Sessa v. Ancestry.com Operations Inc.

• Decision Date: 16 September 2021
• Docket Number: Case No.: 2:20-cv-02292-GMN-BNW
• Citation: 561 F.Supp.3d 1008
• Parties: Anthony SESSA, et al., Plaintiffs, v. ANCESTRY.COM OPERATIONS INC., et al., Defendants.
• Court: U.S. District Court — District of Nevada

561 F.Supp.3d 1008

Anthony SESSA, et al., Plaintiffs,

v.ANCESTRY.COM OPERATIONS INC., et al., Defendants.

Case No.: 2:20-cv-02292-GMN-BNW

United States District Court, D. Nevada.

Signed September 16, 2021

Marie Noel Appel, Pro Hac Vice, Michael Francis Ram, Pro Hac Vice, Morgan and Morgan Complex Litigation Group, San Francisco, CA, Matthew I. Knepper, Miles N. Clark, Knepper & Clark LLC, Las Vegas, NV, Benjamin R. Osborn, Pro Hac Vice, Brooklyn, NY, for Plaintiffs.

Cristina A. Henriquez, Pro Hac Vice, Quinn Emanuel Urquart & Sullivan, LLP, Redwood Shores, CA, H. Stan Johnson, Cohen-Johnson, LLC, Las Vegas, NV, John W. Baumann, Shon Morgan, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, for Defendants.

ORDER

Gloria M. Navarro, District Judge

Pending before the Court is the Motion to Dismiss, (ECF No. 19), filed by Defendants Ancestry.com Operations Inc., Ancestry.com, Inc., and Ancestry.com, LLC (collectively, "Ancestry"). Plaintiffs Anthony and Mark Sessa (collectively, "Plaintiffs") filed a Response, (ECF No. 26), and Ancestry filed a Reply, (ECF No. 27).

Also pending before the Court are Ancestry's Motions for Leave to File Notice of Related Decision, (ECF Nos. 32–33). Plaintiffs did not file a Response.¹

For the reasons discussed below, the Court GRANTS in part and DENIES in part the Motion to Dismiss.

I. BACKGROUND

This case arises from Ancestry's alleged use of Plaintiffs’ names, images, and likenesses to market paid subscriptions to Ancestry's database of school yearbooks (the "Yearbook Database" or "the Database"). (See Compl. ¶¶ 2–3, ECF No. 1). Subscribers to Ancestry's Yearbook Database gain access to information derived from "billions of records belonging to hundreds of millions of Americans," including "over 1.7 million records from Nevada schools and universities." (Id. ¶ 3). To build the database, Ancestry allegedly, "extracted personal information from school yearbooks, then aggregated the extracted information into digital records that correspond to and identify specific individuals." (Id. ). Plaintiffs allege that Ancestry's Yearbook Database includes, "the names, photographs, cities of residence, and schools attended" of individuals within the Database. (Id. ). Plaintiffs contend that they, and a prospective class of other similarly situated Nevadans whose names, images, and likenesses are in the database, neither received notice of nor consented to Ancestry's use thereof. (Id. ¶¶ 4, 23–25, 35–37).

Ancestry sells access to the Yearbook Database through paid subscriptions ranging from $24.99 to $49.99 per month. (Id. ¶ 6). Subscribers, depending on the level of their subscription, may perform a range of functions within the Database, including the ability to search, view, and download records. (Id. ). Within the Yearbook Database, subscribers may access information including, "the names, photographs, cities of residence, schools attended, estimated ages, likenesses, and identities Ancestry has amassed in its Ancestry Yearbook Database[.]" (Id. ). Ancestry allegedly uses Plaintiffs’ names, images, and likenesses to "advertise, sell, and solicit the purchase" of subscriptions in three ways: (1) providing free trials through which users can access Plaintiffs’ profiles; (2) providing all visitors to the Database with limited access that generates pop-up advertisements with Plaintiffs’ names and images; and (3) sending targeted promotional emails to prospective customers bearing Plaintiffs’ names and images. (Id. ¶¶ 8–12, 26, 29–30, 32, 37–38, 41–44).

A. Free Trial

Plaintiffs argue that prospective subscribers may enroll in a 14-day free trial that "provides temporary access to search, view, and download records from Ancestry's databases" to induce users to pay for a monthly subscription. (Id. ¶¶ 8–9). Ancestry allegedly encourages users to search the Yearbook Database for the names of "people they may know or be curious about." (Id. ). When searching for a particular individual within the Database, subscribers may view, "the individual's name, yearbook photo, estimated age, city of residence, school attended, and year of attendance." (Id. ). Free subscribers may also "view and download full-resolution version[s] of yearbook photos of the individuals they have searched." (Id. ).

B. Limited Access

Any visitor to Ancestry.com may view the Yearbook Database, but visitors only receive limited access unless they sign up for a free trial or paid subscription. (Id. ¶ 10). Limited-access users may search an individual by name and "receive a list [sic] records, each of which corresponds to a specific identifiable person, and includes the individual's name, city of residence, and a low-resolution version of a yearbook photo." (Id. ). However, "Users cannot view the full-resolution version of the photograph or view additional information about the person such as estimated age, name of school, and yearbook year." (Id. ). If users attempt to click-through to any of the listed information, they are redirected to a page encouraging them to sign up for a paid subscription. (Id. ). Alternatively, if users scroll over the "View Record" link on individuals’ profiles, they are presented with a pop-up advertisement bearing the name and image of the person whom they have searched. (Id. ¶¶ 31–32, 42–43). The advertisement says, "There's more to see," with a low-resolution thumbnail photo of the individual and a preview of the type of information accessible through a subscription, including the person's estimated age, yearbook date, school location, birth year, and school of attendance. (Id. ).

C. Email Solicitation

Plaintiffs also allege that Ancestry advertises subscriptions to the Yearbook Database through promotional emails. (Id. ¶ 12). Plaintiffs allege that their names and images have been used in promotional emails for the Yearbook Database, which Ancestry has targeted at people who may be related to Plaintiffs. (Id. ¶¶ 12, 32, 44).

Plaintiffs raise the following claims based upon Ancestry's alleged use of Plaintiffs’ names, images, likenesses, and personal information for the purpose of advertising, selling, and soliciting subscriptions to the Yearbook Database: (1) violation of the Nevada Right of Publicity Act, NRS §§ 597.770, et seq. ; (2) violation of the Nevada Deceptive Trade Practices Act, NRS §§ 598.0903, et seq. ; (3) intrusion upon seclusion; and (4) unjust enrichment. (Id. ¶¶ 68–87). Ancestry now moves to dismiss the Complaint. (See generally , Mot. Dismiss ("MTD"), ECF No. 19).

II. LEGAL STANDARD

A. 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits motions to dismiss for lack of subject matter jurisdiction.

Fed. R. Civ. P. 12(b)(1). When subject matter jurisdiction is challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v. Breeland , 792 F.2d 925, 927 (9th Cir. 1986) (holding that "[t]he party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists"). Accordingly, the court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).

A motion to dismiss under Rule 12(b)(1) may be construed in one of two ways. Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elec. Corp. , 594 F.2d 730, 733 (9th Cir. 1979). It may be described as ‘facial,’ meaning that it attacks the sufficiency of the allegations to support subject matter jurisdiction. Id. Alternatively, it may be described as ‘factual,’ meaning that it "attack[s] the existence of subject matter jurisdiction in fact." Id. When, as here, a court considers a ‘facial’ attack made pursuant to Rule 12(b)(1), it must consider the allegations of the complaint to be true and construe them in the light most favorable to the plaintiff. Love v. United States , 915 F.2d 1242, 1245 (9th Cir. 1989).

B. 12(b)(2)

Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may move to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Once a defendant raises the defense, the burden falls on the plaintiff to prove sufficient facts to establish that jurisdiction is proper. Boschetto v. Hansing , 539 F.3d 1011, 1015 (9th Cir. 2008). A plaintiff can carry its burden only by presenting sufficient evidence to establish that (1) personal jurisdiction is proper under the laws of the state where it is asserted; and (2) the exercise of jurisdiction does not violate the defendant's right to due process secured by the United States Constitution. Ziegler v. Indian River Cty. , 64 F.3d 470, 473 (9th Cir. 1995).

When no federal statute governs personal jurisdiction, the district court applies the law of the forum state. See Panavision Int'l L.P. v. Toeppen , 141 F.3d 1316, 1320 (9th Cir. 1998). Nevada has authorized its courts to exercise jurisdiction over persons "on any basis not inconsistent with ... the Constitution of the United States." NRS 14.065. Thus, the Due Process Clause of the Fourteenth Amendment is the relevant constraint on Nevada's authority to bind a nonresident defendant to a judgment of its own courts. World-Wide Volkswagen Corp. v. Woodson , 444 U.S. 286, 291, 100 S.Ct. 580, 62 L.Ed.2d 490 (1980).

The Due Process Clause requires that the nonresident must have "certain minimum contacts ... such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ " Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer , 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ). To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff need only make "a prima facie showing of jurisdictional facts." Pebble Beach Co. v. Caddy , 453 F.3d 1151, 1154 (9th Cir. 2006) (quoting Doe v. Unocal , 248 F.3d 915, 922 (9th Cir. 2001) ). When analyzing such a 12(b)(2) mot...