United States District Court, W.D. Pennsylvania
WILLIAM S. STICKMAN IV, DISTRICT JUDGE
the advent of online behavioral advertising ("OBA")
in the late 1990s, businesses have become increasingly adept
at tracking users visiting their websites. E.g.,
Symposium, Vincent Toubiana et al., Adnostic: Privacy
Preserving Targeted Advertising, NETWORK AND Distributed
System Security Symposium 1, 1 (2010),
Electronic tracking has given rise to lawsuits under various
wiretap and electronic surveillance statutes. These cases
require courts to apply the general terms of the respective
statutes to the developing technology of electronic tracking
and surveillance in the context of electronic commerce and
web-browsing. This is one of those cases.
Ashley Popa's ("Popa") Amended Complaint (ECF
No. 38) alleges that Defendants unlawfully collected her data
while she shopped online. Defendant Harriet Carter Gifts,
Inc. ("HCG") is the owner of the website where Popa
was shopping. Defendant Navistone Inc.
("Navistone") is the third party who allegedly
collected her data on HCG's website. Both Defendants
filed Motions to Dismiss. (ECF Nos. 42, 45). Navistone
published on HCG's website. Navistone's Request for
Judicial Notice in Support of its Motion to Dismiss (ECF No.
43) ("Navistone's Request for Jud. Notice") at
Court holds that it cannot, at this time, determine whether
Popa's Amended Complaint fails to plead a legally
cognizable claim at Count I. The Court will deny the Motions
to Dismiss as to Count I without prejudice to Defendants'
right to reassert their defenses after discovery develops a
more complete factual record which better contextualizes
Defendants' alleged conduct in light of the claims
asserted and the applicable law. Defendants' Motions to
Dismiss Count II will be granted because Popa cannot maintain
her claim in light of the facts pled in her Amended
Complaint. Navistone's Request for Judicial Notice will
AND PROCEDURAL BACKGROUND
a gift merchant incorporated in Pennsylvania. Navistone is an
Ohio company that tracks Internet Protocol ("IP")
addresses of visitors on its customers' websites to
procure commercially relevant information like names and
mailing addresses. It stores the data on a server in Ohio.
HCG contracted with Navistone to collect data from traffic on
user tracking on its website, but the policy discloses
neither Navistone's identity nor its modus operandi for
obtaining user data. Popa's Amended Class Action
Complaint (ECF No. 38) ("Popa's Am. CompL") at
pp. 4-8, ¶¶ 14-30.
to Popa, Navistone intercepted her Personal Identifiable
Information ("PII")- her name, her residential
address, and her email address-as she browsed HCG's
website for pet products. Popa pleads that Navistone recorded
and relayed her every keystroke and mouse click back to its
server. She alleges that Navistone collected Popa's data
even though she never hit the "submit" button to
make a purchase. Popa's Am. Compl. at pp. 8-15,
March 8, 2019, Popa, on her own behalf and as class
representative, filed a two-count Complaint in the Court of
Common Pleas of Lawrence County, Pennsylvania, alleging a
violation of Pennsylvania's wiretap statute (Count I) and
an invasion of privacy-intrusion upon seclusion (Count II).
Class Action Complaint (ECF No. 1-2) ("Popa's
Compl.") at p. 1. On April 18, 2019, Defendants filed a
Notice of Removal, alleging diversity jurisdiction.
Defendants' Notice of Removal of Action under 28 U.S.C.
§ 1332, 1446(a) and 1453 (ECF No. 1) ("Def.'s
Notice of Removal") at p. 1. On June 24, 2019, Popa
filed an Amended Complaint. Popa's Am. Compl. at p. 1,
¶ 1. Defendants filed Motions to Dismiss on July 22,
2019. Navistone Inc.'s Motion to Dismiss First Amended
Class Action Complaint Pursuant to F.R.C.P. 12(b)(6) (ECF No.
