MARK R. HORNAK, 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. 1 at 3. In August of 2016, 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. 1.
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").
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. Robins, 136 S.Ct. 1540, 1547 (2016) (internal citations omitted).
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 sufficiently 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 TCCWNA "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). Conversely, 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 Spokeo, 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." Spokeo, 136 S. Ct. at 1549 (internal quotations omitted). However, the Supreme Court also explained:
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.
The Court's conclusion is not altered by consideration of the Third Circuit's recent decision in Susinno v. Work Out World 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]t is nevertheless clear from Spokeo that there are some circumstances where the mere 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.