Rodriguez v. Sony Computer Entertainment America, LLC

Filing 59

ORDER by Judge Hamilton Granting 36 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 4/20/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIEL RODRIGUEZ,
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Plaintiff,

No. C 11-4084 PJH

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v.

ORDER GRANTING MOTION
TO DISMISS

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For the Northern District of California

United States District Court

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SONY COMPUTER ENTERTAINMENT
AMERICA LLC, et al.,

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Defendants.
_______________________________/

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Defendants’ motion to dismiss plaintiff’s first amended class action complaint came

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on for hearing before this court on April 18, 2012. Plaintiff Daniel Rodriguez (“plaintiff”)

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appeared through his counsel, Rafey Balabanian and Ari Scharg. Defendants Sony

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Computer Entertainment America LLC (“SCEA”) and Sony Network Entertainment

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International LLC (“SNEI”) (collectively “defendants”) appeared through their counsel,

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Michael Rhodes and Ray Sardo. Having read all the papers submitted and carefully

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considered the relevant legal authority, the court hereby GRANTS defendants’ motion, for

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the reasons stated at the hearing, and summarized as follows:

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1.

To the extent plaintiff’s claim under the Video Privacy Protection Act (“VPPA),

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see 18 U.S.C. § 2710, is premised on a claim for unlawful retention of plaintiff’s personally

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identifiable information (“PII”), the VPPA precludes claims premised solely on a defendant’s

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allegedly unauthorized “retention” of information. See, e.g., Sterk v. Redbox Automated

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Retail, LLC, 672 F.3d 535 (7th Cir. 2012)(holding that plaintiff may only sue for damages

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under the VPPA for unlawful “disclosure” of PII, not for the purportedly unlawful “retention”

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of PII). Thus, defendants’ motion to dismiss plaintiff’s “retention” claim under the VPPA is

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GRANTED, and such a claim is DISMISSED, with prejudice.
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Plaintiff’s remaining claim for unlawful disclosure under the VPPA also fails to

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state a viable claim for relief. Plaintiff’s claim is premised on two alleged disclosures: (a) an

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allegedly unauthorized disclosure made by SCEA to SNEI in connection with the transfer of

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certain SCEA’s assets to SNEI; and (b) an allegedly unauthorized disclosure to DOE

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defendants that subsequently took place in connection with SNEI’s use and/or disclosure of

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plaintiff’s PII for marketing and advertising purposes. See FAC, ¶¶ 45-46, 63, 73-74. As to

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the former disclosure, however, the VPPA expressly permits video tape service “providers”

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to disclose a consumer’s PII “if the disclosure is incident to the ordinary course of business
of” the provider, with “ordinary course of business” further being defined as a “transfer of

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For the Northern District of California

United States District Court

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ownership.” See 18 U.S.C. § 2710(a)(2); id. at § 2710(b)(2)(E). Thus, plaintiff’s allegation

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that SCEA unlawfully disclosed plaintiff’s PII to SNEI in connection with SCEA’s transfer to

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SNEI, is not actionable and fails to state a claim under the VPPA.

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As to the latter disclosure premised on the purportedly unlawful disclosure of

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plaintiff’s PII to DOE defendants, plaintiff’s allegations fail to state that a disclosure has

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affirmatively taken place, identify with particularity the person(s) or entity to whom such

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disclosure was made, or state that any such disclosure falls outside the scope of

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disclosures permitted under the VPPA. See FAC, ¶¶ 2, 12, 48, 71, 73. Accordingly,

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plaintiff has failed to adequately allege sufficient facts to state a claim for unlawful

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disclosure to DOEs under the VPPA.

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For the foregoing reasons, defendants’ motion to dismiss plaintiff’s claim for unlawful

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disclosure under the VPPA is also GRANTED. The dismissal is with prejudice, to the

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extent premised on plaintiff’s claim for unlawful disclosure incident to the transfer of

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ownership between SCEA and SNEI. The dismissal is with leave to amend as to plaintiff’s

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claim for unlawful disclosure to DOE defendants, so that plaintiff may cure the specific

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deficiencies highlighted above.

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3.

Defendants’ corresponding request for judicial notice is GRANTED, to the

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extent defendants request that the court take judicial notice of the complete version of

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SNEI’s Privacy Policy, as referenced specifically at paragraphs 45 and 48 of the FAC. The

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request is DENIED, to the extent defendants seek judicial notice of versions of the Privacy

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Policy not specifically referenced in the FAC; or of the PSN Terms of Service and User

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Agreement, since this document is not referenced in the complaint.

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Plaintiff’s amended complaint shall be due no later than May 16, 2012. Defendants’
response thereto shall be due no later than June 6, 2012.

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IT IS SO ORDERED.

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Dated: April 20, 2012
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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