Case 3:20-cv-08437-LB Document 71 Filed 12/10/21 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`San Francisco Division
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`MEREDITH CALLAHAN, et al.,
`Plaintiffs,
`
`v.
`
`ANCESTRY.COM INC., et al.,
`Defendants.
`
`Case No. 3:20-cv-08437-LB
`
`
`ORDER DENYING MOTION FOR
`INDICATIVE RULING
`Re: ECF No. 57
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`
`
`INTRODUCTION
`The parties dispute whether the court should issue a ruling under Federal Rule of Civil
`Procedure 62.1 indicating that it would reconsider the order dismissing the plaintiffs’ First
`Amended Complaint based on the Supreme Court’s decision in TransUnion LLC v. Ramirez, 141
`S. Ct. 2190 (2021). The TransUnion decision did not change the applicable law such that it is an
`“extraordinary circumstance” that justifies relief under Federal Rule of Civil Procedure 60(b). It
`thus does not create a “substantial issue” for purposes of Federal Rule of Civil Procedure 62.1.
`
`
`ANALYSIS
`The plaintiffs contend that the Supreme Court’s TransUnion decision is an intervening change
`in the law that justifies relief from the court’s order dismissing the plaintiffs’ First Amended
`Complaint. The specific alleged intervening change is the Court’s instruction directing trial courts
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`ORDER – No. 20-cv-08437-LB 
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`Case 3:20-cv-08437-LB Document 71 Filed 12/10/21 Page 2 of 6
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`to consider “whether the alleged injury to the plaintiff has a close relationship to a harm
`traditionally recognized as providing the basis for a lawsuit in American courts.”1 TransUnion, 141
`S. Ct. at 2204. The defendants respond that the TransUnion decision restated existing law that was
`articulated in Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), as revised (May 24, 2016), and that the
`court considered the arguments the plaintiffs now seek to raise through a Rule 60(b) motion.2
`The proper procedure to seek Rule 60(b) relief during the pendency of an appeal “is to ask the
`district court whether it wishes to entertain the motion, or to grant it.” Williams v. Woodford, 384
`F.3d 567, 586 (9th Cir. 2004). Some courts have, however, held that because Federal Rule of Civil
`Procedure 62.1 was added after Williams and because Rule 62.1 is predicated on a pending motion
`for relief, a Rule 62.1 ruling is only appropriate when a Rule 60(b) motion is actually pending.
`Lipsey v. Reddy, No. 1:17-CV-00569-LJO-BAM (PC), 2019 WL 3080769, at *1 (E.D. Cal. July
`15, 2019), aff’d sub nom. Lipsey v. Hernandez, 848 F. App’x 725 (9th Cir. 2021) (“[P]rocedurally
`there is no basis for an independent, free-standing Rule 62.1 motion, asking the district court, in
`the abstract as it were, to advise the court of appeals what it would do if the court of appeals were
`to remand the case.”) (citing and quoting Medgraph, Inc. v. Medtronic, Inc., 310 F.R.D. 208, 210
`(W.D.N.Y. 2015)); see Fed. R. Civ. P. 62.1 (providing that “[i]f a timely motion is made for relief
`that the court lacks authority to grant because of an appeal that has been docketed and is pending”
`the court may defer, deny, or state that it would grant the motion or that the motion raises a
`“substantial issue.”).
`Other courts have found that the procedure described in Williams remains correct even when a
`Rule 60(b) motion is not pending. McKinley v. McDonald, No. C 12-5048 RS PR, 2013 WL
`210244, at *1 (N.D. Cal. Jan. 17, 2013) (“[T]he first step for petitioner is to file a motion in the
`2009 (Case No. 09–3865 RMW) action asking the district court whether it will entertain a Rule
`60(b) motion that seeks to add claims to the existing § 2254 petition.”); Barroca v. Sanders, No.
`
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`1 Pls.’ Mot. for Indicative Ruling – ECF No. 57 at 2–4 (citing TransUnion LLC v. Ramirez, 141 S. Ct.
`at 2204). Citations refer to material in the Electronic Case File (ECF); pinpoint citations are to the
`ECF-generated page numbers at the top of documents.
`2 Defs.’ Opp’n to Pls.’ Mot. for Indicative Ruling – ECF No. 59 at 4.
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`ORDER – No. 20-cv-08437-LB
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`2 
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08437-LB Document 71 Filed 12/10/21 Page 3 of 6
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`C-12-4146 EMC PR, 2012 WL 5350258, at *4 (N.D. Cal. Oct. 29, 2012) (“When a petitioner
`wants to file a Rule 60(b) motion in a case already on appeal, the petitioner may request the
`district court to indicate whether it would entertain such a motion.”) (citing Williams); c.f. Lawson
`v. Grubhub, Inc., No. 15-CV-05128-JSC, 2018 WL 6190316, at *2–4 (N.D. Cal. Nov. 28, 2018)
`(finding that the failure to file a Rule 60(b) motion before seeking an indicative ruling under Rule
`62.1 was a “procedural defect,” but construing and considering the Rule 62.1 motion as a Rule
`60(b)(6) motion). This court, following other courts in this district, considers the plaintiffs’ motion
`for an indicative ruling despite the lack of an underlying Rule 60(b) motion.
