2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-12-2011

Kathy Reilly v. Ceridian Corp

Precedential or Non-Precedential: Precedential

Docket No. 11-1738

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-1738

_____________

KATHY REILLY, individually and on behalf of all others 

similarly situated; PATRICIA PLUEMACHER, individually 

and on behalf of all others similarly situated,

Appellants

v.

CERIDIAN CORPORATION

__________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-10-cv-05142)

District Judge: Hon. Jose L. Linares

__________

Argued October 27, 2011

Before: SLOVITER, GREENAWAY, JR. and ALDISERT, 

Circuit Judges.
2

(Filed December 12, 2011)

Alan S. Pralgever, Esq. (Argued)

Greenbaum, Rowe, Smith & Davis LLP

75 Livingston Avenue, Suite 301

Roseland, NJ 07068

Counsel for Appellants

Steven J. Wells, Esq.(Argued)

Bryan C. Keane, Esq.

Dorsey & Whitney LLP

50 South Sixth Street, Suite 1500

Minneapolis, MN 55402

Counsel for Appellee

__________

OPINION OF THE COURT

__________

ALDISERT, Circuit Judge.

Kathy Reilly and Patricia Pluemacher, individually and 

on behalf of all others similarly situated, appeal from an order 

of the United States District Court for the District of New 

Jersey, which granted Ceridian Corporation‟s motion to dismiss for lack of standing, and alternatively, failure to state a 

claim. Appellants contend that (1) they have standing to bring 

their claims in federal court, and (2) they stated a claim that

adequately alleged cognizable damage, injury, and ascertainable loss. We hold that Appellants lack standing and do not 

reach the merits of the substantive issue. We will therefore 

affirm.
3

I.

A.

Ceridian is a payroll processing firm with its principal 

place of business in Bloomington, Minnesota. To process its 

commercial business customers‟ payrolls, Ceridian collects 

information about its customers‟ employees. This information 

may include employees‟ names, addresses, social security 

numbers, dates of birth, and bank account information. 

Reilly and Pluemacher were employees of the Brach 

Eichler law firm, a Ceridian customer, until September 2003.

Ceridian entered into contracts with Appellants‟ employer

and the employers of the proposed class members to provide 

payroll processing services.

On or about December 22, 2009, Ceridian suffered a 

security breach. An unknown hacker infiltrated Ceridian‟s

Powerpay system and potentially gained access to personal 

and financial information belonging to Appellants and approximately 27,000 employees at 1,900 companies. It is not 

known whether the hacker read, copied, or understood the 

data.

Working with law enforcement and professional investigators, Ceridian determined what information the hacker 

may have accessed. On about January 29, 2010, Ceridian sent 

letters to the potential identity theft victims, informing them 

of the breach: “[S]ome of your personal information . . . may 

have been illegally accessed by an unauthorized hacker . . . . 

[T]he information accessed included your first name, last 

name, social security number and, in several cases, birth date 

and/or the bank account that is used for direct deposit.” App. 
4

00039. Ceridian arranged to provide the potentially affected 

individuals with one year of free credit monitoring and identity theft protection. Individuals had until April 30, 2010, to 

enroll in the free program, and Ceridian included instructions 

on how to do so within its letter. 

B.

On October 7, 2010, Appellants filed a complaint 

against Ceridian, on behalf of themselves and all others similarly situated, in the United States District Court for the District of New Jersey.1 Appellants alleged that they: (1) have an 

increased risk of identity theft, (2) incurred costs to monitor 

their credit activity, and (3) suffered from emotional distress. 

On December 15, 2010, Ceridian filed a motion to 

dismiss pursuant to Rules 12(b)(1) and 12(b)(6), Federal 

Rules of Civil Procedure, for lack of standing and failure to 

state a claim. On February 22, 2011, the District Court 

granted Ceridian‟s motion, holding that Appellants lacked 

Article III standing. The Court further held that, assuming 

Appellants had standing, they nonetheless failed to 

adequately allege the damage, injury, and ascertainable loss 

elements of their claims. Appellants timely filed their Notice 

of Appeal on March 18, 2011.

