Bonilla v. Ancestry.com Operations Inc.

574 F.Supp.3d 582

Sergio BONILLA, on behalf of himself and all others similarly situated, Plaintiff,

v.ANCESTRY.COM OPERATIONS INC., a Virginia Corporation; Ancestry.com Inc., a Delaware Corporation; Ancestry.com LLC, a Delaware Limited Liability Company; and Does 1 through 50, inclusive, Defendants.

No. 20-C-07390

United States District Court, N.D. Illinois, Eastern Division.

Signed December 7, 2021

Benjamin Ross Osborn, Pro Hac Vice, Law Office of Benjamin R. Osborn, Brooklyn, NY, Marie Noel Appel, Pro Hac Vice, Michael F. Ram, Pro Hac Vice, Morgan and Morgan Complex Litigation Group, San Francisco, CA, Shannon Marie McNulty, Clifford Law Offices, Chicago, IL, for Plaintiff.

Daniel R. Lombard, Quinn Emanuel Urquhart & Sullivan, LLP, Lazar Pol Raynal, King & Spalding LLP, Chicago, IL, Cristina Aide Henriquez, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, John Wall Baumann, Pro Hac Vice, Shon Morgan, Quinn Emanuel Urquhart & Sullivan LLP, Los Angeles, CA, for Defendants Ancestry.com Operations, Inc., Ancestry.com, Inc., Ancestry.com, LLC.

MEMORANDUM OPINION AND ORDER

Virginia M. Kendall, United States District Judge

Before the Court is Defendants Ancestry.com Operations Inc., Ancestry.com Inc., and Ancestry.com LLC's (collectively, "Ancestry") Motion to Dismiss [30] Plaintiff's First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). As discussed herein, that Motion is granted in part and denied in part.

BACKGROUND

On a motion to dismiss under Rules 12(b)(2) and 12(b)(6), the Court accepts a complaint's well-pleaded factual allegations, with all reasonable inferences drawn in the non-moving party's favor, but not its legal conclusions. See Smoke Shop, LLC v. United States , 761 F.3d 779, 785 (7th Cir. 2014). The following factual allegations taken from Plaintiff's First Amended Complaint (Dkt. 29) are assumed true for purposes of this motion. W. Bend Mut. Ins. Co. v. Schumacher , 844 F.3d 670, 675 (7th Cir. 2016).

The crux of Plaintiff's claim centers on Ancestry's alleged use of Plaintiff's name, identity, image, and likeness to advertise and solicit Ancestry's paid products and services without Plaintiff's consent. (Dkt. 29 at ¶¶1-2). Ancestry's business model includes amassing databases of personal information and subsequently selling access to that information. This includes data gathered from yearbooks and aggregated into digital records that identify specific individuals (¶2). The Ancestry Yearbook Database includes over 47 million individual records from Illinois schools and universities. Ancestry advertises and promotes its products and services to new subscribers by offering a 14-day promotional "free trial" to temporarily access Ancestry's database. The purpose of offering this free trial is to induce users to subscribe to Ancestry's paid products and services. (¶¶7-8). Ancestry also advertises by sending promotional emails to users who have signed up for a free account but not a paid subscription. (¶11). These promotional messages contain "hints" corresponding to yearbook records Ancestry believes may be related to the potential customer (¶11).

Plaintiff is a resident of Great Lakes, Illinois. He is not a subscriber of any Ancestry products or services. (¶31). Ancestry uses Plaintiff's name, photos, image, and likeness for a commercial purpose by selling access to his identity in its products. (¶34). Ancestry's Yearbook Database includes a record from a 1995 yearbook where Plaintiff attended school. This record is part of the database Ancestry uses to populate its promotional emails to potential customers. (¶44). Plaintiff has never provided consent for Ancestry to use his name, photograph or likeness in its advertising or solicitation of paid products and services (¶32).

Plaintiff brings this action against Ancestry alleging violation of the Illinois Right of Publicity Act ("IRPA") (Count I), violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA") (Count II), intrusion upon seclusion (Count III), and unjust enrichment (Count IV). Ancestry moves to dismiss. (Dkt. 30).

LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), the complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Court accepts the complaint's factual allegations as true and draws all permissible inferences in Plaintiff's favor. Schumacher , 844 F.3d at 675 (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). The Court is "not bound to accept as true a legal conclusion couched as a factual allegation." Olson v. Champaign Cty. , 784 F.3d 1093, 1099 (7th Cir. 2015) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Evaluating whether a plaintiff's claim is sufficiently plausible to survive a motion to dismiss is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Schumacher , 844 F.3d at 676 (quoting McCauley v. City of Chicago , 671 F.3d 611, 616 (7th Cir. 2011) ; Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).

DISCUSSION

I. Personal Jurisdiction

A. Legal Standard

Specific jurisdiction "depends on an ‘affiliatio[n] between the forum and the underlying controversy,’ principally, activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation."

Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ; see also, e.g. , Levy v. Chubb Corp. , 2001 WL 204793, at *2 (N.D. Ill. Feb. 28, 2001) ("Specific jurisdiction refers to jurisdiction over a defendant in a suit ‘arising out of or related to the defendant's contacts with the forum.’ "). There are three "essential requirements" for the exercise of specific jurisdiction over an out-of-state defendant: (1) the defendant's contacts with the forum must show that it "purposefully availed [itself] of the privilege of conducting business in the forum state or purposefully directed [its] activities at the state;" (2) the plaintiff's alleged injury must have arisen out of the defendant's forum-related activities; and (3) any exercise of personal jurisdiction must comport with traditional notions of fair play and substantial justice. Curry v. Revolution Labs., LLC , 949 F.3d 385, 398 (7th Cir. 2020). The essential point of the personal jurisdiction inquiry is to "ensure that an out-of-state defendant is not bound to appear to account for merely ‘random, fortuitous, or attenuated contacts’ with the forum state." Id. The "mere fact that [the defendant's] conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction," and "the plaintiff cannot be the only link between the defendant and the forum," Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc. , 751 F.3d 796, 801-802 (citations omitted).

A plaintiff has the burden of establishing personal jurisdiction, and where, as here, the issue is raised by a motion to dismiss and decided on the basis of written materials rather than an evidentiary hearing, the plaintiff need only make a prima facie showing of jurisdictional facts. Tamburo v. Dworkin , 601 F.3d 693, 700 (7th Cir. 2010). At this stage, all well-pleaded facts alleged in the complaint are taken as true and any factual disputes are resolved in plaintiff's favor. Id.

B. Analysis

Ancestry is subject to the Court's personal jurisdiction in this case: Plaintiff alleges that Ancestry purposefully directed its activities towards Illinois; Plaintiff's alleged injuries arise from forum-related activities; and exercising personal jurisdiction over Ancestry does not offend traditional notions of fair play and substantial justice.¹ See Curry v. Revolution Labs., 949 F.3d 385, 398 (7th Cir. 2020).

Plaintiff's amended complaint alleges that Ancestry amassed millions of individual yearbook records, including by digitizing records on-site and by accepting donations shipped to Ancestry by Illinois residents. Plaintiff further alleges that Ancestry regularly advertises to Illinois residents, promotes its subscription services to Illinois residents at libraries, and utilizes video advertisements (Dkt. 29 ¶¶17-22). Plaintiff also alleges that those records, including Plaintiff's record (his name, photograph, image, and likeness) are used for the commercial purpose of advertising and promoting the purchase of its subscription service to Illinois residents. Dkt. 29 at ¶23-24. This qualifies as intentional contacts with the forum state sufficient to determine purposeful direction. See, e.g., Lukis v. Whitepages, Inc. , 454 F.Supp.3d 746, 757 (N.D. Ill. 2020). Ancestry is correct that Plaintiff's residency in Illinois, standing alone, would be insufficient to confer personal jurisdiction over Ancestry in this case. Advanced Tactical Ordnance Sys., LLC , 751 F.3d at 802 (7th Cir. 2014) ("[T]here can be no doubt that the plaintiff cannot be the only link between the defendant and the forum.") citing Walden v. Fiore , 571 U.S. 277, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014). Were Plaintiff's allegations so limited, the Court would not be able to exercise personal jurisdiction because there would not be sufficient suit-related contacts apart from Plaintiff's residency. But Plaintiff's allegations are not so limited. While Plaintiff's yearbook record is not from Illinois (it is from Nebraska), Plaintiff's allegations are that Ancestry used his name, image, likeness and photograph in advertisements to Illinois residents. The action ultimately rests not solely on Ancestry's acquisition of yearbook...