Defendants’ motion as moving to dismiss Count III, the
only remaining GBL claim.
opposition, and on December 16, 2016, Defendants filed their reply
in further support of the motion.6
Legal Standard for Rule 12(b)(1) Motion
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).
When a defendant
makes a Rule 12(b)(1) motion based on a lack of standing, it “may
be either facial or fact based.”
Carter v. Healthport Techs.,
LLC, 822 F.3d 47, 56 (2d Cir. 2016).
When the challenge is facial-
-“i.e. based solely on the allegations of the complaint or the
complaint and exhibits attached to it”--the district court must
standing to sue.’”
Carter, 822 F.3d at 56 (quoting Amidax Trading
plaintiff’s allegations as true and draw all reasonable inferences
On May 18, 2017, the Court permitted the parties to re-file
their briefs with updated citations to the Revised Second
Amended Complaint. (Electronic Order, May 18, 2017.) As a
result, the Court will refer to the updated briefs filed at
Docket Entries 237 and 240 in its discussion.
(See Defs.’ Br.,
Docket Entry 237-1; Pls.’ Opp., Docket Entry 240-1; Defs.’
Reply, Docket Entry 237-2.)
in plaintiff’s favor.
See Joseph v. Social Sec. Admin., No. 16-
CV-3377, 2017 WL 1067804, at *1 (E.D.N.Y. Feb. 28, 2017), R&R
adopted, 2017 WL 1078570 (E.D.N.Y. Mar. 20, 2017) (citing Carter,
822 F.3d at 56-57).
challenge and “proffer[s] evidence beyond the [p]leading,” “the
plaintiff[ ] will need to come forward with evidence . . . to
controvert that presented by the defendant.”
Carter, 822 F.3d at
If the evidence offered by the defendant is immaterial, that
complaint] that are themselves sufficient to show standing,” the
plaintiff may rely on those allegations to defeat the motion.
However, if the evidence proffered by the defendant is “material
and controverted,” the district court is required to “make findings
of fact in aid of its decision.”
whether their challenge to standing is facial or factual.
opposition, Plaintiffs argue that the motion is a facial challenge
Plaintiffs’ view, the Court should also decline to make any
findings of fact at this stage because what constitutes an injury
in fact is intertwined with the merits.
(Pls.’ Opp. at 4.)
Defendants counter that because their motion relies in part on
interrogatory responses, they have mounted a factual challenge to
Plaintiffs’ standing to bring the GBL Claim.
(Defs.’ Reply at 3.)
Further, they claim that because Plaintiffs have failed to present
any evidence to controvert the interrogatory answers, the motion
must be granted.
(Defs.’ Reply at 3.)
argue that even if the Court were to treat the motion as a facial
challenge, the Court should still dismiss the GBL Claim because
Plaintiffs have failed to allege an actual and concrete injury
sustained as a result of the violations of Section 399-p.
Reply at 3-4.)
Plaintiffs’ allegations--accepted as true for the purposes of this
Memorandum and Order--are insufficient on their face to establish
Article III of the Constitution “restricts federal
courts to the resolution of cases and controversies.” Carter, 822
F.3d at 56 (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724,
732-33, 128 S. Ct. 2759, 2768, 171 L. Ed. 2d. 737 (2008)).
standing doctrine is “‘perhaps the most important’ of the case-or
Gilmore v. Ally Fin. Inc., No. 15-CV-
6240, 2017 WL 1476596, at *4 (E.D.N.Y. Apr. 24, 2017) (quoting
Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 3324, 82 L.
Ed. 2d 556 (1984)).
To demonstrate standing, the plaintiff must
show that: “(1) [he] suffered an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, ---- U.S. ----, 136 S. Ct. 1540, 1547, 194
L. Ed. 2d 635 (2016).
It is well-established that “as the party
invoking federal jurisdiction, [the plaintiff] bears the burden of
establishing these elements.”
In Spokeo, the Supreme Court clarified the injury-infact requirement.
Generally, “[t]o establish injury in fact, a
plaintiff must show that he or she suffered ‘an invasion of a
legally protected interest’ that is ‘concrete and particularized’
and ‘actual or imminent, not conjectural or hypothetical.’”
at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)).
is “particularized” if it “affect[s] the plaintiff in a personal
and individual way.”