`Because there is no pending Rule 60(b) motion, there is no basis for the court to say whether it
`would deny or grant the motion. The court can, however, state whether the proposed Rule 60(b)
`motion would raise a “substantial issue” without tying “the district court to a particular ruling on
`the motion after remand.” Apple Inc. v. Samsung Elecs. Co., No. 11-CV-01846-LHK, 2012 WL
`4097751, at *3 (N.D. Cal. Sept. 17, 2012) (citing In re DirecTV Early Cancellation Fee Mktg. &
`Sales Practices Litig., 810 F. Supp. 2d 1060, 1066 (C.D. Cal. 2011), rejected on other grounds by
`Kilgore v. KeyBank, Nat’l Ass’n, 673 F.3d 947 (9th Cir. 2012)).
`The court has discretion when ruling on a Rule 60(b) motion. Fantasyland Video, Inc. v.
`County of San Diego, 505 F.3d 996, 1001 (9th Cir. 2007). The Ninth Circuit has identified seven
`factors relevant to a Rule 60(b) motion based on a change in the law: (1) the nature of the change
`in intervening law; (2) plaintiffs’ diligence; (3) the reliance interest in the finality of the case; (4)
`the delay between judgment and the Rule 60(b) motion; (5) the relationship between the original
`judgment and the change in the law; (6) concerns of comity; and (7) additional considerations.
`Henson v. Fid. Nat’l Fin., Inc., 943 F.3d 434, 446–54 (9th Cir. 2019) (citing Phelps v. Alameida,
`569 F.3d 1120, 1135–39 (9th Cir. 2009). But these factors do not constitute a rigid framework.
`Strafford v. Eli Lilly & Co., 801 F. App’x 467, 469 n.1 (9th Cir. 2020).
`When courts have found that a proposed Rule 60(b) motion raises a substantial issue under
`Rule 62.1, those findings have typically been based on newly discovered evidence. See, e.g.,
`Russell Rd. Food & Beverage, LLC v. Galam, No. 2:13-CV-776 JCM (NJK), 2013 WL 2949615,
`at *3 (D. Nev. June 13, 2013) (finding that new evidence created a substantial issue); Kravitz v.
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`ORDER – No. 20-cv-08437-LB
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`3 
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08437-LB Document 71 Filed 12/10/21 Page 4 of 6
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`United States Dep’t of Com., 382 F. Supp. 3d 393, 401–03 (D. Md. 2019) (finding that newly
`discovered evidence raised a substantial issue and granting Rule 62.1 motion on that basis); c.f.
`Kasper Smoke Kastle LLC v. Atl. Cas. Ins. Co., No. CV-18-00950-PHX-JAT, 2020 WL 5658917,
`at *3 (D. Ariz. Sept. 23, 2020) (finding that even though deposition testimony was likely
`inaccurate, the evidence was not material to the verdict and does not justify relief under Rule
`60(b)). This is unsurprising given that “[i]ntervening developments in the law by themselves
`rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6).” Agostini
`v. Felton, 521 U.S. 203, 239 (1997); see Strafford, 801 F. App’x at 469 (finding that prevailing on
`Rule 60(b) motion based on a change in the law requires showing “extraordinary circumstances”).
`Some courts have, however, found that a “substantial issue” exists based on an intervening
`change in the law. See, e.g., In re DirecTV Early Cancellation Fee Mktg. & Sales Pracs. Litig.,
`810 F. Supp. 2d 1060, 1066 (C.D. Cal. 2011), rev’d sub nom. Lombardi v. DirecTV, Inc., 546 F.
`App’x 715 (9th Cir. 2013), and rev’d and remanded sub nom. Lombardi v. DirecTV, Inc., 549 F.
`App’x 617 (9th Cir. 2013). In In re DirecTV, the court found that the Supreme Court’s holding in
`AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), which overruled Discover Bank v.
`Superior Court, 36 Cal. 4th 148 (2005), created a “substantial issue” because Discover Bank had
`been central to the denial of plaintiffs’ motion to compel arbitration. Id. at 1066; see also Henson,
`943 F.3d at 445 (finding that change in law, which deprived appellate court of jurisdiction over
`interlocutory order of district court that had previously been established by stipulated judgment,
`and circumstances of the case were “sufficiently ‘extraordinary’” to warrant relief under Rule
`60(b)(6) from stipulated judgment).
