Alex Braitberg, on behalf of himself and all others similarly situated, Plaintiff- Appellant,
Charter Communications, Inc., Defendant-Appellee.
Submitted: January 13, 2015
from United States District Court for the Eastern District of
Missouri - St. Louis
RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
COLLOTON, Circuit Judge.
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 court 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.
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.
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.
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 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.
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
enjoining Charter from indefinitely retaining former
customers' personal information, statutory and punitive
damages, and attorneys' fees. Braitberg moved to certify
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
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  
. 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 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."
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.
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 ...