1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 TOMIKA MAY and MATTHEW Case No. 23-cv-01394-MMC KIRSCHENBAUM, 7 Plaintiffs, ORDER GRANTING DEFENDANT'S 8 MOTION TO DISMISS; VACATING v. HEARING 9 PHILO, INC., 10 Defendant.

11 12 Before the Court is defendant Philo, Inc.'s ("Philo") Motion, filed May 17, 2023, "to 13 Dismiss the Class Action Complaint." Plaintiffs Tomika May ("May") and Matthew 14 Kirschenbaum ("Kirschenbaum") have filed opposition, to which Philo has replied. 15 By order filed July 7, 2023 ("July 7 Order"), the Court, after considering the parties' 16 respective written submissions, deferred ruling on the motion, finding plaintiffs were 17 entitled to conduct discovery relevant to whether May has standing, an issue raised in the 18 motion to dismiss, and afforded plaintiffs leave to file supplemental opposition following 19 the completion of such discovery. Thereafter, by letter filed October 17, 2023, plaintiffs 20 advised the Court that the discovery had been completed and that they did not intend to 21 file supplemental opposition. Accordingly, the Court, having again read and considered 22 the parties' respective written submissions, deems the matter appropriate for 23 determination on the parties’ respective written submissions,1 VACATES the hearing 24 1 On October 18, 2023, Philo filed a letter, attaching thereto discovery provided to 25 plaintiffs that, Philo contends, further supports its argument that May lacks standing. As plaintiffs did not file supplemental opposition, however, there is no additional briefing to 26 which Philo may reply, and, accordingly, the Court has not considered Philo's letter. Additionally, the Court notes that, in the future, neither party should file letters on the 27 docket. See Civil L.R. 3-4(a) (setting forth requirements as to "each paper presented for 1 scheduled for December 1, 2023, and rules as follows. 2 BACKGROUND 3 In their Complaint, plaintiffs allege that "Philo operates a digital subscription 4 service where subscribers may view television shows and movies" (see Compl. ¶ 2), that 5 Philo has "installed" on its website "the Facebook Pixel" (see Compl. ¶¶ 4, 22), and that 6 "Philo disclosed to Facebook, through the Facebook Pixel, the FID of the subscriber[s]2 7 and the specific video the subscriber[s] requested or obtained" (see Compl. ¶ 25). 8 Plaintiffs further allege that May has been a "Philo subscriber" since October 2021 and is 9 a "Facebook user" (see Compl. ¶ 43), that Kirschenbaum was a "Philo subscriber from 10 2019 through August 2021" and is also a "Facebook user" (see Compl. ¶ 48), and that 11 Philo disclosed to Facebook each plaintiff's FID and the "title of the videos" each plaintiff 12 "requested or obtained" (see Compl. ¶¶ 46, 51). Based on the above-referenced 13 allegations, plaintiffs assert, on their own behalf and on behalf of a putative class, a claim 14 against Philo under the Video Privacy Protection Act ("VPPA"). 15 DISCUSSION 16 The VPPA "bars a 'video tape service provider' from knowingly disclosing 17 'personally identifiable information concerning any consumer of such provider.'" See 18 Eichenberger v. ESPN, Inc.,

(9th Cir. 2017) (quoting 18 U.S.C. 19 § 2710(b)(1)).3 Philo, in seeking dismissal of plaintiffs' VPPA claim, argues May lacks 20 standing and that Kirschenbaum's claim is barred by Rule 41(a)(1)(B) of the Federal 21 Rules of Civil Procedure. The Court considers the two arguments in turn. 22 A. May: Standing 23 Plaintiffs, as noted, allege that Philo, through its use of the Facebook Pixel, 24

25 2 An "FID," or "Facebook ID," is "a unique sequence of numbers linked to [an] individual's Facebook profile" (See Compl. ¶¶ 4-5.) 26 3 Plaintiffs allege Philo is a "video tape service provider" because "it is engaged in 27 the business of delivering audiovisual materials that are similar to prerecorded video 1 disclosed to Facebook personal information about subscribers, including May. In support 2 of the instant motion, Philo offers evidence that "[t]he Facebook Pixel was removed from 3 all pages that play video on Philo's website in August 2022" (see Bland Decl. ¶ 6), and 4 that "the Philo account associated with . . . May's email address" first "played videos on 5 the Philo website" on October 28, 2022 (see id. ¶ 5). In light thereof, Philo argues, May 6 did not suffer a violation of her right to privacy, and, consequently, lacks standing to 7 assert a VPPA claim. See TransUnion LLC v. Ramirez,

