Krassick v. Archaeological Inst. of Am.

• Decision Date: 09 June 2022
• Docket Number: 2:21-cv-180
• Parties: MARY KRASSICK, individually and on behalf of others similarly situated, Plaintiffs, v. ARCHAEOLOGICAL INSTITUTE OF AMERICA, Defendant.
• Court: U.S. District Court — Western District of Michigan

MARY KRASSICK, individually and on behalf of others similarly situated, Plaintiffs,
v.
ARCHAEOLOGICAL INSTITUTE OF AMERICA, Defendant.

No. 2:21-cv-180

United States District Court, W.D. Michigan, Northern Division

June 9, 2022

OPINION

HALA Y. JARBOU, UNITED STATES DISTRICT JUDGE

This is a putative class action asserting violations of Michigan's Preservation of Personal Privacy Act (PPPA), Mich. Comp. Laws § 445.1711 (Mar. 30, 1989), et seq. The PPPA prohibits “a person . . . engaged in the business of selling at retail, renting, or lending books or other written materials” from “disclos[ing] to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.” Mich. Comp. Laws § 445.1712. Under the version of the PPPA in effect until July 30, 2016, a person violating the PPPA is “liable in a civil action for damages to the customer, ” including “[a]ctual damages, . . . damages for emotional distress, or $5, 000.00, whichever is greater, ” as well as “[c]osts and reasonable attorney fees.” Mich. Comp. Laws § 445.1715 (Nov. 7, 1989).^[1]

Plaintiff Mary Krassick alleges that, sometime before July 30, 2016, she purchased a subscription to Archaeology magazine, which is published by Defendant Archaeological Institute

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of America (“AIA”). AIA allegedly gave information that it possessed about Krassick (including her name, address, and the fact that she subscribed to Archaeology) to “data aggregators, ” in violation of the PPPA. (Compl. ¶¶ 1, 5, ECF No. 1.) Krassick seeks statutory damages of $5, 000.00 for each violation. And she seeks to represent a class of other Michigan residents who, at any point before July 30, 2016, had similar information about them disclosed by AIA to third parties.

Before the Court is AIA's motion to dismiss the complaint for lack of jurisdiction and for failure to state a claim (ECF No. 11). For the reasons herein, the Court will deny the motion.

I. DISMISSAL STANDARD

A complaint may be dismissed for failure to state a claim if it fails “‘to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual allegations, a plaintiff's allegations must include more than labels and conclusions. Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). The court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)).

Assessment of the complaint under Rule 12(b)(6) must ordinarily be undertaken without resort to matters outside the pleadings; otherwise, the motion must be treated as one for summary 2

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judgment under Rule 56. Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). “However, a court may consider exhibits attached to the complaint, public records, items appearing in the record of the case, and exhibits attached to defendant's motion to dismiss, so long as they are referred to in the complaint and are central to the claims contained therein, without converting the motion to one for summary judgment.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016).

Similarly, AIA's objection to the Court's subject matter jurisdiction “questions the sufficiency of the [complaint].” Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). Facial attacks on jurisdiction are reviewed under the same standard as is applied to a Rule 12(b)(6) motion: the Court accepts Krassick's well-pleaded allegations as true and asks whether subject matter jurisdiction exists based on the complaint. Id.

II. ANALYSIS

AIA makes three arguments for dismissal. First, it argues that Krassick's complaint is untimely. Second, it argues that the Court lacks jurisdiction because Krassick lacks standing under Article III of the Constitution to pursue her claim. Third, AIA argues that the PPPA does not apply to AIA. The Court will address the standing argument first.

A. Standing

This Court's power “extends only to ‘Cases' and ‘Controversies[.]'” Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016) (quoting U.S. Const., art. III, § 2). “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.” Id. at 338. There are three elements to standing. Krassick “must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of [AIA], and (3) that is likely to be redressed by a favorable judicial decision.” Id. Krassick carries the burden of establishing

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those three elements, and at the pleading stage, she must clearly allege facts demonstrating each element. Id.

