Amber Cook v. GameStop Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 23-2574

______

AMBER COOK, individually and on behalf of all others

similarly situated,

Appellant

v.

GAMESTOP, INC.

______

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2:22-cv-01292)

District Judge: Honorable J. Nicholas Ranjan

______

Argued April 9, 2025

Before: HARDIMAN, PORTER, and FISHER, Circuit

Judges.

(Filed: August 7, 2025)

Jamisen A. Etzel ARGUED

Gary F. Lynch

Lynch Carpenter

1133 Penn Avenue

5th Floor

Pittsburgh, PA 15222

Counsel for Appellant

Jeffrey G. Landis ARGUED

ZwillGen

1900 M Street NW

Suite 250

Washington, DC 20036

Sheri B. Pan

ZwillGen Law

369 Pine Street

Suite 506

San Francisco, CA 94104

William J. Wyrick

Cafardi Ferguson Wyrick & Weis

2605 Nicholson Road

Building II, Suite 2201

Sewickley, PA 15143

Counsel for Appellee

______

OPINION OF THE COURT

______

2

FISHER, Circuit Judge.

Session replay code is a script1 of computer code that

enables a company to track how internet users browse and

interact with its website. It captures a user’s mouse

movements, clicks, keystrokes, and more. A session replay

code provider then aggregates the data into a video for the

company reenacting the user’s visit. This can then be used to

improve website functionality and user experience.

Amber Cook visited GameStop’s retail website, and her

interactions were captured by Clarity, a session replay code

provided by Microsoft. She moved her mouse, clicked links,

typed in a search bar, and added a product to her “cart.” But

she did not input any sensitive or personal information. Cook

sued GameStop for intrusion upon seclusion and violations of

the Pennsylvania Wiretapping and Electronic Surveillance

Control Act (WESCA). The District Court held that Cook did

not allege a concrete injury sufficient for Article III standing

and dismissed her suit with prejudice. Cook appeals. We agree

with the District Court that dismissal is proper, but we will

modify the District Court’s order so that the dismissal will be

without prejudice.

I.

We start by describing the technology as alleged.

GameStop installed a type of session replay code from

Microsoft called Clarity on its website. When a user visits

GameStop’s website, Clarity delivers code to the user’s

browser instructing the browser to send “‘event’ data to a

designated third-party server.” App. 37 ¶ 24. This allows

Clarity to “capture[] a user’s interactions with [the] website,

logging every website user’s mouse movements and clicks,

1

A script is a set of instructions or commands written

in a programming language that tells a computer what to do.

3

scrolling window resizing, user inputs, and more.” App. 42

¶ 46. The information captured “can then be used to play back

a user’s journey through a website, showing how they

interacted with site navigation, calls to action, search features,

and other on-page elements.” App. 42–43 ¶ 47. The code also

assigns “a specific user ID to each website visitor so their

website use and interactions can be monitored over time.” App.

42 ¶ 46.

While in Pennsylvania, Cook visited GameStop’s

website. She navigated the website by hovering over and

clicking on various products, and by typing terms into the

search bar. Though Cook never purchased anything during her

visit, she added a product to her shopping cart by using her

mouse to click “add to cart.” App. 45 ¶ 58. The instant Cook

visited the website, the session replay code technology began

recording her interactions. There is a privacy policy describing

the information collected by session replay code, but it is

“buried at the very bottom of the website.” App. 49 ¶ 72.

Cook sued GameStop, alleging that it violated WESCA

and committed intrusion upon seclusion by using session

replay code on its website. Cook brought her claims as a

putative class action on behalf of herself and “[a]ll natural

persons in Pennsylvania whose Website Communications were

captured through the use of Session Replay Code embedded in

www.gamestop.com.” App. 49 ¶ 73. GameStop moved to

dismiss the first amended complaint under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). It argued that she lacked

Article III standing because she failed to allege an injury and,

alternatively, that she failed to state a claim.

The District Court agreed and granted GameStop’s

motion under Rule 12(b)(1). The District Court held that Cook

lacked Article III standing to bring her claims because she did

not allege a concrete harm. It rejected Cook’s argument that

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the mere recording of her website activity by GameStop was

sufficient to confer standing, citing TransUnion LLC v.