Id. (quoting Lujan, 504 U.S. at 560, n.1).
As the Supreme Court made clear in Spokeo, the injury must also be
concrete--“that is, it must actually exist.”
The Court was
careful to point out that “[c]oncrete is not . . . necessarily
synonymous with tangible,” and that under certain circumstances,
an intangible injury can be concrete.
quotation marks omitted).
Id. at 1549 (internal
In cases where the plaintiff seeks
statutory damages, the Court held that “Article III standing
requires a concrete injury even in the context of a statutory
violation,” and that a plaintiff may not “allege a bare procedural
violation, divorced from any concrete harm, and satisfy the injuryin-fact requirement.” Id. However, the Court specified that under
certain circumstances, “the risk of real harm” can satisfy the
concreteness element; “[i]n other words, a plaintiff in such a
case need not allege any additional harm beyond the one Congress
Id. (emphasis omitted).
The Court concluded
that the relevant inquiry is whether “the particular procedural
violation[ ] alleged . . . entail[s] a degree of risk sufficient
to meet the concreteness requirement.”
Id. at 1550.
Applying Spokeo, the Second Circuit has recognized that
“in the absence of a connection between a procedural violation and
a concrete interest, a bare violation of the former does not
manifest an injury in fact.”
Strubel v. Comenity Bank, 842 F.3d
181, 189 (2d Cir. 2016) (applying Spokeo).
Nonetheless, the court
pointed out that under some circumstances, “an alleged procedural
violation can by itself manifest concrete injury where Congress
conferred the procedural right to protect a plaintiff’s concrete
interests and where the procedural violation presents a risk of
real harm to that concrete interest.”
(internal quotation marks omitted).
Strubel, 842 F.3d at 189
Thus, district courts should
consider “whether the particular bare procedural violation may
present a material risk of harm to the underlying concrete interest
Congress sought to protect.”
Crupar-Weinmann v. Paris Baguette
Am., Inc., 861 F.3d 76, 80-81 (2d Cir. 2017).
III. The Relevant Statute
Section 399-p, which provides that “[n]o person shall operate an
telephone call, except in accordance with the provisions of this
N.Y. GEN. BUS. LAW § 399-p(2).
The statute requires that
when a caller uses an “automatic dialing-announcing service,” the
device shall “state at the beginning of the call the nature of the
call and the name of the person or on whose behalf the message is
being transmitted and at the end of such message the address, and
telephone number of the person on whose behalf the message is
prohibited or restricted by any federal, state or local law.” N.Y.
GEN. BUS. LAW § 399-p(3)(a).
Further, the device shall “disconnect
the automatic dialing-announcing device from the telephone line
upon the termination of the call by either the person calling or
the person called.”
N.Y. GEN. BUS. LAW § 399-p(3)(b).
As a remedy,
“any person who has received a telephone call in violation of [this
section] . . . may bring an action in his own name to enjoin such
unlawful act or practice, an action to recover his actual damages
or fifty dollars, whichever is greater, or both such actions.”
N.Y. GEN. BUS. LAW § 399-p(9).
The Court also has discretion to
“increase the award of damages to an amount not to exceed three
times the actual damages up to one thousand dollars,” if the
defendant willingly or knowingly violated the statute.
BUS. LAW § 399-p(9).
The Parties’ Arguments
Defendants principally argue that Plaintiffs Steele and
Royal7 cannot show they suffered any “actual injury as a result of
the conduct underpinning their GBL 399-p claims.”
In fact, Defendants argue, Plaintiffs have conceded the
absence of an actual injury in the Revised Second Amended Complaint
and their interrogatory responses.
(Defs.’ Br. at 2.)
contend that Plaintiffs fail to identify any actual injuries
stemming from Defendants’ alleged violations of the statute and
claim that they suffered only statutory damages.
