Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 1 of 33
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`ANTHONY SESSA, et al.,
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`Plaintiffs,
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`vs.
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`ANCESTRY.COM OPERATIONS INC., et
`al.,
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`Defendants.
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`Case No.: 2:20-cv-02292-GMN-BNW
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`ORDER
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`Pending before the Court is the Motion to Dismiss, (ECF No. 19), filed by Defendants
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`Ancestry.com Operations Inc., Ancestry.com, Inc., and Ancestry.com, LLC (collectively,
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`“Ancestry”). Plaintiffs Anthony and Mark Sessa (collectively, “Plaintiffs”) filed a Response,
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`(ECF No. 26), and Ancestry filed a Reply, (ECF No. 27).
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`Also pending before the Court are Ancestry’s Motions for Leave to File Notice of
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`Related Decision, (ECF Nos. 32–33). Plaintiffs did not file a Response.1
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`For the reasons discussed below, the Court GRANTS in part and DENIES in part the
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`Motion to Dismiss.
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`I.
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`BACKGROUND
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`This case arises from Ancestry’s alleged use of Plaintiffs’ names, images, and likenesses
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`to market paid subscriptions to Ancestry’s database of school yearbooks (the “Yearbook
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`Database” or “the Database”). (See Compl. ¶¶ 2–3, ECF No. 1). Subscribers to Ancestry’s
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`Yearbook Database gain access to information derived from “billions of records belonging to
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`hundreds of millions of Americans,” including “over 1.7 million records from Nevada schools
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`and universities.” (Id. ¶ 3). To build the database, Ancestry allegedly, “extracted personal
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`information from school yearbooks, then aggregated the extracted information into digital
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`1 Pursuant to Local Rule 7-2(d), the Court GRANTS the Motions as unopposed.
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`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 2 of 33
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`records that correspond to and identify specific individuals.” (Id.). Plaintiffs allege that
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`Ancestry’s Yearbook Database includes, “the names, photographs, cities of residence, and
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`schools attended” of individuals within the Database. (Id.). Plaintiffs contend that they, and a
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`prospective class of other similarly situated Nevadans whose names, images, and likenesses are
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`in the database, neither received notice of nor consented to Ancestry’s use thereof. (Id. ¶¶ 4,
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`23–25, 35–37).
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`Ancestry sells access to the Yearbook Database through paid subscriptions ranging from
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`$24.99 to $49.99 per month. (Id. ¶ 6). Subscribers, depending on the level of their subscription,
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`may perform a range of functions within the Database, including the ability to search, view, and
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`download records. (Id.). Within the Yearbook Database, subscribers may access information
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`including, “the names, photographs, cities of residence, schools attended, estimated ages,
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`likenesses, and identities Ancestry has amassed in its Ancestry Yearbook Database[.]” (Id.).
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`Ancestry allegedly uses Plaintiffs’ names, images, and likenesses to “advertise, sell, and solicit
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`the purchase” of subscriptions in three ways: (1) providing free trials through which users can
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`access Plaintiffs’ profiles; (2) providing all visitors to the Database with limited access that
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`generates pop-up advertisements with Plaintiffs’ names and images; and (3) sending targeted
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`promotional emails to prospective customers bearing Plaintiffs’ names and images. (Id. ¶¶ 8–
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`12, 26, 29–30, 32, 37–38, 41–44).
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`A.
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`Free Trial
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`Plaintiffs argue that prospective subscribers may enroll in a 14-day free trial that
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`“provides temporary access to search, view, and download records from Ancestry’s databases”
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`to induce users to pay for a monthly subscription. (Id. ¶¶ 8–9). Ancestry allegedly encourages
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`users to search the Yearbook Database for the names of “people they may know or be curious
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`about.” (Id.). When searching for a particular individual within the Database, subscribers may
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`view, “the individual’s name, yearbook photo, estimated age, city of residence, school attended,
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`and year of attendance.” (Id.). Free subscribers may also “view and download full-resolution
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`version[s] of yearbook photos of the individuals they have searched.” (Id.).
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`B.
