UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding in this circuit.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 studentsin 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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