(Defs.’ Br. at
They further argue that the fact that Plaintiffs were not
actually injured is not surprising because “there can be no
conceivable injury from a utility’s failure to include an address
in a message to a customer of a utility . . . [when] [a] customer
receiving such a message surely knows how to contact that utility,”
Defendants also maintain that there can be no plausible actual
injury resulting from Defendants’ failure to state the nature of
Plaintiffs have only alleged a GBL Claim on behalf of Royal and
Steele. Plaintiff Jenkins has not asserted a GBL Claim.
the call or the caller’s identity at the beginning of the call.
circumstance of where an alleged ‘mere procedural violation’ has
caused no actual injury.”
(Defs.’ Br. at 10.)
contend that the message’s failure to disclose the information
required by the statute, without more, does not constitute a
(Defs.’ Br. at 11.)
Turning to the legislative history of Section 399-p,
Defendants assert that the statute was enacted “[t]o protect a
Legislative History, Brown Decl. Ex. D, Docket Entry 183-6, at 15,
According to Defendants, the statute was enacted after an
individual attempted to hang up an automated call to contact
emergency services but was unable to because the automated message
continued to play.
(Defs.’ Br. at 12.)
Defendants argue that
this was the problem Section 399-p was enacted to solve, and that
contemplated by the statute.
(Defs.’ Br. at 12.)
maintain that, as a result, Plaintiffs cannot establish that they
suffered an injury in fact and, thus, do not have standing to
pursue the GBL claim.
(Defs.’ Br. at 9.)
Plaintiffs argue that Defendants have violated their
“statutory right to receive only those prerecorded messages that
comply with GBL § 399-p.”
(Pls.’ Opp at 1.)
They argue that they
have established an actual injury in two ways: (1) “the harms
Plaintiffs allege--invasions of privacy, harassment, and nuisance
‘intangible harms;’” and (2) the New York Legislature intended to
confer a “substantive right” when Section 399-p was enacted and
“provide[d] for statutory damages even when the only harm alleged
is a violation of the statute.”
(Pls.’ Opp. at 2.)
Plaintiffs, then, “invasion of privacy, harassment, and nuisance
harms” and “per se harms, triggered by the Defendants’ violations
of GBL § 399-p” are sufficient to establish a concrete injury.
(Pls.’ Opp. at 2.)
Plaintiffs contend that Defendants’ arguments
ignore recent case law involving New York statutes and the purposes
Plaintiffs argue that in cases both before and after Spokeo, courts
have found standing when the plaintiff is alleging violations of
certain statutes, such as the TCPA, and suffered only statutory
(Pls.’ Opp. at 10.)
Plaintiffs rely on cases involving the TCPA and argue
that because Section 399-p and the TCPA have similar purposes, the
Court should look to these decisions for guidance.8
They contend that the majority of courts considering
(Pls.’ Opp. at 11-13.)
Plaintiffs also present a competing view of the purposes
behind the enactment of Section 399-p, arguing that lawmakers
enacted the provision to “redress concerns about consumer privacy
and avoiding or preventing harassing robo-calls.”
(Pls.’ Opp. at
Plaintiffs contend that both the text of the provision and
the legislative history demonstrate that the statute was aimed at
maintaining consumers’ privacy and preventing harassment.
Opp. at 14-15.)
Providing the statutorily required information is
important, Plaintiffs argue, to enable consumers to immediately
identify the caller and delete the message if they do not want to
listen to it, and to provide contact information to allow consumers
to contact the caller and instruct them to cease the robo-calls.
(Pls.’ Opp. at 15.)
In sum, Plaintiffs argue that “Defendants’
failure to provide identifying information that would allow [Royal
and Steele] to hang-up on calls or delete messages . . . was an
invasion of their privacy and bothersome,” and that their “failure
Neither party has cited a case analyzing whether a plaintiff
alleging only statutory injuries resulting from violations of
Section 399-p has standing to bring a Section 399-p claim, nor
has the Court been able to locate one.
to disclose identity or contact information prevented [Royal and
Steele] from determining the messages’ exact source.”
Finally, Plaintiffs argue that Defendants’ violations of
Section 399-p are sufficient on their own to confer standing, and
they point to several cases involving other statutes in which
courts have found that the plaintiff had standing based on a
(Pls.’ Opp. at 20-22.)
