United States District Court, N.D. California
ORDER RE RENEWED MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION RE: DKT. NO. 227
DONATO UNITED STATES DISTRICT JUDGE
putative class action case under the Illinois Biometric
Information Privacy Act, 740 Ill. Comp. Stat. 14/1 et
seq. (“BIPA”), named plaintiffs allege that
defendant Facebook, Inc. (“Facebook”) unlawfully
collected and stored their biometric data without prior
notice or consent. Dkt. No. 40. Facebook asks to dismiss the
case under Federal Rule of Civil Procedure 12(b)(1) and
Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (2016)
(Spokeo I) on the ground that plaintiffs have failed
to allege a concrete injury in fact. Dkt. No. 227. The motion
consolidated action originated as three separate cases
originally filed in Illinois courts. Two of the cases were
filed in federal court, while a third was filed in Illinois
state court and removed to federal court by Facebook under
the Class Action Fairness Act. Notice of Removal, Licata v.
Facebook, Inc., No. 1:15-cv-04022 (N.D. Ill. filed May 6,
2015) (No. 1). The parties stipulated to transfer the cases
to this Court, where they were consolidated into a single
action. In re Facebook Biometric Info. Privacy
Litig., 185 F.Supp.3d 1155, 1159 (2016). The
consolidated class action complaint, Dkt. No. 40, is the
consolidated complaint alleges that Facebook “operates
the largest social network in the world, with over one
billion active users.” Dkt. No. 40 ¶ 1. The named
plaintiffs, Nimesh Patel, Adam Pezen and Carlo Licata, use
Facebook “to, among other things, upload and share
photographs with friends and relatives.” Id.
¶¶ 2, 7-9.
claims arise out of Facebook's “Tag
Suggestions” program launched in 2010. Id.
¶ 3. A user “tags” other Facebook users and
non-users by identifying them in photographs uploaded to
Facebook. Id. ¶ 2. “Tag
Suggestions” is intended to encourage more tagging.
Id. ¶ 3. It scans uploaded photographs
“and then identif[ies] faces appearing in those
photographs.” Id. If the program
“recognizes and identifies one of the faces appearing
in [a] photograph, Facebook will suggest that
individual's name or automatically tag them.”
Id. In effect, the program associates names with
faces in photos and prompts users to tag those people.
Suggestions uses “state-of-the-art facial recognition
technology” to extract biometric identifiers from
photographs that users upload. Id. ¶¶ 4,
22. Facebook creates and stores digital representations
(known as “templates”) of people's faces
based on the geometric relationship of facial features unique
to each individual, “like the distance between [a
person's] eyes, nose and ears.” Id. ¶
allege that Facebook collected users' biometric data
secretly and without consent. Specifically, they allege that
the Tag Suggestions program violated BIPA because Facebook
did not: “ properly inform plaintiffs or the class
in writing that their biometric identifiers (face geometry)
were being generated, collected or stored;  properly
inform plaintiffs or the class in writing of the specific
purpose and length of time for which their biometric
identifiers were being collected, stored, and used; 
provide a publicly available retention schedule and
guidelines for permanently destroying the biometric
identifiers of plaintiffs and the class (who do not opt-out
of ‘Tag Suggestions'); and  receive a written
release from plaintiffs or the class to collect, capture, or
otherwise obtain their biometric identifiers.”
Id. ¶ 5. Plaintiffs seek declaratory and
injunctive relief and statutory damages. Id. ¶
Rule 12(b)(1) jurisdictional attack may be facial or factual.
In a facial attack, the challenger asserts that the
allegations contained in a complaint are insufficient on
their face to invoke federal jurisdiction. By contrast, in a
factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke
federal jurisdiction.” Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citations
facial jurisdictional challenge, the Court takes all factual
allegations in the complaint as true and draws all reasonable
inferences in plaintiffs' favor. Pride v.
Correa, 719 F.3d 1130, 1133 (9th Cir. 2013). In a
factual challenge, the Court “may review evidence
beyond the complaint without converting the motion to dismiss
into a motion for summary judgment” and “need not
presume the truthfulness of the plaintiff's
allegations.” Safe Air, 373 F.3d at 1039
(citations omitted). This discretion should be used with
caution so that it does not usurp a merits determination. A
“jurisdictional finding of genuinely disputed facts is
inappropriate when the jurisdictional issue and substantive
issues are so intertwined that the question of jurisdiction
is dependent on the resolution of factual issues going to the
merits of an action.” Id. (internal quotations
and citations omitted).
Article III Standing
courts are courts of limited jurisdiction, and the
“case or controversy” requirement of Article III
of the U.S. Constitution “limits federal courts'
subject matter jurisdiction by requiring, inter alia, that
plaintiffs have standing.” Chandler v. State Farm
Mut. Auto. Ins. Co., 598 F.3d 1115, 1121 (9th Cir.
2010). As the Supreme Court recently reiterated, a plaintiff
must demonstrate standing to sue by alleging the
“irreducible constitutional minimum” of (1) an
“injury in fact” (2) that is “fairly
traceable to the challenged conduct of the defendants”
and (3) “likely to be redressed by a favorable judicial
decision.” Spokeo I, 136 S.Ct. at 1547. These
requirements may not be abrogated by Congress. Id.
at 1548. The specific element of injury in fact is satisfied
when the plaintiff has “suffered ‘an invasion ...