NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22

- 3090

_____________

SAMANTHA DERVITZ,

on behalf of herself and those similarly situated

, Appellant

v.

ARS NATIONAL SERVICES INC ; JOHN DOES 1 TO 10

________________

On Appeal from the United States District Court

for the District of New Jersey (D.C. Civil No. 2

- 22

- cv

- 00179 )

District Judge: Honorable Susan D

. Wigenton

______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

November 1 6

, 2023

______________

Before: CHAGARES, Chief Judge

, MATEY and FUENTES

, Circuit Judges

( F iled : March 19, 2024 )

____________

OPINION *

____________

* This disposition is not an opinion of the full Court and, pursuant to I .O.P. 5.7, does not
constitute binding precedent.2

FUENTES

, Circuit Judge

.

ARS National Services , Inc. (“ARS”) sent Samantha Dervitz a debt collection letter

using a third

- party mail ing vendor

. In doing so, ARS disclosed to the vendor certain

information about Dervitz and her debt

. Dervitz never consented to the disclosure of that

information to third parties

, so she brought this putative class action lawsuit in New Jersey

state court

, asserting a violation of the federal Fair Debt Collection Practices Act 1

( “ FDCPA ” ) and several state

- law claims.

After ARS removed the case to federal court, the District Court dismissed Dervitz’s

claims under the doctrine of judicial estoppel

. D uring the pendency of this appeal, our

Court published a precedential opinion in Barclift v. Keystone Credit Services , LLC

, 2 which

addresse s a factually similar FDCPA case and holds that the plaintiff failed to allege a

concrete injury sufficient to confer standing under Article III of the U.S. Constitution.

Bound by Barclift

, we now hold that Dervit z likewise lacks standing to maintain her

FDCPA claim in federal court and, as a result, that we and the District Court lack

supplemental jurisdiction over her pendent state

- law claims. Accordingly, we will vacate

the District Court’s order of dismissal and remand to the District Court with instructions to

remand the case t o the state court from which it was originally removed.

I.

We write for the parties and thus recite only the facts pertinent to our decision

. ARS

is a debt collection agency that uses mail, telephone, the internet, and other means of

1 15 U.S.C. § 1692 et seq.

2 No. 22

- 1925,

--- F.4th

--- , 2024 WL 655479 (3d Cir. Feb. 16, 202 4 ).3

communication to collect debts. In December 2020, Dervitz received a collection letter in

the mail from ARS regarding an alleged past

- due personal debt

. Dervitz allege d , upon

information and belief, that ARS mailed that letter using a third

- party mail ing vendor and,

in doing so, disclosed information to the vendor about Dervitz’s debt

— including the

account number associated with the debt and the balance due. Dervitz never authorized

ARS to share that information

.

In December 2021, Dervitz filed a putative class action complaint in the Superior

Court of New Jersey on behalf of herself and other New Jersey consumers who had

received similar collection notices from ARS through third

- party mail ing vendors dating

back to December 2015. Dervitz asserted violations of the FDCPA and New Jersey’s

Consumer Fraud Act 3 as well as claims for negligence and invasion of privacy , maintaining

that the putative class members suffered an “ascertainable” and “c ompensable loss ” due to

the disclosure of their financial information. 4

ARS timely removed the case to the District of New Jersey , citing federal

- question

jurisdiction as to Dervitz’s FDCPA claim and supplemental jurisdiction as to her state

- law

claims

. Then, ARS moved to dismiss t he complaint under the doctrine of judicial estoppel

. 5

In relevant part, ARS argued that Dervitz failed to fully disclose her claims against ARS

as assets of her estate in a voluntary Chapter 7 bankruptcy petition she filed in March 2021

3 N.J. Stat. Ann. § 56:8

- 2.

4 App. 15

– 17.

5 The doctrine of judicial estoppel “bars a litigant from asserting a position that is inconsistent with one he or she previously took before a court or agency.” Montrose Med. Grp. Participating Sav. Plan v. Bulger , 243 F.3d 773, 779 (3d Cir. 2001)

.4

and should not be allowed to benefit from that misrepresentation by maintaining this suit

.

The District Court agree d and dismissed Dervitz’s complaint with prejudice. This appeal

followed.

II.

The District Court had putative jurisdiction under 28 U.S.C. § § 133 1 and 1367(a)

.

We have jurisdiction over the District Court’s order of dismissal under 28 U.S.C. § 1291

,

which includes our “jurisdiction to determine our own jurisdiction.” 6

III.

A.

As “courts of limited jurisdiction,” federal courts “possess only that power

authorized by Constitution and statute.” 7 “ It is to be presumed that a cause lies outside this

limited jurisdiction

, and the burden of establishing the contrary rests upon the p arty

asserting jurisdiction” (here, ARS). 8

In its Notice of Removal, ARS set forth the statutory bases for the District Court’s

subject matter jurisdiction

— specifically, federal

- question jurisdiction as to Dervitz’s

FDCPA claim and supplemental jurisdicti on as to her state

- law claims. But ARS did not

address whether the re was any constitutional basis for the District Court ’s exercise of

6 Hub er v. Simon’s Agency, Inc. , 84 F.4th 132, 144 (3d Cir. 2023) (quoting U nited S tates

v. Kwasnik , 55 F.4th 212, 215 (3d Cir. 2022) ).

