`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF NEVADA
`
`
`
`ANTHONY SESSA, et al.,
`
`
`
`
`Plaintiffs,
`
`vs.
`
`
`
`ANCESTRY.COM OPERATIONS INC., et
`al.,
`
`
`
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`Case No.: 2:20-cv-02292-GMN-BNW
`
`ORDER
`
`
`
`Pending before the Court is the Motion to Dismiss, (ECF No. 19), filed by Defendants
`
`10
`
`Ancestry.com Operations Inc., Ancestry.com, Inc., and Ancestry.com, LLC (collectively,
`
`11
`
`“Ancestry”). Plaintiffs Anthony and Mark Sessa (collectively, “Plaintiffs”) filed a Response,
`
`12
`
`(ECF No. 26), and Ancestry filed a Reply, (ECF No. 27).
`
`13
`
`
`
`Also pending before the Court are Ancestry’s Motions for Leave to File Notice of
`
`14
`
`Related Decision, (ECF Nos. 32–33). Plaintiffs did not file a Response.1
`
`15
`
`
`
`For the reasons discussed below, the Court GRANTS in part and DENIES in part the
`
`16
`
`Motion to Dismiss.
`
`17
`
`I.
`
`BACKGROUND
`
`18
`
`
`
`This case arises from Ancestry’s alleged use of Plaintiffs’ names, images, and likenesses
`
`19
`
`to market paid subscriptions to Ancestry’s database of school yearbooks (the “Yearbook
`
`20
`
`Database” or “the Database”). (See Compl. ¶¶ 2–3, ECF No. 1). Subscribers to Ancestry’s
`
`21
`
`Yearbook Database gain access to information derived from “billions of records belonging to
`
`22
`
`hundreds of millions of Americans,” including “over 1.7 million records from Nevada schools
`
`23
`
`and universities.” (Id. ¶ 3). To build the database, Ancestry allegedly, “extracted personal
`
`24
`
`information from school yearbooks, then aggregated the extracted information into digital
`
`25
`
`
`
`
`
`1 Pursuant to Local Rule 7-2(d), the Court GRANTS the Motions as unopposed.
`
`Page 1 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 2 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`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
`
`10
`
`download records. (Id.). Within the Yearbook Database, subscribers may access information
`
`11
`
`including, “the names, photographs, cities of residence, schools attended, estimated ages,
`
`12
`
`likenesses, and identities Ancestry has amassed in its Ancestry Yearbook Database[.]” (Id.).
`
`13
`
`Ancestry allegedly uses Plaintiffs’ names, images, and likenesses to “advertise, sell, and solicit
`
`14
`
`the purchase” of subscriptions in three ways: (1) providing free trials through which users can
`
`15
`
`access Plaintiffs’ profiles; (2) providing all visitors to the Database with limited access that
`
`16
`
`generates pop-up advertisements with Plaintiffs’ names and images; and (3) sending targeted
`
`17
`
`promotional emails to prospective customers bearing Plaintiffs’ names and images. (Id. ¶¶ 8–
`
`18
`
`12, 26, 29–30, 32, 37–38, 41–44).
`
`19
`
`20
`
`A.
`
`Free Trial
`
`Plaintiffs argue that prospective subscribers may enroll in a 14-day free trial that
`
`21
`
`“provides temporary access to search, view, and download records from Ancestry’s databases”
`
`22
`
`to induce users to pay for a monthly subscription. (Id. ¶¶ 8–9). Ancestry allegedly encourages
`
`23
`
`users to search the Yearbook Database for the names of “people they may know or be curious
`
`24
`
`about.” (Id.). When searching for a particular individual within the Database, subscribers may
`
`25
`
`view, “the individual’s name, yearbook photo, estimated age, city of residence, school attended,
`
`
`
`Page 2 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 3 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`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
`
`10
`
`person such as estimated age, name of school, and yearbook year.” (Id.). If users attempt to
`
`11
`
`click-through to any of the listed information, they are redirected to a page encouraging them to
`
`12
`
`sign up for a paid subscription. (Id.). Alternatively, if users scroll over the “View Record” link
`
`13
`
`on individuals’ profiles, they are presented with a pop-up advertisement bearing the name and
`
`14
`
`image of the person whom they have searched. (Id. ¶¶ 31–32, 42–43). The advertisement says,
`
`15
`
`“There’s more to see,” with a low-resolution thumbnail photo of the individual and a preview
`
`16
`
`of the type of information accessible through a subscription, including the person’s estimated
`
`17
`
`age, yearbook date, school location, birth year, and school of attendance. (Id.).
