Gary Nestler v. Bishop of Charleston ( 2023 )

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1750
GARY NESTLER, on behalf of themselves and all others similarly situated;
VIEWED STUDENT FEMALE 200, on behalf of themselves and all others similarly
situated; VIEWED STUDENT MALE 300, on behalf of themselves and all others
similarly situated,
Plaintiffs – Appellants,
v.
THE BISHOP OF CHARLESTON, a Corporation Sole; BISHOP ENGLAND
HIGH SCHOOL; TORTFEASORS, 1 - 10; THE BISHOP OF THE DIOCESE OF
CHARLESTON, in his official capacity; ROBERT GUGLIELMONE, individually,
Defendants – Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:21-cv-00613-RMG)
Argued: May 4, 2023 Decided: July 28, 2023
Before NIEMEYER, AGEE, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Kevin Lietz, MILBERG, Washington, D.C., for Appellants. Richard
Sears Dukes, Jr., TURNER PADGET GRAHAM & LANEY, P.A., Charleston, South
Carolina, for Appellees. ON BRIEF: Lawrence E. Richter, Jr., RICHTER FIRM, LLC,
Mt. Pleasant, South Carolina; Carl L. Solomon, SOLOMON LAW GROUP, LLC,
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Columbia, South Carolina, for Appellant. Carmelo B. Sammataro, TURNER PADGET
GRAHAM & LANEY, P.A., Columbia, South Carolina, for Appellees.
Unpublished opinions are not binding in this circuit.
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PER CURIAM:
After learning that an employee of Bishop England High School (“Bishop High”)
covertly filmed Bishop High students disrobing through a locker room window, Bishop
High students and parents of Bishop High students (collectively the “Students”) brought
this putative class action. Relevant to this appeal, although the Students did not allege that
a Bishop High employee filmed the students or even viewed them through a locker room
window, the Students brought a claim for wrongful intrusion into private affairs under
South Carolina law, alleging they could state a claim based on the potential that they were
viewed while partially or completely nude. The district court denied the Students’ motion
for class certification and granted summary judgment in favor of the defendants. In so
doing, it heavily relied on its determination that South Carolina case law permits success
on the tort of wrongful intrusion into private affairs only when the plaintiff can show that
an actual viewing occurred. The Students appeal, arguing that the district court’s
interpretation of South Carolina law was erroneous.
But we need not decide whether the Students are correct. Instead, we affirm the
district court’s judgment because the Students failed to demonstrate an injury resulting
from the potential viewing—as is required for a claim for wrongful intrusion into private
affairs under either parties’ interpretation of the “viewing” requirement.
I.
Bishop High is a Catholic high school in Charleston, South Carolina. Students
participating in physical education or sporting events at Bishop High disrobed in locker
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rooms that shared adjoining walls with Bishop High coaching staff offices. Each wall
contained a 4’ by 4’ glass window that made it possible for Bishop High employees, and
anyone else with access to the offices, to view students in the locker rooms as they disrobed.
In May 2019, it came to light that Bishop High’s Director of Sports Information had used
a locker room window to surreptitiously film students in the process of disrobing and who
had already disrobed.
After learning of that employee’s conduct, the Students brought a putative class
action in the South Carolina Court of Common Pleas, claiming, inter alia, wrongful
intrusion into private affairs. 1 They brought their claims against Bishop High; the Bishop
of Charleston, a Corporation Sole; and Robert Guglielmone, the Bishop of Charleston,
individually and in his official capacity. We refer to these defendants collectively as “the
School.”
After the School removed this case to federal court pursuant to 28 U.S.C. § 1453(b),
the Students moved for class certification of two proposed classes—a “Viewed Class” and
a “Tuition Class.” J.A. 73. The Viewed Class would be made up of Bishop High students,
or their representatives, who were required to disrobe in the locker rooms and who
therefore could have been viewed by persons on the other side of the windows. The Tuition
Class would consist of all persons who paid tuition for a Bishop High student who was
required to use the locker rooms and was thus subject to possible viewing through the
1
The Students brought additional claims but on appeal they did not challenge the
district court’s treatment of those claims. We do not discuss those additional claims
because none of them are before us.
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windows. Both classes are limited to students and parents within a twenty-year period who
may have claims against the School based on its employees “monitoring, watching,
viewing, spying, prying, besetting, photographing or videotaping them, or other such
similar type conduct,” through the viewing windows of the coaches’ offices into the locker
rooms. J.A. 136–37. 2
The School opposed the motion, arguing that the Students could not meet the
requirements of class certification. In relevant part, the School asserted that the proposed
class members were not ascertainable and were instead “fail-safe” classes because there
was no evidence they had actually been viewed. Further, the School contended that the
Students lacked standing because, without evidence of actual viewing, they could not show
a concrete injury. In response, the Students asserted that the potential for monitoring was
sufficient to prove a claim for wrongful intrusion into private affairs under South Carolina
law such that evidence of actual viewing was unnecessary. Pressing that interpretation of
state law, the Students asserted that they met the requirements for class certification and
had suffered a cognizable injury.
