throbber
Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 1 of 135 PageID #:4139
`Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 1 of 135 PagelD #:4139
`
`
`
`
`
`
`EXHIBIT 1
`EXHIBIT 1
`
`EXHIBIT 1
`EXHIBIT 1
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 1 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 2 of 135 PageID #:4140
`
`
`
`JENNER & BLOCK LLP
`Kate T. Spelman (Cal. Bar No. 269109)
`kspelman@jenner.com
`633 West 5th Street, Suite 3600
`Los Angeles, CA 90071
`Telephone:
`(213) 239-5100
`Facsimile:
`(213) 239-5199
`
`Attorney for Defendant
`Clearview AI, Inc.
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`
`STEVEN RENDEROS, VALERIA THAIS,
`SUÁREZ ROJAS, REYNA MALDONADO,
`LISA KNOX, MIJENTE SUPPORT
`COMMITTEE, and NORCAL RESIST FUND,
`
`Plaintiffs,
`
`v.
`
`CLEARVIEW AI, INC., ALAMEDA COUNTY
`DISTRICT ATTORNEY, ALAMEDA POLICE
`DEPARTMENT, EL SEGUNDO POLICE
`DEPARTMENT, ANTIOCH POLICE
`DEPARTMENT, and DOES 1-10
`
`Case No.
`
`
`CLEARVIEW AI, INC.’S NOTICE OF
`REMOVAL
`
`
`[County of Alameda Superior Court
`Case No. RG21096898]
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 2 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 3 of 135 PageID #:4141
`
`
`
`TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
`DISTRICT OF CALIFORNIA, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
`
`PLEASE TAKE NOTICE that Defendant Clearview AI, Inc. (“Clearview”) hereby effects the
`removal of this action from the Superior Court of the State of California for the County of Alameda
`(“County of Alameda Superior Court”) to the United States District Court for the Northern District of
`California. Removal is proper under 28 U.S.C. § 1332(a) because the properly joined parties have complete
`diversity of citizenship and the amount in controversy exceeds $75,000. Venue is proper in this Court
`because it is the “district and division embracing the place where [the] action is pending.” 28 U.S.C. §
`1441(a). Pursuant to 28 U.S.C. § 1446(a), a true and correct copy of the state court case file is attached to
`this Notice of Removal and is incorporated by reference herein. The file includes all process, pleadings,
`motions, and orders filed in this case, including the Summons and Complaint (Ex. 1) and all other
`documents filed in the state court (Ex. 2).
`FACTUAL BACKGROUND AND STATE COURT PROCEEDINGS
`1.
`This action is one of many filed against Clearview in courts across the country—from
`California to Illinois to New York—based on nearly identical allegations and asserting substantively
`identical theories of relief. Specifically, nine federal lawsuits filed against Clearview have been transferred
`for coordinated multidistrict litigation (“MDL”) proceedings before Judge Sharon Johnson Coleman in the
`United States District Court for the Northern District of Illinois (the “MDL Court”). See In Re: Clearview
`AI, Inc., Consumer Privacy Litigation, MDL No. 2967. The consolidated MDL action has a putative
`California subclass that includes Plaintiffs here and asserts the same claims against Clearview. Plaintiffs
`are desperately attempting to keep their case in state court and avoid having their case transferred into the
`MDL action, but there can be no doubt that diversity jurisdiction exists here.
`2.
`On April 22, 2021, Plaintiffs filed this Complaint in the County of Alameda Superior Court
`against Clearview and four California-based government entities (the “Municipal Defendants”). Plaintiffs
`allege that Clearview downloads the images of millions of individuals from the Internet, extracts biometric
`information from these images, and then uses artificial intelligence technology to analyze the information
`and create a so-called “faceprint” of these individuals. This, in turn, allegedly allows Clearview users to
`
`
`
`
`
`
`
`1
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 3 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 4 of 135 PageID #:4142
`
`
`
`upload a “probe image” to the Clearview application and learn certain information about the person in the
`probe photo, which Plaintiffs allege permanently deprives individuals of their anonymity and privacy and
`disproportionately misidentifies people of color. See Ex. 1, ¶¶ 29-40.