 

1 Appellants‟ proposed class consists of all persons whose 

personal and financial information was contained in the 

Ceridian Powerpay System and was stolen or otherwise misplaced as a result of the breach.
5

II.

We have jurisdiction to review the District Court‟s 

final judgment pursuant to 28 U.S.C. § 1291. But “[a]bsent 

Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiff‟s claims, and they must 

be dismissed.” Taliaferro v. Darby Twp. Zoning Bd., 458 

F.3d 181, 188 (3d Cir. 2006). Hence, we exercise plenary 

review over the District Court‟s jurisdictional determinations,

see Graden v. Conexant Sys. Inc., 496 F.3d 291, 294 n.2 (3d 

Cir. 2007), “review[ing] only whether the allegations on the 

face of the complaint, taken as true, allege facts sufficient to 

invoke the jurisdiction of the district court,” Common Cause 

of Penn. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir. 2009). 

We also review de novo a district court‟s grant of a motion to 

dismiss for failure to state a claim under Rule 12(b)(6). See

Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006).

Because the District Court dismissed Appellants‟ 

claims pursuant to Rules 12(b)(1) and 12(b)(6), we accept as 

true all well-pleaded allegations and construe the complaint in 

the light most favorable to the non-moving party. See Lewis 

v. Atlas Van Lines, Inc., 542 F.3d 403, 405 (3d Cir. 2008).

III.

Appellants‟ allegations of hypothetical, future injury 

do not establish standing under Article III. For the following 

reasons we will therefore affirm the District Court‟s 

dismissal.
6

A.

Article III limits our jurisdiction to actual “cases or 

controversies.” U.S. Const. art. III, § 2. One element of this 

“bedrock requirement” is that plaintiffs “must establish that 

they have standing to sue.” Raines v. Byrd, 521 U.S. 811, 818 

(1997). It is the plaintiffs‟ burden, at the pleading stage, to 

establish standing. See Lujan v. Defenders of Wildlife, 504 

U.S. 555, 561 (1992); Storino v. Borough of Point Pleasant 

Beach, 322 F.3d 293, 296 (3d Cir. 2003). Although “general 

factual allegations of injury resulting from the defendant‟s 

conduct may suffice,” Lujan, 504 U.S. at 561, the complaint 

must still “clearly and specifically set forth facts sufficient to 

satisfy” Article III. Whitmore v. Arkansas, 495 U.S. 149, 155 

(1990). 

“[T]he question of standing is whether the litigant is 

entitled to have the court decide the merits of the dispute or of 

particular issues.” Elk Grove Unified Sch. Dist. v. Newdow, 

542 U.S. 1, 11 (2004). Standing implicates both constitutional 

and prudential limitations on the jurisdiction of federal courts. 

See Storino, 322 F.3d at 296. Constitutional standing requires 

an “injury-in-fact, which is an invasion of a legally protected 

interest that is (a) concrete and particularized, and (b) actual 

or imminent, not conjectural or hypothetical.” Danvers Motor 

Co. v. Ford Motor Co., 432 F.3d 286, 290-291 (3d Cir. 2005) 

(citing Lujan, 504 U.S. at 560-561). An injury-in-fact “must 

be concrete in both a qualitative and temporal sense. The 

complainant must allege an injury to himself that is „distinct 

and palpable,‟ as distinguished from merely „abstract,‟ and 

the alleged harm must be actual or imminent, not „conjectural‟ or „hypothetical.‟” Whitmore, 495 U.S. at 155 (internal

citations omitted).
7

Allegations of “possible future injury” are not 

sufficient to satisfy Article III. Whitmore, 495 U.S. at 158; 

see also Lujan, 504 U.S. at 564 n.2 (stating that allegations of 

a future harm at some indefinite time cannot be an “actual or 

imminent injury”). Instead, “[a] threatened injury must be 

„certainly impending,‟” Whitmore, 495 U.S. at 158 (internal 

citation omitted), and “proceed with a high degree of 

immediacy, so as to reduce the possibility of deciding a case 

in which no injury would have occurred at all,” Lujan, 504 

U.S. at 564 n.2; Whitmore, 495 U.S. at 122 (explaining that 

the imminence requirement “ensures that courts do not 

entertain suits based on speculative or hypothetical harms”).