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`Limited Access
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`Any visitor to Ancestry.com may view the Yearbook Database, but visitors only receive
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`limited access unless they sign up for a free trial or paid subscription. (Id. ¶ 10). Limited-
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`access users may search an individual by name and “receive a list [sic] records, each of which
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`corresponds to a specific identifiable person, and includes the individual’s name, city of
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`residence, and a low-resolution version of a yearbook photo.” (Id.). However, “Users cannot
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`view the full-resolution version of the photograph or view additional information about the
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`person such as estimated age, name of school, and yearbook year.” (Id.). If users attempt to
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`click-through to any of the listed information, they are redirected to a page encouraging them to
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`sign up for a paid subscription. (Id.). Alternatively, if users scroll over the “View Record” link
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`on individuals’ profiles, they are presented with a pop-up advertisement bearing the name and
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`image of the person whom they have searched. (Id. ¶¶ 31–32, 42–43). The advertisement says,
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`“There’s more to see,” with a low-resolution thumbnail photo of the individual and a preview
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`of the type of information accessible through a subscription, including the person’s estimated
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`age, yearbook date, school location, birth year, and school of attendance. (Id.).
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`C.
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`Email Solicitation
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`Plaintiffs also allege that Ancestry advertises subscriptions to the Yearbook Database
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`through promotional emails. (Id. ¶ 12). Plaintiffs allege that their names and images have been
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`used in promotional emails for the Yearbook Database, which Ancestry has targeted at people
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`who may be related to Plaintiffs. (Id. ¶¶ 12, 32, 44).
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`Plaintiffs raise the following claims based upon Ancestry’s alleged use of Plaintiffs’
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`names, images, likenesses, and personal information for the purpose of advertising, selling, and
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`soliciting subscriptions to the Yearbook Database: (1) violation of the Nevada Right of
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`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 4 of 33
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`Publicity Act, NRS §§ 597.770, et seq.; (2) violation of the Nevada Deceptive Trade Practices
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`Act, NRS §§ 598.0903, et seq.; (3) intrusion upon seclusion; and (4) unjust enrichment. (Id.
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`¶¶ 68–87). Ancestry now moves to dismiss the Complaint. (See generally, Mot. Dismiss
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`(“MTD”), ECF No. 19).
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`II.
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`LEGAL STANDARD
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`A.
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`12(b)(1)
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`Rule 12(b)(1) of the Federal Rules of Civil Procedure permits motions to dismiss for
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`lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When subject matter jurisdiction is
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`challenged, the burden of proof is placed on the party asserting that jurisdiction exists. Scott v.
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`Breeland, 792 F.2d 925, 927 (9th Cir. 1986) (holding that “[t]he party seeking to invoke the
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`court’s jurisdiction bears the burden of establishing that jurisdiction exists”). Accordingly, the
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`court will presume lack of subject matter jurisdiction until the plaintiff proves otherwise in
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`response to the motion to dismiss. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
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`377 (1994).
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`A motion to dismiss under Rule 12(b)(1) may be construed in one of two ways.
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`Thornhill Publ’g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). It
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`may be described as ‘facial,’ meaning that it attacks the sufficiency of the allegations to support
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`subject matter jurisdiction. Id. Alternatively, it may be described as ‘factual,’ meaning that it
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`“attack[s] the existence of subject matter jurisdiction in fact.” Id. When, as here, a court
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`considers a ‘facial’ attack made pursuant to Rule 12(b)(1), it must consider the allegations of
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`the complaint to be true and construe them in the light most favorable to the plaintiff. Love v.
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`United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
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`B.
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`12(b)(2)
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`Pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may
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`move to dismiss for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Once a defendant
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`raises the defense, the burden falls on the plaintiff to prove sufficient facts to establish that
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`jurisdiction is proper. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008). A plaintiff
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`can carry its burden only by presenting sufficient evidence to establish that (1) personal
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`jurisdiction is proper under the laws of the state where it is asserted; and (2) the exercise of
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`jurisdiction does not violate the defendant’s right to due process secured by the United States
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`Constitution. Ziegler v. Indian River Cty., 64 F.3d 470, 473 (9th Cir. 1995).
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`When no federal statute governs personal jurisdiction, the district court applies the law
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`of the forum state. See Panavision Int’l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998).
