691 F.Supp.3d 1031
E.D. Mo.2023Background
- Plaintiff Jill Adams sued PSP Group, LLC (Pet Supplies Plus), alleging its website deployed third‑party "Session Replay" code (including Microsoft Clarity) that captured and transmitted visitors’ interactions in real time.
- Adams alleges she visited the site from Missouri, clicked links to find a store location, then purchased in a physical store; she does not allege she entered or submitted any personal, sensitive, or financial data on the website.
- Claims: 11 counts (Missouri Wiretap Act, MMPA, intrusion upon seclusion, trespass/ conversion/replevin, various ECPA and Stored Communications Act claims, CFAA), seeking class relief.
- Defendant moved to transfer venue to the Western District of Washington (28 U.S.C. §1404 and first‑filed rule) and moved to dismiss under Rules 12(b)(1), (2), and (6).
- Court denied transfer (no basis to treat Microsoft’s Washington‑based development as venue for Pet Supplies Plus and no parallelism with the Zillow suit). The Court granted dismissal for lack of subject‑matter jurisdiction because Adams failed to plead a concrete Article III injury; other defenses (personal jurisdiction, merits) were not reached. Case dismissed without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Transfer under §1404(a) (venue) | Venue in Missouri appropriate; case challenges PSP conduct in Missouri | Events giving rise to claims centered on Microsoft Clarity developed in Washington, so Washington is proper | Denied — focus is on defendant’s activities; Microsoft is not a defendant and PSP has no alleged ties to Washington |
| Transfer under first‑filed rule | Adams’ prior Zillow suit is not controlling here | Prior Adams‑Zillow litigation and plaintiff’s counsel’s transfer of that case support consolidation in Washington | Denied — suits involve different defendants/websites; not parallel; first‑filed rule inapplicable |
| Article III standing (injury‑in‑fact) | Statutory wiretap/privacy violations and alleged intrusion upon seclusion constitute concrete privacy harms sufficient for standing | No concrete injury alleged: plaintiff did not disclose personal/sensitive information and alleges only clicking/receiving store location | Granted dismissal for lack of standing — plaintiff failed to allege a concrete, particularized injury closely related to historically recognized privacy harms |
| Personal jurisdiction / merits | (Plaintiff contests dismissal on merits/jurisdiction) | PSP moved to dismiss on personal jurisdiction and failure to state a claim | Not reached — court declined to address these defenses because it lacked subject‑matter jurisdiction; dismissal without prejudice |
Key Cases Cited
- Spokeo, Inc. v. Robins, 578 U.S. 330 (statutory violation alone does not satisfy Article III; plaintiff must plead a concrete injury)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (only plaintiffs concretely harmed by statutory violations have Article III standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requires injury in fact, traceability, redressability)
- Warth v. Seldin, 422 U.S. 490 (standing is a jurisdictional threshold)
- Steen v. Murray, 770 F.3d 698 (8th Cir. focus on defendant’s relevant activities for venue analysis)
- Nw. Airlines, Inc. v. Am. Airlines, Inc., 989 F.2d 1002 (first‑filed rule supports judicial economy and comity)
- Orthmann v. Apple River Campground, Inc., 765 F.2d 119 (first‑filed doctrine and priority of courts where jurisdiction first attaches)
- Dalton v. NPC Int’l, Inc., 932 F.3d 693 (dismissal for lack of standing is without prejudice)