(2021) 8 (holding plaintiff lacks "Article III standing" in absence of having "suffered an injury in fact 9 . . . likely caused by the defendant"). 10 In its July 7 Order, the Court found Philo's showing, if unrebutted, sufficient to 11 establish May's lack of standing to assert a claim under the VPPA. As plaintiffs have had 12 an opportunity to, and did conduct, jurisdictional discovery, and there being no evidence 13 offered by plaintiffs to rebut Philo's showing, the Court, for the reasons stated in the July 14 7 Order, finds May lacks standing. 15 Accordingly, to the extent Philo seeks dismissal of May's claim, the motion to 16 dismiss will be granted. 17 B. Kirschenbaum: Rule 41(a)(1)(B) 18 There is no dispute that Kirschenbaum was a named plaintiff in two prior actions in 19 which the plaintiffs therein, including Kirschenbaum, asserted a VPPA claim based on the 20 same allegations made in the instant action. It is also undisputed that, in both of those 21 two prior actions, Kirschenbaum, along with the other plaintiffs named in the amended 22 complaints filed in those actions, voluntarily dismissed the action. Philo argues that, in 23 light of the two prior voluntary dismissals, Kirschenbaum's third action asserting a VPPA 24 claim, i.e., the instant action, is barred by Rule 41(a)(1)(B). 25 Rule 41(a)(1)(A) provides that a plaintiff "may dismiss an action without a court 26 order by filing: (i) a notice of dismissal before the opposing party serves either an answer 27 or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties 1 "effect" of such dismissal as follows: "Unless the notice or stipulation states otherwise, 2 the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or 3 state-court action based on or including the same claim, a notice of dismissal operates as 4 an adjudication on the merits." See Fed. R. Civ. P. 41(a)(2). 5 Plaintiffs do not dispute that, given the two prior dismissals, application of Rule 6 41(a)(1)(B) would preclude Kirschenbaum from proceeding with the instant action. 7 Plaintiffs argue, however, that Philo should be judicially estopped from relying on Rule 8 41(a)(1)(B), because, they contend, Philo, in the two prior actions, took the position that 9 Kirschenbaum "was not a party to the amended complaints" (see Pls.' Opp. at 1:10-11), 10 whereas Philo, in the instant action, is taking the position that, "in essence, . . . 11 Kirschenbaum was a party to those actions" (see id. at 1:13-14 (emphasis in original)). 12 According to plaintiffs, those "two positions are obviously contradictory" (see id. at 1:16), 13 and, consequently, Philo is barred, under the doctrine of judicial estoppel, from relying on 14 Rule 41(a)(1)(B). 15 In each of the subject prior actions, Philo filed a motion to dismiss the amended 16 complaint in which Kirschenbaum had been added as a plaintiff (see In re Philo Privacy 17 Litigation, Case No. 22-cv-04296 HSG, Doc. No. 60; Bryant v. Philo, Inc., Case No. 23- 18 cv-00135, Doc. No. 27 HSG), arguing that the plaintiffs in the initial complaint lacked 19 standing and that, as a result, those plaintiffs could not amend to add new plaintiffs, such 20 as Kirschenbaum. Although it is not clear Philo's earlier argument is contrary to the 21 position it takes in the instant action, such earlier argument, even if contrary to its instant 22 position, does not give rise to an estoppel, as the district court to whom each of the prior 23 actions was assigned did not decide either motion to dismiss; rather, the plaintiffs in each 24 prior action voluntarily dismissed their claims before the district court ruled on said 25 motions. Under such circumstances, the doctrine of judicial estoppel is inapplicable, the 26 Ninth Circuit having "restricted the application of judicial estoppel to cases where the 27 court relies on, or accepted, the party's previous inconsistent position." See Casa del 1 quotation and citation omitted). 2 Accordingly, to the extent Philo seeks dismissal of Kirschenbaum's claim, the 3 motion to dismiss will be granted. 4 CONCLUSION 5 For the reasons stated above, Philo's motion to dismiss is hereby GRANTED. The 6 || Clerk of Court is DIRECTED to close the file. 7 IT IS SO ORDERED. 8 9 || Dated: November 6, 2023 MAXWNE M. CHESNEY 10 Untted States District Judge 11 12

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