A plaintiff therefore lacks standing if his “injury” stems from 

an indefinite risk of future harms inflicted by unknown third 

parties. See Lujan, 504 U.S. at 564.

B.

We conclude that Appellants‟ allegations of hypothetical, future injury are insufficient to establish standing. Appellants‟ contentions rely on speculation that the hacker: (1) 

read, copied, and understood their personal information; (2) 

intends to commit future criminal acts by misusing the information; and (3) is able to use such information to the detriment of Appellants by making unauthorized transactions in 

Appellants‟ names. Unless and until these conjectures come 

true, Appellants have not suffered any injury; there has been 

no misuse of the information, and thus, no harm.

The Supreme Court has consistently dismissed cases 

for lack of standing when the alleged future harm is neither 

imminent nor certainly impending. For example, the Lujan
8

Court addressed whether plaintiffs had standing when seeking

to enjoin the funding of activities that threatened certain 

species‟ habitats. The Court held that plaintiffs‟ claim that 

they would visit the project sites “some day” did not meet the 

requirement that their injury be “imminent.” 504 U.S. at 564 

n.2 (“[W]e are at a loss to see how, as a factual matter, the 

standard can be met by respondents‟ mere profession of an 

intent, some day, to return.”). Appellants‟ allegations here 

are even more speculative than those at issue in Lujan. There, 

the acts necessary to make the injury “imminent” were within 

plaintiffs‟ own control, because all plaintiffs needed to do 

was travel to the site to see the alleged destruction of wildlife

take place. Yet, notwithstanding their stated intent to travel to 

the site at some point in the future—which the Court had no 

reason to doubt—their harm was not imminent enough to 

confer standing. See id. Here, Appellants‟ alleged increased 

risk of future injury is even more attenuated, because it is 

dependent on entirely speculative, future actions of an unknown third-party. 

The requirement that an injury be “certainly impending” is best illustrated by City of Los Angeles v. Lyons, 461 

U.S. 95 (1983). There, the Court held that a plaintiff lacked 

standing to enjoin the Los Angeles Police Department from 

using a controversial chokehold technique on arrestees. See

Lyons, 461 U.S. at 105-106. Although the plaintiff had 

already once been subjected to this maneuver, the future harm 

he sought to enjoin depended on the police again arresting 

and choking him. See id. at 105. Unlike the plaintiff in Lyons, 

Appellants in this case have yet to suffer any harm, and their 

alleged increased risk of future injury is nothing more than 

speculation. As such, the alleged injury is not “certainly 

impending.” Lujan, 504 U.S. at 564 n.2.
9

Our Court, too, has refused to confer standing when

plaintiffs fail to allege an imminent injury-in-fact. For 

example, although the plaintiffs in Storino contended that a 

municipal ordinance would eventually result in a commercially undesirable zoning change, we held that the allegation of 

future economic damage was too conjectural and insufficient 

to meet the “injury in fact” requirement. See 322 F.3d at 298. 

As we stated in that case, “one cannot describe how the 

[plaintiffs] will be injured without beginning the explanation

with the word „if.‟ The prospective damages, described by the 

[plaintiffs] as certain, are, in reality, conjectural.” Id. at 297-

298. Similarly, we cannot now describe how Appellants will 

be injured in this case without beginning our explanation with 

the word “if”: if the hacker read, copied, and understood the 

hacked information, and if the hacker attempts to use the 

information, and if he does so successfully, only then will 

Appellants have suffered an injury. 