The district court denied the Students’ motion for class certification. The district
court had multiple reasons for that denial but two are particularly relevant on appeal. First,
the district court concluded that “South Carolina law explicitly requires that information
about the victim be acquired by the defendant for the tort to be actionable,” but the Students
could not demonstrate that anyone actually viewed them through the locker room windows.
2
The differences between the two classes are not relevant to our resolution of this
case.
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Nestler v. Bishop of Charleston, No. 2:21-cv-613-RMG, 2022 WL 884237, at *5 (D.S.C.
Mar. 24, 2022). As a result, the district court determined that the Students could not meet
multiple class certification requirements, including ascertainability, and that they lacked
standing. Second, the district court explained that the Students failed to address the
superiority requirement of class certification.
Thereafter, the School filed a motion for summary judgment, which the district court
granted, reasoning that without evidence of actual viewing, the named plaintiffs failed to
“establish that they suffered a legally cognizable injury.” Nestler v. Bishop of Charleston,
No. 2:21-cv-613-RMG, 2022 WL 2784879, at *2 (D.S.C. June 17, 2022).
The Students timely appeal from both the denial of class certification and the grant
of summary judgment. We have jurisdiction under 28 U.S.C. § 1291.
II.
We review a district court’s class certification decision for abuse of discretion. EQT
Prod. Co. v. Adair, 764 F.3d 347, 357 (4th Cir. 2014). “A district court abuses its discretion
when it materially misapplies the requirements of [Federal] Rule [of Civil Procedure] 23.”
Id.We review the district court’s grant of summary judgment de novo. Belmora LLC
v. Bayer Consumer Care AG, 987 F.3d 284, 291 (4th Cir. 2021). “Summary judgment is
appropriate when there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law.” Id. (citation omitted).
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A.
The Students’ appeal essentially rests on their assertion that the district court applied
the wrong legal standard because the South Carolina tort of wrongful intrusion into private
affairs does not require an actual viewing to be actionable. Relying on that interpretation,
they argue that they meet the prerequisites for class certification and alleged a cognizable
injury. But we conclude that even if actual viewing is not necessary to prove a wrongful
intrusion into private affairs claim in South Carolina (an issue we do not decide), the
Students failed in any event to establish an actionable injury—as is required for success for
any tort, including wrongful intrusion into private affairs. See Jackson v. Kimel, 992 F.2d
1318, 1322 (4th Cir. 1993) (“In reviewing the grant of summary judgment, we can affirm
on any legal ground supported by the record and are not limited to the grounds relied on
by the district court.”).
Wrongful intrusion into private affairs—a subcategory of South Carolina’s tort of
invasion of the right to privacy—allows recovery if a plaintiff can show: (1) an intentional
(2) intrusion (3) into that which is private (4) that is substantial and unreasonable.
Snakenberg v. Hartford Cas. Ins. Co., 383 S.E.2d 2, 6 (S.C. Ct. App. 1989). “An intrusion
may consist of watching, spying, prying, besetting, overhearing, or other similar conduct.”
Id. “Whether there is an intrusion is to be decided on the facts of each case,” but “must
concern those aspects of [the plaintiff’s person], his home, his family, his personal
relationships, and his communications which one normally expects will be free from
exposure to the defendant.” Id. To satisfy the “substantial and unreasonable” element, the
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intrusion “must be of a nature that would cause mental injury to a person of ordinary
feelings and intelligence in the same circumstances.” Id.Importantly, a plaintiff attempting to prove a wrongful intrusion into private affairs
claim must show “serious mental or physical injury or humiliation to himself resulting
therefrom.” Rycroft v. Gaddy, 314 S.E.2d 39, 43 (S.C. Ct. App. 1984). Here, the Students
have failed to satisfy this mandatory element because the record contains no evidence of a
qualifying injury.
At best, the evidence establishes that the named plaintiffs felt some amorphous
anxiety after learning of the potential viewing. For example, one of the class representatives
stated that when he found out about the potential viewing “it took away a lot of [his]
innocence at a young age” and it made him “anxious” that someone may have
photographed him. J.A. 1160–61. He also “felt bad” for his fellow students that may have
been viewed. J.A. 1149. Similarly, another class representative stated that learning about
the potential viewing made her feel “anxious” and caused her to “mistrust a lot more
things.” J.A. 1202.
