NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-1804 _______________

JEFFREY LEZARK, Appellant

v.

I.C. SYSTEM, INC. _______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 2-20-cv-00403) District Judge: Honorable Christy C. Wiegand _______________

Argued: February 24, 2023

Before: CHAGARES, Chief Judge, SCIRICA, and SMITH, Circuit Judges.

(Filed: March 23, 2023)

Kevin J. Abramowicz [ARGUED] Kevin W. Tucker East End Trial Group 6901 Lynn Way Suite 215 Pittsburgh, PA 15208

Eugene D. Frank 3202 McKnight East Drive Pittsburgh, PA 15237 Counsel for Appellant Carol A. VanderWoude [ARGUED] Marshall Dennehey Warner Coleman & Goggin 2000 Market Street Suite 2300 Philadelphia, PA 19103

Danielle M. Vugrinovich Marshall Dennehey Warner Coleman & Goggin 501 Grant Street Union Trust Building, Suite 700 Pittsburgh, PA 15219 Counsel for Appellee

_____________________

OPINION ∗ _____________________

CHAGARES, Chief Judge.

Jeffrey Lezark filed a lawsuit against I.C. System, Inc. (“ICS”), alleging that ICS

violated the Fair Debt Collection Practices Act (“FDCPA”) when it sent him a

purportedly misleading debt collection notice. The District Court awarded judgment on

the pleadings to ICS, and Lezark appealed. The Supreme Court’s decision in TransUnion

v. Ramirez,

(2021), issued during the pendency of this litigation, calls

into question whether Lezark had standing to sue ICS. Because representations made at

oral argument indicate that there are unresolved issues that may bear on Lezark’s

standing, we will vacate the judgment of the District Court and remand to give the

District Court an opportunity to consider Lezark’s standing in the first instance.

∗ This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

2 I.

Because we write primarily for the parties, we recite only the facts essential to our

decision. Lezark incurred a debt to a non-party medical practice. In an effort to collect

Lezark’s debt, the medical practice contracted with ICS. ICS mailed Lezark a debt

collection notice (the “Collection Notice”). The notice, in relevant part, informed Lezark

that the medical practice had authorized ICS to “refer[] the account to an attorney” if he

failed to contact ICS to discuss payment of the debt. Appendix (“App.”) 41.

Lezark filed a putative class action against ICS alleging that it had violated the

FDCPA by sending him the Collection Notice. In the operative complaint, Lezark

alleged that ICS violated the FDCPA’s prohibition on making “any false, deceptive, or

misleading representation . . . in connection with the collection of any debt,” 15 U.S.C. §

1692e(1), by suggesting in the Collection Notice that it could refer his account to an

attorney for litigation when ICS was not authorized to refer his account to a litigation

attorney and it rarely received authorization from its creditor-clients to refer debts for

litigation. He further alleged that ICS’s “conduct harmed [him] and the class and

violated their legal rights.” App. 43.

ICS did not move to dismiss on any ground, and the case proceeded to discovery.

Upon the conclusion of discovery, ICS moved for judgment on the pleadings. In support

of its motion, ICS argued that the Collection Notice was not false, deceptive, or

misleading as a matter of law because it truthfully stated that Lezark’s account could be

referred to an attorney, and a mere reference to an attorney referral is not a per se threat

of litigation. ICS did not at that time contest Lezark’s standing to sue. The District Court

3 granted ICS’s motion for judgment on the pleadings and denied Lezark’s subsequent

motion for reconsideration. Lezark then appealed.

II.

ICS has called into question Lezark’s Article III standing to sue, arguing that

Lezark’s complaint failed to demonstrate standing in light of the principles set forth by

the Supreme Court in TransUnion. The Supreme Court issued its decision in TransUnion

after ICS filed its motion for judgment on the pleadings. ICS did not move to dismiss for

lack of standing in the District Court in the wake of the decision. And although ICS filed

a notice of supplemental authority with the District Court on a different matter after the

TransUnion decision was issued, it did not bring the TransUnion decision to the District

Court’s attention.

On appeal, ICS contested Lezark’s standing for the first time. Lezark argued in

his reply brief that the allegations in the complaint were sufficient to support standing.

But he also contended that, if TransUnion implied that he needed to allege additional

facts to support standing, he could allege that the Collection Notice “made him feel

‘overwhelmed’ and caused him to contact a lawyer to file bankruptcy.” Reply Br. 5 n.1

(quoting App. 115).

The parties extensively discussed Lezark’s standing at oral argument. Lezark’s

counsel represented that the Collection Notice prompted him to contact a bankruptcy

attorney and that he ultimately filed for bankruptcy in part because of his perceived

implications of the Collection Notice. Oral Argument at 1:30. ICS’s counsel

acknowledged that if Lezark alleged a monetary injury resulting from the Collection

4 Notice in his complaint, such an allegation could constitute a concrete injury sufficient to

support standing. Oral Argument at 20:31.