`3.
`Plaintiffs also allege that the Municipal Defendants are four of the thousands of users of the
`Clearview application, but Plaintiffs allege almost nothing about these Municipal Defendants except that
`they used Clearview’s technology. Ex. 1, ¶¶ 6, 73-75. As described below, the inclusion of the Municipal
`Defendants in the current iteration of the Complaint was designed solely to defeat diversity jurisdiction.
`4.
`On March 9, 2021, the same Plaintiffs, represented by the same counsel, filed an earlier
`complaint in the County of Alameda Superior Court alleging substantively identical facts and claims
`against Clearview, which was then the only named defendant. See Renderos, et al. v. Clearview AI, Inc.
`et al., Alameda Sup. Ct. Case No. RG21091138. Attached to this Notice of Removal, and incorporated by
`reference herein, is a copy of that previously-filed complaint (Ex. 3). The thrust of the prior complaint—
`much like the instant action and other similar actions already pending in the MDL—was that Clearview’s
`conduct allegedly violated Plaintiffs’ right to privacy and unlawfully misappropriated their likenesses.
`5.
`In that proceeding, on April 8, 2021, Clearview timely filed a notice of removal under 28
`U.S.C. § 1332(a), removing the case to the United States District Court for the Northern District of
`California. See Renderos et al. v. Clearview AI, Inc. et al., 4:21-CV-02567 (DMR) (N.D. Cal.), Dkt. 1.
`6.
`After removal was effectuated, Plaintiffs informed Clearview for the first time that Plaintiffs
`had faxed an amended complaint to the Clerk of the County of Alameda Superior Court prior to the filing
`of the notice of removal. Attached to this Notice of Removal, and incorporated by reference herein, is a
`copy of the amended complaint in Renderos, et al. v. Clearview AI, Inc. et al., Alameda Sup. Ct. Case No.
`RG21091138 (Ex. 4). Plaintiffs did not serve this amended complaint on Clearview until after Clearview
`filed its notice of removal.
`7.
`In a transparent attempt to defeat diversity jurisdiction, Plaintiffs’ amended complaint
`named several California-based government entities as defendants—the same Municipal Defendants now
`named as defendants in the instant proceeding. See Ex. 4. However, because Clearview was not served
`with the amended complaint (or even aware of it) until after Clearview filed its notice of removal,
`
`
`
`
`
`
`
`2
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 4 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 5 of 135 PageID #:4143
`
`
`
`Clearview properly removed the original and operative complaint. The law is clear on this point. See, e.g.,
`Goldberg v. Cameron, No. 5:15-CV-02556-RMW, 2015 WL 5316339, at *3 (N.D. Cal. Sept. 11, 2015)
`(“Because the amended complaint [was] not served by the time defendants filed the notice of removal, the
`original complaint was the operative complaint in the case.”), aff’d 694 F. App’x 564 (9th Cir. 2017);
`Noorazar v. BMW of N. Am., LLC, No. 18-CV-02472 W (JLB), 2019 WL 442477, at *2 (S.D. Cal. Feb. 5,
`2019) (“[I]n California an amended complaint supersedes the original for the purpose of removal only
`when served upon the affected defendant. A contrary rule would vitiate the removal statute and allow for
`procedural manipulation.”).
`8.
`Following removal of the original action to the Northern District of California, Clearview
`filed a Notice of Potential Tag-Along Action with the Clerk of the JPML on April 13, 2021, identifying
`the matter for transfer to the MDL Court in the Northern District of Illinois, where numerous similar actions
`had been consolidated for pre-trial proceedings. In Re: Clearview AI, Inc., Consumer Privacy Litigation,
`MDL No. 2967, Dkt. 53. On April 15, 2021, the Clerk of the JPML entered a conditional transfer order to
`transfer the case to the MDL Court. In Re: Clearview AI, Inc., Consumer Priv. Litig., MDL No. 2967, Dkt.