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`Nevada has authorized its courts to exercise jurisdiction over persons “on any basis not
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`inconsistent with . . . the Constitution of the United States.” NRS 14.065. Thus, the Due
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`Process Clause of the Fourteenth Amendment is the relevant constraint on Nevada’s authority
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`to bind a nonresident defendant to a judgment of its own courts. World Wide Volkswagen Corp.
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`v. Woodson, 444 U.S. 286, 291 (1980).
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`The Due Process Clause requires that the nonresident must have “certain minimum
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`contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair
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`play and substantial justice.’” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting
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`Milliken v. Meyer, 311 U.S. 457, 463 (1940)). To survive a motion to dismiss for lack of
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`personal jurisdiction, a plaintiff need only make “a prima facie showing of jurisdictional facts.”
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`Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006) (quoting Doe v. Unocal, 248
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`F.3d 915, 922 (9th Cir. 2001)). When analyzing such a 12(b)(2) motion, “the court resolves all
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`disputed facts in favor of the plaintiff.” Id.
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`C.
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`12(b)(6)
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`Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action
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`that fails to state a claim upon which relief can be granted. See N. Star Int’l v. Ariz. Corp.
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`Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule
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`12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not
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`give the defendant fair notice of a legally cognizable claim and the grounds on which it rests.
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`See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the
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`complaint is sufficient to state a claim, the Court will take all material allegations as true and
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`construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792
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`F.2d 896, 898 (9th Cir. 1986).
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`The Court, however, is not required to accept as true allegations that are merely
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`conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden
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`State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action
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`with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a
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`violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
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`Twombly, 550 U.S. at 555).
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`A court may also dismiss a complaint pursuant to Federal Rule of Civil Procedure 41(b)
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`for failure to comply with Federal Rule of Civil Procedure 8(a). Hearns v. San Bernardino
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`Police Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). Rule 8(a)(2) requires that a plaintiff’s
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`complaint contain “a short and plain statement of the claim showing that the pleader is entitled
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`to relief.” Fed. R. Civ. P. 8(a)(2). Furthermore, the Supreme Court has rejected any sort of
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`“heightened” pleading requirement for § 1983 municipal liability claims because such a
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`heightened pleading standard cannot be “square[d] . . . with the liberal system of ‘notice
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`pleading’ set up by the Federal Rules.” Leatherman v. Tarrant Cty. Narcotics Intelligence &
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`Coordination Unit, 507 U.S. 163, 164 (1993).
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`“Generally, a district court may not consider any material beyond the pleadings in ruling
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`on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the
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`complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard
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`Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly,
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`“documents whose contents are alleged in a complaint and whose authenticity no party
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`questions, but which are not physically attached to the pleading, may be considered in ruling on
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`a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for
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`summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule
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`of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay
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`Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers
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`materials outside of the pleadings, the motion to dismiss becomes a motion for summary
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`judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).
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`If the court grants a motion to dismiss, it must then decide whether to grant leave to
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`amend. The court should “freely give” leave to amend when there is no “undue delay, bad
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`faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing party by
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`virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. 15(a); Foman
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`v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear
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`that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow
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`Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
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`III. DISCUSSION
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`Ancestry raises three primary grounds for dismissal of Plaintiffs’ Complaint. First,
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`Ancestry argues it does not have sufficient contacts with Nevada to create personal jurisdiction.
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`(MTD 5:16–7:25). Second, Ancestry argues that Plaintiffs lack standing to raise their claims.
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`(Id. 6:1–11:19). Third, Ancestry argues that Plaintiffs fail to state a claim upon which relief
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`can be granted both because the claims are precluded by applicable affirmative defenses and
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`because the claims are not adequately pleaded. (Id. 11:20–22:21). Ancestry also seeks to have
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`the Complaint stricken under Nevada’s Anti-SLAPP statute. (Id. 22:22–24:24). The Court’s
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`below discussion begins with Plaintiffs’ standing.
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`//
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`A.
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`Standing
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`“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and
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`‘Controversies.’” Susan B. Anthony List v. Driehaus, 537 U.S. 149, 157 (2014) (quoting U.S.
