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Braitberg v. Charter Communications, Inc.

United States Court of Appeals, Eighth Circuit

September 8, 2016

Alex Braitberg, on behalf of himself and all others similarly situated, Plaintiff- Appellant,
Charter Communications, Inc., Defendant-Appellee.

          Submitted: January 13, 2015

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.

          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 court[1] 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.


         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 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 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.


         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 ...

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