                                             NOT PRECEDENTIAL
                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                         Nos. 17-3153 & 17-3256
                              ____________

                 SHANE E. ENSLIN, on behalf of himself
                    and all others similarly situated

                                    v.

 THE COCA-COLA COMPANY; COCA COLA REFRESHMENTS USA, INC.;
   COCA-COLA ENTERPRISES, INC.; KEYSTONE COCA-COLA AND
BOTTLING AND DISTRIBUTION CORPORATION; KEYSTONE COCA-COLA
 BOTTLING CO.; KEYSTONE COCA-COLA BOTTLING COMPANY, INC.;
KEYSTONE COCA-COLA BOTTLING CORPORATION; THOMAS WILLIAM
   ROGERS, III; DOE DEFENDANTS 1-50; ABC CORPORATIONS 1–50;
             XYZ PARTNERSHIPS AND ASSOCIATIONS


                             Shane E. Enslin,
                                        Appellant in No. 17-3153

       The Coca-Cola Company; Coca Cola Refreshments USA, Inc.,
            Coca-Cola Enterprises, Inc., Keystone Coca-Cola and
        Bottling and Distribution Corporation; Keystone Coca-Cola
      Bottling Company, Keystone Coca-Cola Bottling Company, Inc.,
                 Keystone Coca-Cola Bottling Corporation,
                                                Appellants in No. 17-3256
                               ____________

              On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                        (E.D. Pa. No. 2-14-cv-06476)
              District Judge: Honorable Joseph F. Leeson, Jr.
                               ____________

               Submitted Under Third Circuit L.A.R. 34.1(a)
                             June 12, 2018

       Before: AMBRO, JORDAN, and HARDIMAN, Circuit Judges.
                                   (Filed: June 20, 2018)
                                       ____________

                                        OPINION*
                                      ____________

HARDIMAN, Circuit Judge.

        Shane Enslin and Coca-Cola1 cross appeal from a summary judgment for Coca-

Cola in the United States District Court for the Eastern District of Pennsylvania. Enslin

also appeals the denial of his motion for class certification notwithstanding a default

judgment in his favor against Defendant Thomas Rogers. We will affirm both judgments

and dismiss Coca-Cola’s cross-appeal as moot.

                                              I

                                             A

        The material facts are undisputed. Enslin began his career as a Coca-Cola service

technician in 1996 when he went to work for Keystone Coca-Cola, which was then an

independent bottler and distributor of Coca-Cola products. In 2001, Keystone was

acquired by Coca-Cola Enterprises, so Enslin and others had to complete new

employment paperwork. Those forms asked for each employee’s address, telephone

number, social security number, and driver’s license number. Enslin worked for Coca-

Cola Enterprises for several years after the Keystone acquisition, but left the company in

2007.


        *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
        1
       We refer to the various Coca-Cola defendants individually and collectively as
“Coca-Cola” except when distinctions between them are relevant to this appeal.
                                             2
       In 2013, Coca-Cola discovered that Thomas Rogers—who worked in the

company’s information technology department—had been stealing older laptop

computers and taking them home. Some of those laptops had been used by Coca-Cola’s

human resources department and contained former employees’ personal information—

including Enslin’s name and driver’s license number. Coca-Cola alerted Enslin and the

other affected employees of the breach. The company attempted to recover the stolen

computers, but Rogers had given some of the laptops away, and Coca-Cola cannot

definitively say it found them all. Some time after Enslin learned of the breach, his

accounts with several internet retailers were compromised and used to make unauthorized

purchases. Enslin does not know who accessed his accounts or how they did so. He did

not have to pay any of the fraudulent charges.

                                             B

       After the compromise of his retail accounts, Enslin filed this putative class action

against Coca-Cola and Rogers in the District Court. He asserted claims under

Pennsylvania law for breach of contract, negligence, negligent misrepresentation, fraud,

unjust enrichment, bailment, and conspiracy, as well as a claim under the federal Drivers

Privacy Protection Act, 18 U.S.C. § 2724. Rogers did not appear, but Coca-Cola did and

moved to dismiss Enslin’s complaint for failure to state a claim. The District Court held

that Enslin had adequately pleaded claims for breach of contract and unjust enrichment,

but otherwise granted Coca-Cola’s motion and dismissed the rest of Enslin’s complaint.

Enslin v. The Coca-Cola Co., 136 F. Supp. 3d 654, 669–680 (E.D. Pa. 2015).



                                             3
       Following discovery, Coca-Cola and Enslin filed cross-motions for summary

judgment. Enslin also moved to certify a class and to amend his complaint. Coca-Cola

sought judgment with respect to Enslin’s contract claims on the theory that they were

preempted by federal labor law. Although the Court rejected that preemption argument, it

nevertheless granted summary judgment for Coca-Cola on other grounds, denied Enslin’s

motion to amend, and denied his motion for class certification as moot. Enslin v. The

Coca-Cola Co., 2017 WL 1190979, at *17 (E.D. Pa. Mar. 31, 2017). Enslin moved for

reconsideration with respect to the District Court’s summary judgment, which the Court

denied in a comprehensive opinion. Enslin v. The Coca-Cola Co., 2017 WL 3727033, at

*1 (E.D. Pa. Aug. 30, 2017).