`
`18
`
`19
`
`C.
`
`Email Solicitation
`
`Plaintiffs also allege that Ancestry advertises subscriptions to the Yearbook Database
`
`20
`
`through promotional emails. (Id. ¶ 12). Plaintiffs allege that their names and images have been
`
`21
`
`used in promotional emails for the Yearbook Database, which Ancestry has targeted at people
`
`22
`
`who may be related to Plaintiffs. (Id. ¶¶ 12, 32, 44).
`
`23
`
`Plaintiffs raise the following claims based upon Ancestry’s alleged use of Plaintiffs’
`
`24
`
`names, images, likenesses, and personal information for the purpose of advertising, selling, and
`
`25
`
`soliciting subscriptions to the Yearbook Database: (1) violation of the Nevada Right of
`
`
`
`Page 3 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 4 of 33
`
`
`
`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.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that “[t]he party seeking to invoke the
`
`11
`
`court’s jurisdiction bears the burden of establishing that jurisdiction exists”). Accordingly, the
`
`12
`
`court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in
`
`13
`
`response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
`
`14
`
`377 (1994).
`
`15
`
`A motion to dismiss under Rule 12(b)(1) may be construed in one of two ways.
`
`16
`
`Thornhill Publ’g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It
`
`17
`
`may be described as ‘facial,’ meaning that it attacks the sufficiency of the allegations to support
`
`18
`
`subject matter jurisdiction. Id. Alternatively, it may be described as ‘factual,’ meaning that it
`
`19
`
`“attack[s] the existence of subject matter jurisdiction in fact.” Id. When, as here, a court
`
`20
`
`considers a ‘facial’ attack made pursuant to Rule 12(b)(1), it must consider the allegations of
`
`21
`
`the complaint to be true and construe them in the light most favorable to the plaintiff. Love v.
`
`22
`
`United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
`
`23
`
`24
`
`B.
`
`12(b)(2)
`
`Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may
`
`25
`
`move to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Once a defendant
`
`
`
`Page 4 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 5 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`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
`
`10
`
`inconsistent with . . . the Constitution of the United States.” NRS 14.065. Thus, the Due
`
`11
`
`Process Clause of the Fourteenth Amendment is the relevant constraint on Nevada’s authority
`
`12
`
`to bind a nonresident defendant to a judgment of its own courts. World Wide Volkswagen Corp.
`
`13
`
`v. Woodson, 444 U.S. 286, 291 (1980).
`
`14
`
`The Due Process Clause requires that the nonresident must have “certain minimum
`
`15
`
`contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair
`
`16
`
`play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
`
`17
`
`Milliken v. Meyer, 311 U.S. 457, 463 (1940)). To survive a motion to dismiss for lack of
`
`18
`
`personal jurisdiction, a plaintiff need only make “a prima facie showing of jurisdictional facts.”
`
`19
`
`Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006) (quoting Doe v. Unocal, 248
`
`20
`
`F.3d 915, 922 (9th Cir. 2001)). When analyzing such a 12(b)(2) motion, “the court resolves all
`
`21
`
`disputed facts in favor of the plaintiff.” Id.
`
`22
`
`23
`
`C.
