PASCIOLLA v. GENERAL NUTRITION CENTERS, INC.
MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 8/8/17. (jad)
IN THE UNITED ST ATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GENERAL NUTRITION CENTERS,
Judge Mark R. Hornak
Mark R. Hornak, United States District Judge
Plaintiff Samantha Pasciolla filed a class action complaint against Defendant General
Nutrition Centers, Inc. alleging a violation of the New Jersey Truth-in-Consumer Contract,
Warranty and Notice Act ("TCCWNA"). Pending before the Court is the Defendant's Motion to
Dismiss Class Action Complaint, ECF No. 12. For the reasons that follow, the Defendant's Motion
is GRANTED, and the case is DISMISSED.
The facts alleged in Plaintiffs Class Action Complaint, which the Court will accept as true
for the purposes of deciding the pending Motion, are relatively straightforward. The Plaintiff is a
resident of New Jersey, and the Defendant is a corporation with its principal place of business in
Pittsburgh, PA. ECF No. 1at3. In August of2016, the Plaintiff accessed the Defendant's website,
www.gnc.com, and purchased a product from it. Id. The Plaintiff does not allege that she
encountered any problems with the product or that she was dissatisfied with her purchase in any
way. See ECF No. I.
At the time of the Plaintiffs purchase, customers on the Defendant's website were required
to agree to the Defendant's Terms and Conditions ("T &C"). 1 Id. at 2; ECF No. 13-1. In her
Complaint, the Plaintiff, on behalf of herself and all other similarly situated New Jersey citizens,
claims that the T&C violate the New Jersey Truth-in-Consumer Contract, Warranty and Notice
Act ("TCCWNA"). ECF No. 1 at 1. Specifically, the Plaintiff argues that the T &C violate Sections
15 and 16 of the TCCWNA. Section 15 prohibits a seller from offering or entering into a contract
with a consumer that "includes any provision that violates any clearly established legal right of a
consumer or responsibility of a seller, lessor, creditor, lender or bailee as established by State or
Federal law.'' N.J. Stat. Ann. § 56: 12-15. Section 16 states that '·[n]o consumer contract. notice or
sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some
jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable
within the State of New Jersey.'· N.J. Stat. Ann.§ 56:12-16.
The Defendant filed a Motion to Dismiss, in which it primarily argues that the Plaintiff
lacks standing to pursue her claim. ECF Nos. 12, 13.
There are three elements required to establish constitutional standing. "The plaintiff must
have ( 1) 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. The plaintiff, as
the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as
here, a case is at the pleading stage, the plaintiff must 'clearly ... allege facts demonstrating' each
element." Spokeo. Inc. v. Roh ins, 136 S. Ct. 1540, 154 7 (2016) (internal citations omitted).
The full text of the T &C applicable at the time the Plaintiff accessed the Defendant's website can be found at ECF
In this case, the Defendant argues that the first element has not been established because the
Plaintiff fails to allege an "injury in fact." ECF No. 13 at 7-11. "To 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. .. Spokeo, 136 S. Ct. at
1548 (internal quotations omitted). Here, the parties' dispute focuses on whether the Plaintiff has
alleged an injury that is sufiiciently concrete. The Plaintiff argues that she has alleged such a
concrete injury because she '"suffered injury in precisely the form the TCCWNA was intended to
guard against"-she contends that the TCC\VNA "'creates a legal right to be free from the
deceptive practice of offering illegal and misleading contract terms" and that she received a
contract containing illegal and misleading terms. ECF No. 17 at 5 (internal quotations and
alterations omitted). Converselv. the Defendant argues that the violation of the TCCWNA that the
Plaintiff alleges is not sufficient to establish the necessary concrete injury. ECF No. 13 at 9.
In S'pokeo, the Supreme Court discussed the ·'concreteness'' requirement and reiterated that
"Congress may elevate to the status of legally cognizable injuries concrete, de facto injuries that
were previously inadequate in law."
136 S. Ct. at 1549 (internal quotations omitted).
However, the Supreme Court also explained:
Congress' role in identifying and elevating intangible harms does not mean
that a plaintiff automatically satisfies 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. Article III standing requires a concrete injury
even in the context of a statutory violation. For that reason, la plaintiftl could
not. for example. allege a bare procedural violation. divorced from any
concrete harm, and satisfy the injury-in-fact requirement of Article III.