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`Const., art. III, § 2). Justiciable cases and controversies arise only when a plaintiff has a
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`personal interest in the litigation sufficient to confer standing. See, e.g., Davis v. Fed. Election
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`Comm’n, 554 U.S. 724, 732–33 (2008). “The irreducible constitutional minimum of standing”
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`is comprised of three elements: (1) The Plaintiff must have suffered an “injury-in-fact,” which
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`is a “concrete and particularized” invasion of a legally protected interest; (2) there must be a
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`“causal connection” between the plaintiff’s injury and the defendant’s action; and (3) it must be
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`“likely” that the plaintiff’s injury will be “redressed by a favorable decision.” Lujan v. Defs. of
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`Wildlife, 504 U.S. 555, 560 (1992) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426
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`U.S. 26, 38–43 (1976)). “The party invoking federal jurisdiction bears the burden of
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`establishing these elements.” Id. at 561.
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`Ancestry primarily argues that Plaintiffs have not alleged a concrete injury because
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`Plaintiffs’ yearbook pictures were published before Ancestry’s use of the photos, and
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`Ancestry’s use neither caused Plaintiffs economic harm nor economically benefited Ancestry.
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`(MTD 8:19–11:5). Plaintiffs respond that they have sustained both economic injury and injury
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`to their “legally protected privacy rights.” (Pls.’ MTD Resp. 6:5–9:2). The Court concludes
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`that Plaintiffs have alleged concrete injury sufficient to confer standing because they seek relief
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`for claims analogous to those available at common law.
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`1. Injury in Fact
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`The parties dispute whether Ancestry’s alleged violation of the Nevada Right of
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`Publicity Statue provides constitutional injury sufficient to confer standing. 2 The Supreme
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`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.
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`Court recently addressed when statutory claims satisfy Article III’s injury requirement in
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`TransUnion LLC v. Ramirez (“TransUnion”), 141 S. Ct. 2190 (2021). The class of plaintiffs in
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`TransUnion were individuals whose credit reports mistakenly noted them as “potential
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`match[es]” with names on the list of terrorists, drug traffickers, and other serious criminals
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`maintained by the United States Treasury Department’s Office of Foreign Assets Control. Id. at
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`2201. Plaintiffs brought suit under the Fair Credit Reporting Act, alleging that TransUnion
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`failed to comply with the Act’s mandate to follow reasonable procedures to ensure the accuracy
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`of information in a consumer’s credit file. Id. at 2202. The class included 8,185 consumers,
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`only 1,853 of whom had their offending credit reports published to third parties. Id. The
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`Supreme Court concluded that only those whose reports were published suffered concrete
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`injury capable of providing standing. Id. at 2208–2213.
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`The Court explained that “concrete injury” for Article III purposes requires that a
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`Plaintiff sustain harm that, “has a ‘close relationship’ to a harm traditionally recognized as
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`providing a basis for a lawsuit in American courts—such as physical harm, monetary harm, or
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`various intangible harms.” Id. at 2200 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340–41
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`(2016)). Additionally, Congress may authorize a cause of action for concrete harms that were
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`previously inadequate to sustain a legal action like, for example, discriminatory treatment. Id. at
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`2204. However, where a statutorily authorized cause of action has neither a close relationship
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`to a traditional harm nor authorizes a remedy for other concrete harm, the claim fails to present
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`a justiciable “case or controversy” under Article III. Id. at 2204–05.
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`For the TransUnion plaintiffs, those who had their credit reports published to third
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`parties suffered harm akin to defamation, enabling them to maintain their claims. Id at 2208–
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`09. However, those whose credit reports had never been published to others did not sustain
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`actual harm. Id. at 2210. Instead, they suffered only prospective harm that would come to
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`fruition if their credit reports were published, but the prospective harm was neither concrete nor
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`traditionally compensable. Id. Before enactment of the FCRA, the uninjured subset of the class
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`would have no remedy for the prospective harm in federal court. Id. And despite Congress
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`enacting a private right of action in the FCRA, the Article III injury requirement remained
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`unchanged for plaintiffs seeking remedies under the statute. Id. Given the absence of Article III
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`injury, plaintiffs lacked standing to sue in federal court. Id.
