Ashley Popa v. Harriet Carter Gifts Inc

                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 25-1760
                                      ____________

         ASHLEY POPA, individually and on behalf of all others similarly situated,
                                              Appellant

                                             v.

    HARRIET CARTER GIFTS, INC., a Pennsylvania corporation; NAVISTONE, INC., a
                            Delaware corporation
                                ____________

                      On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                  (D.C. No. 2:19-cv-00450)
                       District Judge: Hon. William S. Stickman, IV
                                       ____________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                    March 10, 2026

             Before: HARDIMAN, KRAUSE, and MASCOTT, Circuit Judges

                                 (Filed: March 26, 2026)
                                      ____________

                                        OPINION*
                                      ____________




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

       Ashley Popa sued Harriet Carter Gifts, Inc. (HCG) and NaviStone, Inc. for alleged

violations of the Pennsylvania Wiretapping and Electronic Surveillance Control Act. 18

Pa. Cons. Stat. §§ 5703–5782. After the case was removed from state court, the District

Court granted HCG and NaviStone summary judgment. We vacated and remanded. Popa

v. Harriet Carter Gifts, Inc. (Popa I), 

52 F.4th 121, 133

 (3d Cir. 2022). On remand, the

District Court again granted summary judgment to both Defendants and Popa timely

appealed.

       While this appeal was pending, we addressed our Article III jurisdiction in a

similar case, Cook v. GameStop, Inc., 

148 F.4th 153

 (3d Cir. 2025). There, we held that a

plaintiff who “moved her mouse, clicked links, typed in a search bar, and added a product

to her ‘cart,’” but “did not input any sensitive or personal information” did not suffer a

sufficiently concrete injury-in-fact. 

Id. at 156, 162

. Consistent with GameStop, we

conclude—as Popa concedes—that she did not suffer a “cognizable Article III harm[]”

sufficient to avail herself of federal jurisdiction. Popa Suppl. Br. 1. So we will vacate and

remand with instructions for the District Court to remand the action to state court.

Wheeler v. Travelers Ins. Co., 

22 F.3d 534, 540

 (3d Cir. 1994).




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                                              I1

       The parties do not dispute that we lack Article III jurisdiction under GameStop.

Without a case or controversy, we would “exceed our power” under the Constitution if

we reached the merits of this appeal. GameStop, 148 F.4th at 157; see U.S. Const. art. III,

§ 2. Because we lack jurisdiction, we “cannot proceed at all in any cause.” Ex parte

McCardle, 

74 U.S. 506, 514

 (1868). Although we lack jurisdiction, “a determination that

there is no standing does not extinguish a removed state court case,” so “we will direct

that the case be remanded to [] state court.” Wheeler, 

22 F.3d at 540

 (citation modified).

       NaviStone asks us to reach the merits anyway. It argues that our perfunctory

conclusion in Popa I that “we ha[d] jurisdiction under 28 U.S.C. § 1291” precludes us

from examining the Article III jurisdictional question. 

52 F.4th at 125

 n.1. Even assuming

the law-of-the-case doctrine applies,2 we decline the invitation to exercise subject matter

jurisdiction we do not have. See Pub. Int. Rsch. Grp. of N.J., Inc. v. Magnesium Elektron,

Inc., 

123 F.3d 111

, 118 (3d Cir. 1997) (concluding “that the concerns implicated by the

issue of standing . . . trump the prudential goals of [the law-of-the-case doctrine]”); see



1
  The District Court claimed jurisdiction under 

28 U.S.C. § 1332

(d)(2). We have
jurisdiction to review its final orders under 

28 U.S.C. § 1291

. We also have jurisdiction
to determine whether we have jurisdiction. Jarbough v. Att’y Gen., 

483 F.3d 184

, 188 n.3
(3d Cir. 2007).
2
  Popa I’s statement of our appellate jurisdiction also applies here. See 

28 U.S.C. § 1291

(“The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of
the district courts of the United States.”). As we acknowledged in GameStop, “the issue
of Article III standing was never analyzed” in Popa I. 148 F.4th at 157 n.3; see also
United States v. Stoerr, 

695 F.3d 271

, 277 n.5 (3d Cir. 2012) (explaining that “bald
jurisdictional statement[s]” have no precedential effect). So it’s not clear that there is law
of the case on the Article III issue.

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also Zichy v. City of Phila., 

590 F.2d 503, 508

 (3d Cir. 1979) (We have “a duty to apply a

supervening rule of law . . . when the new legal rule is valid and applicable to the

issues.”). The law-of-the-case doctrine is “not a limit [on our] power,” Messenger v.

Anderson, 

225 U.S. 436, 444

 (1912), but Article III is.

       We will therefore vacate the District Court’s order granting summary judgment

and then remand to the District Court with instructions for it to remand the action to state

court. See 

28 U.S.C. § 1447

(c).




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