`55. The conditional transfer order observed that the matter involved “questions of fact that are common to
`the actions previously transferred” and assigned to the MDL Court. Id.
`9.
`After the MDL transfer was complete, Plaintiffs could have sought leave to amend their
`complaint to join the Municipal Defendants. But instead, in a transparent effort to avoid the MDL Court,
`Plaintiffs immediately and voluntarily dismissed their complaint altogether. See Renderos et al. v.
`Clearview AI, Inc. et al., 4:21-CV-02567 (N.D. Cal.), Dkt. 7.
`10.
`One week later, on April 22, 2021, the same group of Plaintiffs represented by the same
`counsel refiled their Complaint in state court, alleging the same facts and claims against Clearview. See
`Ex. 1. This Complaint is substantively duplicative of Plaintiffs’ aborted amended complaint in the prior
`Renderos action. See Ex. 4. And just like their prior amended complaint, the Complaint names several
`California-based government entities as defendants in an attempt to defeat diversity jurisdiction and avoid
`removal and transfer to the MDL Court. See Ex. 1, ¶¶ 22-25.
`11.
`Also on April 22, 2021, Plaintiffs filed a Notice of Related Case, identifying the instant
`
`
`
`
`
`
`
`3
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 5 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 6 of 135 PageID #:4144
`
`
`
`proceeding as “related” to Renderos, et al. v. Clearview AI, Inc. et al., Alameda Sup. Ct. Case No.
`RG21091138, which was the prior action filed by Plaintiffs, later removed to federal court and voluntarily
`dismissed. In the Notice of Related Case, Plaintiffs indicated that the two cases “arise[] from the same or
`substantially identical transactions, incidents, or events requiring the determination of the same or
`substantially identical questions of law or fact.” See Ex. 2, Notice of Related Case. The Notice of Related
`Case also identified the instant proceeding as “related” to Renderos et al. v. Clearview AI, Inc. et al., 4:21-
`CV-02567 (DMR) (N.D. Cal.).
`12.
`Based on this procedural history, it is clear that the refiled Complaint is, practically and
`constructively, nothing more than an amendment to Plaintiffs’ original complaint in Renderos, et al. v.
`Clearview AI, Inc., Alameda Sup. Ct. Case No. RG21091138.
`13.
`In the Complaint, Plaintiffs allege three causes of action against Clearview for common law
`appropriation of likeness, violation of Article I, Section 1 of the California Constitution, and violation of
`California’s Unfair Competition Law. These allegations and causes of action are identical to those in
`Plaintiffs’ original complaint and amended complaint in Renderos, et al. v. Clearview AI, Inc., Alameda
`Sup. Ct. Case No. RG21091138. Compare Ex. 1, ¶¶ 69-83 with Ex. 3, ¶¶ 76-87 and Ex. 4 ¶¶ 77-88.
`Further, these claims are virtually identical to and subsumed within the claims alleged against Clearview
`by the California subclass of the MDL. See Consolidated Class Action Complaint, In Re: Clearview AI,
`Inc., Consumer Priv. Litig., 1:21-cv-00135 (N.D. Ill.), Dkt. 29.
`14.
`Plaintiffs allege two separate and distinct causes of action against the Municipal Defendants
`for aiding and abetting a tort and violation of Article I, Section 2(a) of the California Constitution. See Ex.
`1, ¶¶ 91-98. These allegations and causes of action are identical to those in Plaintiffs’ amended complaint
`in Renderos, et al. v. Clearview AI, Inc., Alameda Sup. Ct. Case No. RG21091138. See Ex. 4, ¶¶ 92-99.
`15.
