Facts
- On October 18, 2024, the court directed Sherhonda Golden and NBCUniversal Media, LLC ("NBCU") to discuss remanding the case in light of the Salazar decision [lines="1-4"].
- On November 22, 2024, both parties expressed differing views on addressing the case's appeal—Golden favored an indicative ruling, while NBCU opposed it [lines="10-15"].
- The court had previously dismissed Golden's VPPA claim, which led to the dismissal of her state law claim for unjust enrichment [lines="21-23"].
- The court recognized the potential for a relevant change in law due to the Second Circuit’s ruling in Salazar that implications arise for claims under the VPPA [lines="85-102"].
- Golden alleged that her use of the Today.com digital subscription allowed for personal information transmission to NBCU’s third-party partners, supporting her claim [lines="93-96"].
Issues
- Whether the court's prior dismissal of Golden's VPPA claim should stand despite the change in law established by Salazar [lines="18-20"].
- Whether Golden's allegations are sufficient under the newly interpreted VPPA to establish her as a "subscriber of goods and services" [lines="100-102"].
Holdings
- The court indicated that if remanded, it would deny NBCU's motion to dismiss Golden's VPPA claim based on the Second Circuit's decision in Salazar [lines="18-20"].
- The court concluded that Golden had plausibly pled her status as a "subscriber" under the VPPA, allowing her claim to proceed [lines="100-102"].
OPINION
Case Information
*1 PAUL A. ENGELMA YER, District Judge:
On October 18, 2024, the Court ordered plaintiff Sherhonda Golden and defendant NBCUniversal Media, LLC ("NBCU") to confer with the goal to agree on a mechanism by which to secure the expedited remand of this case from the Second Circuit to this Court for reconsideration, in light of the decision in Salazar v. Nat'! Basketball Ass 'n, 118 F.4th 533 (2d Cir. 2024). Dkt. 47. On November 22, 2024, Golden and NBCU filed a joint letter setting forth their respective views. Golden prefers issuance of an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1; NBCU opposes that request and prefers for the appeal in this case to proceed notwithstanding the patently consequential decision in Dkt. 50.
For the reasons set forth below, the Court issues a ruling to the effect that, were the case remanded, it would deny NBCU's motion to dismiss Golden's Video Privacy Protection Act ("VPP A") claim on the basis of Salazar.
Because the Court dismissed Golden's VPPA claim, which was the sole basis for subject matter jurisdiction, the Court declined to exercise supplemental jurisdiction over, and dismissed, Golden's remaining claim, for unjust enrichment under state law. See Brzak v. United Nations, 597 F.3d 107, 113 (2d Cir. 20 I 0) ("[I]f a plaintiffs federal claims are dismissed before trial, 'the state claims should be dismissed as well."') (citation omitted). The Comi's indicative ruling thus does not address the unjust enrichment claim.
I
Rule 62.1 permits a district court to make an indicative ruling on a motion for relief that is otherwise barred by a pending appeal. "The filing of a notice of appeal is an event of jurisdictional significance" that "confers jurisdiction on the court of appeals and divests the district comt of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Rule 62.l(a), however, provides:
If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (I) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
Fed. R. Civ. P. 62.l(a). In authorizing indicative rulings, the Rule promotes efficiency and the timely resolution of motions that could fmther the appeal or obviate its necessity. Salient here, one of "[t]he major grounds justifying reconsideration [is] an intervening change of controlling law." Virgin At!. Airways, LTD v. Nat'! Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) ( citation omitted).
The standards for an indicative ruling are clearly met here. In its September 11, 2024 decision, this Comt granted NBCU's motion to dismiss Golden's Third Amended Complaint ("TAC"). Its decision was based in pait on-and broadly reasoned in common with-Judge Rochon's reasoning in Salazar v. Nat'! Basketball Ass'n, 685 F. Supp. 3d 232 (S.D.N.Y. 2023). Dkt. 44 ("Op."). Specifically, the Comt held that Golden's free subscription to Today.corn's digital newspaper "that contained hyperlinks to videos on the Today.com website-that non- subscribers could just as easily access on the same website-d[id] not make her a subscriber to video content," and thus barred her VPPA claim. Op. at 12 (emphasis in original). In so ruling, however, the Comt also recognized that, "[i]n the event the Second Circuit resolves in a manner inconsistent with this decision, Golden may ... seek an indicative ruling from this Court under Rule 62.1." Dkt. 44 at 13 n.7.
Such has now occmTed. In vacating the district court's decision in Salazar, the Second Circuit held that "[t]he phrase 'goods or services' in the VPPA is not cabined to audiovisual goods or services, but also reaches the [company's] online newsletter. By alleging that he exchanged personal information in return for periodically receiving the online newsletter, [plaintiff] plausibly pied that he is a 'subscriber of that newsletter." Salazar, 118 F.4th at 544. That holding is consequential here. Golden's TAC alleged that she used her Today.com digital subscription to view videos through its website and mobile application while concurrently logged into her Face book account,2 which caused her personal viewing infmmation to be transmitted to NBCU's third-party business partners. Dkt. 38 at 2-5. The TAC has thus plausibly pied that she is a "subscriber of goods and services" pursuant to the VPP A.
Accordingly, were the Second Circuit to remand this case for reconsideration, the Court would withdraw its grant ofNBCU's motion to dismiss, based on the Circuit's decision in The Court would then solicit the patties' views as to next steps, including, from NBCU, whether leaves open any alternative bases for pursuing dismissal.
Because Salazar did not adequately plead or preserve his VPP A claim premised on the usage of a mobile application, the Second Circuit did not address whether an app, as opposed to a website, could form the basis of a "subscriber" relationship. Salazar, 118 F.4th at 537 n.2. Given the Circuit's conclusion that the exchange of personal info1mation for access demonstrates, at the pleading stage, that one is a "subscriber" under the VPP A, a mobile application would appear similarly to plead a "subscriber" relationship. Id. at 552-53 ( citation omitted).
SO ORDERED.
Paul A. Engelmayer ' United States District Judge Dated: November 27, 2024
New York, New York