C.

In this increasingly digitized world, a number of courts 

have had occasion to decide whether the “risk of future harm” 

posed by data security breaches confers standing on persons 

whose information may have been accessed. Most courts have 

held that such plaintiffs lack standing because the harm is too 

speculative. See Amburgy v. Express Scripts, Inc., 671 F. 

Supp. 2d 1046, 1051-1053 (E.D. Mo. 2009); see also Key v. 

DSW Inc., 454 F. Supp. 2d 684, 690 (S.D. Ohio 2006). We 

agree with the holdings in those cases. Here, no evidence

suggests that the data has been—or will ever be—misused.

The present test is actuality, not hypothetical speculations 

concerning the possibility of future injury. Appellants‟ allega-
10

tions of an increased risk of identity theft resulting from a 

security breach are therefore insufficient to secure standing. 

See Whitmore, 495 U.S. at 158 (“[A]llegations of possible 

future injury do not satisfy the requirements of Art. III.”).

Principally relying on Pisciotta v. Old National 

Bancorp, 499 F.3d 629 (7th Cir. 2007), Appellants contend 

that an increased risk of identity theft is itself a harm 

sufficient to confer standing. In Pisciotta, plaintiffs brought a

class action against a bank after its website had been hacked, 

alleging that the bank failed to adequately secure the personal 

information it solicited (such as names, addresses, birthdates, 

and social security numbers) when consumers applied for 

banking services on its website. The named plaintiffs did not 

allege “any completed direct financial loss to their accounts” 

nor that they “already had been the victim of identity theft as 

a result of the breach.” Id. at 632. The court, nonetheless, held 

that plaintiffs had standing, concluding, without explanation, 

that the “injury-in-fact requirement can be satisfied by a 

threat of future harm or by an act which harms the plaintiff 

only by increasing the risk of future harm that the plaintiff 

would have otherwise faced, absent the defendant‟s actions.” 

Id. at 634.

Appellants rely as well on Krottner v. Starbucks Corp., 

628 F.3d 1139 (9th Cir. 2010), in which the Court of Appeals 

for the Ninth Circuit conferred standing under circumstances

much different from those present here. There, plaintiffs‟

“names, addresses, and social security numbers were stored 

on a laptop that was stolen from Starbucks.” Id. at 1140. The 

court concluded that plaintiffs met the standing requirement 

through their allegations of “a credible threat of real and 

immediate harm stemming from the theft of a laptop contain-
11

ing their unencrypted personal data.” Id. at 1143. Appellants 

here contend that we should follow Pisciotta and Krottner and 

hold that the “credible threat of real and immediate harm” 

stemming from the security breach of Ceridian‟s Powerpay 

system satisfies the standing requirement. Id.

But these cases have little persuasive value here; in 

Pisciotta and Krottner, the threatened harms were

significantly more “imminent” and “certainly impending” 

than the alleged harm here. In Pisciotta, there was evidence 

that “the [hacker‟s] intrusion was sophisticated, intentional 

and malicious.” 499 F.3d at 632. In Krottner, someone 

attempted to open a bank account with a plaintiff‟s information following the physical theft of the laptop.

2

See 628 F.3d

at 1142. Here, there is no evidence that the intrusion was 

intentional or malicious. Appellants have alleged no misuse, 

and therefore, no injury. Indeed, no identifiable taking 

occurred; all that is known is that a firewall was penetrated. 

Appellants‟ string of hypothetical injuries do not meet the 

requirement of an “actual or imminent” injury.

D.