They implore the
Court to defer to the judgment of the New York Legislature, which
according to Plaintiffs, intended for consumers to be able to seek
redress for violations of Section 399-p in the absence of an
(Pls.’ Opp. at 22.)
On reply, Defendants argue that Plaintiffs’ analogy to
TCPA cases is misplaced because the TCPA and GBL Section 399-p
were designed to prevent different harms.
(Defs.’ Reply at 4-5.)
(Defs.’ Reply at 5-7.)
urge the Court to reject Plaintiffs’ argument that the violations
of Section 399-p alone are sufficient to confer standing, since as
containing Defendants’ address and contact information.
Reply at 7-10.)
At the outset, the Court will discuss the relevant
allegations in the Revised Second Amended Complaint, followed by
a summary of the legislative history of Section 399-p and an
analysis of Plaintiffs’ alleged injuries.
A. Relevant Allegations
“prerecorded telephone messages” to their cellular phones that (1)
“did not state at the beginning of the call the nature of the
call”; (2) “did not state at the beginning of the call the name of
the person on whose behalf the message [was] being transmitted”;
and (3) “did not provide the address of the person on whose behalf
the message [was being] transmitted.”
(Rev. Sec. Am. Compl.
They allege that Defendants left such messages on
Plaintiff Steele’s cellular phone on at least seven occasions.
(Rev. Sec. Am. Compl. ¶ 153.)
The message stated: “It’s important
that we speak to you within the next 24 hours.
Please call us at
National Grid is registered on Long Island as Keyspan Gas East.”
(Rev. Sec. Am. Compl. ¶ 153.)
As for Plaintiff Royal, the Revised
Second Amended Complaint alleges that on an unspecified number of
occasions, Defendants left prerecorded telephone messages on her
information required by New York GBL § 399-p.”
(Rev. Sec. Am.
Defendants’ conduct, their privacy has been violated and they were
(Rev. Sec. Am. Compl. ¶ 104.)
allege that the violations of GBL § 399-p were willful.
Sec. Am. Compl. ¶ 150.)
Plaintiffs seek “damages or statutory
damages in the amount of $50.00 for each violation.”9
Am. Compl. ¶ 157.)
B. Legislative History10
GBL section 399-p was enacted in 1988 to “regulate the
History at 1.)
In a letter to counsel for the governor, a New
Defendants also refer to Steele and Royal’s responses to an
interrogatory requesting that they “identify all injuries [they]
sustained as a result of the conduct that [they] claim in this
matter violated the TCPA and/or GBL § 399-p.” (Interrogatory
Responses, Brown Decl. Exs. A, B, Docket Entries 183-3, 183-4,
at 6-7.) Both Plaintiffs responded that they “ha[d] incurred
the statutory injuries and damages for provided in the TCPA . .
. and GBL § 399-p(9).” (Interrogatory Responses at 6-7.)
Because the Court is treating the motion as a facial challenge,
see supra 11-12, the Court considers only the allegations in the
Revised Second Amended Complaint. In any event, the
interrogatory responses do not raise a factual issue regarding
the Plaintiffs’ standing because the responses are entirely
consistent with the allegations in the Revised Second Amended
In this section, the Court relies on Defendants’ Exhibit D, a
collection of documents produced during the legislative process
leading up to the passage of Section 399-p. The Court has been
unable to locate any cases discussing the legislative history of
this provision or any legislative materials beyond those in
Defendants’ Exhibit D.
York State Senator advised that the bill’s “main purpose is to
allow a consumer to terminate the phone message in the event that
the phone must be used for another call.”
(Legislative History at
It continues, “[a]t the present time, these messages will
continue on the phone line even if the line is disengaged.”
(Legislative History at 10.)
Memoranda drafted by the State’s
Consumer Protection Board and the New York State Assembly further
confirm that this was the bill’s purpose. (See Legislative History
at 12-18 (stating that the purpose of the bill was to “protect a
consumer’s access to his/her telephone line”).
The memos also
state that the bill was prompted by the increased use of automatic
dialing-announcing devices and the hazards caused when the devices
continue to play their message when the recipient hangs up.
specifically refer to an incident in which a woman was unable to
contact emergency services for several minutes due to an automated
message that continued to play.