Since Spokeo, a number of other district courts have dealt with standing issues arising out
of allegations almost identical to those at issue here. Those courts have consistently held that a
plaintiff lacks standing to sue on the basis of a TCCWNA violation when the plaintiff has not
alleged that the applicable tenns and conditions prevented the plaintiff from asserting any of her
rights. For example, in Rubin v. J Crew Group, Inc .. the plaintiff alleged that she had purchased
products on J. Crew's website for years and that the website's Terms and Conditions violated
the TCCWNA. The plaintiff did not allege that there were any problems with her purchases, or
that she had read or relied upon the Terms and Conditions. or that they were actually applied
against her. Based on those allegations. the court concluded that the plaintiff had ''[pied] only
procedural statutory violations under the TCCWNA. Hence. [she had] not alleged any concrete
harm in accordance with Sj)()keo:· Rubin v. J Crew Grp., Inc .. No. CV 16-2167, 2017 WL
1170854, at *6 (D.N.J. Mar. 29, 2017). See also Murray v. Lifetime Brands. Inc., No. CV 165016, 2017 WL 1837855. at *4 (D.N.J. May 8. 2017) ("Critically. what [the plaintiff] fails to do,
however, is identify the harm that resulted from allegedly not knowing what she asserts the
TCCWNA requires [the defendant] to tell her. ... The omission of any allegation of harm is fatal
to [the plaintiff's] case.): Hite v. Lush Internet Inc.. No. CV 16-1533, 2017 WL 1080906, at *8
(O.N.J. Mar. 22, 2017) (''Because Plaintiff does not seek to vindicate any underlying rights
what she believes New Jersey law requires, not to actually bring a suit or recover damages which
Based upon the allegations in the Amended Complaint, the harm that Plaintiff has suffered from
Hecht v. Hert::: Corp., No. 2:16-CV-01485, 2016 WL 613991 L at *4 (D.N.J. Oct. 20,
2016), appeal dismissed suh nom. David Hecht v. Hert:: C'orp. (3d Cir. Jan. 11, 2016) ("At
bottom. Plaintiff's [Complaint] presents the quintessential 'bare procedural harm, divorced from
any concrete harm,' which cannot 'satisfy the injury-in-fact requirement of Article III.'")
(quoting Spokeo, 136 S. Ct. at 1549-50); Candelaho v. Rip Curl, Inc., No. SACV 16-963, 2016
WL 6820403, at *2 (C.D. Cal. Sept. 7, 2016) (''Plaintiff simply alleges that she purchased a piece
of clothing which looked different from its photograph on Defendant's website and then reviewed
Defendant's Terms and Conditions. Her only connection to the Terms and Conditions appears to
be her decision to read them. These allegations are insufficient to sho\v a concrete and
particularized injury.'') (internal citations omitted).
This Court reaches the same conclusion in this case. Here, as in Rubin, the Plaintiff
alleges that she purchased a product on the Defendant's website and that the terms of the T&C
are contrary to the TCCWNA. However, she does not claim that she was dissatisfied with her
purchase, that the T &C deceived her or that the T &C prevented her from asserting any of her
rights. In fact, the Plaintiff does not even allege that she read the T &C. 2 As in Rubin, "the
genesis of [the] Plaintiffs lawsuit 'is seeking only to bring the [T &C] into accord with what
she believes New Jersey law requires, not to actually bring a suit or recover damages which
she believes are unlawfully barred' by [the T&C].'' Rubin, 2017 WL 1170854, at *6 (quoting
Hite, 2017 WL l 080906, at *8). The Court therefore concludes that the allegations in the
Plaintiffs Class Action Complaint amount only to a claim of a "bare procedural violation."
Spokeo, 136 S. Ct. at 1549. No concrete harm has been alleged; there is no "injury in fact"
The fact that the Plaintiff does not even allege that she read the T &C is one reason that this case is distinguishable
from Havens Realty Corp. v. Coleman, 455 U.S. 363 ( l 982). In her papers, the Plaintiff argues that her case is
synonymous with Havens, where the Supreme Court found that individuals had standing to sue under the Fair Housing
Act when they were given false information by real estate agents about the availability of apartments, even though
they never intended to buy or rent an apartment. Havens, 455 U.S. at 366-69, 3 72-75. The Plaintiff contends that just
as the Fair Housing Act provides a ''legal right to truthful information about available housing," Havens, 455 U.S. at
373, the TCCWNA provides a "legal right to receive contracts free from illegal and misleading terms." ECF No. 17
at 4. However, whether or not the TCCWNA provides such a legal right is irrelevant in this case because here the
Plaintiff does not allege that she was aware of the T &C, that she read the T &C, or that the T &C prevented her from
exercising her rights. Therefore. any injury to the Plaintiff is purely hypothetical. In contrast. in Havens, "the plaintiffs
actually sought and were denied statutorily required information." Ruhin, 2017 WL 1170854, at *7. Thus, the Court
concludes that, unlike the situation in Havens, there is no concrete injury alleged in this case.