Ramirez, 594 U.S. 413 (2021), which clarified that a plaintiff

must allege harms analogous to those traditionally recognized

at common law. It concluded that Cook’s harms were not

analogous to the traditional intangible harms of disclosure of

private information and intrusion upon seclusion because

nothing “could connect her browsing activity to her.” App. 8.

Concluding that amendment would be inequitable and futile, it

dismissed with prejudice. In the alternative, it held that she

failed to “plead the necessary facts to support her claims for

violation of [WESCA] or intrusion upon seclusion.” App. 2.

Cook appeals.

II.2

“We exercise de novo review of a dismissal for a lack

of standing, ‘accepting the facts alleged in the complaint as true

and construing the complaint in the light most favorable to the

non-moving party.’” Barclift v. Keystone Credit Servs., LLC,

93 F.4th 136, 141 (3d Cir. 2024) (quoting Potter v. Cozen &

O’Connor, 46 F.4th 148, 153 (3d Cir. 2022)). “[W]e review the

District Court’s dismissal of the complaint with prejudice for

an abuse of discretion.” United States ex rel. Zizic v.

Q2Administrators, LLC, 728 F.3d 228, 234 (3d Cir. 2013). The

District Court has abused its discretion if it based that dismissal

“on an erroneous view of the law.” Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990).

III.

2

The District Court had jurisdiction under 28 U.S.C.

§ 1332(d)(2) (diversity in class action lawsuits). We exercise

appellate jurisdiction under 28 U.S.C. § 1291 (final decisions

of district courts).

5

Under Article III of the United States Constitution, the

power of the federal judiciary “extends only to ‘Cases’ and

‘Controversies.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 337

(2016) (quoting U.S. Const. art. III, § 2). Article III standing

doctrine ensures that we do not exceed our power by

“limit[ing] the category of litigants empowered to maintain a

lawsuit in federal court.” Id. at 338. To establish standing under

Article III, a “plaintiff must have (1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the

defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Id. “The plaintiff, as the party invoking

federal jurisdiction, bears the burden of establishing these

elements.” Id.

This appeal concerns only the first element of the

standing analysis. Cook argues that GameStop’s violation of

WESCA satisfies the injury-in-fact requirement. WESCA,

which supplements its federal counterpart, the Electronic

Communications Privacy Act, 18 U.S.C. § 2510, et seq.; Popa

v. Harriet Carter Gifts, Inc., 52 F.4th 121, 125–26 (3d Cir.

2022), prohibits the interception of electronic communications

without prior consent, see 18 Pa. Cons. Stat.

6

§§ 5704(4), 5725(a).3 She says she suffered an injury in fact

due to GameStop’s violation of WESCA because her “privacy

was invaded when her communications with . . . GameStop’s

website were intercepted” by the session replay code.

Appellant’s Br. 11.

A.

“To establish injury in fact, a plaintiff must show that

he or she suffered ‘an invasion of a legally protected interest’

that is ‘concrete and particularized’ and ‘actual or imminent,

not conjectural or hypothetical.’” Spokeo, 578 U.S. at 339

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)).

An alleged statutory violation is not necessarily an injury in

fact; “a concrete injury” is still required. TransUnion, 594 U.S.

at 426 (quoting Spokeo, 578 U.S. at 341). That is because the

legislature “may not simply enact an injury into existence,

using its lawmaking power to transform something that is not

remotely harmful into something that is.” Id. (quoting Hagy v.

Demers & Adams, 882 F.3d 616, 622 (6th Cir. 2018)). We must

still “independently decide” if the plaintiff has suffered a

concrete injury. Id. “An injury in law is not an injury in fact.

Only those plaintiffs who have been concretely harmed by a

3

In Popa v. Harriet Carter Gifts, an online shopper

sued a retail website alleging that a third-party browser

intercepted her data while she shopped online, violating

WESCA. 52 F.4th at 124. The shopper, like Cook, “clicked

links, used the search function, and . . . added an item to her

cart.” Id. The issue on appeal was whether the third party was

liable under WESCA. Id. at 126. Although we proceeded to

the merits, the issue of Article III standing was never

analyzed. And “a summary and unexplained jurisdictional

ruling . . . has no precedential effect.” Goldman v. Citigroup

Glob. Markets Inc., 834 F.3d 242, 251 (3d Cir. 2016).

