RICHARD PRATT and LARRY JONES, individually and on behalf of all others similarly situated, Plaintiffs, v. KSE SPORTSMAN MEDIA, INC., d/b/a OUTDOOR SPORTSMAN GROUP, INC., Defendant.
Case No. 1:21-cv-11404-TLL-PTM
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION
February 15, 2022
Honorable
ECF No. 24, PageID.647
OPINION AND ORDER GRANTING AND DENYING IN PART DEFENDANT‘S MOTION TO DISMISS
Defendant has filed a motion to dismiss Plaintiffs’ Complaint, which alleges violations of the Preservation of Personal Privacy Act (PPPA),1
I.
This case arises from Defendant‘s alleged disclosure of Plaintiffs’ “Private Reading Information” to several data miners that “disclosed their information to aggressive advertisers, political organizations, and non-profit companies,” leading to “a barrage of unwanted junk mail.” ECF No. 1 at PageID.1-2.
Defendant KSE Sportsman Media, Inc. is a Colorado corporation with its headquarters and principal place of business in New York, New York. Id. at PageID.7. Doing business as Outdoor Sportsman Group, Inc.,2 Defendant publishes several subscription magazines, including Guns & Ammo, RifleShooter, and Handguns. See id. at PageID.1, 7-8. Plaintiffs Richard Pratt and Larry Jones, paying subscribers of Guns & Ammo, RifleShooter, and Handguns, filed a class-action complaint individually and on behalf of all others similarly situated. Id. at PageID.1.
On June 15, 2021, Plaintiffs filed a complaint alleging that Defendant violated the PPPA. ECF No. 1. Specifically, Plaintiffs contend that Defendant “rents, exchanges,
On November 24, 2011, Defendant filed a Motion to Dismiss, advancing two arguments. See ECF No. 17. First, Defendant contends that Michigan‘s three-year statute of limitations, which applies to “death of a person or for injury to a person or property,” bars Plaintiffs’ PPPA claims. See id. at PageID.578-91. According to Plaintiffs, who filed the Complaint on June 15, 2021, their PPPA claims accrued between June 15, 2015 and July 30, 2016. ECF No. 20 at PageID.627; see ECF No. 1 at PageID.3-4, 23. Second, Defendant claims that if Michigan‘s six-year statute of limitations applies instead of the three-year statute of limitations, then Plaintiffs lack an injury in fact sufficient to establish Article III standing. See ECF No. 17 at PageID.591-94.
Before addressing the merits of Defendant‘s Motion, this Court will provide some background of the PPPA and the two Michigan statutes of limitations at issue.
II.
A.
Effective January 1, 1963, Michigan passed the Revised Judicature Act, which completely overhauled the organization and jurisdiction of Michigan‘s court system. See 1961 Mich. Pub. Acts No. 236. Among its numerous changes, the Act revised “the time within which civil actions and proceedings may be brought in the courts.” Id. To that end, the Michigan legislature enacted two statutes relevant to this case:
Although titled “Injuries to persons or property,” Michigan courts refer to
For personal injuries that are not traditional torts, the Michigan legislature enacted
These two statutes have worked in tandem for many years. Although litigants have tried to kick sand over the line,
B.
On May 10, 1988, Congress enacted the Video Privacy Protection Act of 1988 (VPPA).
Effective March 30, 1989, Michigan enacted the Preservation of Personal Privacy Act of 1988 (PPPA). 1988 Mich. Pub. Acts No. 378. The PPPA “lacks any significant litigation history.” Halaburda v. Bauer Publ‘g Co., No. 12-CV-12831, 2013 WL 4012827, at *2 (E.D. Mich. Aug. 6, 2013). What can be said of the PPPA is that it “provid[es] greater protections than the federal VPPA, including protection of book purchase or borrowing records.” Chad Woodford, Comment, Trusted Computing or Big Brother? Putting the Rights Back in Digital Rights Management, 75 U. COLO. L. REV. 253, 284 n.155 (2004) (citing
The original version of the PPPA contained a “$5,000-per-incident statutory damages provision.” Coulter-Owens v. Time Inc., 695 F. App‘x 117, 121 (6th Cir. 2017) (unpublished). Effective July 31, 2016, however, the Michigan legislature amended the PPPA to remove statutory damages, leaving only actual damages, damages for emotional distress, and reasonable costs and attorney‘s fees. 2016 Mich. Pub. Acts No. 92.