Neither Pisciotta nor Krottner, moreover, discussed the

constitutional standing requirements and how they apply to 

generalized data theft situations. Indeed, the Pisciotta court 

did not mention—let alone discuss—the requirement that a 

threatened injury must be “imminent” and “certainly impending” to confer standing. See 499 F.3d at 634. Instead of 

making a determination as to whether the alleged injury was 

 

2

The bank closed the account before any financial loss occurred.
12

“certainly impending,” both courts simply analogized datasecurity-breach situations to defective-medical-device, toxicsubstance-exposure, or environmental-injury cases. See id.; 

see also Krottner, 628 F.3d at 1142-1143. 

Still, Appellants urge us to adopt those courts‟ skimpy 

rationale for three reasons. First, Appellants here expended

monies on credit monitoring and insurance to protect their 

safety, just as plaintiffs in defective-medical-device and 

toxic-substance-exposure cases expend monies on medical 

monitoring. See Sutton v. St. Jude Med. S.C., Inc., 419 F.3d 

568, 570-575 (6th Cir. 2005). Second, members of this 

putative class may very well have suffered emotional distress 

from the incident, which also represents a bodily injury, just 

as plaintiffs in the medical-device and toxic-tort cases have 

suffered physical injuries. See In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 850 (3d Cir. 1990) (explaining that “courts 

have begun to recognize claims like medical monitoring, 

which can allow plaintiffs some relief even absent present 

manifestations of physical injury” and that “in the toxic tort 

context, courts have allowed plaintiffs to recover for 

emotional distress suffered because of the fear of contracting 

a toxic exposure disease”). Third, injury to one‟s identity is 

extraordinarily unique and money may not even compensate 

one for the injuries sustained, just as environmental injury is 

unique and monetary compensation may not adequately 

return plaintiffs to their original position. See Cent. Delta Water Agency v. United States, 306 F.3d 938, 950 (9th Cir. 

2002) (holding that “monetary compensation may well not 

adequately return plaintiffs to their original position” because 

harms to the environment “are frequently difficult or impossible to remedy”). Based on these analogies, Appellants 

contend they have established standing here. These analogies 
13

do not persuade us, because defective-medical-device and 

toxic-substance-exposure cases confer standing based on two 

important factors not present in data breach cases. 

First, in those cases, an injury has undoubtedly

occurred. In medical-device cases, a defective device has 

been implanted into the human body with a quantifiable risk 

of failure. See Sutton, 419 F.3d at 574. Similarly, exposure to 

a toxic substance causes injury; cells are damaged and a 

disease mechanism has been introduced. See In re Paoli R.R. 

Yard PCB Litig., 916 F.2d at 851, 851-852 (explaining that 

“persons exposed to toxic chemicals emanating from the 

landfill have an increased risk of invisible genetic damage 

and a present cause of action for their injury” because “in a 

toxic age, significant harm can be done to an individual by a 

tortfeasor, notwithstanding latent manifestation of that 

harm”). Hence, the damage has been done; we just cannot yet 

quantify how it will manifest itself. 

In data breach cases where no misuse is alleged, 

however, there has been no injury—indeed, no change in the 

status quo. Here, Appellants‟ credit card statements are 

exactly the same today as they would have been had 

Ceridian‟s database never been hacked. Moreover, there is no 

quantifiable risk of damage in the future. See id. at 852 (“As a 

proximate result of exposure [to the toxic substance], plaintiff 

suffers a significantly increased risk of contracting a serious 

latent disease.”). Any damages that may occur here are 

entirely speculative and dependent on the skill and intent of 

the hacker.

Second, standing in medical-device and toxic-tort 

cases hinges on human health concerns. See Sutton, 419 F.3d 
14

at 575. Courts resist strictly applying the “actual injury” test 

when the future harm involves human suffering or premature 

death. See id. As the Sutton court explained, “there is 

something to be said for disease prevention, as opposed to 

disease treatment. Waiting for a plaintiff to suffer physical 

injury before allowing any redress whatsoever is both overly 

harsh and economically inefficient.” Id. The deceased, after 

all, have little use for compensation. This case implicates 

none of these concerns. The hacker did not change or injure 

Appellants‟ bodies; any harm that may occur—if all of 

Appellants‟ stated fears are actually realized—may be redressed in due time through money damages after the harm 

occurs with no fear that litigants will be dead or disabled from

the onset of the injury. See Key, 454 F. Supp. 2d at 690 

(“[T]hose [medical monitoring] cases not only act as a narrow 

exception to the general rule of courts rejecting standing 

based on increased risk of future harm, but are also factually 

distinguishable from the present case [of a data security 

breach].”). 

