Adams v. PSP Grp.

691 F.Supp.3d 1031

Jill ADAMS, on behalf of herself and all others similarly situated, Plaintiff, v. PSP GROUP, LLC, d/b/a Pet Supplies Plus, Defendant.

No. 4:22-CV-1210 RLW

United States District Court, E.D. Missouri, Eastern Division

Signed September 13, 2023

Tiffany M. Yiatras, Consumer Protection Legal, Ellisville, MO, Bryan L. Bleichner, Pro Hac Vice, Philip Joseph Krzeski, Pro Hac Vice, Chestnut Cambronne PA, Minneapolis, MN, for Plaintiff.

Gerard Michael Stegmaier, Pro Hac Vice, Reed Smith LLP, Washington, DC, James L. Rockney, Pro Hac Vice, Reed Smith LLP, Pittsburgh, PA, Karen Vaysman, Reed Smith LLP, Chicago, IL, for Defendant.

MEMORANDUM AND ORDER

RONNIE L. WHITE, UNITED STATES DISTRICT JUDGE

This matter is before the Court on a motion to dismiss filed by Defendant PSP Group, LLC, doing business as Pet Supplies Plus, (hereinafter "Defendant" or "Pet Supplies Plus"). (ECF No. 30). Defendant moves pursuant to Fed. R. Civ. P. 12(b)(1), (2), and (6) to dismiss Plaintiff Jill Adams's First Amended Complaint for lack of standing, lack of personal jurisdiction, and for failure to state a claim. Also before the Court is Defendant's Motion to Transfer. (ECF No. 34). Defendant moves that the case be transferred to the United States District Court for the Western District of Washington pursuant to 28 U.S.C. § 1404 or, alternatively, under the first-filed rule. Plaintiff Adams opposes both motions, which are fully briefed and ripe for review.¹ For the reasons that follow, the Court denies Defendant's Motion to Transfer and grants Defendant's Motion to Dismiss for lack of subject matter jurisdiction. Plaintiff does not have standing to bring her claims in federal court.

I. Background

Pet Supplies Plus offers pet-related products for sale through its website, www.petsuppliesplus.com. Plaintiff Jill Adams alleges in her First Amended Complaint (hereinafter "Complaint") that Pet Supplies Plus unlawfully intercepts the electronic communications of visitors to its website. According to the Complaint, Defendant directed third parties, who are not named as defendants in this suit, to embed on its website Session Replay Code, which is then deployed on visitors' internet browsers. Session Reply Code is capable of tracking and recording in real time "mouse or finger movements, clicks, keystrokes (such as text being entered into an information field or text box), URL of web pages visited, and/or other electronic communications ("Website Communications"). (ECF No. 27 at 1). Session Replay Code, such as that implemented on www.petsuppliesplus.com, enables website operators to record, save, and replay website visitors' interactions on a website.

The Complaint alleges that Session Replay Code allows a website to capture and record "actions that reveal the visitor's personal or private sensitive data," even when the visitor does not intend to submit his or her data to the website. (ECF No. 27 at 9). "For example, if a user writes information into a text form field, but then chooses not to click a 'submit' or 'enter' button on the website, the Session Replay Code may nevertheless cause the non-submitted text to be sent to the designated event-response-receiving server before the user deletes the text or leaves the page. This information will then be viewable to the website owner when accessing the session replay." (ECF No. 27 at 11). The Complaint further alleges, "because the Session Replay Code records not only the contents of Plaintiff's intended communications, but also documents and records content Plaintiff does not choose to communicate, the Session Replay Code acts to invade the privacy of the user." (Id.) Information captioned from a website visit by Session Replay Code is sent to a server. (ECF No. 27 at 10).

According to the Complaint, Pet Supplies Plus uses various Session Replay Codes from third-party providers on its website to track and analyze website visitors' interactions with www.petsuppliesplus.com. One Session Replay Code Defendant uses is Clarity, which was developed by Microsoft. Plaintiff alleges Clarity offers the following three standard approaches for masking sensitive information collected from a user's interactions with a website: (1) strict - all text entered by a user is purportedly masked; (2) balanced - sensitive text entered into certain specifically pre-coded fields, such as passwords and credit card information, is masked; and (3) relaxed - no text entered by a user is masked. Approaches can also be customized. Plaintiff does not allege which approach Pet Supplies Plus uses on its website.