`
`12(b)(6)
`
`Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action
`
`24
`
`that fails to state a claim upon which relief can be granted. See N. Star Int’l v. Ariz. Corp.
`
`25
`
`Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule
`
`
`
`Page 5 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 6 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not
`
`give the defendant fair notice of a legally cognizable claim and the grounds on which it rests.
`
`See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the
`
`complaint is sufficient to state a claim, the Court will take all material allegations as true and
`
`construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792
`
`F.2d 896, 898 (9th Cir. 1986).
`
`The Court, however, is not required to accept as true allegations that are merely
`
`conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden
`
`State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action
`
`10
`
`with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a
`
`11
`
`violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
`
`12
`
`Twombly, 550 U.S. at 555).
`
`13
`
`A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b)
`
`14
`
`for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino
`
`15
`
`Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff’s
`
`16
`
`complaint contain “a short and plain statement of the claim showing that the pleader is entitled
`
`17
`
`to relief.” Fed. R. Civ. P. 8(a)(2). Furthermore, the Supreme Court has rejected any sort of
`
`18
`
`“heightened” pleading requirement for § 1983 municipal liability claims because such a
`
`19
`
`heightened pleading standard cannot be “square[d] . . . with the liberal system of ‘notice
`
`20
`
`pleading’ set up by the Federal Rules.” Leatherman v. Tarrant Cty. Narcotics Intelligence &
`
`21
`
`Coordination Unit, 507 U.S. 163, 164 (1993).
`
`22
`
`“Generally, a district court may not consider any material beyond the pleadings in ruling
`
`23
`
`on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the
`
`24
`
`complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard
`
`25
`
`Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly,
`
`
`
`Page 6 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 7 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`“documents whose contents are alleged in a complaint and whose authenticity no party
`
`questions, but which are not physically attached to the pleading, may be considered in ruling on
`
`a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for
`
`summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule
`
`of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay
`
`Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers
`
`materials outside of the pleadings, the motion to dismiss becomes a motion for summary
`
`judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
`
`If the court grants a motion to dismiss, it must then decide whether to grant leave to
`
`10
`
`amend. The court should “freely give” leave to amend when there is no “undue delay, bad
`
`11
`
`faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by
`
`12
`
`virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman
`
`13
`
`v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear
`
`14
`
`that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow
`
`15
`
`Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
`
`16
`
`III. DISCUSSION
`
`17
`
`Ancestry raises three primary grounds for dismissal of Plaintiffs’ Complaint. First,
`
`18
`
`Ancestry argues it does not have sufficient contacts with Nevada to create personal jurisdiction.
`
`19
`
`(MTD 5:16–7:25). Second, Ancestry argues that Plaintiffs lack standing to raise their claims.
`
`20
`
`(Id. 6:1–11:19). Third, Ancestry argues that Plaintiffs fail to state a claim upon which relief
`
`21
`
`can be granted both because the claims are precluded by applicable affirmative defenses and
`
`22
`
`because the claims are not adequately pleaded. (Id. 11:20–22:21). Ancestry also seeks to have
`
`23
`
`the Complaint stricken under Nevada’s Anti-SLAPP statute. (Id. 22:22–24:24). The Court’s
`
`24
`
`below discussion begins with Plaintiffs’ standing.
`
`25
`
`//
`
`
`
`Page 7 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 8 of 33
`
`
`
`A.
`
`Standing
`
`“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
`
`‘Controversies.’” Susan B. Anthony List v. Driehaus, 537 U.S. 149, 157 (2014) (quoting U.S.
