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Popa v. Harriet Carter Gifts, Inc.

United States District Court, W.D. Pennsylvania

December 6, 2019

ASHLEY POPA, Plaintiff,
HARRIET CARTER GIFTS, INC. et al., Defendants.



         Since 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.

         Plaintiff 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 separately requested judicial notice of the privacy policy 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 p. 1.

         The 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 be denied.


         HCG is 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 its website. HCG has an internet privacy policy disclaiming 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.

         According to Popa, Navistone intercepted her Personal Identifiable Information ("PII")[1]- 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, ¶¶ 31-74.

         On 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 disposition.


         A 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 Cir. 2008).

         The "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.

         Generally, 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.").

         "[A] 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).


         Count I 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.[2] 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.

         I. Subject Matter Jurisdiction

         The 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.

         The 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.

         In 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 so.

         II. Count I-Violation of the Pennsylvania Wiretap Statute

         Popa's 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.

         A. Application of WESCA to the conduct alleged in the Amended Complaint

         There 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.

         Several 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 ...

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