United States Court of Appeals
For the Eighth Circuit
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No. 14-1737
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Alex Braitberg, on behalf of himself and all others similarly situated,
lllllllllllllllllllll Plaintiff - Appellant,
v.
Charter Communications, Inc.,
lllllllllllllllllllll Defendant - Appellee.
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 13, 2015
Filed: September 8, 2016
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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
Alex Braitberg sued Charter Communications, Inc., alleging that Charter
retained his personally identifiable information in violation of a section of the Cable
Communications Policy Act, 47 U.S.C. § 551(e). Charter filed a motion to dismiss
for lack of Article III standing and failure to state a claim. The district court1 granted
the motion, and Braitberg appeals. We heard oral argument and then held the case
pending a decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), which informs
our analysis of Article III standing. We now affirm the judgment.
I.
Alex Braitberg signed up for cable services with Charter Communications, Inc.
around July 2007. Charter required Braitberg to provide various items of personally
identifiable information, including his address, telephone number, and social security
number, to activate the cable services. Braitberg then canceled his cable services
around June 2010.
In March 2013, Braitberg contacted Charter and confirmed that Charter
retained all of the personally identifiable information he had submitted in July 2007.
Braitberg alleged that “Charter’s uniform policy and practice has been to retain
customer [personally identifiable information] indefinitely, long after customers’
accounts have been terminated” and when it is no longer needed for providing
services or collecting payments. This indefinite retention, according to Braitberg, is
not necessary to satisfy Charter’s tax, accounting, or legal obligations.
Braitberg sued on behalf of himself and a class of former Charter customers
under the Cable Act. The statute provides that “[a] cable operator shall destroy
personally identifiable information if the information is no longer necessary for the
purpose for which it was collected and there are no pending requests or orders for
access to such information [by the subscriber] or pursuant to a court order.” 47
U.S.C. § 551(e). Braitberg alleged that Charter’s retention of personal information
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
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after it was no longer required to provide services, collect payments, or satisfy tax,
accounting, or legal obligations violated the rights of putative class members under
the Cable Act.
Braitberg claimed that Charter’s failure to destroy customers’ personal
information injured him and the proposed class members in two ways. First was an
alleged “direct invasion of their federally protected privacy rights.” Second, Charter
allegedly deprived Braitberg and the class of the full value of the services they
purchased from Charter. On this theory, Braitberg and others ascribed monetary
value to controlling their personal information, and Charter failed to destroy the
information as mandated by the Cable Act and by Charter’s privacy policy. Braitberg
sought an order enjoining Charter from indefinitely retaining former customers’
personal information, statutory and punitive damages, and attorneys’ fees. Braitberg
moved to certify a class.
Charter moved to dismiss on the ground that Braitberg lacked standing under
Article III, lacked statutory standing under the Cable Act, and failed to state a claim
because he had not alleged damages. The district court convened a hearing on
Charter’s motion to dismiss on February 12, 2014. At the close of the hearing, the
district court issued a minute order dismissing Braitberg’s claims without prejudice
and dismissing the parties’ motions on class certification as moot.
Because there is a question about the timeliness of the appeal, we provide some
detail about the docket. The courtroom minute sheet for the hearing was entered on
the docket and provided: “Parties present for ORAL Argument RE: Mtns [3] [11] +
[13]. Arguments heard. Motion to Dismiss Granted (HEA) Remaining Motions
Denied as Moot. Cause Dismissed w/o predjudice [sic].” The text on the docket was
substantially the same as that contained in the minute sheet, but was followed by the
clerk’s initials. An automatic Notice of Electronic Filing was generated by the
district court’s case management and electronic case filing system (“CM/ECF”) and
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sent to the parties via electronic mail. The e-mail provided that “[t]he following
transaction was entered on 2/12/2014,” followed by the same text as the docket entry
and the note “WARNING: CASE CLOSED on 02/12/2014.”
On March 13, 2014, twenty-nine days after the district court dismissed the
claims, Braitberg filed a “Motion to Modify Dismissal Order into an Order of
Dismissal with Prejudice,” because he thought a dismissal with prejudice was
necessary for “a timely appeal.” The district court granted this motion on March 14,
2014, and text reflecting the court’s disposition was entered on the docket. Braitberg
filed a notice of appeal on March 21, 2014, thirty-seven days after the district court
dismissed his claims without prejudice at the hearing.
II.
Charter first contends that Braitberg did not timely file his notice of appeal and
that we therefore lack jurisdiction. The district court dismissed Braitberg’s claims
without prejudice on February 12, 2014. The court did not explicitly grant Braitberg
leave to amend the complaint, so its dismissal without prejudice is a “final, appealable
order” that triggers the time for filing an appeal or a motion to alter or amend the
judgment. Quartana v. Utterback, 789 F.2d 1297, 1299-1300 (8th Cir. 1986).