Plaintiff alleges she visited www.petsuppliesplus.com on her device while she was located in Missouri, although she does not allege when she visited the website. She also does not allege that she made a purchase on the website. The Complaint alleges the following:

During Plaintiff's visit to www.petsuppliesplus.com and its subpages, Plaintiff visited the website to find where the nearest brick and mortar store was located. As a result of Plaintiff's interactions (e.g., clicking buttons and links, etc.) with the website, Plaintiff became informed of the location of the nearest Pet Supplies Plus store. As a result, Plaintiff then purchased a product at the physical Pet Supplies Plus store identified on the Pet Supplies website.

(ECF No. 27 at 18-19). Plaintiff does not specify what information she shared on the website, if any. For example, Plaintiff does not allege what information she typed or entered into the website's data fields. Plaintiff does allege that when she visited Pet Supplies Plus's website, the contents of her communications with the website were intercepted by Session Replay Code and simultaneously transmitted to third-party Session Replay Providers. (ECF No. 27 at 23).

The Complaint alleges that Defendant never alerted or asked Plaintiff for permission to watch, intercept, and record her visit to Defendant's website using Session Replay Code. It also alleges Plaintiff never consented to being watched or having her electronic communications on Defendant's website intercepted by Defendant or anyone acting on Defendant's behalf, and she was not given the option to opt out.

In her Complaint, Plaintiff brings the following eleven counts against Pet Supplies Plus pursuant to state and federal law: violations of the Missouri Wiretap Act, Mo. Rev. Stat. §§ 542.400, et seq., (Count I); violations of the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. §§ 407.010, et seq., (Count II); Invasion of Privacy - Intrusion Upon Seclusion (Count III); Trespass to Chattels (Count IV); Conversion to Chattels (Count V); Replevin (Count VI); violations of the Electronic Communications Privacy Act - Unauthorized Interception, Use, and Disclosure, 18 U.S.C. §§ 2511(1), et seq., (Count VII); violation of the Electronic Communications Privacy Act - Unauthorized Divulgence by Electronic Communications Service, 18 U.S.C. § 2511(3)(a), (Count VIII); violation of Title II of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2701, et seq., (Count IX); violation of Title II of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2702 et seq., (Count X); and violation of the Computer Fraud and Abuse Act ("CFAA") 18 U.S.C. §§ 1030, et seq., (Count XI).²

Plaintiff seeks to bring this lawsuit as a class action suit. Plaintiff brings this action individually and on behalf of a Missouri class. Plaintiff also seeks to bring claims on behalf of a nationwide class. Plaintiff seeks compensatory, statutory, and punitive damages, attorneys' fees, and costs.

II. Discussion

A. Defendant's Motion to Transfer Venue

The Court will first address Defendant's motion to transfer. In its motion, Pet Supplies Plus seeks to have this case transferred, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Western District of Washington, where similar suits involving Session Reply Code are pending. Alternatively, Defendant argues that the Court should transfer this case to the Western District of Washington under the first-filed rule, because Plaintiff and her counsel filed a similar lawsuit involving the same software and nearly identical factual allegations against Zillow Group, Inc., which is currently pending in the Western District of Washington. Defendant argues transfer would allow for consolidation of this action with related actions and, therefore, avoid duplicative litigation, potentially inconsistent results, and eliminate unnecessary expense to the parties and courts.

1. Section 1404(a)

Section 1404(a) provides that, "[f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The determination whether to grant or deny a request to transfer under § 1404(a) is within the sound discretion of the trial court. Hubbard v. White, 755 F.2d 692, 694 (8th Cir. 1985).

The first step in the Court's § 1404(a) analysis is to determine whether the action "might have been brought" in the Western District of Washington. In other words, venue must be proper in the Western District of Washington.

Under the venue statute, a civil action may be brought in federal court in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S. § 1391(b). Section 1391(c) further provides:

an entity with the capacity to sue and be sued in its common name under applicable law, whether or

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