here. 3 Accordingly. the Plaintiff does not have standing to sue, and the Defendant's Motion to
Dismiss will be granted. 4
The Court's conclusion is not altered by consideration of the Third Circuif s recent
decision in Susinno v. Work Out r·Vorld Inc., No. 16-3277. 2017 WL 2925432 (3d Cir. July 10,
2017). In Susinno, the plaintiff brought suit under the Telephone Consumer Protection Act
after she received one unsolicited telephone call, which ended with a one-minute-long,
prerecorded voicemail from the defendant. In its decision, the Third Circuit discussed Spokeo
and its own decision in In re Horizon Healthcare Services Inc. Data Breach Litigation, 846
F.3d 625 (3d Cir. 2017) and ultimately concluded that the plaintiff had the requisite standing.
See Susinno, 2017 WL 2925432, at *3-5. The Third Circuit summarized its rule from Horizon
by explaining that ''[w]hen one sues under a statute alleging the very injury [the statute] is
intended to prevent, and the injury has a close relationship to a harm ... traditionally ...
providing a basis for a lawsuit in English or American courts, a concrete injury has been
pleaded." Id. at *4 (internal quotations omitted). In Horizon. the Third Circuit also reiterated
that ''[i Jt is nevertheless clear from Spokeo that there are some circumstances where the mere
The Court notes that its decision in this case is consistent with its decision in Luca v. Wvndham IForldwide Corp ..
No. 2:16-CV-00746, 2017 WL 623579 (W.D. Pa. Feb. 15, 2017). In Luca. the Court concluded that the plaintiff had
alleged a concrete injury and therefore had standing to assert a violation of the TCCWNA, when he was asserting a
claim under the New Jersey Consumer Fraud Act ("'CF A") and when he alleged that the Defendant's website's Terms
of Use violated his right to recover under the CFA for an allegedly undisclosed/improperly disclosed resort fee. See
Luca, 2017 WL 623579. In its decision in Luca, this Court distinguished the facts alleged in that case from the facts
alleged in cases like the one at issue here. such as Hecht, 2016 WL 6139911, and Rip Curl. 2016 WL 6820403. Luca,
2017 WL 623579. at *5. This Court explained. '"[u]nlike in this case. however. the plaintiffs in [Hecht and Rip Curl]
identified no other underlying legal right or remedy that the website's provisions placed at risk. Instead, in each of
these cases. the plaintiffs suit relied solely on an alleged 'technical' violation of the TCCWNA-a quintessential
procedural violation, divorced from harm." Id.
Because constitutional standing is a requirement for any suit in federal court, the Court need not consider any of the
other arguments the Defendant raises in its Motion to Dismiss, including whether the T &C violate the TCCWNA. See
ECF No. 13.
technical violation of a procedural requirement of a statute cannot, in and of itself, constitute
an injury in fact." Horizon, 846 F.3d at 638.
In this case, the Plaintiff urges the Court to apply the two-step Susinno test and conclude
that she has standing. ECF No. 30 at 1-5. However, this Court concludes that this case is
distinguishable from Susinno. In Susinno, the plaintiff received a call to her cellphone that she
alleged was, among other things, a nuisance and an invasion of her privacy. See Susinno, 2017
WL 2925432, at *4. To put it plainly, the plaintiff did not just allege a procedural violation of a
statute-she alleged that the violation of a statue had actually affected her tangible (and
statutorily-considered) interests in a concrete manner. In contrast, in this case, the Plaintiff has
alleged only a procedural violation of the TCCWNA, namely the existence of the T&C. She
has not alleged that the T &C affected her at all or even that she was aware of its provisions at
or near the time of her purchase. Accordingly, even considering Susinno, this Court cannot
conclude that the Plaintiff in this case has satisfied the concrete injury requirement. The
Plaintiff's allegations are insufficient to establish standing.
The Defendant's Motion to Dismiss, ECF No. 12, is GRANTED. The case is
DISMISSED without prejudice.
An appropriate Order will issue.
Mark R. Hornak
United States District Judge
Dated: August 8, 2017
All counsel of record
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