42) ("Navistone's Mot. to Dismiss") at p. 1;
Harriet Carter Gifts, Inc.'s Motion to Dismiss Plaintiffs
Amended Complaint (ECF No. 45) ("HCG's Mot. to
Dismiss") at p. 1. The matter is now ripe for
motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of the
complaint. Kostv. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir. 1993). A plaintiff must allege sufficient facts that, if
accepted as true, state a claim for relief that is plausible
on its face. See Bell Atl Corp. v. Twornbly, 550
U.S. 544, 555 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A court must accept all well-pled
factual allegations as true and view them in the light most
favorable to the plaintiff. See Fowler v. UPMC Shady
side, 578 F.3d 203, 210 (3d Cir. 2009); see also
DiCarlo v. St. Marcy Hosp., 530 F.3d 255, 262-63 (3d
"plausibility" standard required for a complaint to
survive a motion to dismiss is not akin to a
"probability" requirement, but asks for more than
sheer "possibility." Iqbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). In other
words, the complaint's factual allegations must be enough
to raise a right to relief above the speculative level, on
the assumption that all the allegations are true even if
doubtful in fact. Twombly, 550 U.S. at 555. Facial
plausibility is present when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendants are liable for the misconduct
alleged. Iqbal, 556 U.S. at 678. Even if the
complaint's well-pled facts give rise to a plausible
inference, that inference alone will not entitle the
plaintiff to relief. Id. at 682. The complaint must
support the inference with facts to plausibly justify that
inferential leap. Id.
a court may not consider extraneous documents when
considering a motion to dismiss. In re Burlington Coat
Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir. 1997).
If matters outside the pleadings are presented to and not
excluded by a court at a motion to dismiss, the motion must
be treated as a motion for summary judgment. See
Fed. R. Civ. P. 12(d). However, when reviewing the
sufficiency of a complaint, a court may consider exhibits
attached to it, which are incorporated within the complaint,
without converting the motion into one for summary judgment.
See In re Burlington, 114 F.3d at 1426 (A court may
consider a "document integral to or explicitly relied
upon in the complaint." (citations omitted)); ALA,
Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)
(same); Fallon v. Mercy Catholic Medical Center of
Southeastern Pennsylvania, Wl F.3d 487, 493 (3d Cir.
2017) (same); Fed.R.Civ.P. 10(c) ("A copy of a written
instrument that is an exhibit to a pleading is a part of the
pleading for all purposes."); see also Pension Ben.
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993) (holding that a court may consider
an "undisputedly authentic document that a defendant
attaches as an exhibit to a motion to dismiss if the
plaintiffs claims are based on the document.").
motion to dismiss may be granted only if, accepting all
well-pleaded allegations in the complaint as true and viewing
them in the light most favorable to the plaintiff, a court
finds that plaintiffs claims lack facial plausibility."
Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d
Cir. 2011). Although this Court must accept the allegations
in the Complaint as true, it is "not compelled to accept
unsupported conclusions and unwarranted inferences, or a
legal conclusion couched as a factual allegation."
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007) (citations omitted).
of Popa's Amended Complaint alleges that Defendants
violated the Pennsylvania Wiretapping and Electronic
Surveillance Control Act of 1978 ("WESCA") Pub. L.
831, No. 164 (codified as amended at 18 Pa. C.S.A.
§§ 5701 et seq.). Count II alleges that Defendants
committed tortious intrusion upon seclusion. Defendants
respond that this action should be dismissed for failure to
state claims for which relief can be granted. For the reasons
set forth below, the Court will exercise subject matter
jurisdiction over this matter. The Court denies
Defendants' Motions to Dismiss as to Count I, and it
grants Defendants' Motions to Dismiss as to Count II.
Subject Matter Jurisdiction
Court must preliminarily address whether it ought to exercise
jurisdiction. The Class Action Fairness Act
("CAFA") of 2005 expanded the Court's
jurisdiction over class action lawsuits. Pub. L. 109-2, 119
Stat. 4-14 (codified as amended at 28 U.S.C. § 1332(d)).