(Legislative History at 13.)
Attorney General concluded that the fact that the message continued
intrusion upon a consumer’s privacy.”
(Legislative History at
Further, he wrote that requiring the disclosure of “basic
identification information regarding those responsible for such
calls” would serve the interests of “the public and industry.”
(Legislative History at 22.)
C. Plaintiffs’ Alleged Injuries
injuries: (1) invasion of privacy, harassment, and nuisance, and
(Pls.’ Opp. at 2.)
Both arguments fail.
To determine whether these intangible harms constitute
a concrete injury, the court should consider “whether an alleged
intangible harm has a close relationship to a harm that has
traditionally been regarded as providing a basis for a lawsuit in
English or American courts,” or whether Congress has “identif[ied]
and elevat[ed] [such] harms” to the status of a cognizable injury.11
Spokeo, 136 S. Ct. at 1549.
Relevant here, the majority of courts
have applied the same principles to statutes enacted by state
See Ross v. AXA Equitable Life Ins. Co., 680 F.
App’x 41, 44-45 (2d Cir. 2017) (considering whether violations of
New York Insurance Law, standing alone, constituted an injury in
fact); Weldon v. MTAG Servs., LLC, No. 16-CV-0783, 2017 WL 776648,
at *5 (D. Conn. Feb. 28, 2017) (concluding that, based on the
reasoning of several circuit courts and district courts in this
Defendants have not argued that Plaintiffs lack standing based
on either the legal-interest requirement or the particularity
requirement, and accordingly, the Court declines to address
them. See Strubel, 842 F.3d at 188. Instead, the Court focuses
on the concreteness element.
circuit, state statutes “can recognize cognizable injuries for
Article III standing purposes”).
First, Plaintiffs allege that Defendants violated their
privacy and subjected them to “annoying and harassing calls that
Plaintiffs’ cellular phones that failed to provide the information
Plaintiffs have cited numerous TCPA cases to support this argument.
(Pls.’ Opp. at 13-17.)
However, the Court agrees with Defendants
that the analogy to the TCPA is misplaced.
While it is true that
the TCPA and Section 399-p regulate the use of automated dialers,
the legislative history of the TCPA reflects that Congress made
specific findings regarding telemarketing calls, including that
See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368,
372, 132 S Ct. 740, 745, 181 L. Ed. 2d 881 (2012); see also Mejia
v. Time Warner Cable Inc., Nos. 15-CV-6445, 15-CV-6518, 2017 WL
3278926, at *1 (S.D.N.Y. Aug. 1, 2017) (“‘The intent of Congress,
when it established the TCPA in 1991, was to protect consumers
from the nuisance, invasion of privacy, cost, and inconvenience
that autodialed and prerecorded calls generate.’”) (quoting In re
Rules & Regs Implementing the Tel. Consumer Prot. Act of 1991, 30
FCC Rcd. 7961, 7979-80 (2015)).
As far as the Court can tell, the
Further, the two statutes are aimed at preventing
different conduct—-the TCPA prohibits contacting consumers via
automated dialers or prerecorded messages without prior express
consent, while Section 399-p contains no consent requirement, but
only requires that the call terminate if the recipient hangs up
and that the caller provide certain information.
Thus, the Court
is not persuaded that “the same underlying harms animate the
purpose behind both the TCPA and GBL § 399-p,” and that “New York
lawmakers enacted GBL § 399-p to redress concerns about consumer
privacy and avoiding or preventing harassing robo-calls.”
Opp. at 11, 14.)
Further, while Plaintiffs may be correct that courts
have recognized invasion of privacy, harassment and nuisance as
concrete injuries, particularly in the TCPA context, Plaintiffs’
allegations do not demonstrate such injuries here.
See Bell v.
Survey Sampling Int’l, LLC, No. 15-CV-1666, 2017 WL 1013294, at *3
(D. Conn. Mar. 15, 2017) (“Actions to remedy defendants’ invasions
of privacy, intrusion upon seclusion, and nuisance have long been
heard by American courts . . . .”) (internal quotation marks and
Section 399-p mandates that messages relayed
by automated dialers contain certain information—-it does not
restrict the manner or frequency of the calls.