As a matter of first impression, the heart of this case is whether
III.
Under
In addition to these general principles, the Sixth Circuit has emphasized that because the statute of limitations is an affirmative defense, a
Michigan‘s substantive law applies because jurisdiction is based on diversity of citizenship under
Plaintiffs brings their claims under § 2 of the PPPA, which provides that:
Except as provided in [Michigan Compiled Laws § 445.1713] or as otherwise provided by law, a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.
With this background in mind, this Court will address Defendant‘s statute-of-limitations argument, infra Part IV, and then Defendant‘s standing argument, infra Part V. Admittedly, this is an unusual order to address the issues. But Defendant‘s standing argument conflates the resolution of the statute-of-limitations argument
IV.
Defendant contends that the three-year statute of limitations from
A.
As relevant,
A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within . . . 3 years after the time of the death or injury for all actions to recover damages for the death of a person or for injury to a person or property.
Under
Plaintiffs respond that Defendant‘s argument that
B.
A six-year statute of limitations applies to PPPA claims.
Although not directly addressing the PPPA—a statute—the Michigan Court of Appeals, the United States Court of Appeals for the Sixth Circuit, and the United States District Court for the Eastern District of Michigan have each explicitly held that
C.
As Defendant contends, Michigan created the PPPA “to protect individual consumers from certain disclosures of their personal information.” Halaburda v. Bauer Publ‘g Co., 2013 WL 4012827, at *6.
The Michigan legislature enacted the PPPA shortly after Congress enacted the federal Video Privacy Protection Act (VPPA),
Effective July 31, 2016, the Michigan legislature amended the PPPA to remove its $5,000 statutory-damages provision, requiring plaintiffs to prove “actual damages” to recover. See 2016 Mich. Pub. Acts No. 92 (codified at
After the Michigan legislature amended the PPPA, a few federal courts released opinions that assumed the three-year statute of limitations from
But those opinions assumed that the three-year statute of limitations applied because the parties in those cases did not contest the issue. Indeed, at that time, unlike now, there was no shorter statute of limitations that a defendant might have raised as an affirmative defense. See Stephanie A. Sheridan, Meegan Brooks & Surya Kundu, It‘s All About that [Data]base—More Unexpected Trouble for Companies that Share Customer Information, STEPTOE (Dec. 8, 2021), https://www.steptoe.com/en/news-publications/its-all-about-that-databasemore-unexpected-trouble-for-companies-that-share-customer-information.html [https://perma.cc/CA9S-7ASH] (explaining that plaintiffs brought “claims for statutory damages under the original version of the PPPA until the final days of the statute‘s limitations period, which up until recently was widely recognized as being three years,” and that “[t]o continue collecting expansive statutory damages, instead of the miniscule (or non-existent) actual damages allowed under the 2016 amendment, the new suits [starting in June 2021] now creatively posit a six-year limitations period“).
In addition, those courts’ opinions, like the Opinion of this Court, are not dispositive on issues of Michigan law. King v. Ord. of United Com. Travelers of Am., 333 U.S. 153, 161 (1948) (“[A] federal court adjudicating a matter of state law in a diversity suit i[s], ‘in effect, only another court of the State.‘” (quoting Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 108-09 (1945))); accord Abela v. Gen. Motors Corp., 677 N.W.2d 325, 327 (Mich. 2004). Similarly, “a district court is not bound by decisions of . . . other circuits.” Hall v. Eichenlaub, 559 F. Supp. 2d 777, 782 (E.D. Mich. 2008) (citing Ghandi v. Police Dep‘t of City of Detroit, 74 F.R.D. 115, 122 (E.D. Mich. 1977)). Further, “a district court‘s opinion is never binding precedent.” Malam v. Adducci, 469 F. Supp. 3d 767, 788 (E.D. Mich. 2020) (citing Camreta v. Greene, 563 U.S. 692, 709 (2011)). Moreover, the opinions are from neither the Supreme Court nor a circuit court of appeals. See id. As such, they do not “warrant” anything in this Court. Hillman Power Co. v. On-Site Equip. Maint., Inc., No. 1:19-CV-11009, 2022 WL 193598, at *3 (E.D. Mich. Jan. 21, 2022).
When Michigan precedent does not expressly address which statute of limitations applies to a statutory cause of action, as in this case, Michigan courts look to “Federal court authority.” Glowacki v. Motor Wheel Corp., 241 N.W.2d 240, 245-46 (Mich. Ct. App. 1976).
The Sixth Circuit carefully analyzed Michigan precedent to hold that a six-year statute of limitations applies to statutory causes of action, like the PPPA. See Palmer Park Square, LLC v. Scottsdale Ins., 878 F.3d 530, 540 (6th Cir. 2017) (“[T]he Michigan Court of Appeals similarly held that the residual six-year statute of limitations in § 600.5813 applies to statutory causes of action, including those for civil fines.” (citing DiPonio Constr. Co. v. Rosati Masonry Co., 631 N.W.2d 59, 65-66 (Mich. 2001))). That published Sixth Circuit precedent controls this Court. Adducci, 469 F. Supp. 3d at 788.
For these reasons,
D.
Next, this Court must determine whether
Plaintiffs timely filed most of their PPPA claims under
The six-year statute of limitations bars Plaintiffs’ PPPA claims that accrued on or before June 15, 2015. But Plaintiffs also pled PPPA harms accruing from June 16, 2015, to July 30, 2016. Accordingly, any PPPA claims that accrued on or after June 16, 2015, were timely filed on June 15, 2021. Consequently, Defendant‘s Motion to Dismiss will be granted in part regarding claims accruing on or before June 15, 2015, and it will be denied in part in all other regards.
V.
Defendant contends that Plaintiffs lack standing under Article III of the United States Constitution. See generally ECF No. 17 at PageID.591-94.
Three elements of constitutional standing “serve as its irreducible minimum in all cases.” Miller v. City of Wickliffe, 852 F.3d 497, 502 (6th Cir. 2017). “First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.” Id. (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “Second, a plaintiff must demonstrate causation—i.e., that her injury is ‘fairly traceable to the challenged action of the defendant, and not the result of independent action of some third party not before the court.‘” Id. (quoting Lujan, 504 U.S. at 560). “Lastly, the plaintiff must prove that it is likely, rather than merely speculative, that a favorable decision could redress the injury.” Id. (citing Lujan, 504 U.S. at 561).
A.
As a threshold matter,
For a statute of limitations to be jurisdictional, the legislature must have “clearly stated” it is jurisdictional. Musacchio, 577 U.S. at 237; see, e.g., Henderson v. Shinseki, 562 U.S. 428, 436 (2011) (requiring a “clear indication” that a statute is jurisdictional).
Nothing in the “text, context, and relevant historical treatment” of
For these reasons, contrary to Defendant‘s assertion, a statutory cause of action does not lack Article III standing simply because
B.
Moreover, it is well established that a properly alleged PPPA claim confers Article III standing.
The Sixth Circuit held that PPPA claims grant Article III standing in Coulter-Owens v. Time Inc., 695 F. App‘x 117, 121 (6th Cir. 2017). To that end, the Coulter-Owens panel reasoned that a violation of the PPPA necessarily arises from the nonconsensual dissemination of information that reflects a plaintiff‘s personal reading choices, which acutely invades a statutorily protected right to privacy in such matters and, thus, inflicts harm in a concrete and
“Federal district courts in Michigan have consistently come to the same conclusion.” Lin v. Crain Commc‘ns Inc., No. 19-11889, 2020 WL 248445, at *6 (E.D. Mich. Jan. 16, 2020) (collecting cases); accord Boelter v. Hearst Commc‘ns, Inc., 269 F. Supp. 3d 172, 185 (S.D.N.Y. 2017) (“[E]very court to consider the issue of standing under the [PPPA] has concluded that such a violation constitutes a concrete injury in and of itself.“); see also Raden v. Martha Stewart Living Omnimedia, Inc., No. 16-12808, 2017 WL 3085371, at *3 (E.D. Mich. July 20, 2017) (“The PPPA gives Plaintiffs a legally protected interest in the privacy of their reading choices.“); Perlin v. Time Inc., 237 F. Supp. 3d at 627-28 (E.D. Mich. 2017) (same); Kinder v. Meredith Corp., No. 14-CV-11284, 2014 WL 4209575, at *4 (E.D. Mich. Aug. 26, 2014) (“The [PPPA] grants standing to plaintiffs who suffer a statutory violation and does not require actual damages.“); Halaburda v. Bauer Publ‘g Co., 2013 WL 4012827, at *3-5 (E.D. Mich. Aug. 6, 2013) (granting Article III standing to a claim brought under the PPPA); cf. Jackson Erpenbach, Note, A Post-Spokeo Taxonomy of Intangible Harms, 118 MICH. L. REV. 471, 484-85 (2019) (explaining that courts consistency confer standing under the VPPA due to its “historical corollary” to violations of the right to privacy, which “have long been actionable at common law.” (quoting Eichenberger v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir. 2017))).