       Meanwhile, over the course of nearly three years of litigation, Rogers never

appeared to defend against Enslin’s claims. So shortly after entering summary judgment

in favor of Coca-Cola, the District Court entered a default judgment against Rogers for

$17 (the amount it cost Enslin to buy checks for the new checking account he opened

after his retail accounts were compromised). That judgment ran in Enslin’s favor only,

since the District Court had previously rejected Enslin’s request to enter judgment against

Rogers on a classwide basis. See id. at *10–11. Enslin and Coca-Cola filed timely notices

of appeal.




                                             4
                                             II2

       Enslin’s appeal presents four issues. He challenges: (1) the summary judgment on

his contract claims; (2) the dismissal of his negligence claim; (3) the denial of his motion

to amend his complaint to replead a claim under the Drivers Privacy Protection Act; and

(4) the dismissal of his motion for class certification as moot with respect to Rogers. We

consider each argument in turn.3

                                             A

       Enslin’s contract claim is based on the premise that the employment forms he

completed when Coca-Cola Enterprises acquired Keystone in 2001 obliged Coca-Cola to

safeguard his personal information. Enslin, 2017 WL 1190979, at *8–9. The District

Court determined that the “Employee Records” section of the Coca-Cola Enterprises

Code of Conduct did create “binding contractual obligation[s]” on the company’s part, id.

at *10, but that a general duty to protect Enslin’s personal information was not among

them, id. at *11–13. In the District Court’s view, Coca-Cola had assumed only the three

duties expressly stated in the Code of Conduct: to “‘advis[e] employees of all personnel

files maintained on them, collect[] only data related to the purpose for which the files


       2
        The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1332(d). We
have jurisdiction under 28 U.S.C. § 1291.
       3
         Our review of a summary judgment is plenary, applying the same familiar
standards as the District Court did. Migliaro v. Fidelity Nat’l Indem. Ins. Co., 880 F.3d
660, 664 n.6 (3d Cir. 2018). We review orders denying motions for reconsideration,
motions denying leave to amend, and motions denying class certification for abuse of
discretion. Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 246 (3d
Cir. 2010); Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163
(3d Cir. 2010); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 312 (3d Cir.
2008) (amended Jan. 16, 2009).
                                             5
were established,’ and ‘allow[] those authorized to use a file to do so only for legitimate

Company purposes.’” Id. at *12 (alterations in original) (quoting Code of Conduct).4

Since nothing suggested that Coca-Cola had breached any of those obligations, the

District Court concluded that the company was entitled to summary judgment. Id. at *11–

14.

       In this appeal, Enslin argues that the District Court erred by: (1) holding that there

was no factual dispute relevant to determining the terms of the parties’ agreement;

(2) interpreting the text of the Code of Conduct to impose three narrowly drawn

obligations on Coca-Cola instead of a broad duty to protect Enslin’s personal

information; and (3) granting summary judgment sua sponte with respect to Enslin’s

claim that Coca-Cola had breached the contract’s implied duty of good faith and fair

dealing. Coca-Cola disagrees, but because we may affirm on any basis supported by the

record, resolving this appeal does not require us to reach those disputes. See Phila. Taxi

Ass’n, Inc. v. Uber Techs., Inc., 886 F.3d 332, 338 (3d Cir. 2018).

       In order to prevail on a breach of contract claim in Pennsylvania, a plaintiff must

show not only damages, but also “a causal connection between the breach and the loss.”


       4
         Neither party was able to locate the actual Code of Conduct that Enslin received
in 2001. Enslin, 2017 WL 1190979, at *8. Coca-Cola did, however, produce a 1990s-
vintage copy of the Code, which Enslin indicated was “substantially similar” to the 2001
version. Id. Based on Enslin’s representation, the District Court assumed for purposes of
deciding the parties’ summary judgment motions “that the copy that ha[d] been produced
accurately capture[d] the terms of the Code from 2001.” Id. Enslin subsequently
discovered that 2004 and 2005 versions of the Code were available on a public internet
archive. Enslin, 2017 WL 3727033, at *6. The District Court held that those versions
were not materially different from the 1990s version on which it had previously relied, id.
at *7–8, and Enslin has identified no such differences on appeal.
                                              6
Logan v. Mirror Printing Co. of Altoona, Pa., 600 A.2d 225, 226 (Pa. Super. Ct. 1991).

Even drawing all inferences in Enslin’s favor, he cannot meet that burden here. All of the

damages that Enslin seeks flow from the compromise of his retail accounts rather than

directly from Rogers’s theft of his personal information. But he provides no evidence

from which a reasonable jury could conclude that his accounts were compromised

because information was gleaned from the stolen laptops. Temporal proximity is

insufficient here, particularly since Enslin did not undermine Coca-Cola’s expert

testimony that Enslin’s name and driver’s license number would not have been useful to

the hackers in light of the numerous ways they might have obtained the information

needed to compromise his accounts. So breach or no breach, Enslin’s contract claims fail

because he cannot show he was damaged as a result of Coca-Cola’s conduct. We will

affirm the District Court’s summary judgment as well as its order denying Enslin’s

motion for reconsideration for that reason.