Section 1332(d) provides that the Court has subject matter
jurisdiction over class action lawsuits when the amount in
controversy exceeds $5, 000, 000.00, there are at least one
hundred members of the putative class, and there is minimum
diversity. 28 U.S.C. § 1332(d)(1)-(2). Popa is a citizen
of Pennsylvania and represents a putative class of 5, 001
visitors to HCG's website. Every member of the putative
class is a citizen of Pennsylvania. Popa seeks $1, 000.00 in
statutory damages per class member, punitive damages, and
reasonable attorneys' fees under 18 Pa. C.S.A. §
5725(a). Every member of the putative class and HCG are
citizens of Pennsylvania. Navistone is a citizen of Ohio.
Thus, the amount in controversy, class size, and minimum
diversity requirements are apparently satisfied. See
Def.'s Notice of Removal at pp. 2-3, ¶ 5.
Court declines to exercise discretionary remand permissible
under Section 1332(d)(3) of CAFA because over two-thirds of
the putative class are citizens of Pennsylvania. See
28 U.S.C. § 1332(d)(3). The Court also declines to
remand this case under the locality exception set forth in
Section 1332(d)(4). All the requirements that would warrant
mandatory remand are satisfied save one. Section
1332(4)(A)(ii) states that "during the 3-year period
preceding the filing of that class action, no other class
action has been filed asserting the same or similar factual
allegations against any of the defendants on behalf of the
same or other persons. . . ." 28 U.S.C. §
1332(4)(A)(ii). Defendants assert that there were at least
six other class actions asserting similar factual allegations
against Navistone nationwide in the past three years.
Def.'s Notice of Removal at p. 3, ¶ 6 (citing
cases). These actions only involved Navistone, not HCG. There
is a question, therefore, of whether mandatory remand is
required when there are actions in the past three years
against less than all defendants.
Davenport v. Lockwood, Andrews & Newnam, Inc.,
854 F.3d 905, 909 (6th Cir. 2017), one of multiple defendants
had been sued in five previous class actions, therefore, the
United States Court of Appeals for the Sixth Circuit
determined that the local controversy exception did not
apply. The Court finds Davenport instructive. The
local controversy exception does not apply here for the same
reason. Several plaintiffs with factually similar allegations
sued Navistone during the last three years. Thus, CAFA
authorizes the Court to exercise jurisdiction and it will do
Count I-Violation of the Pennsylvania Wiretap
first claim in her Amended Complaint is that Defendants
violated WESCA. Popa's Am. Compl. at p. 12, ¶¶
53-66. For the following reasons, the Court will deny
Defendants' Motions to Dismiss as to this claim.
Application of WESCA to the conduct alleged in the Amended
is a threshold question of whether WESCA applies to the
conduct of Defendants complained of by Popa. This is
necessary because Navistone is located in Ohio and there is a
question as to where the allegedly actionable conduct can be
said to have occurred. If WESCA does not apply, Popa's
claims thereunder must fail. Thus, the Court must examine the
applicability of WESCA where there is out-of-state conduct.
Pennsylvania courts have addressed the extraterritorial
application of WESCA. In Larrison v. Larrison, 750
A.2d 895 (Pa. Super. 2000), the Pennsylvania Superior Court
refused to extend WESCA to out-of-state conduct. It
considered whether WESCA was implicated where a telephone
conversation made from the Commonwealth was recorded in New
York without the knowledge and permission of the Pennsylvania
caller. The Superior Court declined to extend WESCA to
conduct occurring out of state, holding that: "we, as
the courts of this Commonwealth, have no power to control the
activities that occur within a sister state.. .Pennsylvania
has no state interest in a recording of a telephone
conversation placed in New York, even if the recording is
later used in the Pennsylvania Courts."
Larrison, 750 A.2d at 898. Likewise, in Ball v.
Ehlig, 70 Pa.D.&C.4th 160 (Ct. Common
Pis. Montgomery Cty., Pa. 2005) and Broughal v. First
Wachovia Corp., 14 Pa. D. & C. 4th 525 (Ct. Common
Pis. Northampton Cnty., Pa. 1992), Pennsylvania Courts of
Common Pleas refused to ...