In other words,
entities such as Defendants can make as many calls as they wish
without any penalty.
Further, it is difficult to understand how
the message’s omission of the required information could invade an
individual’s privacy or constitute harassment.
It may be true
that failure to comply with Section 399-p(3)(b), which requires
that an automated message terminate when an individual hangs up,
could result in an invasion of privacy or nuisance, but Plaintiffs
have not alleged that Defendants’ conduct violated that provision.
Therefore, the Court finds that Plaintiffs’ conclusory allegation
insufficient to demonstrate a concrete injury.
Second, Plaintiffs argue that Defendants’ violations of
Section 399-p constitute a concrete injury.
The Second Circuit
has instructed that “an alleged procedural violation can by itself
manifest concrete injury where Congress conferred the procedural
right to protect a plaintiff’s concrete interests and where the
procedural violation presents a risk of real harm to that concrete
Strubel, 842 F.3d at 190 (internal quotation marks and
“‘result in no harm’” or does not “‘present any material risk of
harm,’” “a plaintiff will not be able to ‘satisfy the demands of
Article III by alleging a bare [statutory] violation.’”
F. App’x at 44 (quoting Spokeo, 136 S. Ct. at 1550) (alteration in
Thus, the first step is to identify the concrete
interests New York sought to protect by enacting Section 399-p.
See Vigil v. Take-Two Interactive Software Inc., 235 F. Supp. 3d
499, 510 (S.D.N.Y. 2017) (“Under Strubel, to assess the plaintiffs’
standing to pursue their claims, the first task is to identify any
quotation marks omitted).
In light of the fact that there are no cases discussing
the purposes underlying Section 399-p, the Court considers both
the text of the provision and the limited legislative history.
discussed, Section 399-p requires that the caller terminate the
call if the consumer hangs up and that the caller provide certain
information to consumers during the message.
See N.Y. GBL § 399-
p(3)(b) (stating that an automatic dialing-announcing device shall
“disconnect . . . from the telephone line upon the termination of
the call by either the person calling or the person called”); N.Y.
GBL § 399-p(3)(a) (requiring that certain information be disclosed
However, the legislative history is clear that the
access to her phone line.
See supra 21-22.
Specifically, a New
York State Senator wrote that the bill’s “main purpose [was] to
allow a consumer to terminate the phone message in the event that
the phone must be use for another call.”
(Legislative History at
There is virtually no evidence of an intent to protect a
consumer’s interest in receiving identifying information in the
The New York Legislature did not make any
findings regarding the importance of receiving such information or
disclosure of the information mandated by Section 399-p might be
useful should the consumer wish to contact the caller, whether to
request that the calls cease or otherwise.
While the Court has
interest, especially in light of the legislative history, the Court
assumes for purposes of this analysis that, pursuant to Section
399-p, consumers have concrete interests in access to their phone
lines and receiving identifying information from entities calling
them using automatic dialing-announcing devices.
The second step is to determine whether Plaintiffs’
allegations concerning procedural violations of Section 399-p
demonstrate a “material risk of harm” to these concrete interests.
See Vigil, 235 F. Supp. 3d at 511.
Plaintiffs allege that the
messages they received failed to state the purpose of the call,
identify the caller at the beginning of the message, or provide
the caller’s address.
(Rev. Sec. Am. Compl. ¶¶ 150-52.)
example, one message stated: “It’s important that we speak to you
There is one passing reference to the fact that disclosure of
“basic identification information regarding those responsible
for such calls” would serve the interests of “the public and
industry.” (Legislative History at 22.)
within the next 24 hours.
Please call us at 1-800-930-5003.
Again, that’s 1-800-930-5003.
National Grid is
registered on Long Island as Keyspan Gas East.”
Compl. ¶ 153.)
(Rev. Sec. Am.
As an initial matter, the fact that the messages
did not contain certain information presents no risk of harm to a
consumer’s interest in maintaining access to her phone line.
recipients received the calls regardless of the content of the
Plaintiffs hung up while the message was playing.