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`Here, Plaintiffs have standing to sue under the Nevada Right of Publicity Act. The Act
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`did not create previously unrecognized claims by legislative fiat. Rather, the right of publicity
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`has existed at common law, and the legislature codified the right. See PETA v. Bobby Berosini,
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`Ltd., 895 P.2d 1269, 1279, 1285 (Nev. 1995) (overruled in part on other grounds) (explaining
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`the elements of common law right of publicity claims). Plaintiffs have alleged injury
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`recognized at common law because they assert that Ancestry used their names and likenesses
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`“to motivate a decision to purchase a particular product or service.” Knight v. Climbing
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`Magazine, 3:11-cv-0146-LRH-RAM, 2012 U.S. Dist. LEXIS 179412, 2012 WL 6627821, at *3
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`(D. Nev. Dec. 18, 2012). Two recent cases noticed by the parties following briefing provide
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`context for Plaintiffs’ claimed injury.
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`Ancestry supplemented its Motion to Dismiss with a recent case from the Northern
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`District of California involving identical class claims against Ancestry. (See Mot. Leave File,
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`ECF No. 32). In Callahan v. Ancestry.com, the California district court concluded that the
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`Plaintiffs lacked standing to raise their claims. No. 20-cv-08437-LB, 2021 U.S. Dist. LEXIS
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`112036, 2021 WL 2433893 (N.D. Cal. June 15, 2021). The court characterized plaintiffs’
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`claims as raising only “statutory injury.” Id. at *4. However, the court did not address whether
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`the statutory injury had a close common law analog as required by TransUnion and Spokeo.
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`Finding that the plaintiffs failed to assert either economic injury or violation of intangible
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`privacy rights, the court found that plaintiffs lacked standing. Id.
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`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 11 of 33
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`But, as Plaintiffs highlight, the Northern District of Illinois recently reached the opposite
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`conclusion in Lukis v. Whitepages, Inc., No. 19-C-4871, 2021 U.S. Dist. LEXIS 132843, 2021
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`WL 3022319 (N.D. Ill. July 16, 2021). In Lukis, the plaintiffs alleged that Whitepages had
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`used their images in advertising. Id. at *3. Whitepages moved to dismiss for lack of standing.
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`Id. The court concluded that plaintiffs had standing to raise statutory violations under the
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`Illinois Right of Publicity Act given that the right of publicity arose at common law. Id. at *4.
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`In reaching its conclusion, the court explained, “It necessarily follows, under the analysis
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`articulated in Spokeo and recently reiterated in TransUnion, that an IRPA violation inflicts a
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`concrete injury-in-fact under Article III.” Id.
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`The Court declines to follow the California court’s conclusion because its order did not
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`address whether the plaintiffs’ statutory injury had a common law analog as required by Spokeo
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`and TransUnion. Right of publicity claims, while often codified by state statute, have their
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`origins at common law. See Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d
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`866 (2d Cir. 1953) (first to explicitly recognize a right of publicity) (“We think that . . . a man
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`has a right in the publicity value of his photograph, i.e., the right to grant the exclusive privilege
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`of publishing his picture, and that such a grant may validly be made ‘in gross,’ i.e., without an
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`accompanying transfer of a business or of anything else. . . . This right might be called a ‘right
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`of publicity.’”), cert. denied, 346 U.S. 816 (1953). At common law, even individuals whose
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`likenesses did not have inherent value could assert a property interest in their likenesses. See J.
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`Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 28:7 (5th ed. 2021)
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`(“The right of publicity protects against the unpermitted use of the identity of everyone: both
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`those that fall into the vague category of ‘celebrities’ and those that do not. . . . Occasional
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`judicial statements that the right of publicity protects the identity of only ‘celebrities’ are
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`simply wrong.”). The use of an individual’s likeness for commercial purposes, even of a
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`relatively unknown person, establishes common law injury for right of publicity claims as long
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`as the individual is recognizable.3 Id.; see also Motschenbacher v. R. J. Reynolds Tobacco Co.,
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`498 F.2d 821, 825–27 n.11 (9th Cir. 1974) (overruled in part on other grounds) (“[T]he
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`appropriation of the identity of a relatively unknown person may result in economic injury or
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`may itself create economic value in what was previously economically valueless.”); PETA v.