`
`Const., art. III, § 2). Justiciable cases and controversies arise only when a plaintiff has a
`
`personal interest in the litigation sufficient to confer standing. See, e.g., Davis v. Fed. Election
`
`Comm’n, 554 U.S. 724, 732–33 (2008). “The irreducible constitutional minimum of standing”
`
`is comprised of three elements: (1) The Plaintiff must have suffered an “injury-in-fact,” which
`
`is a “concrete and particularized” invasion of a legally protected interest; (2) there must be a
`
`“causal connection” between the plaintiff’s injury and the defendant’s action; and (3) it must be
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`“likely” that the plaintiff’s injury will be “redressed by a favorable decision.” Lujan v. Defs. of
`
`11
`
`Wildlife, 504 U.S. 555, 560 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426
`
`12
`
`U.S. 26, 38–43 (1976)). “The party invoking federal jurisdiction bears the burden of
`
`13
`
`establishing these elements.” Id. at 561.
`
`14
`
`
`
`Ancestry primarily argues that Plaintiffs have not alleged a concrete injury because
`
`15
`
`Plaintiffs’ yearbook pictures were published before Ancestry’s use of the photos, and
`
`16
`
`Ancestry’s use neither caused Plaintiffs economic harm nor economically benefited Ancestry.
`
`17
`
`(MTD 8:19–11:5). Plaintiffs respond that they have sustained both economic injury and injury
`
`18
`
`to their “legally protected privacy rights.” (Pls.’ MTD Resp. 6:5–9:2). The Court concludes
`
`19
`
`that Plaintiffs have alleged concrete injury sufficient to confer standing because they seek relief
`
`20
`
`for claims analogous to those available at common law.
`
`21
`
`22
`
`1. Injury in Fact
`
`The parties dispute whether Ancestry’s alleged violation of the Nevada Right of
`
`23
`
`Publicity Statue provides constitutional injury sufficient to confer standing. 2 The Supreme
`
`24
`
`25
`
`
`
`
`
`2 Plaintiffs have also alleged other claims that may be capable of providing standing. However, the Court need
`not reach Plaintiffs’ standing to raise the claims as they are later dismissed.
`
`Page 8 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 9 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`Court recently addressed when statutory claims satisfy Article III’s injury requirement in
`
`TransUnion LLC v. Ramirez (“TransUnion”), 141 S. Ct. 2190 (2021). The class of plaintiffs in
`
`TransUnion were individuals whose credit reports mistakenly noted them as “potential
`
`match[es]” with names on the list of terrorists, drug traffickers, and other serious criminals
`
`maintained by the United States Treasury Department’s Office of Foreign Assets Control. Id. at
`
`2201. Plaintiffs brought suit under the Fair Credit Reporting Act, alleging that TransUnion
`
`failed to comply with the Act’s mandate to follow reasonable procedures to ensure the accuracy
`
`of information in a consumer’s credit file. Id. at 2202. The class included 8,185 consumers,
`
`only 1,853 of whom had their offending credit reports published to third parties. Id. The
`
`10
`
`Supreme Court concluded that only those whose reports were published suffered concrete
`
`11
`
`injury capable of providing standing. Id. at 2208–2213.
`
`12
`
`The Court explained that “concrete injury” for Article III purposes requires that a
`
`13
`
`Plaintiff sustain harm that, “has a ‘close relationship’ to a harm traditionally recognized as
`
`14
`
`providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or
`
`15
`
`various intangible harms.” Id. at 2200 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340–41
`
`16
`
`(2016)). Additionally, Congress may authorize a cause of action for concrete harms that were
`
`17
`
`previously inadequate to sustain a legal action like, for example, discriminatory treatment. Id. at
`
`18
`
`2204. However, where a statutorily authorized cause of action has neither a close relationship
`
`19
`
`to a traditional harm nor authorizes a remedy for other concrete harm, the claim fails to present
`
`20
`
`a justiciable “case or controversy” under Article III. Id. at 2204–05.