Moreover, the Court finds that the messages’ omissions
did not present a material risk of harm to the purported disclosure
interest underlying Section 399-p.
That Plaintiffs had to wait
several seconds for the caller to be identified is a minimal injury
Additionally, the messages provided a telephone number
which Plaintiffs could use to contact Defendants regarding the
reason for their call or to obtain their address to send written
Plaintiffs have not alleged that Defendants’
failure to include this information prevented them from contacting
Defendants or paying their overdue bills, led to any confusion, or
impacted their utility service.
See Strubel, 842 F.3d at 194
(holding that violation of disclosure provision in Truth in Lending
Act alleged by the plaintiff was insufficient to establish a
concrete injury in part because “plaintiff fail[ed] to show . . .
that the creditor’s challenged notice caused her to alter her
credit behavior from what it would have been upon proper notice”);
Ross, 680 F. App’x at 45 (holding that misrepresentation in
insufficient to demonstrate a concrete injury when plaintiffs
“fail[ed] to allege that they would not have purchased the life
insurance and annuity riders provided by [Defendants]” had they
known about their practices).
In fact, after receiving a number
of calls, Steele sent a letter to National Grid requesting that
they stop calling him, further demonstrating that the statutory
violations alleged by Plaintiffs did not pose a risk of real harm.13
(Rev. Sec. Am. Compl. ¶ 94.)
statutory violations alone are sufficient to establish standing.
“automatically satisf[y] the injury-in-fact requirement whenever
a statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right.”
136 S. Ct. at 1549.
Further, to the extent Plaintiffs argue that
Section 399-p conferred a “statutory right to receive only those
prerecorded messages that comply with GBL § 399-p,” this is not
Although this allegation does not appear in the Revised Second
Amended Complaint, Royal also sent a letter to Defendants
requesting that the messages cease. (Pls.’ Opp. at 9.)
dispositive of the issue.
(Pls.’ Opp. at 1.)
The Second Circuit
has been clear that the analysis is two-fold; when the legislature
“confer[s] [a] procedural right to protect a plaintiff’s concrete
interests,” the procedural violation must present “a risk of real
harm to that concrete interest” to establish a concrete injury.
Strubel, 842 F.3d at 190 (internal quotation marks and citation
Even assuming that the New York Legislature conferred
such a right (which is unclear based on the legislative history),
“[t]he relevant question is whether [Plaintiffs] [were] harmed
when this statutory right was violated,” and this Court concludes
that they were not.
Nicklaw v. Citimortgage, Inc., 839 F.3d 998,
1002 (11th Cir. 2016).14
plaintiffs established a concrete injury.
For example, several
district courts in this circuit have held that plaintiffs alleged
a concrete injury based on violations of New York Real Property
The Eleventh Circuit went on to say that the fact that the
plaintiff did not establish an injury in fact under New York
Real Property Law Section 275 and New York Property Actions and
Proceedings Law Section 1921 “d[id] not mean that New York law
does not create a right that, when violated, could form the
basis for a cause of action in a court of New York . . . .[T]he
requirement of concreteness under Article III is not satisfied
every time a statute creates a legal obligation and grants a
private right of action for its violation.” Nicklaw, 839 F.3d
at 1003. The Second Circuit cited Nicklaw with approval in
Strubel. See Strubel, 842 F.3d at 194 n.15.
Proceedings Law (“RPAPL”) Section 1921.
See, e.g. Jaffe v. Bank
of Am., N.A., 197 F. Supp. 3d 523 (S.D.N.Y. 2016); Bellino v.
JPMorgan Chase Bank, N.A., 209 F. Supp. 3d 601 (S.D.N.Y. 2016).
In both cases, the district court found that these statutes
established a right to “a timely filed mortgage satisfaction
notice” and that the violation of that right constituted a concrete
Jaffe, 197 F. Supp. 3d at 528; see also Bellino, 209 F.
Supp. 3d at 611.