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`Bobby Berosini, Ltd., 895 P.2d 1269, 1284 (Nev. 1995) (“the right of publicity refers to a
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`property right in a person’s identity. This property right is infringed by the unpermitted use of a
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`person’s identity for money-making purposes.”).
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`Here, Plaintiffs have alleged that Ancestry has used Plaintiffs’ names, images, and
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`likenesses in targeted email advertising to Plaintiffs’ relatives to advertise Ancestry’s
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`subscription services. (Compl. ¶¶ 32, 44). Plaintiffs also allege that Ancestry’s limited access
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`users have accessed Plaintiffs’ profiles, and when the users scrolled over the “View Record”
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`link on the profile, they were presented with a pop-up advertisement bearing Plaintiffs’ names
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`and images that encouraged them to “Sign Up Now” for a paid subscription. (Id. ¶¶ 31–32, 42–
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`43). Both allegations indicate that Ancestry has used Plaintiffs’ likeness for commercial
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`purposes, which suffices to establish injury in fact under the common law tort.4 Accordingly,
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`the Court concludes that Plaintiffs have standing to maintain their right of publicity claim.
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`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).
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` 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.
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`Case 2:20-cv-02292-GMN-BNW Document 36 Filed 09/16/21 Page 13 of 33
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`2. Causation, Redressability
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`Ancestry also argues that even if the Court finds Plaintiffs suffered injury, Ancestry did
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`not cause the injury, and the injury would not be redressable. (Id. 11:6–19). The Court finds
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`that Plaintiffs have satisfied the remaining elements of standing. Ancestry has allegedly used
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`Plaintiffs’ images to market its services without compensation or consent, violating their
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`publicity rights. (Compl. ¶¶ 14, 33, 45). A favorable ruling would redress the injury by
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`compensating Plaintiffs for the use of their image in advertising and/or enjoining Ancestry’s
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`further use thereof. Thus, Plaintiffs have standing to raise their right of publicity claim before
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`this Court.
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`B.
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`Personal Jurisdiction
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`Plaintiffs argue that Ancestry’s contacts with Nevada giving rise to this action establish
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`specific personal jurisdiction. (Pls.’ MTD Resp. 3:2–6:4). Specific personal jurisdiction refers
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`to “jurisdiction based on the relationship between the defendant’s forum contacts and the
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`plaintiff’s claims.” Menken v. Emm, 503 F.3d 1050, 1057 (9th Cir. 2007). Personal jurisdiction
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`must arise out of “contacts that the defendant himself creates with the forum State.” Walden v.
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`Fiore, 571 U.S. 277 (2014) (internal quotations omitted). Further, personal jurisdiction cannot
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`be established from the conduct of a plaintiff or third parties within the forum. Id. In other
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`words, “the plaintiff cannot be the only link between the defendant and the forum.” Id. at 285.
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`Courts utilize a three-prong test to analyze whether the assertion of specific personal
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`jurisdiction in a given forum is proper:
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`(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;
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`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).
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`(2) the claim must be one which arises out of or relates to the defendant’s forum
`related activities; and
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`(3) the exercise of jurisdiction must comport with fair play and substantial justice,
`i.e. it must be reasonable.
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`Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004).
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`“The plaintiff bears the burden of satisfying the first two prongs of the test.” Menken,
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`503 F.3d at 1057. If the plaintiff satisfies the first two prongs, the burden will shift to the
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`defendant to show that exercising jurisdiction would be unreasonable. Id. However, “[i]f the
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`plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the
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`forum state.” Id. The Court’s below discussion considers Ancestry’s protestations that it did
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`not purposefully direct its activities at Nevada and that Plaintiffs’ claims are not related to
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`Ancestry’s activities in the forum.
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`1. Purposeful Direction
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`When a plaintiff alleges claims sounding in tort, a defendant’s minimum contacts are
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`generally shown by the activities the defendant purposefully directed at the forum.
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`Schwarzenegger, 374 F.3d at 802 (explaining that the purposeful direction formulation of the
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`first element generally applies to tort claims, whereas