`
`21
`
`For the TransUnion plaintiffs, those who had their credit reports published to third
`
`22
`
`parties suffered harm akin to defamation, enabling them to maintain their claims. Id at 2208–
`
`23
`
`09. However, those whose credit reports had never been published to others did not sustain
`
`24
`
`actual harm. Id. at 2210. Instead, they suffered only prospective harm that would come to
`
`25
`
`fruition if their credit reports were published, but the prospective harm was neither concrete nor
`
`
`
`Page 9 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 10 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`traditionally compensable. Id. Before enactment of the FCRA, the uninjured subset of the class
`
`would have no remedy for the prospective harm in federal court. Id. And despite Congress
`
`enacting a private right of action in the FCRA, the Article III injury requirement remained
`
`unchanged for plaintiffs seeking remedies under the statute. Id. Given the absence of Article III
`
`injury, plaintiffs lacked standing to sue in federal court. Id.
`
`Here, Plaintiffs have standing to sue under the Nevada Right of Publicity Act. The Act
`
`did not create previously unrecognized claims by legislative fiat. Rather, the right of publicity
`
`has existed at common law, and the legislature codified the right. See PETA v. Bobby Berosini,
`
`Ltd., 895 P.2d 1269, 1279, 1285 (Nev. 1995) (overruled in part on other grounds) (explaining
`
`10
`
`the elements of common law right of publicity claims). Plaintiffs have alleged injury
`
`11
`
`recognized at common law because they assert that Ancestry used their names and likenesses
`
`12
`
`“to motivate a decision to purchase a particular product or service.” Knight v. Climbing
`
`13
`
`Magazine, 3:11-cv-0146-LRH-RAM, 2012 U.S. Dist. LEXIS 179412, 2012 WL 6627821, at *3
`
`14
`
`(D. Nev. Dec. 18, 2012). Two recent cases noticed by the parties following briefing provide
`
`15
`
`context for Plaintiffs’ claimed injury.
`
`16
`
`Ancestry supplemented its Motion to Dismiss with a recent case from the Northern
`
`17
`
`District of California involving identical class claims against Ancestry. (See Mot. Leave File,
`
`18
`
`ECF No. 32). In Callahan v. Ancestry.com, the California district court concluded that the
`
`19
`
`Plaintiffs lacked standing to raise their claims. No. 20-cv-08437-LB, 2021 U.S. Dist. LEXIS
`
`20
`
`112036, 2021 WL 2433893 (N.D. Cal. June 15, 2021). The court characterized plaintiffs’
`
`21
`
`claims as raising only “statutory injury.” Id. at *4. However, the court did not address whether
`
`22
`
`the statutory injury had a close common law analog as required by TransUnion and Spokeo.
`
`23
`
`Finding that the plaintiffs failed to assert either economic injury or violation of intangible
`
`24
`
`privacy rights, the court found that plaintiffs lacked standing. Id.
`
`25
`
`
`
`Page 10 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 11 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`But, as Plaintiffs highlight, the Northern District of Illinois recently reached the opposite
`
`conclusion in Lukis v. Whitepages, Inc., No. 19-C-4871, 2021 U.S. Dist. LEXIS 132843, 2021
`
`WL 3022319 (N.D. Ill. July 16, 2021). In Lukis, the plaintiffs alleged that Whitepages had
`
`used their images in advertising. Id. at *3. Whitepages moved to dismiss for lack of standing.
`
`Id. The court concluded that plaintiffs had standing to raise statutory violations under the
`
`Illinois Right of Publicity Act given that the right of publicity arose at common law. Id. at *4.
`
`In reaching its conclusion, the court explained, “It necessarily follows, under the analysis
`
`articulated in Spokeo and recently reiterated in TransUnion, that an IRPA violation inflicts a
`
`concrete injury-in-fact under Article III.” Id.