7

defendant’s statutory violation may sue that private defendant

over that violation in federal court.” Id. at 427 (citation

modified).

“Traditional tangible harms, such as physical harms and

monetary harms,” are considered “[t]he most obvious”

concrete injuries. Id. at 425 (citation modified). But certain

intangible harms are also concrete. “Chief among them are

injuries with a close relationship to harms traditionally

recognized as providing a basis for lawsuits in American

courts.” Id. Disclosure of private information and intrusion

upon seclusion are examples. Id. That is not to say all

intangible harms must replicate forms of traditional relief.

“Congress may ‘elevate to the status of legally cognizable

injuries concrete, de facto injuries that were previously

inadequate in law.’” Id. (quoting Spokeo, 578 U.S. at 341).

To determine whether a plaintiff has suffered a concrete

injury, we ask “whether the asserted harm has a ‘close

relationship’ to a harm traditionally recognized as providing a

basis for a lawsuit in American courts—such as physical harm,

monetary harm, or various intangible harms including . . .

reputational harm.” Barclift, 93 F.4th at 145 (quoting

TransUnion, 594 U.S. at 417). So “while [a plaintiff] does not

need to exactly duplicate a traditionally recognized harm, [he

or she] must still analogize to a harm of the same character of

previously existing legally cognizable injuries.” Id. at 146

(citation modified).

Bearing this framework in mind, we must consider how

“close” the relationship of Cook’s asserted harm must be to a

traditional harm comparator. Id. at 142. While some circuits

have required a strict “element-based approach, wherein a

plaintiff’s alleged harm must not lack any element of the

comparator tort that was essential to liability at common law,”

our approach is not so rigid. Id. at 144. We “compare the kind

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of harm a plaintiff alleges with the kind of harm caused by the

comparator tort.” Id. at 144–45.

B.

Cook alleged that GameStop’s WESCA violation

caused the intangible harm of invasion of privacy. She says the

alleged harm is closely related to harm caused by the privacy

torts of disclosure of private information and intrusion upon

seclusion. The District Court rejected Cook’s argument that

“the mere fact that GameStop recorded any information about

[her] visit to GameStop’s website is injury enough to give her

standing to sue.” App. 5. We analyze each of Cook’s

comparator torts in turn.

1.

Disclosure of private information is also known as

“unreasonable publicity given to another’s private life.”

Barclift, 93 F.4th at 145. “A defendant is liable under this tort

when he [or she] ‘gives publicity to a matter concerning the

private life of another . . . if the matter publicized is of a kind

that (a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.’” Id. (quoting

Restatement (Second) of Torts § 652D (1977)). The harm is

“the humiliation that accompanies the disclosure of sensitive

or scandalizing private information to public scrutiny.” Id. at

145–46 (quoting Nabozny v. Optio Sols. LLC, 84 F.4th 731,

736 (7th Cir. 2023)). “If there are no grounds to believe that

the information will result in humiliation, then there is no

comparable harm . . . .” Id. at 147. Additionally, “harm from

disclosures that remain functionally internal are not closely

related to those stemming from public ones.” Id. at 146.

We recently examined this tort as a comparator in

Barclift. There, a plaintiff alleged a collection agency violated

the Fair Debt Collection Practices Act when, without her

9

consent, it shared her personal information with a third-party

mailing vendor, which then mailed her a collection notice

regarding her outstanding debt for medical services. Id. at 139–

40. We held “the type of injury [the plaintiff] alleged ‘is not

remotely analogous to the harm caused by the tortious public

dissemination of sensitive facts about another’s private life.’”

Id. at 148 (quoting Nabozny, 84 F.4th at 737–38). We

explained that when “communication of personal information

only occurs between a debt collector and an intermediary

tasked with contacting the consumer, the consumer has not

suffered the kind of privacy harm traditionally associated with

public disclosure.” Id. at 146.