AIA contends that Krassick has not alleged an injury in fact because her claim is based solely on a statutory violation and does not arise out of any personal injury. The Supreme Court “has rejected the proposition that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.'” TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2205 (2021) (quoting Spokeo, 578 U.S. at 341). “[A]n injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant's statutory violation may sue that private defendant over that violation in federal court.” Id. (emphasis in original).

Krassick responds that her injury is the invasion of her right to privacy in her reading habits, which is a right protected by the PPPA. Where, as here, the harm alleged is intangible, “‘it is instructive to consider whether [that harm] has a close relationship to a harm that has traditionally been regarded as providing a basis for a lawsuit in English or American courts.'” Buchholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 861 (6th Cir. 2020) (quoting Spokeo, 578 U.S. at 341).

The Court of Appeals for the Sixth Circuit, as well as several district courts, have rejected the argument that AIA raises here. They have concluded that an individual like Krassick has standing to pursue a PPPA claim. In Coulter-Owens v. Time Inc., 695 Fed.Appx. 117 (6th Cir. 2017), the Court of Appeals held that the plaintiff had standing to pursue a PPPA claim because “the violation at issue” involved “the privacy in one's reading materials.” Id. at 121 (citing Perlin v. Time Inc., 237 F.Supp.3d 623, 627-29 (E.D. Mich. 2017); Moeller v. Am. Media, Inc., 235 F.Supp.3d 868, 873-75 (E.D. Mich. 2017); Boelter v. Hearst Commc'ns, Inc., 192 F.Supp.3d 427, 437 (S.D.N.Y. 2016)). Moreover, “the right guaranteed by the [PPPA] is similar in kind to other

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privacy rights that were gradually recognized by American courts over the course of the last century[.]” Perlin, 237 F.Supp.3d at 641. Consequently, the disclosure of an individual's private reading information in violation of the PPPA “is a cognizable injury in fact for purposes of Article III standing.” Coulter-Owens, 695 Fed.Appx. at 121.

The foregoing cases are persuasive. AIA does not discuss any of them in its briefing. Instead, AIA draws the Court's attention to Krassick's arguments that her claim “does not arise from any ‘personal injury' or seek to recover any actual ‘damages' for any such ‘injuries'”; rather, “her claim arises from Defendant's violations of her statutorily conferred right to be free from unauthorized disclosures of her [private reading information], and seeks to recover the statutorily authorized sum of $5, 000 for each of Defendant's statutory violations[.]” (Pl.'s Resp. Br. 21, ECF No. 19.) However, AIA takes these statements out of context. Krassick made them when arguing that the six-year period of limitation in Mich. Comp. Laws § 600.5813 should apply to her claim, rather than the three-year period of limitation in Mich. Comp. Laws § 600.5805(2) for “injury to persons or property.” (Id.) As another court recognized, AIA's argument is a “strawman” because Michigan's statute of limitations is not jurisdictional. Pratt v. KSE Sportsman Media, Inc., No. 1:21-CV-11404, 2022 WL 469075, at *8 (E.D. Mich. Feb. 15, 2022). In other words, Krassick contends that Mich. Comp. Laws § 600.5813 supplies the correct limitation period because her right to recovery derives from a statute rather than from a tort for personal injury. That argument does not deprive her of standing. Nor does her choice to seek statutory damages rather than actual damages. Regardless of the form of relief that Krassick seeks, the disclosure of her private information is a concrete injury in fact that gives her Article III standing to bring a PPPA claim.

B. Statute of Limitations

Next, AIA argues that Krassick's claim is untimely. AIA argues that the three-year statute of limitations in Mich. Comp. Laws § 600.5805(2) applies to this case because Krassick ostensibly

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seeks to recover damages for “injury to a person or property.” See id. Krassick brought this case in 2021, approximately five years after the events giving rise to her case occurred...