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Thursday, September 19, 2019

Eleventh Circuit confirms U.S SC’s Spokeo ruling on standing, concrete harm

By Jessica Karmasek | Oct 19, 2016

The Elbert P. Tuttle Courthouse in Atlanta.

ATLANTA (Legal Newsline) - The U.S. Court of Appeals for the Eleventh Circuit, pointing to a recent U.S. Supreme Court ruling on the issue, confirmed that where a plaintiff brings a lawsuit based only on alleged statutory violation, he or or she must, to establish standing, allege a concrete harm.

Circuit Judges Stanley Marcus and William Pryor and Roger Lawson, judge for the U.S. District Court for the Middle District of Georgia, sitting by designation, made up the Eleventh Circuit panel.

Pryor authored the court’s Oct. 6 opinion in the case, Nicklaw v. CitiMortgage.

“Absent an alleged injury, Nicklaw cannot make out a case or controversy under Article III,” the judge explained in the 10-page opinion. “A plaintiff has injury in fact if he suffered an invasion of a legally protected interest that is concrete, particularized, and actual or imminent.

“A ‘concrete’ injury must be ‘de facto’ -- that is, it must actually exist,” Pryor continued, pointing to the Supreme Court’s ruling in Spokeo v. Robins.

The nation’s high court explained in its May decision that for an injury to be particularized, it must affect the plaintiff in a “personal and individual way.” The injury-in-fact also must be “concrete,” which means “real” and “not abstract.” But “concrete” is not necessarily synonymous with “tangible,” it noted.

Plaintiff Roger Nicklaw sold real estate and used the proceeds to satisfy a mortgage owned by CitiMortgage Inc.

New York law required CitiMortgage to file within 30 days a certificate of discharge with the county clerk to record that Nicklaw had satisfied his mortgage. But CitiMortgage failed to record the satisfaction of mortgage until more than 90 days after the date of satisfaction.

When Nicklaw discovered that the certificate had been recorded late, he filed a putative class action against CitiMortgage.

The complaint alleges that CitiMortgage violated New York law by failing to record the certificate of discharge within the statutory period.

A district court dismissed Nicklaw’s claims as moot due to an earlier filing in another jurisdiction.

Nicklaw appealed and CitiMortgage moved to dismiss the appeal for lack of standing.

CitiMortgage argues, and the Eleventh Circuit agreed, that Nicklaw lacks standing to maintain the action.

“Nicklaw alleges neither a harm nor a material risk of harm that the district court could remedy,” Pryor wrote for the appeals court. “His complaint does not allege that he lost money because CitiMortgage failed to file the certificate. It does not allege that his credit suffered. It does not even allege that he or anyone else was aware that the certificate of discharge had not been recorded during the relevant time period.

“And Nicklaw did not file this action until more than two years after CitiMortgage recorded the satisfaction of mortgage. Nicklaw fails to allege even a material risk of harm at this late date.”

The judge noted that while Nicklaw does not allege a sufficient injury in fact under Article III, that does not mean New York law does not create a right that, when violated, could form the basis of a cause of action in a court of New York.

“But Nicklaw chose to sue CitiMortgage in federal court, and the 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,” Pryor continued. “A plaintiff must suffer some harm or risk of harm from the statutory violation to invoke the jurisdiction of a federal court.”

The judge concluded, “By alleging only that CitiMortgage recorded the certificate late and nothing else, Nicklaw has failed to establish that he suffered or could suffer any harm that could constitute a concrete injury.”

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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