`
`10
`
`The Court declines to follow the California court’s conclusion because its order did not
`
`11
`
`address whether the plaintiffs’ statutory injury had a common law analog as required by Spokeo
`
`12
`
`and TransUnion. Right of publicity claims, while often codified by state statute, have their
`
`13
`
`origins at common law. See Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d
`
`14
`
`866 (2d Cir. 1953) (first to explicitly recognize a right of publicity) (“We think that . . . a man
`
`15
`
`has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege
`
`16
`
`of publishing his picture, and that such a grant may validly be made ‘in gross,’ i.e., without an
`
`17
`
`accompanying transfer of a business or of anything else. . . . This right might be called a ‘right
`
`18
`
`of publicity.’”), cert. denied, 346 U.S. 816 (1953). At common law, even individuals whose
`
`19
`
`likenesses did not have inherent value could assert a property interest in their likenesses. See J.
`
`20
`
`Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 28:7 (5th ed. 2021)
`
`21
`
`(“The right of publicity protects against the unpermitted use of the identity of everyone: both
`
`22
`
`those that fall into the vague category of ‘celebrities’ and those that do not. . . . Occasional
`
`23
`
`judicial statements that the right of publicity protects the identity of only ‘celebrities’ are
`
`24
`
`simply wrong.”). The use of an individual’s likeness for commercial purposes, even of a
`
`25
`
`relatively unknown person, establishes common law injury for right of publicity claims as long
`
`
`
`Page 11 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 12 of 33
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`as the individual is recognizable.3 Id.; see also Motschenbacher v. R. J. Reynolds Tobacco Co.,
`
`498 F.2d 821, 825–27 n.11 (9th Cir. 1974) (overruled in part on other grounds) (“[T]he
`
`appropriation of the identity of a relatively unknown person may result in economic injury or
`
`may itself create economic value in what was previously economically valueless.”); PETA v.
`
`Bobby Berosini, Ltd., 895 P.2d 1269, 1284 (Nev. 1995) (“the right of publicity refers to a
`
`property right in a person’s identity. This property right is infringed by the unpermitted use of a
`
`person’s identity for money-making purposes.”).
`
`Here, Plaintiffs have alleged that Ancestry has used Plaintiffs’ names, images, and
`
`likenesses in targeted email advertising to Plaintiffs’ relatives to advertise Ancestry’s
`
`10
`
`subscription services. (Compl. ¶¶ 32, 44). Plaintiffs also allege that Ancestry’s limited access
`
`11
`
`users have accessed Plaintiffs’ profiles, and when the users scrolled over the “View Record”
`
`12
`
`link on the profile, they were presented with a pop-up advertisement bearing Plaintiffs’ names
`
`13
`
`and images that encouraged them to “Sign Up Now” for a paid subscription. (Id. ¶¶ 31–32, 42–
`
`14
`
`43). Both allegations indicate that Ancestry has used Plaintiffs’ likeness for commercial
`
`15
`
`purposes, which suffices to establish injury in fact under the common law tort.4 Accordingly,
`
`16
`
`the Court concludes that Plaintiffs have standing to maintain their right of publicity claim.
`
`
`
`3 Ancestry argues that Plaintiffs have not suffered injury because their yearbook information has been published
`and is accessible to the public. (MTD 8:19–9:10). Ancestry is mistaken on two counts. First, right of publicity
`claims do not depend on the publication of private photos, but rather the use of one’s likeness for commercial
`purposes. See, e.g., Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) (use of published photograph
`of surfing champions in advertising violated plaintiffs’ right of publicity despite prior publication). Second,
`Ancestry relies on cases involving misappropriation of individuals’ personally identifying information (“PII”),
`but not content within the scope of the plaintiffs’ publicity rights; in fact, the only case Ancestry cites evaluating
`both types of claims found no standing for the PII disclosure but standing for the related right of publicity claim.
`See In re Google, Inc. Privacy Policy Lit., NO. C.-12-01382-PSG, 2013 U.S. Dist. LEXIS 171124, 2013 WL
`6248499 (N.D. Cal. Dec. 3, 2013).