Similarly, the harm Cook alleged is not analogous to

“the humiliation that accompanies the disclosure of sensitive

or scandalizing private information to public scrutiny.” Id. at

145–46 (citation modified). First, the information captured by

the session replay code was not sensitive or personal. Cook

alleged that the code intercepted data regarding her “mouse

movements, clicks, keystrokes (such as text being entered into

an information field or text box), URLs of web pages visited,

and/or other electronic communications in real-time.” App. 30

¶ 1. Cook said that during a visit to GameStop’s website, she

“browsed for different products for sale[,]. . . communicated

with GameStop’s website by using her mouse to hover and

click on certain products and typing search words into the

search bar,” and “selected a product to add to her shopping cart

by clicking ‘add to cart.’” App. 45 ¶ 58. Cook did not—and

could not plausibly—allege that a disclosure of this

information resulted in embarrassment or humiliation.

Furthermore, she did not share her name, contact information,

address, or billing information while on GameStop’s website.

Cook alleged that GameStop “obtain[ed] certain information

about her device [and] browser” and “create[d] a unique ID and

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profile for her.” App. 45 ¶ 60. But she did not allege that

GameStop identified her through this information. She alleged

only that “[w]hen a user eventually identifies themselves”—

something Cook never did—“the provider can then . . . back-

reference all of that user’s other web browsing.” App. 39 ¶ 35.

Second, even assuming the information was the type

that could cause Cook humiliation under “public scrutiny,”

Barclift, 93 F.4th at 146 (citation modified), the information

was never publicized or even publicly disclosed. Cook’s

allegations concern disclosure of information to Microsoft, a

third-party vendor to GameStop, not the broader public.

Cook’s alleged harm is therefore not analogous to the harm

associated with the tort of disclosure of private information.

2.

Intrusion upon seclusion is an intentional intrusion,

“physical[] or otherwise, upon the solitude or seclusion of

another or his private affairs or concerns . . . if the intrusion

would be highly offensive to a reasonable person.” Kline v.

Sec. Guards, Inc., 386 F.3d 246, 260 (3d Cir. 2004) (quoting

Harris by Harris v. Easton Pub. Co., 483 A.2d 1377, 1383 (Pa.

Super. Ct. 1984)). “The tort may occur by (1) physical

intrusion into a place where the plaintiff has secluded himself

or herself; (2) use of the defendant’s senses to oversee or

overhear the plaintiff’s private affairs; or (3) some other form

of investigation or examination into plaintiff’s private

concerns.” Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621

(3d Cir. 1992).

Unlike the disclosure of private information, the harm

caused by intrusion upon seclusion does not turn on the

exposure of personal or sensitive information. That is because

the tort “consists solely of an intentional interference with [the

plaintiff’s] interest in solitude or seclusion, either as to his

person or as to his private affairs or concerns.” Restatement

11

(Second) of Torts § 652B cmt. a (1977). “The intrusion itself

makes the defendant subject to liability, even though there is

no publication or other use of any kind of the . . . information”

acquired. Id. cmt. b. In Susinno v. Work Out World, Inc., we

recognized that an unsolicited telemarketing call—even one

that does not involve private or sensitive information—disturbs

the recipient’s solitude. 862 F.3d 346, 352 (3d Cir. 2017). We

held, therefore, that a statute prohibiting such unsolicited calls

“protect[s] the same interests implicated in the traditional

common law cause of action” of intrusion upon seclusion. Id.

Cook conclusorily alleged that session replay code’s

capability is the “electronic equivalent of ‘looking over the

shoulder’ of each visitor to the GameStop website for the entire

duration of their website interaction.” App. 31 ¶ 2. And she

says her “electronic communications with GameStop” were

presumed private. Appellant’s Br. 39–40. But “[m]ost of us

understand that what we do on the Internet is not completely

private.” In re Nickelodeon Consumer Priv. Litig., 827 F.3d

262, 266 (3d Cir. 2016). And, for the same reasons discussed

above for the tort of disclosure of private facts, none of the

information Cook entered on GameStop’s website was

personal or sensitive. So, unlike the recipient of an unsolicited

telemarketing call, Cook cannot plausibly allege that there was

an intrusion of her solitude or seclusion as to her person or

private affairs. Therefore, Cook’s alleged harm is not

analogous to the harm associated with intrusion upon

seclusion, and she lacks Article III standing to pursue her

common law claim as well.