`Plaintiffs seek injunctive relief, compensatory damages (including emotional distress
`damages), attorneys’ fees, and other relief as equity and justice may require. See Ex. 1, Prayer for Relief.
`REMOVAL IS PROPER UNDER 28 U.S.C. § 1332(A)
`16.
`Pursuant to 28 U.S.C. § 1332(a), federal courts have original jurisdiction over all cases in
`which the amount in controversy exceeds $75,000 and is between “citizens of different States.” Under 28
`
`
`
`
`
`
`
`4
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 6 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 7 of 135 PageID #:4145
`
`
`
`U.S.C. § 1441(a), any such action may be removed to the district court for the district and division
`embracing the place where the action is pending.
`I.
`There Is Complete Diversity Of Citizenship Between The Properly Joined Parties
`17.
`The individual Plaintiffs are citizens of California. According to the Complaint, Plaintiffs
`Renderos, Suárez, and Knox are residents of Alameda County, and Plaintiff Maldonado is a resident of
`Oakland, which is also in Alameda County. Ex. 1, ¶¶ 12-16.
`18.
`The corporate Plaintiffs, NorCal Resist Fund and Mijente Support Committee, are citizens
`of California and Arizona, respectively. According to the complaint, Plaintiff NorCal Resist Fund is a
`California corporation, and Plaintiff Mijente Support Committee is an Arizona corporation. Ex. 1, ¶¶ 16-
`17.
`
`19.
`Clearview is a citizen of Delaware and New York because it is a Delaware corporation with
`its principal place of business in New York. Ex. 1, ¶ 19.
`20.
`Because Plaintiffs and Clearview—the only properly joined defendant—are citizens of
`different states, there is complete diversity of citizenship under 28 U.S.C. § 1332(a)(1).
`II.
`The Municipal Defendants Are Fraudulently Joined Under 28 U.S.C. § 1447(E)
`21.
`The Municipal Defendants are fraudulently joined in this action, and their citizenship should
`be disregarded for purposes of removal. Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)
`(holding that fraudulently joined defendants do not defeat diversity jurisdiction).
`22.
`As discussed above, a substantively identical action was previously filed in the County of
`Alameda Superior Court and properly removed to federal court in Renderos et al. v. Clearview AI, Inc. et
`al., 4:21-cv-02567 (DMR) (N.D. Cal.). After removal, Plaintiffs served Clearview with an amended
`complaint that fraudulently joined several California-based government agencies as defendants.1 See Ex.
`4. But before the amended complaint was served on Clearview, the JPML entered a conditional transfer
`order to transfer the case to the MDL Court, at which point Plaintiffs voluntarily dismissed the action.
`23.
`Almost immediately following that dismissal, Plaintiffs refiled the same amended
`
`
`1 A defendant is permitted to “introduce evidence beyond the pleadings to establish fraudulent joinder.”
`Rivas v. Target Corp., No. ED-CV-19-905-DMG (SPx), 2019 WL 3237375, at *2 (C.D. Cal. July 18,
`2019) (citing Ritchey, 139 F.3d at 1318).
`
`
`
`
`
`
`
`5
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 7 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 8 of 135 PageID #:4146
`
`
`
`complaint as a new (but “related”) proceeding. See Ex. 1. Courts have criticized this practice of voluntarily
`dismissing and refiling a complaint to add fraudulently joined parties and have recognized it for what it is:
`a “brazen” attempt at forum-shopping. See Welk v. GMAC Mortg., LLC, 850 F. Supp. 2d 976, 981, 999
`(D. Minn. 2012) (criticizing plaintiffs’ counsel for fraudulently joining non-diverse defendants in a state
`court action, and—following removal and denial of plaintiffs’ remand motion—choosing to “‘remand’ the
`case himself by voluntarily dismissing it and refiling it in state court within a day or two, thereby starting
`the process all over again.”), aff’d, 720 F.3d 736 (8th Cir. 2013). The current Complaint is therefore
`constructively an amendment to the previously-filed complaint in Renderos, et al. v. Clearview AI, Inc. et
`al., Alameda Sup. Ct. Case No. RG21091138.