`
` 4
`
` Ancestry attempts to spin cases involving false endorsement claims to suggest that only false endorsement
`claims demonstrate injury capable of providing standing. (MTD 9:11–10:1). While advertisements depicting
`persons’ likeness often use the likeness to imply the individual endorses the product promoted, the use of one’s
`likeness to promote a product is sufficient to state a right of publicity claim—even if there is no false impression
`of endorsement—as long as the person is recognizable. Motschenbacher, 498 F.2d at 825–27 n.11 (9th Cir.
`
`Page 12 of 33
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 13 of 33
`
`
`
`2. Causation, Redressability
`
`Ancestry also argues that even if the Court finds Plaintiffs suffered injury, Ancestry did
`
`not cause the injury, and the injury would not be redressable. (Id. 11:6–19). The Court finds
`
`that Plaintiffs have satisfied the remaining elements of standing. Ancestry has allegedly used
`
`Plaintiffs’ images to market its services without compensation or consent, violating their
`
`publicity rights. (Compl. ¶¶ 14, 33, 45). A favorable ruling would redress the injury by
`
`compensating Plaintiffs for the use of their image in advertising and/or enjoining Ancestry’s
`
`further use thereof. Thus, Plaintiffs have standing to raise their right of publicity claim before
`
`this Court.
`
`B.
`
`Personal Jurisdiction
`
`Plaintiffs argue that Ancestry’s contacts with Nevada giving rise to this action establish
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`specific personal jurisdiction. (Pls.’ MTD Resp. 3:2–6:4). Specific personal jurisdiction refers
`
`13
`
`to “jurisdiction based on the relationship between the defendant’s forum contacts and the
`
`14
`
`plaintiff’s claims.” Menken v. Emm, 503 F.3d 1050, 1057 (9th Cir. 2007). Personal jurisdiction
`
`15
`
`must arise out of “contacts that the defendant himself creates with the forum State.” Walden v.
`
`16
`
`Fiore, 571 U.S. 277 (2014) (internal quotations omitted). Further, personal jurisdiction cannot
`
`17
`
`be established from the conduct of a plaintiff or third parties within the forum. Id. In other
`
`18
`
`words, “the plaintiff cannot be the only link between the defendant and the forum.” Id. at 285.
`
`19
`
`Courts utilize a three-prong test to analyze whether the assertion of specific personal
`
`20
`
`jurisdiction in a given forum is proper:
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`(1) The non-resident defendant must [(a)] purposefully direct his activities or
`consummate some transaction with the forum or resident thereof; or [(b)] perform
`some act by which he purposefully avails himself of the privilege of conducting
`activities in the forum, thereby invoking the benefits and protection of its laws;
`
`
`
`
`1974); see also Knight v. Climbing Magazine, 3:11-cv-0146-LRH-RAM, 2012 U.S. Dist. LEXIS 179412, 2012
`WL 6627821, at *3 (D. Nev. Dec. 18, 2012).
`
`Page 13 of 33
`
`
`
`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 14 of 33
`
`
`
`(2) the claim must be one which arises out of or relates to the defendant’s forum
`related activities; and
`
`(3) the exercise of jurisdiction must comport with fair play and substantial justice,
`i.e. it must be reasonable.
`
`Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).
`
`“The plaintiff bears the burden of satisfying the first two prongs of the test.” Menken,
`
`503 F.3d at 1057. If the plaintiff satisfies the first two prongs, the burden will shift to the
`
`defendant to show that exercising jurisdiction would be unreasonable. Id. However, “[i]f the
`
`plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the
`
`forum state.” Id. The Court’s below discussion considers Ancestry’s protestations that it did
`
`not purposefully direct its activities at Nevada and that Plaintiffs’ claims are not related to
`
`Ancestry’s activities in the forum.
`
`1. Purposeful Direction
`
`When a plaintiff alleges claims sounding in tort, a defendant’s minimum contacts are
`
`generally shown by the activities the defendant purposefully directed at the forum.
`
`Schwarzenegger, 374 F.3d at 802 (explaining that the purposeful direction formulation of the
`
`first element generally applies to tort claims, whereas