Pratt v. KSE Sportsman Media, Inc.

• Decision Date: 15 February 2022
• Docket Number: Case No. 1:21-cv-11404
• Citation: 586 F.Supp.3d 666
• Parties: Richard PRATT and Larry Jones, individually and on behalf of all others similarly situated, Plaintiffs, v. KSE SPORTSMAN MEDIA, INC., d/b/a Outdoor Sportsman Group, Inc., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

586 F.Supp.3d 666

Richard PRATT and Larry Jones, individually and on behalf of all others similarly situated, Plaintiffs,
v.
KSE SPORTSMAN MEDIA, INC., d/b/a Outdoor Sportsman Group, Inc., Defendant.

Case No. 1:21-cv-11404

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

Signed February 15, 2022

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Dennis A. Lienhardt, Sharon S. Almonrode, William Kalas, E. Powell Miller, The Miller Law Firm, P.C., Rochester, MI, Frank S. Hedin, Hedin Hall LLP, Miami, FL, Gregory A. Mitchell, Lawyers Group of Michigan, Southfield, MI, Philip L. Fraietta, Bursor & Fisher, P.A., New York, NY, for Plaintiffs.

Anthony C. Sallah, Jennifer J. Stocker, Barnes & Thornburg LLP, Grand Rapids, MI, Christopher V. Burtley, Barnes & Thornburg LLP, Southfield, MI, Todd Vare, Barnes & Thornburg, Indianapolis, IN, for Defendant.

OPINION AND ORDER GRANTING AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

THOMAS L. LUDINGTON, United States District Judge

Defendant has filed a motion to dismiss Plaintiffs’ Complaint, which alleges violations of the Preservation of Personal Privacy Act (PPPA),¹ MICH. COMP. LAWS § 445.1711 et seq. See ECF No. 17. As explained hereafter, Defendant's Motion to Dismiss will be granted and denied in part.

I.

This case arises from Defendant's alleged disclosure of Plaintiffs’ "Private Reading Information" to several data miners that "disclosed their information to aggressive advertisers, political organizations, and non-profit companies," leading to "a barrage of unwanted junk mail." ECF No. 1 at PageID.1–2.

Defendant KSE Sportsman Media, Inc. is a Colorado corporation with its headquarters and principal place of business in New York, New York. Id. at PageID.7. Doing business as Outdoor Sportsman Group, Inc.,² Defendant publishes several subscription magazines, including Guns & Ammo, RifleShooter , and Handguns . See id. at PageID.1, 7–8. Plaintiffs Richard Pratt and Larry Jones, paying subscribers of Guns & Ammo, RifleShooter , and Handguns , filed a class-action complaint individually and on behalf of all others similarly situated. Id. at PageID.1.

On June 15, 2021, Plaintiffs filed a complaint alleging that Defendant violated the PPPA. ECF No. 1. Specifically, Plaintiffs contend that Defendant "rents, exchanges,

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or otherwise discloses its customers’ [private] information," including "full names, titles of publications subscribed to, and home addresses (collectively ‘Private Reading Information’), as well as ... age, gender, income, marital status, occupation, and hunting license status" to data miners "without the written consent of its customers." Id. at PageID.4. Because Defendant does not sell exclusive rights to the information, Plaintiffs explain, Defendant "is able to disclose the information time and time again to countless third parties." Id. Plaintiffs warn that this practice is extraordinarily dangerous, as the buyers could filter the information to uncover "particularly vulnerable members of society," for example, "women ... over the age of 40, possess a hunting license, and make over $80,000.00 per year." Id. at PageID.5. Plaintiffs conclude that Defendant's "rental, exchange, and/or disclosure of its customers’ Private Reading Information" violates the [PPPA], because Defendant "does not obtain its customers’ written consent." Id. at PageID.5.

On November 24, 2011, Defendant filed a Motion to Dismiss, advancing two arguments. See ECF No. 17. First, Defendant contends that Michigan's three-year statute of limitations, which applies to "death of a person or for injury to a person or property," bars Plaintiffs’ PPPA claims. See id. at PageID.578–91. According to Plaintiffs, who filed the Complaint on June 15, 2021, their PPPA claims accrued between June 15, 2015 and July 30, 2016. ECF No. 20 at PageID.627; see ECF No. 1 at PageID.3–4, 23. Second, Defendant claims that if Michigan's six-year statute of limitations applies instead of the three-year statute of limitations, then Plaintiffs lack an injury in fact sufficient to establish Article III standing. See ECF No. 17 at PageID.591–94.

Before addressing the merits of Defendant's Motion, this Court will provide some background of the PPPA and the two Michigan statutes of limitations at issue.

II.

A.

Effective January 1, 1963, Michigan passed the Revised Judicature Act, which completely overhauled the organization and jurisdiction of Michigan's court system. See 1961 Mich. Pub. Acts No. 236. Among its numerous changes, the Act revised "the time within which civil actions and proceedings may be brought in the courts." Id. To that end, the Michigan legislature enacted two statutes relevant to this case: Michigan Compiled Laws § 600.5805 and 600.5813. See JOINT COMM. ON MICH. PROCEDURAL REVISION , FINAL REPORT , PART I , COMMITTEE REPORT AND RECOMMENDATIONS , at 366–68 (1959) [hereinafter JOINT COMM. FINAL REPORT ].