7 Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377 (1994)

. 8 Id . (internal citations omitted); s ee Judon v. Travelers Prop. Cas. Co. of Am. , 773 F.3d 495, 500 (3d Cir. 2014) (“A party asserting federal jurisdiction in a removal case bears the burden of showing ‘ that the case is properly before the federal court. ’ ”) (quoting Frederico v. Home Depot , 507 F.3d 188, 193 (3d Cir. 2007) )

.5

jurisdiction over Dervitz’s claims as a matter of Article III standing

— that is, whether

Dervitz “ha [d] ‘ alleged such a personal stake in the outcome of the controversy’ as to

warrant [the] invocation of federal

- court jurisdiction and to justify exercise of the court ’ s

remedial powers on [her] behalf

. ” 9 The District Court likewise did not address standing

b efore dismissing the entire case with prejudice. However, “ [ a ] bsent Article III standing,

a federal court does not have subject matter jurisdiction to address a plaintiff ’ s claims .” 10

So w e will now resolve that issue “ in the first instance on appeal, as we have an obligation

to assure ourselves that jurisdiction exists .” 11

B.

For Dervitz to have Article III standing, she must have suffered : “(1) an injury

- in

fact; (2) that is fairly traceable to the defendant ’ s challenged conduct; and (3) that is likely

to be redressed by a favorable judicial decision.” 12 An injury

- in

- fact must be “concrete,

particularized, and actual or imminent.” 13 To determine whether a harm is concrete,

“courts should assess whether the alleged injury to the plaintiff has a close r elationship to

a harm traditionally recognized as providing a basis for a lawsuit in American courts.” 14

In doing so , we should look for a “close historical or common

- law analogue for [her]

9 Warth v. Seldin , 422 U.S. 490, 498

– 99 (1975) (quoting Baker v. Carr , 369 U.S. 186, 204 (1962)).

10 Taliaferro v. Darby Twp. Zoning Bd. , 458 F.3d 181, 188 (3d Cir. 2006) (citing Storino v. Borough of Point Pleasant Beach , 322 F.3d 293, 296 (3d Cir. 2003) )

. 11 Ellison v. Am. Bd. of Orthopaedic Surgery , 11 F.4th 200, 205 (3d Cir. 2021) (citations omitted)

. 12 St. Pierre v. Retrieval

- Masters Creditors Bureau, Inc. , 898 F.3d 351, 356 (3d Cir. 2018) (citing Lujan v. Defs. of Wildlife , 504 U.S. 555, 590 (1992)).

13 TransUnion LLC v. Ramirez , 594 U.S. 413, 4 23 (2021)

. 14 Id. at 424 ( internal quotation marks and citation omitted).6

asserted injury. ” 15 The easiest Article III injuries to identify are “traditional tangible harms,

such as physical harms and monetary harms.” 16 Harder to pin down, but equally concrete

,

are intangible harms, such as “reputational harms, disclosure of private information, and

intrusion upon seclusion.” 17

Legi slatures may elevate certain nontraditional harms to “legally cognizable

injuries,” but they “ may not simply enact an injury into existence, using [their] lawmaking

power to transform something that is not remotely harmful into something that is.” 18 In

ot her words, even if Congress says certain conduct is unlawful through legislation (such as

the FDCPA) , we must still look for a harm traditionally recognized at common law to

determine whether that conduct is also traditionally harmful for purposes of standing under

Article III.

C.

Our recent decision in Barclift applied these standing principles to another putative

FDCPA class action with similar factual allegations

. Like Dervitz, the plaintiff in Barclift

claimed that the defendant violated the FDCPA b y disclosing information about her debt

to a third

- party mailing vendor without her prior consent. 19 On appeal, we considered

whether Barclift had alleged a concrete injury under Article III

, given the Supreme Court’s

15 Id.

16 Id. at 425.

17 Id.

18 Id. at 42 5

– 2 6 (quotations omitted) ; s ee also Spokeo, Inc. v. Robins , 578 U.S. 330, 341 (2016) (“Article III standing requires a concrete injury even in the context of a statutory violation.”)

. 19 Barclift

, --- F.4th

--- , 2024 WL 655479, at * 1

.7

recent guidance in TransUnion LLC v. Ramirez

. 20 We first addressed the appropriate

standard for determining whether a harm is concrete under Article III and held that , when

assessing the concreteness of a plaintiff’s intangible injury, we ask whether “the kind of

harm at issue” is closely re lated to a traditionally recognized harm. 21

Applying that standard to Barclift’s allegations, we found that she lacked Article III

standing for her FDCPA claim because she could not demonstrate that “the injury result ing

from [the defendant]’s communication of her personal information to a third

- party mailing

vendor b ears a close relationship to a harm tra ditionally recognized by American courts.” 22

Barclift had analogized her injury , in relevant part, to “ the public disclosure of private

information .” 23 The harm connected with that tort , we observed, is “the humiliation that

accompanies the disclosure of sensitive or scandalizing private information to public

scrutiny,” which stems “from both the offensive character of the information and its

disclosure to the public .” 24 But according to Barclift’s complaint, nobody other than the

defendant debt collector and the mailing vendor accessed her personal information. As

other courts have recognized, “ [t] hat is not the same kind of harm as public disclosure of

private facts, which is concerned with highly offensive information being widely known.” 25

We thus reasoned that “[w]hen the communication of personal information only occurs

between a debt collector and an intermediary tasked with contacting the consumer, the

20 Id. at *3

– 5

. 21 Id. at *5.