C.

Cook argues that “WESCA codifies a presumption of

privacy in all electronic communications.” Appellant’s Br. 45.

She claims, “as a matter of state policy,” that “the interception

of electronic communications does not include a precondition

12

that the claimant have a ‘reasonable expectation of privacy.’”

Appellant’s Br. 45 (quoting App. 7). She asserts that “the

statute’s expansion of protection to a wider range of

information than would be protected by the common law is

precisely the type of ‘elevation’ of an intangible harm into a

concrete injury that Spokeo and TransUnion permit.”

Appellant’s Br. 46.

This misconstrues the meaning of “elevation” in

TransUnion. A legislature may “elevate harms that exist in the

real world” to make them legally actionable. TransUnion, 594

U.S. at 426 (quoting Hagy, 882 F.3d at 622) (citation

modified). But it “may not simply enact an injury into

existence, using its lawmaking power to transform something

that is not remotely harmful into something that is.” Id.

(quoting Hagy, 882 F.3d at 622). Cook’s theory contradicts this

fundamental holding of TransUnion. The harm caused by

intrusion upon seclusion necessarily accompanies an intrusion

into a person’s solitude or private affairs. Absent that type of

intrusion, the harm Cook alleged is not similar.

Critically, TransUnion tells us to consider the plaintiff’s

concrete harm alleged, not the harm the statutory cause of

action typically protects against. See id. at 426–27 (“[A]n

important difference exists between (i) a plaintiff’s statutory

cause of action to sue a defendant over the defendant’s

violation of federal law, and (ii) a plaintiff’s suffering concrete

harm because of the defendant’s violation of federal law.”).

Cook’s theory starts with GameStop’s alleged violation of

WESCA itself. She assumes that “her alleged harm from

GameStop’s WESCA violation satisfies the Spokeo test

because, by protecting communications from unauthorized

eavesdropping, the WESCA statute protects against the same

kind of harm—an invasion of privacy—that has long been

recognized at common law, not just by wiretapping statutes.”

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Appellant’s Br. 37. Cook incorrectly implies that wherever

there is a statutory violation of WESCA for tracking web

browsing information, there also is an invasion of privacy and

thus a concrete harm.4

Cook also argues that assessing “whether [she]

established a ‘reasonable expectation of privacy’ in her

communications with GameStop before deciding the question

of standing . . . conflates standing with [the] merits.”

Appellant’s Br. 41. She maintains that whether product

preferences qualify as personal or sensitive information is a

merits issue. But we always independently determine if

allegations “affirmatively and plausibly suggest . . . standing to

sue.” Knudsen v. MetLife Grp., Inc., 117 F.4th 570, 576–77 (3d

Cir. 2024) (quoting Finkelman v. Nat’l Football League, 810

F.3d 187, 194 (3d Cir. 2016)). And we have decided similar

issues at the pleading stage. Nickelodeon, 827 F.3d at 295

n.205 (explaining that in an intrusion upon seclusion claim, we

“may decide the ‘highly offensive’ issue as a matter of law at

the pleading stage when appropriate”). Because Cook does not

plausibly allege that she was secluded, in solitude, or that her

website activity involved her private affairs, she does not

allege a kind of harm sufficient for standing. This conclusion

is not a premature merits determination, but an assessment of

the plausibility of her alleged injury as it pertains to standing.

4

Of course, that Cook lacks standing does not mean

that no plaintiff can proceed in federal court to seek redress of

web-browsing tracking under WESCA. See Hunstein v.

Preferred Collection & Mgmt. Servs., Inc., 48 F.4th 1236,

1248 (11th Cir. 2022) (“Our standing inquiry centers on

whether a given plaintiff has pleaded injury . . . . The fact that

one plaintiff . . . has not pleaded injury under this statute does

not show that no one else can or will.”).

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D.

Cook also relies on two of our cases—Nickelodeon and

Google II—which held plaintiffs suffered a concrete harm

from the tracking of their internet browsing activity. For the

reasons that follow, these cases are not controlling.