Braitberg filed his notice of appeal thirty-seven days after the district court dismissed
the suit without prejudice and filed his “Motion to Modify Dismissal Order into an
Order of Dismissal with Prejudice” twenty-nine days after that dismissal.
Charter asserts that the notice of appeal was untimely because Federal Rule of
Appellate Procedure 4(a)(1)(A) requires the notice to be filed “within 30 days after
entry of the judgment or order appealed from,” while Braitberg filed his notice thirty-
seven days after the district court issued the dismissal without prejudice. Charter also
contends that Braitberg’s motion to modify the dismissal should be construed as an
untimely motion to alter or amend a judgment under Federal Rule of Civil Procedure
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59(e) that did not toll the time for filing a notice of appeal. The company points out
that Appellate Rule 4(a)(4) specifies that only “timely” filed motions restart the
appeal clock. Charter argues that Braitberg’s motion was not timely because Civil
Rule 59(e) requires motions to “be filed no later than 28 days after the entry of the
judgment,” and Braitberg filed his motion twenty-nine days after the district court
dismissed the claims without prejudice.
We conclude that Braitberg’s notice of appeal was timely for a different reason.
The time for filing both a notice of appeal and a motion to alter or amend the
judgment does not commence until “entry of the judgment.” Fed. R. App. P.
4(a)(1)(A); Fed. R. Civ. P. 59(e). Civil Rule 58(a) provides that “[e]very judgment
and amended judgment must be set out in a separate document,” with certain
exceptions not relevant here. If the separate document requirement applies but is not
satisfied, then a judgment or order is deemed “entered” for purposes of the time for
filing a notice of appeal and a Rule 59(e) motion when 150 days have run from the
entry of the judgment in the civil docket. Fed. R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ.
P. 58(c)(2). If judgment here was not entered until 150 days after the docket entry of
February 12, 2014, then Braitberg’s appeal is timely.
Charter argues that the e-mail sent to the parties on February 12, 2014, which
contained the docket text and the warning that the case was closed, satisfied the
separate document requirement. We disagree. The separate document requirement
“must be ‘mechanically applied’ in determining whether an appeal is timely . . . to
avoid the uncertainties that once plagued the determination of when an appeal must
be brought.” Bankers Tr. Co. v. Mallis, 435 U.S. 381, 386 (1978) (per curiam)
(quotation omitted). We have held that “[n]either the courtroom minute sheet nor the
court’s docket book constitute a separate document” for purposes of Rule 58(a).
Lupo v. R. Rowland & Co., 857 F.2d 482, 484 (8th Cir. 1988).
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In this case, the automatic e-mail message generated by the CM/ECF system
constituted the provision of notice to the parties required by Civil Rule 77(d)(1). That
rule states that “[i]mmediately after entering an order or judgment, the clerk must
serve notice of the entry . . . on each party.” Fed. R. Civ. P. 77(d)(1); see Am. Boat
Co. v. Unknown Sunken Barge, 567 F.3d 348, 349-50 & n.3, 352-53 (8th Cir. 2009).
Given that the courtroom minute sheet and the docket text do not satisfy the separate
document requirement, see Lupo, 857 F.2d at 484, an automatically generated notice
of the filing of the courtroom minute sheet and entry of the docket text, followed by
a reproduction of the docket text, likewise cannot satisfy the requirement.
As the separate document requirement was not satisfied, the district court’s
judgment is deemed entered 150 days after the judgment was entered in the civil
docket on February 12, 2014. Fed. R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ. P. 58(c)(2).
Braitberg filed his notice of appeal thirty-seven days after the district court’s
judgment dismissing the case was entered in the docket, well before the district
court’s judgment was deemed “entered” and the time for filing a notice of appeal
began to run. Although the notice of appeal was filed prematurely, “[a] failure to set
forth a judgment or order on a separate document when required by Federal Rule of
Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or
order.” Fed. R. App. P. 4(a)(7)(B); Chambers v. City of Fordyce, 508 F.3d 878, 881
(8th Cir. 2007) (per curiam). Braitberg’s notice of appeal is thus timely and valid.
III.