                                              B

       We turn next to Enslin’s negligence claim, which was dismissed because

Pennsylvania’s economic loss doctrine bars tort recovery in the absence of either

“physical injury or property damage.” Enslin, 136 F. Supp. 3d at 672 (quoting Adams v.

Copper Beach Townhome Cmtys., L.P., 816 A.2d 301, 305 (Pa. Super. Ct. 2003)). Enslin

argues that he should have been afforded a chance to replead his negligence claim since

“[t]he precedents pertaining to data breach cases are continuously evolving,” Enslin Br.

46. But the truism that the law evolves does not change that the District Court was duty-

bound to apply Pennsylvania tort law in its present state, not as it might exist if and when

                                              7
it is revised to satisfy consumer expectations that businesses will render their personal

information both secure and readily accessible. Where Pennsylvania law was clear and

Enslin did not—and still does not—propose any amendment that would overcome his

failure to plead a non-economic loss, we cannot say the Court abused its discretion in

dismissing his negligence claim with prejudice. We will accordingly affirm.

       Enslin’s other attempt to revive his negligence claim fares no better. Enslin asks us

to certify to the Pennsylvania Supreme Court two questions concerning the continued

viability of the economic loss doctrine in the data breach context. We decline to do so

because certification would be futile. A claim for negligence, like a claim for breach of

contract, requires proof of causation, and we have already explained that Enslin cannot

meet that burden. Because certification would only “delay these proceedings” without

affecting the outcome of the case, we will deny Enslin’s motion. See Pollice v. Nat’l Tax

Funding, L.P., 225 F.3d 379, 389 (3d Cir. 2000).

                                             C

       Enslin’s third argument involves the Drivers Privacy Protection Act (DPPA), 18

U.S.C. §§ 2721–25. That law sharply limits the extent to which entities that receive

personal information from state motor vehicle registries may disclose it to third parties.

See generally id. § 2721. In addition to its substantive provisions, the DPPA also includes

a private right of action for individuals whose personal information is “knowingly

obtain[ed], disclose[d] or use[d]” for a purpose other than those permitted by the statute.

Id. § 2724(a). DPPA claims are subject to a four-year statute of limitations, see 28 U.S.C.



                                             8
§ 1658(a), which we assume—based on the parties’ apparent agreement—begins to run

on the date of the statutory violation rather than the date of its discovery.

       The District Court dismissed Enslin’s DPPA claim for failure to plead a “knowing

disclosure.” Enslin, 136 F. Supp. 3d at 669–72. It later denied Enslin’s motion for leave

to replead his DPPA claim, holding that the request was untimely and futile. Enslin, 2017

WL 1190979, at *15–16 & n.20. We will affirm because Enslin’s proposed DPPA claim

would have been time-barred.

       Enslin’s DPPA theory was that “once he left Coca-Cola, the company no longer

had any legitimate need for his records, so the transfer of those records from one Coca-

Cola entity to another during the course of various acquisitions and consolidations were

‘disclosures’ of his information for a ‘purpose not permitted’ by the Act.” Id. at *16 n.20.

According to the proposed amended complaint, the last such transfer was between The

Coca-Cola Company and a wholly owned subsidiary called Coca-Cola Refreshments

USA, Inc. on October 2, 2010. Even assuming that this was an unlawful disclosure for

purposes of the DPPA, it still occurred more than four years before Enslin filed this suit

on November 12, 2014.

                                              D

       Finally, Enslin claims the District Court erred when it denied his belated request to

certify a class based on an entirely new theory of liability. We disagree.

       After the Court granted summary judgment for Coca-Cola and denied Enslin’s

class-certification motion as moot, it asked Enslin to describe “how he wished to proceed

with his claims against Rogers now that his claims against Coca-Cola had been resolved.”

                                               9
Enslin, 2017 WL 3727033, at *9. Enslin explained that Coca-Cola’s summary judgment

neither “extinguish[ed]” the company’s liability nor mooted his class-certification

motion, because Coca-Cola could still be held liable for Rogers’s wrongdoing under a

respondeat superior theory. ECF 210-1 at 2. But as the District Court noted, Enslin had

never in “nearly three years of litigation” pleaded that Coca-Cola could be held

vicariously liable. Enslin, 2017 WL 3727033, at *10. The Court did not abuse its

discretion by refusing to entertain Enslin’s “request to, in effect, reboot this case after

summary judgment ha[d] already been granted.” Id.

                                              III

       Because we will affirm the District Court’s summary judgment, we need not

consider whether it could or should have reached the same result based on federal labor

law. Accordingly, we will dismiss Coca-Cola’s cross-appeal as moot.

                                       *       *      *

       For the foregoing reasons, we will affirm the orders of the District Court, deny

Enslin’s motion to certify a question of law to the Pennsylvania Supreme Court, and

dismiss Coca-Cola’s cross-appeal as moot.




                                              10