“Article III standing enforces the Constitution’s case or controversy requirement.”

Virgin Islands Conservation Soc’y, Inc. v. Virgin Islands Bd. of Land Use Appeals

Golden Resorts LLLP,

(3d Cir. 2021) (alterations and quotation marks

omitted). We are “required to resolve the issue” whenever a “possible lack of a

controversy as to any or all claims is brought” to our attention. Neiderheiser v. Borough

of Berwick,

, 216 (3d Cir. 1988). We therefore must address Lezark’s

standing as a threshold jurisdictional issue. AT&T Commc’ns of New Jersey, Inc. v.

Verizon New Jersey, Inc.,

, 168 (3d Cir. 2001). We have jurisdiction to

determine our own jurisdiction when it is in doubt. United States v. Kwasnik,

(3d Cir. 2022).

To demonstrate standing, Lezark must establish “(1) an injury-in-fact; (2) that is

fairly traceable to the defendant’s challenged conduct; and (3) that is likely to be

redressed by a favorable judicial decision.” Kelly v. RealPage Inc.,

(3d

Cir. 2022) (quotation marks omitted). 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, Inc. v.

Robins,

, 338–39 (2016) (quotation marks and alterations omitted).

At issue in this case is whether Lezark’s complaint adequately alleges a concrete

injury. In its recent TransUnion decision, the Supreme Court clarified the concrete injury

requirement in cases involving causes of action established by Congress, like the

5 FDCPA’s private right of action. The Supreme Court explained that “[o]nly those

plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue

that private defendant over that violation in federal court.”

(emphasis

in original). It defined concrete harm as including “traditional tangible harms, such as

physical harms and monetary harms” as well as “intangible harms . . . with a close

relationship to harms traditionally recognized as providing a basis for lawsuits in

American courts.”

. In some instances, then, a plaintiff who has a “statutory

cause of action to sue a defendant over the defendant’s violation of federal law” may not

have Article III standing to sue that defendant, as that plaintiff has not “suffer[ed]

concrete harm because of the defendant’s violation of federal law.”

.

Although important questions about the scope of standing to sue under the FDCPA

remain in the wake of TransUnion, we need not answer those questions here. 1 Lezark

filed the operative complaint in this lawsuit well before the Supreme Court issued the

TransUnion decision, and Lezark’s standing was never challenged during proceedings

before the District Court. Considering this history — and the representations regarding

injury that Lezark made in his briefing and in oral argument before us — we will vacate

the District Court’s order and remand to the District Court in order to give Lezark an

1 We note that, in the wake of TransUnion, several other Courts of Appeals have addressed the requirements of standing under the FDCPA. See, e.g., Shields v. Professional Bureau of Collections of Maryland, Inc.,

(10th Cir. 2022); Perez v. McCreary, Veselka, Bragg & Allen, P.C.,

, 824–26 (5th Cir. 2022); Pierre v. Midland Credit Management, Inc.,

(7th Cir. 2022); Ward v. National Patient Account Services Solutions, Inc.,

(6th Cir. 2021).

6 opportunity to move for leave to amend his complaint to include additional allegations of

concrete injury. 2 See Arthur v. Maersk, Inc.,

(3d Cir. 2006)

(observing that leave to amend “must generally be granted unless equitable

considerations” such as “undue delay, bad faith, and futility” would make amendment

unjust). Regardless of whether Lezark chooses to move for leave to amend his complaint

or rests on the allegations in his operative complaint, our remand also gives the District

Court the first opportunity to assess whether Lezark has alleged a concrete injury under

the standard set forth in TransUnion. See Home Depot USA, Inc. v. Lafarge North

America, Inc.,

(3d Cir. 2023) (“[W]e are a court of review, not first

view.”). We express no view on the merits of ICS’s challenge to standing or the District

Court’s grant of judgment on the pleadings to ICS. We will retain jurisdiction over this

appeal. See 3d Cir. I.O.P. 7.1; see also In re Lipitor Antitrust Litigation,

(3d Cir. 2017) (noting that “[i]t is a common practice among the Courts of Appeals

to retain jurisdiction over an appeal while making a limited remand . . . to determine

whether there is federal subject-matter jurisdiction.” (quotation marks omitted)).

III.

For the foregoing reasons, we will vacate the judgment of the District Court and

remand for the purpose of addressing Lezark’s standing. Because we are vacating the

2 In the wake of the District Court’s order granting ICS’s motion for judgment on the pleadings, Lezark previously sought leave to amend his complaint to incorporate additional allegations on how the disputed debt collection notice was misleading. The District Court did not abuse its discretion by denying this motion for leave to amend. See United States ex rel. Ascolese v. Shoemaker Constr. Co.,

(3d Cir. 2022).

7 District Court’s order granting judgment on the pleadings, we will likewise vacate its

denial of Lezark’s motion to reconsider that order.

8