However, the real property statutes discussed in
those cases address vastly different harms than GBL Section 399p. Moreover, the plaintiffs’ alleged injuries in Jaffe and Bellino
were exactly the type of injury the New York Legislature sought to
prevent when it enacted RPL Section 275 and RPAPL Section 1921.15
See, e.g., RPL § 275 Bill Jacket, 2005 S.B. 48, Ch. 467 (stating
Additionally, the Court finds that this case is
distinguishable from Jaffe and Bellino for another reason. In
Bellino, the court differentiated between statutes such as RPL
Section 275 and the Fair Credit Reporting Act (“FCRA”), the
statute analyzed in Spokeo. The court reasoned that when a
statute can be violated in a “multitude of ways,” such as the
FCRA, courts can discern whether a violation poses a risk of
harm to the statute’s underlying purpose. See Bellino, 209 F.
Supp. 3d at 610-11. However, when there is only one way to
violate a particular provision, “there is no basis for
differentiating between bare procedural violations of the
statutes and violations resulting in concrete harms.” Id. at
611. Because GBL Section 399-p can be violated in different
ways--for example, a message could state the purpose of the call
but fail to provide the caller’s address--this Court is able to
“differentiat[e] between bare procedural violations . . . and
violations resulting in concrete harms,” and has done so. Id.
that the “measure [was] in response to serious issues that can
arise when a certificate of discharge is not filed for a mortgage
that has been paid off” and that the purpose was to “to insure
that a certificate of discharge of mortgage is properly and timely
issued and to impose a penalty on the lending institution or
person(s) holding the mortgage for failing to do so”). Regardless,
the Second Circuit has made clear that the standing inquiry “is
necessarily context-specific to the statutory right in question
and the particular risk of harm [the legislature] sought to
Crupar-Weinmann, 861 F.3d at 77.
As discussed above,
based on Plaintiffs’ allegations in this case, the Court finds
that Plaintiffs have failed to demonstrate a concrete injury
resulting from Defendants’ violations of GBL Section 399-p.
Therefore, Royal and Steele’s GBL Section 399-p claim,
along with the class claim, is DISMISSED WITHOUT PREJUDICE.16
Because the named Plaintiffs do not have standing, the Court
dismisses the claim on behalf of the putative class as well.
See Cent. States Se. Areas Health and Welfare Fund v. MerckMedco Managed Care, L.L.C., 433 F.3d 181, 199 (2d Cir. 2005)
(quoting O’Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669,
38 L. Ed. 2d 674 (1974)) (“The Supreme Court has held that if
‘none of the named plaintiffs purporting to represent a class
establishes the requisite of a case or controversy with the
defendant[ ], none may seek relief on behalf of himself or any
other member of the class.’”); Biscone v. JetBlue Airways Corp.,
681 F. Supp. 2d 383, 387 (E.D.N.Y. 2010) (citing Comer v.
Cisneros, 37 F.3d 775, 788 (2d Cir. 1994)) (“At least one named
plaintiff must have standing with respect to each claim brought
on behalf of a class.”).
Leave to Amend
Plaintiffs request leave to amend the Revised Second
(Pls.’ Opp., at 25.)
However, Plaintiffs have
See Romero v. Napoli, No. 08-CV-8380, 2013 WL
1479308, at *1 (S.D.N.Y. Apr. 1, 2013) (discussing that when the
plaintiff fails to provide a description of the new allegations or
the proposed amended pleading “it is impossible to assess whether
leave to amend should be granted and the motion to amend is
accompanied by a copy of the proposed amended pleading”).
Court is hesitant to permit another amendment considering the
Moreover, due to seemingly endless motion practice, Defendants
have not yet filed an answer.
In light of these concerns, the
Court DENIES leave to amend at this time.
Should Plaintiffs wish
to amend the Revised Second Amended Complaint, they may file a
proper motion to amend along with the proposed Third Amended
For the foregoing reasons, Defendants’ motion for lack
of subject matter jurisdiction (Docket Entry 183) is GRANTED.
Plaintiffs’ GBL claim on behalf of Royal, Steele, and the putative
class (Count III of the Revised Second Amended Complaint) is
DISMISSED WITHOUT PREJUDICE.
Additionally, the Court DENIES leave
to amend at this time.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
22 , 2017
Central Islip, New York
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