United States District Court, D. Alaska
MICHAEL COLE, individually and on behalf of all others similarly situated, Plaintiff,
v.
GENE BY GENE, LTD., a Texas Limited Liability Company d/b/a FAMILY TREE DNA, Defendant.
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 ...