The parties next dispute whether there is a case or controversy under Article
III over which the district court had jurisdiction. Braitberg argues that Charter
violated his rights under the Cable Act and that he has standing to sue for redress of
that violation. Article III of the Constitution limits the jurisdiction of the federal
courts to cases or controversies. A plaintiff invoking the jurisdiction of the court
must adequately allege an injury in fact, an essential element of the “irreducible
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constitutional minimum of standing.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). “The party invoking federal jurisdiction bears the burden of
establishing” the requisite injury, which must be both “concrete and particularized”
and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id. at 560-61 (quotation
omitted). We review a district court’s dismissal for lack of standing de novo,
accepting the material allegations in the complaint as true. Shain v. Veneman, 376
F.3d 815, 817 (8th Cir. 2004).
Braitberg contends that a violation of a statutory right constitutes an injury in
fact that is sufficient by itself to establish standing under Article III. He asserts that
there is no need for him to allege or show any “actual injury” arising from Charter’s
retention of his personal information. This court’s decisions in Hammer v. Sam’s
East, Inc., 754 F.3d 492, 498-99 (8th Cir. 2014), and Charvat v. Mutual First Federal
Credit Union, 725 F.3d 819, 822 (8th Cir. 2013), seemed to accept that view.
Hammer, citing Charvat and Warth v. Seldin, 422 U.S. 490, 500 (1975), declared that
“the actual-injury requirement may be satisfied solely by the invasion of a legal right
that Congress created.” 754 F.3d at 498.
In Spokeo, however, the Supreme Court rejected this absolute view and
superseded our precedent in Hammer and Charvat. While acknowledging that
Congress is “well positioned to identify intangible harms that meet minimum Article
III requirements,” the Court emphasized that “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.” Spokeo, 136 S. Ct.
at 1549. “Article III,” the Court explained, “requires a concrete injury even in the
context of a statutory violation.” Id. A concrete injury must “actually exist,” and it
must be “real,” not “abstract.” Id. at 1548.
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“[T]he violation of a procedural right granted by statute can be sufficient in
some circumstances to constitute injury in fact.” Id. at 1549. The Spokeo Court
identified two examples in which plaintiffs were unable to obtain information that
Congress had decided to make public as statutory violations that also established
injury in fact. Id. at 1549-50. But a plaintiff cannot “allege a bare procedural
violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement
of Article III.” Id. at 1549. The Court envisioned scenarios in which a statutory
violation would not amount to concrete injury, because there was no real harm or
material risk of harm. In the context of the Fair Credit Reporting Act, the Court
observed that certain procedural violations—such as a credit agency’s failure to
provide a required notice to a user when the agency’s report was nonetheless entirely
accurate, and the dissemination of a credit report with minor inaccuracies (such as an
incorrect zip code)—likely could not, by themselves, establish standing because the
violations result in no concrete harm. Id. at 1550.
With the benefit of Spokeo’s guidance, we conclude that Braitberg has not
alleged an injury in fact as required by Article III. His complaint asserts “a bare
procedural violation, divorced from any concrete harm.” Id. at 1549. Braitberg
alleges only that Charter violated a duty to destroy personally identifiable information
by retaining certain information longer than the company should have kept it. He
does not allege that Charter has disclosed the information to a third party, that any
outside party has accessed the data, or that Charter has used the information in any
way during the disputed period. He identifies no material risk of harm from the
retention; a speculative or hypothetical risk is insufficient. Although there is a
common law tradition of lawsuits for invasion of privacy, the retention of information
lawfully obtained, without further disclosure, traditionally has not provided the basis
for a lawsuit in American courts. See Restatement (Second) of Torts § 652A (Am.
Law Inst. 1977); see also Spokeo, 136 S. Ct. at 1549. Modern courts have expressed
a similar view. See Sterk v. Redbox Automated Retail, LLC, 672 F.3d 535, 538 (7th
Cir. 2012) (“If, though not timely destroyed, [the personally identifiable information]
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remained secreted in the video service provider’s files until it was destroyed, there
would be no injury.”); Gubala v. Time Warner Cable, Inc., No. 15-cv-1078-pp, 2016
WL 3390415, at *5 (E.D. Wis. June 17, 2016) (dismissing complaint for lack of
concrete injury where plaintiff alleged only that cable operator retained personally
identifiable information).
Nor are we convinced that Braitberg has alleged an economic injury arising
from an alleged diminution of the value of the cable services that he purchased from
Charter. Braitberg alleges that consumers place a value on protecting their personal
data against improper access and unauthorized secondary use. Therefore, he
contends, Charter’s retention of personal information deprives him of “the full
monetary value” of his transaction with the company. But without a plausible
allegation that Charter’s mere retention of the information caused any concrete and
particularized harm to the value of that information, Braitberg has not adequately
alleged that there was any effect on the value of the services that he purchased from
Charter.
For these reasons, we conclude that Braitberg lacks Article III standing, and
the case was properly dismissed. The judgment of the district court is affirmed.
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