`24. Where a plaintiff “amends her complaint after removal to add a diversity destroying
`defendant”—as Plaintiffs did here by refiling a substantively identical Complaint—courts analyze the
`joinder of new parties under 28 U.S.C. § 1447(e). Greer v. Lockheed Martin, 10-CV-1704 JF HRL, 2010
`WL 3168408, *3-4 (N.D. Cal. Aug. 10, 2010). Specifically, § 1447(e) provides that, “[i]f after removal
`the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction,
`the court may deny joinder.” 28 U.S.C. § 1447(e).
`25.
`Courts consider several factors when deciding whether to permit or deny joinder under 28
`U.S.C. § 1447(e), including: (1) whether the party sought to be joined is needed for just adjudication; (2)
`whether the statute of limitations would prevent the filing of a new action against the new defendant in
`state court; (3) whether there has been an unexplained delay in seeking to join the new defendant; (4)
`whether plaintiff seeks to join the new party to defeat federal jurisdiction; and (5) the strength of the claims
`against the new defendant. Greer, 2010 WL 3168408, at *4. Courts may also consider a sixth factor, the
`prejudice to the plaintiff if joinder is not permitted. Waring v. Geodis Logistics LLC, 19-CV-4415-GW-
`KSX, 2019 WL 3424955, at *6 (C.D. Cal. July 29, 2019). And additional factors can include “the closeness
`of the relationship between the new and the old parties, the effect of an amendment on the court’s
`jurisdiction, and the new party’s notice of the pending action.” In re Outlaw Lab., LP Litig., 3:18-CV-
`1882-GPC-BGS, 2020 WL 434477, at *4 (S.D. Cal. Jan. 28, 2020) (quoting Desert Empire Bank v. Ins.
`Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980)).
`
`
`
`
`
`
`
`6
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 8 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 9 of 135 PageID #:4147
`
`
`
`Every one of these factors supports a finding of fraudulent joinder.2
`26.
`A.
`The Municipal Defendants Are Not Needed for Just Adjudication
`27.
`As to the first factor, “courts generally disallow joinder of non-diverse defendants where
`those defendants are only tangentially related to the cause of action or would not prevent complete relief.”
`Jones v. Thyssenkrupp Elevator, C-05-3539 EMC, 2005 WL 8177458, at *17 (N.D. Cal. Dec. 22, 2005)
`(citation omitted). Here, the Municipal Defendants are “only tangentially related” because the Complaint
`contains nothing more than a handful of conclusory allegations against them. None of the Municipal
`Defendants is an “indispensable party” or “necessary for just adjudication” of Plaintiffs’ claims against
`Clearview—rather, the refiled Complaint alleges completely new claims against the Municipal Defendants
`that are separate and distinct from Plaintiffs’ claims against Clearview. Id.
`28.
`In fact, “it is not clear that [the Municipal Defendants’] conduct arises from the same
`transaction or occurrence as the conduct animating . . . the underlying suit” and their joinder “seems almost
`an afterthought to the instant [Complaint].” Outlaw Lab., 2020 WL 434477, at *5. The entire focus of the
`Complaint is that Clearview allegedly “scraped” images from Internet websites, captured “biometric
`signature[s]” from those images, and sold access to a database containing that “biometric” information.
`Ex. 1, ¶¶ 2-5. However, the Municipal Defendants are not alleged to be involved in any of this alleged
`conduct. Id. ¶¶ 73-75.
`29.
