Gullen v. Facebook, Inc.

Filing 141

ORDER re 93 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Signed by Judge James Donato on 3/2/2018. (jdlc3S, COURT STAFF) (Filed on 3/2/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FREDERICK WILLIAM GULLEN,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 3:16-cv-00937-JD

v.
FACEBOOK, INC.,
Defendant.

ORDER RE RENEWED MOTION TO
DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION
Re: Dkt. No. 93

Gullen is an Illinois resident who alleges that defendant Facebook, Inc. (“Facebook”) has

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collected and stored his biometric information in violation of the Illinois Biometric Information

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Privacy Act, 740 Ill. Comp. Stat. 14/1 et seq. (“BIPA”). Dkt. No. 1-1. Gullen filed suit in

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California state court. The case was removed by Facebook to federal court and related to the

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consolidated action In re Facebook Biometric Info. Privacy Litig., Case No. 15-3747. Dkt. No.

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25. The primary difference between the two actions is that Gullen is not a Facebook user, whereas

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the plaintiffs in In re Facebook are. The operative complaints in the two cases are otherwise much

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the same. The relevant factual background is summarized at In re Facebook Biometric Info.

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Privacy Litig., No. 3:15-CV-03747-JD, 2018 WL 1050154, at *1-2 (N.D. Cal. Feb. 26, 2018).

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Facebook filed simultaneous motions to dismiss for lack of subject matter jurisdiction in

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Gullen and in In re Facebook, arguing that plaintiffs lack Article III standing. Dkt. No. 93.

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Facebook has treated the question of standing here as it did in In re Facebook. The same result

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ensues for the reasons stated in the order denying dismissal.

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The fact difference between the cases that Facebook points to does not lead to a different

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conclusion at this stage. Facebook offers evidence that Facebook does not store face templates for

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non-users. Dkt. No. 98-4 at 10; Dkt. No. 253 (Case No. 15-3747) at 38-39 (photo of a non-user is

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“analyzed to see if it matches anything . . . because it’s like any other system where you have to

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see whether people are users or non-users. But what we don’t do is save any information about

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them.”).

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Facebook styles this as a factual attack on subject matter jurisdiction, for which the Court
“may review evidence beyond the complaint without converting the motion to dismiss into a

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motion for summary judgment” and “need not presume the truthfulness of the plaintiff’s

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allegations.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (citations omitted). But a

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“jurisdictional finding of genuinely disputed facts is inappropriate when the jurisdictional issue

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and substantive issues are so intertwined that the question of jurisdiction is dependent on the

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resolution of factual issues going to the merits of an action.” Id. (internal quotations and citations

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omitted). Facebook’s evidence goes to the merits of the case -- whether Facebook in fact collects

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United States District Court
Northern District of California

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and stores non-users’ biometric information as contemplated by BIPA -- and is properly resolved

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on a motion for summary judgment or at trial, not in the jurisdictional context.

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The motion to dismiss for lack of subject matter jurisdiction is DENIED.

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IT IS SO ORDERED.

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Dated: March 2, 2018

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JAMES DONATO
United States District Judge

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