An analogy to environmental injury cases fails as well. 

As the Court of Appeals for the Ninth Circuit explained in 

Central Delta Water Agency, standing is unique in the 

environmental context because monetary compensation may 

not adequately return plaintiffs to their original position. See

id. at 950 (“The extinction of a species, the destruction of a 

wilderness habitat, or the fouling of air and water are harms 

that are frequently difficult or impossible to remedy [by 

monetary compensation].”). In a data breach case, however, 

there is no reason to believe that monetary compensation will 

not return plaintiffs to their original position completely—if

the hacked information is actually read, copied, understood, 

and misused to a plaintiff‟s detriment. To the contrary, unlike 
15

priceless “mountains majesty,” the thing feared lost here is 

simple cash, which is easily and precisely compensable with a 

monetary award. We therefore decline to analogize this case 

to those cases in the medical device, toxic tort or environmental injury contexts. 

E.

Finally, we conclude that Appellants‟ alleged time and 

money expenditures to monitor their financial information do 

not establish standing, because costs incurred to watch for a 

speculative chain of future events based on hypothetical 

future criminal acts are no more “actual” injuries than the 

alleged “increased risk of injury” which forms the basis for 

Appellants‟ claims. See Randolph v. ING Life Ins. & Annuity 

Co., 486 F. Supp. 2d 1, 8 (D.D.C. 2007) (“[T]he „lost data‟ 

cases . . . clearly reject the theory that a plaintiff is entitled to 

reimbursement for credit monitoring services or for time and 

money spent monitoring his or her credit.”). That a plaintiff 

has willingly incurred costs to protect against an alleged 

increased risk of identity theft is not enough to demonstrate a

“concrete and particularized” or “actual or imminent” injury. 

Id.; see also Amburgy, 671 F. Supp. 2d at 1053 (holding 

plaintiff lacked standing even though he allegedly spent time 

and money to protect himself from risk of future injury); 

Hammond v. Bank of N.Y. Mellon Corp., No. 08-6060, 2010 

WL 2643307, at *4, *7 (S.D.N.Y. June 25, 2010) (noting that 

plaintiffs‟ “out-of-pocket expenses incurred to proactively 

safeguard and/or repair their credit” and the “expense of 

comprehensive credit monitoring” did not confer standing); 

Allison v. Aetna, Inc., No. 09-2560, 2010 WL 3719243, at *5 

n.7 (E.D. Pa. Mar. 9, 2010) (rejecting claims for time and 
16

money spent on credit monitoring due to a perceived risk of 

harm as the basis for an injury in fact).

Although Appellants have incurred expenses to monitor their accounts and “to protect their personal and financial 

information from imminent misuse and/or identity theft,” 

App. 00021, they have not done so as a result of any actual

injury (e.g. because their private information was misused or 

their identities stolen). Rather, they prophylactically spent 

money to ease fears of future third-party criminality. Such 

misuse is only speculative—not imminent. The claim that 

they incurred expenses in anticipation of future harm,

therefore, is not sufficient to confer standing.

IV.

The District Court correctly held that Appellants failed 

to plead specific facts demonstrating they have standing to 

bring this suit under Article III, because Appellants‟ 

allegations of an increased risk of identity theft as a result of 

the security breach are hypothetical, future injuries, and are 

therefore insufficient to establish standing. For the reasons set 

forth, we will AFFIRM the District Court‟s order granting 

Ceridian‟s motion to dismiss.