`It is therefore “unlikely that requiring Plaintiff[s] to sue [the Municipal Defendants] in state
`court would not allow Plaintiff[s] and [Clearview] to reach a complete and just resolution in federal
`court”—particularly where the allegations and claims involved are distinct, and separate lawsuits would
`not “lead to wholly or even mostly redundant actions.” Waring, 2019 WL 3424955, at *4 (denying a
`motion to remand based on attempted joinder of non-diverse parties). Accordingly, this factor weighs in
`favor of a finding that the Municipal Defendants were fraudulently joined and that removal is proper.
`
`
`2 Even if the Court concludes that the 28 U.S.C. § 1447(e) standard does not apply to the joinder analysis
`here because Plaintiffs’ refiled their Complaint anew (after voluntarily dismissing the prior action, rather
`than properly amending their complaint before the MDL Court), the Court should still find the Municipal
`Defendants were fraudulently joined because, as explained below in ¶¶ 37-57, Plaintiffs: (1) fail to state a
`cause of action against them and (2) the failure is obvious according to the settled case law of the state.
`McCabe v. Gen. Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987).
`
`
`
`
`
`
`
`7
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 9 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 10 of 135 PageID #:4148
`
`
`
`B.
`The Statute of Limitations Does Not Preclude Severance of the Claims
`30.
`The second factor involves an assessment of whether the statute of limitations would
`preclude an original action in state court against the fraudulently joined defendants. Id. As of the date of
`this Notice of Removal, a separate suit against the Municipal Defendants in state court would not be time-
`barred.
`31.
`“The statute of limitations for a cause of action for aiding and abetting a tort generally is
`the same as the underlying tort.” Am. Master Lease LLC v. Idanta Partners, Ltd., 225 Cal. App. 4th 1451,
`1478 (Cal. Ct. App. 2014). Plaintiffs do not allege an underlying tort, Ex. 1, ¶¶ 92-95, but to the extent
`they do, the underlying tort would be one of the claims against Clearview. Of those, the statute of
`limitations for a claim of common law appropriation of likeness is two years, Christoff v. Nestle USA, Inc.,
`213 P.3d 132, 135 (Cal. 2009); it is one year for a claim of invasion of privacy under Article I, Section 1
`of the California Constitution, Cain v. State Farm Mut. Auto. Ins. Co., 62 Cal. App. 3d 310, 313 (Ct. App.
`1976), and four years for an Unfair Competition Law claim, Cal. Bus. & Prof. Code § 17208. The Article
`I, Section 2(a) claim has a statute of limitations of one year. Gatto v. County of Sonoma, 98 Cal. App. 4th
`744, 760 (Cal. Ct. App. 2002).
`32.
`There are no factual allegations in the Complaint suggesting that the limitations period has
`elapsed for either claim against the Municipal Defendants in the few weeks since the Complaint was filed.
`Because a separate state court action would not be time-barred any more the instant action is, this factor
`weighs against the joinder of the Municipal Defendants.
`C.
`There Was Unexplained Delay in Plaintiffs’ Joinder of the Municipal Defendants
`33.
`As to the third factor of whether Plaintiffs delayed in seeking to join the non-diverse parties,
`“the timing of joining [the Municipal Defendants] is suspect.” Waring, 2019 WL 3424955, at *4. After
`attempting to amend their prior complaint to join the non-diverse Municipal Defendants, Plaintiffs
`voluntarily dismissed their prior complaint immediately after the entry of JPML’s conditional transfer
`order. Then, Plaintiffs refiled a substantively identical Complaint and named the same Municipal
`Defendants they had previously tried (and failed) to join through an amended complaint in their prior
`action. Such gamesmanship should not be tolerated.
`
`
`
`
`
`
`
`8
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 10 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 11 of 135 PageID #:4149
`
`
`
`34.
`Nor do Plaintiffs have a “good reason for why the claims against” the Municipal Defendants
`were not brought in their original complaint. Id. That is because “all the facts now alleged” in the
`Complaint regarding the Municipal Defendants “were known” or available to Plaintiffs when they first
`filed their prior complaint, and the substantively identical refiled Complaint “is not based on newly
`discovered evidence.” Jones, 2005 WL 8177458, at *21. “This factor weighs against joinder.” Id.