Although we do not downplay what is alleged to have occurred, conclusory
statements alleging “anxiety”—without more—do not demonstrate the requisite “serious
mental or physical injury or humiliation” necessary to establish injury. See Buchholz v.
Meyer Njus Tanick, PA, 946 F.3d 855, 864 (6th Cir. 2020) (“And in the context of
psychological injuries, alleging ‘anxiety’ alone appears to fall short of cognizable injury as
a matter of general tort law.”). To be clear, we are not holding that specifically delineated
anxiety can never meet this standard, but for it to do so there must be sufficient cognizable
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evidence from which a factfinder could conclude that it does. See Weeks v. Union Camp
Corp., 215 F.3d 1323, 2000 WL 727771, at *7 (4th Cir. June 7, 2000) (unpublished table
decision) (concluding that conclusory allegations that the defendants caused the plaintiff
“distress, embarrassment, humiliation, mental anguish, and depression” were insufficient
to survive summary judgment on a claim for wrongful intrusion into private affairs);
Geeslin v. Bryant, 453 F. App’x 637, 640 (6th Cir. 2011) (“While [the plaintiff] generally
described symptoms including anxiety and sleeplessness following the incident, we find
this is not evidence of a ‘severe mental injury,’ which is required for this claim to survive
summary judgment.”). All that the Students put forward in their complaint and the record
are generalized statements, unsupported by medical records or other testimony that would
allow a factfinder to determine the seriousness of the alleged injury. There is simply
insufficient evidence to support their allegations as a matter of law. Therefore, the Students
failed to satisfy the requirements for a claim of wrongful intrusion into private affairs,
making summary judgment appropriate. See Roberts v. Dunbar Funeral Home, 339 S.E.2d
517, 520 (S.C. Ct. App. 1986) (affirming a trial court’s dismissal of a wrongful intrusion
into privacy claim where there was no evidence of serious mental or physical injury caused
by the misconduct); Craig v. Andrew Aaron & Assocs., Inc., 947 F. Supp. 208, 211, 213–
14 (D.S.C. 1996) (concluding that evidence that the plaintiff was “very upset” and fearful
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was insufficient to support a claim for wrongful intrusion into private affairs). 3 As a result,
we affirm the district court’s judgment, albeit for a different reason than the district court. 4
B.
Although the above analysis would also lead us to affirm the district court’s denial
of class certification, we have an additional basis for doing so given the Students’ failure
to challenge on appeal a separate ground the district court relied on to deny class
certification. As the district court explained in its order, the Students wholly failed to
address the superiority requirement of class certification in their motion before the district
court. See EQT Prod. Co., 764 F.3d at 365 (“[A] class certified under [Federal Rule of
Civil Procedure 23(b)(3)] must satisfy all of Rule 23(a)’s prerequisites and two additional
requirements: predominance and superiority.”).
3
That the Students failed to establish an injury sufficient for success under the
merits of their claim does not necessarily mean that they also failed to establish an injury
sufficient for purposes of Article III standing. See Denney v. Deutsche Bank AG, 443 F.3d
253, 264 (2d Cir. 2006) (“[A]n injury-in-fact need not be capable of sustaining a valid
cause of action under applicable tort law.”); Ross v. Bank of Am., N.A. (USA), 524 F.3d
217, 222 (2d Cir. 2008) (“Injury in fact is a low threshold, which we have held ‘need not
be capable of sustaining a valid cause of action[.]’” (citation omitted)). Indeed, we
conclude that the Students have adequately demonstrated an Article III injury, giving us
jurisdiction over their appeal. See Krottner v. Starbucks Corp., 628 F.3d 1139, 1142 (9th
Cir. 2010) (stating that allegations of general anxiety and stress are sufficient to confer
standing).
4
The Students also argue that even if summary judgment was appropriate, because
the case was originally removed from state court and the district court based its decision
on a lack of Article III standing, the proper remedy was remand to the state court under 28
U.S.C. § 1447(c). However, because we affirm the grant of summary judgment based on
the Students’ failure to establish the prerequisites for a wrongful intrusion claim and not
on standing grounds, we need not address that argument. See 28 U.S.C. § 1447(c).
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Given that the Students had the burden to prove superiority and yet failed to make
any argument that would permit the district court to make such a finding, the court
appropriately denied class certification. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417,
458 (4th Cir. 2003) (stating that the party seeking class certification has the burden of
proving superiority). Any argument to the contrary was forfeited, and we need not address
it further. See Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at
Landsdowne, LLC, 713 F.3d 187, 206 (4th Cir. 2013).
III.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
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