Although titled "Injuries to persons or property," Michigan courts refer to § 600.5805, as the "general tort statute of limitations because it is ‘a compilation of the limitations on the general tort remedies.’ " Miller-Davis Co. v. Ahrens Constr., Inc. , 489 Mich. 355, 802 N.W.2d 33, 38 (2011) (quoting JOINT COMM. FINAL REPORT , at 309). Michigan's legislative history indicates that § 600.5805 ’s purpose was to codify the "[e]xisting time periods" for traditional torts. Sam v. Balardo , 411 Mich. 405, 308 N.W.2d 142, 154 (1981) (citing JOINT COMM. FINAL REPORT , at 309).

For personal injuries that are not traditional torts, the Michigan legislature enacted Michigan Compiled Laws § 600.5813. Michigan's six-year statute of limitations "is a residual, or ‘catch-all’ period ... which takes effect if no other subsection applies." Kevin Tierney, Contracts , 18 WAYNE L. REV . 265, 293 n.132 (1972) (comparing

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MICH. COMP. LAWS ANN. § 600.5807 (1968), with id. § 600.5805 (1968) ).

These two statutes have worked in tandem for many years. Although litigants have tried to kick sand over the line, § 600.5805 provides a three-year statute of limitations "for damages for injuries to persons or property," while § 600.5813 sets a six-year limit for actions "not based on a contract" that alleged an injury "to some other legally protected interest." Id.

B.

On May 10, 1988, Congress enacted the Video Privacy Protection Act of 1988 (VPPA). Pub. L. No. 100-618, § 2, 102 Stat. 3195 (codified as amended at 18 U.S.C. § 2710 ). Congress enacted the VPPA "after a newspaper ‘published a profile of [Supreme Court nominee and then D.C. Circuit] Judge Robert H. Bork[,]’ which contained the titles of 146 films he and his family had rented from a local video store." Ellis v. Cartoon Network, Inc. , 803 F.3d 1251, 1252 (11th Cir. 2015) (quoting S. Rep. No. 100-599, 2d Sess., at 5 (1988), as reprinted in 1988 U.S.C.C.A.N. 4342); see also Sterk v. Redbox Automated Retail, LLC , 770 F.3d 618, 621 (7th Cir. 2014) (recounting the history of the VPPA). Recognizing, as Justice Brandeis had decades earlier, that "subtler and more far reaching means of invading privacy have become available," Olmstead v. United States , 277 U.S. 438, 473, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting), the VPPA sought "to preserve personal privacy with respect to the rental, purchase, or delivery of video tapes or similar audio visual materials," as "[t]hese activities are at the core of any definition of personhood." 134 Cong. Rec. S5,396–08, S5,397–01 (May 10, 1988) (statements of Sen. Patrick Leahy).

Effective March 30, 1989, Michigan enacted the Preservation of Personal Privacy Act of 1988 (PPPA). 1988 Mich. Pub. Acts No. 378. The PPPA "lacks any significant litigation history." Halaburda v. Bauer Publ'g Co. , No. 12-CV-12831, 2013 WL 4012827, at *2 (E.D. Mich. Aug. 6, 2013). What can be said of the PPPA is that it "provid[es] greater protections than the federal VPPA, including protection of book purchase or borrowing records." Chad Woodford, Comment, Trusted Computing or Big Brother? Putting the Rights Back in Digital Rights Management , 75 U. COLO. L. REV. 253, 284 n.155 (2004) (citing MICH. COMP. LAWS § 445.1712 ).

The original version of the PPPA contained a "$5,000-per-incident statutory damages provision." Coulter-Owens v. Time Inc. , 695 F. App'x 117, 121 (6th Cir. 2017) (unpublished). Effective July 31, 2016, however, the Michigan legislature amended the PPPA to remove statutory damages, leaving only actual damages, damages for emotional distress, and reasonable costs and attorney's fees. 2016 Mich. Pub. Acts No. 92.

As a matter of first impression, the heart of this case is whether § 600.5805(2) or § 600.5813 applies to the pre-2016 PPPA. If § 600.5813 applies, then Plaintiffs may recover statutory damages actual damages, damages for emotional distress, and reasonable costs and attorney's fees if successful. If § 600.5805(2) applies, then Plaintiffs’ claims are time-barred.

III.

Under Rule 12(b)(6), a pleading fails to state a claim if it does not contain allegations that support recovery under any recognizable theory. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a Rule 12(b)(6) motion, the court construes the pleading in the nonmovant's favor and accepts the motion's factual allegations as true. See

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Lambert v. Hartman , 517 F.3d 433, 439 (6th Cir. 2008). The nonmovant need not provide "detailed factual allegations" to survive dismissal, but...