In Nickelodeon, we considered whether a concrete

injury occurred when a website operator stated it would not

collect the personal information of children visiting Nick.com,

but did so anyway. Nickelodeon, 827 F.3d at 269. Cook

highlights that we said the harm was “clearly particularized, as

each plaintiff complains about the disclosure of information

relating to his or her online behavior.” Id. at 274. We held the

“unlawful disclosure of legally protected information” was a

“clear de facto injury.” Id.

Cook’s allegations are materially different. Principally,

Nick.com promised not to collect information. Nick.com’s

registration form included a message for parents of children

who wanted to register for an account: “HEY GROWN-UPS:

We don’t collect ANY personal information about your kids.

Which means we couldn’t share it even if we wanted to!” Id.

at 269. By contrast, Cook alleged only that “GameStop [did]

not ask website visitors . . . for prior consent before” collecting

web browsing activity. App. 48 ¶ 70.

In Google II, we considered whether a concrete injury

occurred when Google “bypass[ed] Safari and Internet

Explorer privacy settings and track[ed] internet-user

information” by creating a web browser cookie. In re: Google

Inc. Cookie Placement Consumer Priv. Litig., 934 F.3d 316,

321 (3d Cir. 2019) (Google II). We held that the alleged injury

was sufficiently concrete. “History and tradition reinforce that

a concrete injury for Article III standing purposes occurs when

Google, or any other third party, tracks a person’s internet

browser activity without authorization. Privacy torts have

15

become ‘well-ensconced in the fabric of American law.’” Id.

at 325 (quoting In re Horizon Healthcare Servs. Inc. Data

Breach Litig., 846 F.3d 625, 638 (3d Cir. 2017)).

Cook says these cases are controlling because “they

involved nonconsensual tracking of individuals’ internet

browsing.” Appellant’s Br. 30. But the allegations in Google II

and Nickelodeon were “indistinguishable” from one another—

and distinguishable from this case—because the “plaintiffs

alleged that a third party . . . tracked their personal internet

browsing information in violation of the third party’s own

promises not to do so.” Google II, 934 F.3d at 325. As stated

above, GameStop made no promise to refrain from collecting

information, and, in fact, disclosed what information it would

collect, albeit in an allegedly inconspicuous location on its

website.

* * *

In sum, Cook did not suffer a concrete injury. Her

alleged harm is not the kind of harm caused by the privacy torts

of disclosure of private information and intrusion upon

seclusion. Because Cook has not suffered a concrete injury, she

did not adequately allege an injury in fact. We therefore

conclude that Cook lacks Article III standing.5

IV.

The District Court correctly dismissed Cook’s amended

complaint for lack of jurisdiction, but it legally erred in

dismissing it with prejudice and consequently abused its

5

Because Cook lacks Article III standing, we are

precluded from addressing the merits of her WESCA and

intrusion upon seclusion claims. Associated Builders &

Contractors W. Pa. v. Cmty. Coll. of Allegheny Cnty., 81

F.4th 279, 291 n.8 (3d Cir. 2023).

16

discretion. Cook does not raise this issue in her brief, but

because it implicates our subject matter jurisdiction, it cannot

be waived or forfeited, and we must consider it independently.

See Vuyanich v. Smithton Borough, 5 F.4th 379, 385 (3d Cir.

2021).

The District Court noted that Cook failed to submit a

second amended complaint to cure the jurisdictional defect

and, in fact, conceded that the defect could not be cured. It

therefore concluded that “amendment would be inequitable

and futile and [granted] GameStop’s motion to dismiss with

prejudice.” App. 12. “Because the absence of standing leaves

the court without subject matter jurisdiction to reach a decision

on the merits, dismissals ‘with prejudice’ for lack of standing

are generally improper.” Barclift, 93 F.4th at 148 (quoting

Cottrell v. Alcon Lab’ys, 874 F.3d 154, 164 n.7 (3d Cir. 2017)).

Even when a district court determines that granting leave to

amend would be futile, id. at 140, the “general rule applies”

and a dismissal for lack of Article III standing must be “without

prejudice,” id. at 148. So we will modify the District Court’s

order to dismiss the amended complaint without prejudice and

affirm that order as modified.

V.

For the foregoing reasons, we will affirm the District

Court’s order to dismiss the complaint without prejudice and

affirm the order as modified.

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