22 Id. (citing TransUnion , 594 U.S. at 417).

23 Id.

24 Id. (emphasis added) (citation omitted)

. 25 Shields v. Pro

f’l Bureau of Collections of Md., Inc. , 55 F.4th 823, 829 (10th Cir. 2022)

.8

consumer has not suffered the kind of privacy harm traditionally associated with public

disclosure.” 26 Finding no Article III standing, we affirmed the dismissal of Barclift’s

complaint

.

Dervi tz ’s FDCPA claim is deficient for substantially the same reasons. All she

alleges in her complaint is that ARS communicated personal information about her debt to

an intermediary tasked with contacting her about that debt

. But as we explained in Barclift

,

harms stemming from such “f unctionally internal” disclosures “are not closely related to

those stemming from public ones

. ” 27 And none of the complaint’s allegations indicate any

likelihood that the unnamed mailing vendor would intentionally or accidentally release her

information t o third parties in the future. Because Dervitz cannot point to any closely

related and traditionally recognized common

- law analogue for her alleged harm

, she lacks

a concrete injury and cannot establish Article III standing.

The parties’ other arguments as to standing are without merit. For one, Dervitz

insists t hat we are not required to consider whether her harm has a closely related common

law analogue “because [ TransUnion ] expressly stated that the ‘disclosure of private

information’ is am ong a few intangible harms which are always concrete.” 28 That would

be true if Dervitz had indeed alleged that harm

, but she has not. Moreover, ARS argues

that Article III standing exists because, when determining the sufficiency of the complaint,

Dervitz’s allegations that she suffered “ascertainable” and “compensable loss” are

26 Barclift

, --- F.4th

--- , 2024 WL 655479, at *6.

27 Id. (citing Shields , 55 F.4th at 829).

28 Appellant’s Reply Br. at 14 (quoting TransUnion , 594 U.S. at 425).9

“ presumed to be true

. ” 29 But because those declarations “are no more than conclusion s,”

they “are not entitled to the assumption of truth.” 30 Even if they were, we found no Article

III standing in Barclift despite the plaintiff’s sweeping allegation that the mailing

- vendor

disclosures “had caused her embarrassment and stress, invaded her privacy, and inflicted

reputational harm.” 31 In comparison , Dervitz ’s complaint does not allege even an

“identifiable trifle” of injury. 32

In sum, we hold that Dervitz lacks standing to maintain her FDCPA claim in federal

court . As a result, we lack jurisdiction over that claim

, as well as her state statutory and

common

- law claims

. 33 So we will vacate the District Court’s order dismissing those claims

with prejudice.

D.

Our final task is to determine where this case goes from here

. 28 U.S.C.

§ 1447(c) expressly provides that, in any case removed from a state court, “[i]f at any time

before final judgment it appears that the district court lacks subject matter jurisdiction, the

case shall be remanded” to the state court. The statute require s district courts to remand

29 Appellee’s Br. at 3

– 4 (quoting Appx. 15

, 17).

30 Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009).

31 Barclift

, --- F.4th

--- , 2024 WL 655479, at * 1

. 32 See Danvers Motor Co. v. Ford Motor Co.

, 432 F.3d 286, 294 (3d Cir. 2005) (citing

Bowman v. Wilson , 672 F.2d 1145, 1151 (3d Cir. 1982))

. 33 Just as Article III standing is required to vest a federal court with original jurisdiction, original jurisdiction is a prerequisite for a court to exercise supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367. Because Dervitz lacks standing as to her federal claim, the District Court lacked original jurisdiction over th at claim and therefore could not exercise supplemental jurisdictio n. See United Mine Workers v. Gibbs , 383 U.S. 715, 725 (1966) (“The federal claim must have substance sufficient to confer subject matter jurisdiction on the court” in order for the court to exercise supplemental jurisdiction )

.10

such cases , even if remand would be futile

. 34 Accordingly, h aving concluded that we lack

jurisdiction over all of Dervitz’s claims, on remand we will instruct the District Court to

remand the case to New Jersey state court

.

IV.

For the foregoing reasons, we will vacate the District Court’s order dismissing

Dervitz’s complaint with prejudice under the doctrine of judicial estoppel, and we will

remand to the District Court with instructions to remand th is case to the Superior Court of

New Jersey, Law Division

, Special Civil Part, Essex Count y

.

34 See Bromwell v. Mich

. Mut . Ins. Co. , 115 F.3d 208, 214 (3d Cir. 1997) (“[W]hen a federal court has no jurisdiction of a case removed from a state court, it must remand and not dismiss on the ground of futility.”)

.