`Here, the plaintiffs’ argument is not based on a change of law that overturned precedent on
`which the court relied in ruling on the defendants’ motion to dismiss. Rather, the plaintiffs seek an
`indicative ruling that a Rule 60(b) motion would raise a substantial issue simply because the
`Supreme Court expanded upon in its decision in Spokeo in TransUnion. The plaintiffs cite
`portions of the decision in TransUnion that merely quoted Spokeo. See TransUnion, 141 S. Ct. at
`2204 (“And with respect to the concrete-harm requirement in particular, this Court’s opinion in
`Spokeo v. Robins indicated that courts should assess whether the alleged injury to the plaintiff has
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`ORDER – No. 20-cv-08437-LB
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`4 
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`Northern District of California
`United States District Court
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`Case 3:20-cv-08437-LB Document 71 Filed 12/10/21 Page 5 of 6
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`a ‘close relationship’ to a harm ‘traditionally’ recognized as providing a basis for a lawsuit in
`American courts.”); cf. Spokeo, Inc. v. Robins, 578 U.S. at 341 (“[I]t is instructive to consider
`whether an alleged intangible 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.”).
`Furthermore, the plaintiffs quote from Sessa v. Ancestry.com Operations Inc., where the
`District of Nevada found that this court “did not address whether the plaintiffs’ statutory injury
`had a common law analog as required by Spokeo and TransUnion.” No. 220CV02292GMNBNW,
`2021 WL 4245359, at *5–6 (D. Nev. Sept. 16, 2021).3 In other words, the plaintiffs’ own
`authorities acknowledge that TransUnion did not announce a completely new test or overturn
`precedent that was crucial to this court’s order dismissing the First Amended Complaint. The
`TransUnion decision does not amount to the kind of change in the law that could amount to an
`extraordinary circumstance justifying relief under Rule 60(b).
`The plaintiff also argued in their opposition that a violation of California Civil Code § 3344
`could establish Article III standing because it codified a “substantive right to privacy,” that
`“California has long recognized a common law right of privacy,” and that “[t]he right to publicity
`is one of four privacy torts traditionally recognized at common law.”4 In response, the defendants
`noted in their reply in support of the motion to dismiss the first amended complaint that the
`“common law background” of the right of publicity requires an actual injury, not just a violation.5
`Therefore, the court has already considered the relationship between the alleged harm and harms
`that have traditionally been “recognized as a basis for a lawsuit in American courts” in accordance
`with TransUnion and Spokeo.
`The plaintiffs also note that they filed this motion within a week of the decision in Sessa,
`suggesting that the motion is based at least in part on the Sessa decision and not the TransUnion
`decision.6 In this regard, courts have held that persuasive though non-binding decisions are not
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`3 See Pls.’ Mot. for Indicative Ruling – ECF No. 57 at 3
`4 Opp’n to Defs.’ Mot. to Dismiss – ECF No. 38 at 11–12.
`5 Reply in Supp. of Defs.’ Mot. to Dismiss – ECF No. 39 at 7 n.1.
`6 Pls.’ Mot. for Indicative Ruling – ECF No. 57 at 5.
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`ORDER – No. 20-cv-08437-LB
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`Case 3:20-cv-08437-LB Document 71 Filed 12/10/21 Page 6 of 6
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`sufficient to create a “substantial issue” for purposes of Rule 62.1. See Kenyon v. Hosp. San
`Antonio, Inc., Civ. No. 14-1516 (SCC), 2017 WL 8775478, at * 2 (D.P.R. Nov. 3, 2017) (denying
`a motion for reconsideration under Rule 62.1 that was based on a non-binding decision).
`Accordingly, while the decision in Sessa is thorough and persuasive, it is not binding and does not
`constitute an intervening change in the law sufficient to support a motion under Rule 60(b) or
`create a “substantial issue” for purposes of Rule 62.1.7
`While the plaintiffs raise other Henson factors, because the TransUnion decision is not the kind
`of extraordinary change in the law that could potentially establish a basis for relief under Rule
`60(b), none of the factors warrants individual consideration for purposes of the plaintiffs’ Rule 62.1
`motion. See Strafford, 801 F. App’x at 469 n.1 (“Henson . . . was not meant to impose a rigid or
`exhaustive checklist for evaluating Rule 60(b) claims based on a change in law.”) (cleaned up).
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`CONCLUSION
`The court denies the plaintiffs’ motion for an indicative ruling. This disposes of ECF No. 57.
`IT IS SO ORDERED.
`Dated: December 10, 2021
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`______________________________________
`LAUREL BEELER
`United States Magistrate Judge
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`7 The same reasoning applies to the other recent district court decisions submitted by the plaintiffs. See
`Pls.’ Statements of Recent Decisions – ECF Nos. 63 and 70 (citing Callahan v. PeopleConnect, Inc.,
`No. 20-CV-09203-EMC, 2021 WL 5050079 (N.D. Cal. Nov. 1, 2021) and Bonilla v. Ancestry.com
`Operations Inc., et al., No. 20-C-07390, 2021 WL 5795306 (N.D. Ill. Dec. 7, 2021)).
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`ORDER – No. 20-cv-08437-LB
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