`D.
`Plaintiffs’ Motive in Joining the Municipal Defendants Was to Defeat Federal
`Jurisdiction
`35.
`Courts recognize that the most important factor in this analysis is Plaintiffs’ motive to defeat
`diversity jurisdiction. See Bakshi v. Bayer Healthcare, LLC, C07-00881 CW, 2007 WL 1232049, at *4-5
`(N.D. Cal. Apr. 26, 2007). “A trial court should look with particular care at a plaintiff’s motive in removal
`cases, when the presence of a new defendant will defeat the court’s diversity jurisdiction and will require
`a remand to the state court.” Waring, 2019 WL 3424955, at *5 (citation omitted). “In such cases, a plaintiff
`may well be inclined to add a new defendant only to have his action remanded to the state forum, the one
`that he had originally chosen as best suited to his purposes.” Ommid v. Liberty Mut. Ins. Co., 3:18-CV-
`0486-L-WVG, 2018 WL 6191392, at *3 (S.D. Cal. Nov. 27, 2018) (quoting Desert Empire Bank, 623 F.2d
`at 1376-77).
`36.
`As discussed in detail above, the procedural history of this litigation, the “unexplained
`delay” in asserting the new claims against the Municipal Defendants, and the suspect “timing” of Plaintiffs’
`refiled Complaint—“coming after removal” and after their voluntary dismissal of the prior proceeding—
`“suggest[] an intent to defeat federal jurisdiction.” Jones, 2005 WL 8177458, at *21. This factor weighs
`heavily against joinder of the Municipal Defendants.
`E.
`Plaintiffs’ Claims against the Municipal Defendants Are Not Viable
`37.
`The fifth factor requires an analysis of the strength of the claims against the newly joined
`defendants. Here, Plaintiffs allege two causes of action against the Municipal Defendants for aiding and
`abetting a tort and violation of Article I, Section 2(a) of the California Constitution. See Ex. 1, ¶¶ 91-98.
`As explained below, neither of these claims is “strong”—quite the opposite, both claims are subject to
`dismissal under well-settled law.
`
`
`
`
`
`
`
`9
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 11 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 12 of 135 PageID #:4150
`
`
`
`1.
`Aiding and Abetting a Tort
`38.
`The aiding and abetting a tort claim fails for at least three reasons: (1) the California Tort
`Claims Act precludes liability in these circumstances; (2) Plaintiffs fail to state an underlying claim against
`Clearview; and (3) Plaintiffs fail to allege any facts that could support an aiding and abetting claim.
`a.
`California Tort Claims Act
`39.
`As a threshold matter, the tort liability of public entities in California is governed by the
`California Tort Claims Act (“CTCA”). See Cal. Gov’t. Code, §§ 810 et seq. Here, all of the named
`defendants other than Clearview are indisputably public entities. See Cal. Gov’t Code § 900.4 (“‘Local
`public entity’ includes a county, city, district, public authority, public agency, and any other political
`subdivision or public corporation in the State”). The CTCA provides that a public entity is “not liable for
`an injury” at common law. Cal. Gov’t. Code § 815. As the legislative notes to § 815 explain, “public
`entities may be held liable only if a statute . . . is found declaring them to be liable” and “the practical effect
`of this section is to eliminate any common law governmental liability for damages arising out of torts.”
`Cal. Gov. Code § 815 legislative committee comments (2021). “Consequently, all government tort liability
`must be based on a statute.” Brooks v. City of Fremont, C07-06458 JSW, 2008 WL 1994889, at *8 (N.D.