Inexplicably, Defendant does not address Coulter-Owens or any of the numerous other federal decisions, including this Court‘s decision in Kinder, which all conclude that an alleged violation of the PPPA confers Article III standing.
For these reasons, contrary to Defendant‘s assertion, even if
C.
Defendant‘s reliance on TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) is misplaced. In TransUnion, the Supreme Court considered whether two groups of class members bringing claims under the Fair Credit Reporting Act suffered a concrete injury in fact under Article III. Id. at 2208-2213. The first group of class members had a misleading credit report “disseminated to third parties.” Id. at 2208-09. The second group merely had a misleading remark on their credit files that was not disseminated to a third party. Id. at 2209. The TransUnion Court held that the first group suffered a concrete injury in fact under Article III. Id. (“In short, the 1,853 class members whose reports were disseminated to third parties suffered a concrete injury in fact under Article III.“).
Likewise, Plaintiffs allege that their “Private Reading Information” was disclosed to third parties without their consent. See ECF No. 1 at PageID.1-2, 5-6. In this way, TransUnion reinforces that Plaintiffs’ PPPA claims have Article III standing.
Yet again Defendant appears to conflate a personal injury giving rise to an action for “damages” with the “injury in fact” required for Plaintiffs’ dispute to be justiciable in federal court. An action for damages could trigger the limitation period provided in
Accordingly, though Plaintiffs’ PPPA claim does not arise from a personal injury or any actual damages, Defendant‘s violation of the PPPA, assumed true, violated Plaintiffs’ statutorily conferred right to privacy in their reading habits an intangible harm presenting ample constitutional mooring for Article III purposes. See Kinder, 2014 WL 4209575, at *2 (rejecting the defendant‘s argument that “a statutory violation of [the PPPA], without actual damages, is insufficient to confer standing” before noting that “every single court to consider this interpretation has rejected [defendant‘s] argument“).
In sum, as the Sixth Circuit so aptly put it, “the violation at issue here is not a bare procedural violation; it is a violation of the PPPA‘s most basic substantive protection, the privacy in one‘s reading materials.” Coulter-Owens, 695 F. App‘x at 121 (internal quotations omitted); see also Perlin, 237 F. Supp. 3d at 640-42; Kinder, 2014 WL 4209575, at *4; Cain v. Redbox Automated Retail, LLC, 981 F. Supp. 2d 674, 681-84 (E.D. Mich. 2013). The facts here do not compel a departure from that wisdom.
For these reasons, Plaintiffs’ PPPA claim confers Article III standing. Consequently, Defendant‘s Motion to Dismiss will be denied regarding Plaintiffs’ Article III standing and regarding all claims accruing on or after June 16, 2015, and Defendant‘s Motion will be granted regarding all claims accruing on June 15, 2015. See discussion supra Section IV.D.
VI.
Accordingly, it is ORDERED that Defendant‘s Motion to Dismiss, ECF No. 17, is GRANTED AND DENIED IN PART. Defendant‘s Motion is denied regarding Plaintiffs’ Article III standing and all claims accruing on or after June 16, 2015. Defendant‘s Motion is granted regarding all claims accruing on June 15, 2015, which are time-barred.
Dated: February 15, 2022
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge