May v. Philo, Inc.

• Court: District Court, N.D. California
• Decided: July 7, 2023
• Docket: 3:23-cv-01394
• Status: Unknown

Opinion

1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 TOMIKA MAY, et al., Case No. 23-cv-01394-MMC

8 Plaintiffs, ORDER DEFERRING RULING ON DEFENDANT'S MOTION TO DISMISS; 9 v. GRANTING IN PART DEFENDANT'S MOTION TO STAY DISCOVERY; 10 PHILO, INC., SETTING FURTHER BRIEFING SCHEDULE; CONTINUING HEARING; 11 Defendant. CONTINUING CASE MANAGEMENT CONFERENCE 12 13 14 Before the Court are two motions filed May 17, 2023, by defendant Philo, Inc. 15 ("Philo"): (1) "Motion to Dismiss the Class Action Complaint"; and (2) "Motion to Stay 16 Discovery Pending Resolution of Defendant Philo, Inc.'s Motion to Dismiss the Class 17 Action Complaint." Plaintiffs Tomika May ("May") and Matthew Kirschenbaum 18 ("Kirschenbaum") have filed opposition,1 to which Philo has replied. Having read and 19 considered the parties' respective written submissions, the Court, as discussed below, 20 finds it appropriate to defer ruling on the motion to dismiss, to allow plaintiffs to take 21 limited discovery with regard to May's standing. 22 In their Complaint, plaintiffs allege that "Philo operates a digital subscription 23 service where subscribers may view television shows and movies" (see Compl. ¶ 2), that 24 Philo has "installed" on its website "the Facebook Pixel" (see Compl. ¶¶ 4, 22), and that 25

26 1 Plaintiffs failed to provide the Court with a courtesy copy of their opposition. Nonetheless, the Court has considered it. For future reference, plaintiffs are reminded 27 that, pursuant to the Court's Standing Orders, parties are required to provide for use in 1 "Philo disclosed to Facebook, through the Facebook Pixel, the FID of the subscriber[s]2 2 and the specific video the subscriber[s] requested or obtained" (see Compl. ¶ 25). 3 Plaintiffs also allege that May has been a "Philo subscriber" since October 2021 and is 4 also a "Facebook user" (see Compl. ¶ 43), that Kirschenbaum was a "Philo subscriber 5 from 2019 through August 2021" and is also a "Facebook user" (see Compl. ¶ 48), and 6 that Philo disclosed to Facebook each plaintiff's FID and the "title of the videos" each 7 plaintiff "requested or obtained" (see Compl. ¶¶ 46, 51). Based on the above-referenced 8 allegations, plaintiffs assert, on their own behalf and on behalf of a putative class, a claim 9 against Philo under the Video Privacy Protection Act ("VPPA"). 10 The VPPA "bars a 'video tape service provider' from knowingly disclosing 11 'personally identifiable information concerning any consumer of such provider.'" See 12 Eichenberger v. ESPN, Inc., 876 F.3d 979, 981 (9th Cir. 2017) (quoting 18 U.S.C. 13 § 2710(b)(1)).3 A plaintiff has standing to assert a violation of the VPPA "without showing 14 consequential harm." See id. at 983-84 (holding "the VPPA identifies a substantive right 15 to privacy that suffers any time a video service provider discloses otherwise private 16 information") (emphases in original). 17 Here, plaintiffs, as noted, allege that Philo, through its use of the Facebook Pixel, 18 disclosed to Facebook personal information about subscribers. In support of the instant 19 motion, Philo offers evidence that "[t]he Facebook Pixel was removed from all pages that 20 play video on Philo's website in August 2022" (see Bland Decl. ¶ 6), and that "the Philo 21 account associated with . . . May's email address" first "played videos on the Philo 22 website" on October 28, 2022 (see id. ¶ 5). In light thereof, Philo argues, May did not 23 suffer a violation of her right to privacy, and, consequently, she lacks standing to assert a 24

25 2 An "FID," or "Facebook ID," is "a unique sequence of numbers linked to [an] individual's Facebook profile" (See Compl. ¶¶ 4-5.) 26 3 According to plaintiffs, Philo is a "video tape service provider" because "it is 27 engaged in the business of delivering audiovisual materials that are similar to 1 VPPA claim. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (holding 2 plaintiff lacks "Article III standing" in absence of having "suffered an injury in fact . . . likely 3 caused by the defendant"). 4 Although Philo's evidence, if unrebutted, would support a finding that May lacks 5 standing, such evidence would also resolve May's claim on its merits. Where, as here, a 6 defendant files a motion to dismiss for lack of subject matter jurisdiction and "the 7 jurisdictional issue and the substantive issues are so intertwined that the question of 8 jurisdiction is dependent on the resolution of factual issues going to the merits, the 9 jurisdictional determination should await a determination of the relevant facts on either a 10 motion going to the merits or at trial." See Augustine v. United States, 704 F.2d 1074, 11 1077 (9th Cir. 1983). Consequently, in ruling on a jurisdictional motion to dismiss 12 "involving factual issues which also go to the merits," courts "employ the standard 13 applicable to a motion for summary judgment" and the moving party "prevail[s] only if the 14 material jurisdictional facts are not in dispute." See id. at 1077, 1079. 15 Although plaintiffs argue the motion should be denied and they be allowed to 16 conduct class discovery on the merits prior to any determination of May's standing, the 17 Court finds it preferable to resolve the intertwined issue first, particularly given its narrow 18 scope. The Court will, however, afford plaintiffs the opportunity to conduct limited 19 discovery on that issue, see America West Airlines, Inc. v. GPA Group, Inc., 877 F.2d 20 793, 801 (9th Cir. 1989) (noting "where pertinent facts bearing on the question of 21 jurisdiction are in dispute, discovery should be allowed"), and will defer ruling on the 22 instant motion pending completion thereof.4 23 // 24 // 25 4 Although Philo argues Kirschenbaum's claim is subject to dismissal on different 26 grounds, namely, that his claim is barred by Rule 41(a)(1)(B) of the Federal Rules of Civil Procedure, in that he made the same claim in two prior actions, each of which was 27 voluntarily dismissed, the Court, in the interest of judicial economy, will defer ruling on 1 Accordingly: 2 1. The Court hereby DEFERS ruling on Philo's motion to dismiss, and plaintiffs 3 || are hereby afforded leave to conduct discovery as to (a) whether Philo has removed the 4 || Facebook Pixel from all webpages that play video, and, if so, the date on which it made 5 || that change, and (b) the dates on which May played a video on the Philo website. In all 6 || other respects, Philo's motion to stay discovery is hereby GRANTED. 7 2. No later than October 6, 2023, jurisdictional discovery shall be completed. 8 3. No later than October 27, 2023, plaintiffs shall file any supplemental opposition 9 || to Philo's motion to dismiss, limited to the issue of whether May has standing. 10 4. No later than November 13, 2023, Philo shall file any supplemental reply. 11 5. The hearing on Philo's motion to dismiss is hereby CONTINUED from July 28, g 12 2023, to December 1, 2023, at 9:00 a.m. s 13 6. The Case Management Conference is hereby CONTINUED from July 14, 14 || 2023, to January 26, 2024. A Joint Case Management Statement shall be filed no later 15 |) than January 19, 2024. 16 IT IS SO ORDERED. g 17 18 |) Dated: July 7, 2023 fein Chats MAXINE M. CHESNEY 19 United States District Judge 20 21 22 23 24 25 26 27 28