Cole v. Gene By Gene, Ltd.

          ORDER RE MOTION TO DISMISS

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE.

         Before the Court at Docket 95 is Defendant Gene by Gene's Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(h)(3). Plaintiff Michael Cole opposed the motion at Docket 104, to which Gene by Gene replied at Docket 114. Oral argument was held on December 2, 2016.

         BACKGROUND

         The relevant facts for this motion are as follows: In 2013, Michael Cole purchased a DNA testing kit from www.familytreedna.com, a website operated by Gene by Gene.^[1]Testing kits include a cheek swab used to collect DNA samples and an optional release form to authorize the sharing of the customer's name and email address with his or her genetic matches.^[2] After swabbing their cheek, customers return the testing kits to Family Tree DNA for testing and storage. When testing is complete, Family Tree emails its customers a web link where they may view their results, locate genetic matches, and research their ancestral origins.^[3] Each customer is also given the option of joining projects. A project is an online forum run by an unpaid third-party volunteer; they are often operated through independent websites.^[4] When a customer joins certain projects, Mr. Cole alleges that Family Tree DNA automatically publishes the full results of the customer's DNA test to Family Tree DNA's publicly available websites.^[5] Mr. Cole signed up for nine projects and understood that the project administrators would have access to his name, contact information, and testing kit number.^[6] But Mr. Cole alleges that when he signed up for the projects, he was not informed that some project administrators had separate websites; nor was he informed that his full DNA test results would be disclosed on those sites.

         Months later, after receiving excessive junk email, Mr. Cole searched the Internet for his email address and found it on a website called “Rootsweb.”^[7] He alleges that he then learned his DNA test results had been publicly disclosed. Mr. Cole initiated this action against Gene by Gene, alleging that its sharing of his DNA test results violated Alaska's Genetic Privacy Act.^[8]

         Mr. Cole brings this action on behalf of himself and a proposed class that includes all residents of Alaska who had their DNA results disclosed by Gene by Gene without written consent.^[9] Mr. Cole seeks the following relief from this Court: (1) an order certifying the class; (2) a declaration that Gene by Gene's conduct violates Alaska's Genetic Privacy Act;^[10] (3) an award of “actual and statutory damages” of $5, 000, or, if the Court finds that Gene by Gene's alleged violation resulted in profit or monetary gain, $100, 000;^[11] and (4) an injunction requiring Gene by Gene to cease disclosing its customers' DNA testing results.^[12]

         DISCUSSION

         I. Statutory Jurisdiction

         Mr. Cole and Gene by Gene are residents of different states and the amount in controversy exceeds the requisite $75, 000. Therefore, this Court has jurisdiction pursuant to 28 U.S.C. § 1332. Under diversity jurisdiction, the Court applies federal procedural law and Alaska substantive law.

         II. Motion to Dismiss

         Gene by Gene has moved to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1). Specifically, Gene by Gene maintains that since Mr. Cole is seeking only statutory damages under the Genetic Privacy Act, he has not demonstrated the requisite injury-in-fact for Article III standing. Lack of Article III standing requires dismissal for want of subject matter jurisdiction under Rule 12(b)(1).^[13]

         “A Rule 12(b)(1) jurisdictional attack may be facial or factual.”^[14] In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. Gene by Gene's jurisdictional attack is factual because it relies on evidence beyond the pleadings to refute Mr. Cole's contention that he has the requisite injury-in-fact sufficient to confer standing.^[15]

         When a defendant has moved to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of establishing the Court's jurisdiction.^[16]The plaintiff carries that burden by putting forth “the manner and degree of evidence required” by whatever stage of the litigation the case has reached.^[17] At the motion to dismiss stage, a plaintiff must allege specific facts that demonstrate the standing requirements are met.^[18] In determining whether the plaintiff has met his burden, “the court may expand its review and ‘rely on affidavits or any other evidence properly before the court.'”^[19]

         To establish standing to sue, a plaintiff “must demonstrate three elements which constitute the ‘irreducible constitutional minimum' of Article III standing.”^[20] First, a plaintiff “must have suffered an ‘injury-in-fact' to a legally protected interest that is both ‘concrete and particularized' and ‘actual or imminent, as opposed to conjectural or hypothetical.'” Second, “there must be a causal connection between [the plaintiff's] injury and the conduct complained of.” Third, “it must be ‘likely'-not merely ‘speculative'-that [the] injury will be ‘redressed by a favorable decision.'”^[21] In the class action context, “standing is satisfied if at least one named plaintiff meets the[se] [three] requirements.”^[22] Gene by Gene focuses on the first requirement for Article III standing, asserting that Mr. Cole lacks standing because he has no evidence of any actual injury.^[23]

         Mr. Cole's asserted injury is based exclusively on alleged violations of Alaska's Genetic Privacy Act.^[24] AS 18.13.010(a) of the Act provides as follows:

(1) a person may not collect a DNA sample from a person, perform a DNA analysis on a sample, retain a DNA sample or the results of a DNA analysis, or disclose the results of a DNA analysis unless the person has first obtained the informed and written consent of the person, or the person's legal guardian or authorized representative, for the collection, analysis, retention, or disclosure;

(2) a DNA sample and the results of a DNA analysis performed on the sample are the exclusive property of the ...