`Cal. May 5, 2008) (citation omitted). Here, Plaintiffs fail to cite any statutory basis for their aiding and
`abetting a tort claim against the Municipal Defendants. As a result, this claim must be dismissed. See,
`e.g., Forbes v. Cty. Of San Bernardino, 101 Cal. App. 4th 48, 52-53 (Cal. Ct. App. 2002) (dismissing
`without leave to amend a tort claim against a public entity, where the complaint alleged no statutory basis
`for liability).
`
`b.
`No Underlying Claim Against Clearview
`40. Moreover, the aiding and abetting claim against the Municipal Defendants is not viable
`because Plaintiffs fail to state any underlying tort claim against Clearview. See In re Mortg. Elec.
`Registration Sys., Inc., 754 F.3d 772, 786 (9th Cir. 2014) (applying California law) (“Aiding-and-abetting
`liability depends on the existence of an underlying tort.”); Goonewardene v. ADP, LLC, 5 Cal. App. 5th
`154, 187-89 (Cal. Ct. App. 2016); Valbuena v. Law Offices of Les Zieve, No. E067927, 2018 WL 4356796,
`at *7 (Cal. Ct. App. Sept. 13, 2018) (same).
`
`
`
`
`
`
`
`10
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`

`
`
`Case 4:21-cv-04572 Document 1 Filed 06/14/21 Page 12 of 25Case: 1:21-cv-00135 Document #: 210-2 Filed: 11/10/21 Page 13 of 135 PageID #:4151
`
`
`
`Common Law Appropriation of Likeness
`41.
`The first cause of action against Clearview is common law appropriation of likeness.
`Plaintiffs allege that Clearview unlawfully “used” their likenesses “for the purposes of commercial profit”
`by “selling access” to their likenesses. Ex. 1, ¶¶ 79-80.
`42.
`But the tort of common law appropriation of likeness does not extend to any and all
`commercial activity—it protects only the “right to prevent others from misappropriating the economic
`value generated . . . through the merchandising of the ‘name, voice, signature, photograph, or likeness’ of
`the [holder].’” Timed Out, LLC v. Youabian, Inc., 229 Cal. App. 4th 1001, 1006 (2014) (emphasis added);
`see also Maloney v. T3Media, Inc., 853 F.3d 1004, 1010 (9th Cir. 2017) (holding that the “core” of the
`right of publicity is preventing “merchandising [of] a celebrity’s image without that person’s consent”
`(emphasis added)); see also Hilton v. Hallmark Cards, 599 F.3d 894, 905 n.7 (9th Cir. 2010) (noting that
`a greeting card bearing a celebrity’s likeness was a product rather than an advertisement, and was
`protected); Aldrin v. Topps Co., Inc., No. CV 10-09939 DDP (FMOX), 2011 WL 4500013, at *3 (C.D.
`Cal. Sept. 27, 2011) (holding that the right of publicity does not prohibit use of a likeness for sharing
`information).
`43.
`“The allegations about how [Clearview] shared the plaintiffs’ information with third parties
`is categorically different from the type of conduct made unlawful by this tort, such as using a plaintiff’s
`face or name to promote a product or service.” In re Facebook, Inc., Consumer Priv. User Profile Litig.,
`402 F. Supp. 3d 767, 803 (N.D. Cal. 2019). Nowhere does the Complaint allege that Clearview used
`Plaintiffs’ likenesses in advertising or merchandising. Plaintiffs state that their information is a part of a
`Clearview database that some clients pay to access—and according to Plaintiffs’ theory, Clearview
`gathered this information from publicly-available photographs on the Internet for further dissemination to
`the public, not for use in advertising or merchandising. Ex. 1, ¶¶ 2-5, 12-18, 29, 63-64, 87. Plaintiffs’
`claim for common law misappropriation of likeness is not viable, because that claim simply has nothing to
`do with Clearview’s alleged conduct or business model. As a result, this claim against Clearview cannot
`serve as the underlying claim for an aiding and abetting claim against the Municipal Defendants.
`
`
`
`
`
`
`
`
`11
`NOTICE OF REMOVAL
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket