Elliott v. Pubmatic, Inc., No. 4:2021cv01497 - Document 35 (N.D. Cal. 2021)
Court Description: Order GRANTING 23 defendant's motion to dismiss. Signed by Judge Phyllis J. Hamilton on August 16, 2021.(pjhlc1S, COURT STAFF) (Filed on 8/16/2021)
Elliott v. Pubmatic, Inc. Doc. 35 Case 4:21-cv-01497-PJH Document 35 Filed 08/16/21 Page 1 of 7 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HUGO ELLIOTT, v. 9 10 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PUBMATIC, INC., Re: Dkt. No. 23 Defendant. 11 United States District Court Northern District of California Case No. 21-cv-01497-PJH Plaintiff, 8 12 13 Defendant PubMatic, Inc.’s motion to dismiss came on for hearing before this court 14 15 on August 12, 2021. Plaintiff appeared through his counsel, Caroline Taylor and Andrew 16 Hathaway. Defendant appeared through its counsel, H. Mark Mao and Ed Takashima. 17 Having read the papers filed by the parties and carefully considered their arguments and 18 the relevant legal authority, and good cause appearing, the court hereby GRANTS 19 defendant’s motion, for the following reasons in addition to those stated at the hearing. 20 I. 21 BACKGROUND Plaintiff Hugo Elliott is a U.K. citizen residing in England. Defendant PubMatic, 22 Inc. (“PubMatic”) is incorporated under the laws of the State of Delaware with its principal 23 place of business in Redwood City. FAC 17-18. PubMatic is a digital advertising 24 technology company with some focus on targeted advertising. FAC 1, 67. It assists 25 websites with the management and sale of their advertising space. FAC 67. 26 Elliott frequently browses websites while he is located in the United Kingdom. FAC 27 202. As part of its business practices, PubMatic placed unique and therefore 28 individuating identifiers in the form of cookies on Elliott’s device and used those uniquely Dockets.Justia.com Case 4:21-cv-01497-PJH Document 35 Filed 08/16/21 Page 2 of 7 1 identifying cookies to monitor and track Elliott’s U.K.-based online activities. FAC 70, 2 219. At the time of filing the original complaint, Elliott had 45 PubMatic cookies on his 3 Chrome browser. FAC ¶ 205. 4 Elliott claims he was harmed by PubMatic’s alleged internet cookie placement 5 practices in violation of his U.K. data privacy rights. FAC ¶¶ 15, 200. Elliott seeks to 6 represent a class of “[a]ll persons residing or who resided in England and Wales who 7 used Chrome, Edge, or Internet Explorer browsers and have had a PubMatic cookie 8 placed on their device during the Relevant Time Period.” FAC ¶ 240. Elliott defines the 9 “Relevant Time Period” as May 25, 2018, through the present. FAC ¶ 242. 10 United States District Court Northern District of California 11 U.K. GDPR Plaintiff brings this action under the United Kingdom’s General Data Protection 12 Regulation (“U.K. GDPR”). “The UK GDPR is a regulation that lays out rules relating to 13 the protection of natural persons with regard to the processing of personal data, and rules 14 relating to the free movement of personal data in the United Kingdom.” FAC ¶ 31. The 15 U.K. GDPR protects natural persons’ personal data in part by limiting the use of uniquely 16 identifying cookie IDs where consent is not expressly granted. FAC ¶¶ 38, 50. The U.K. 17 GDPR provides a private right of action for violations. FAC ¶ 53 (citing U.K. GDPR, 18 Article 79(1)). 19 The U.K. GDPR was adopted in 2018 to implement the European Union’s GDPR, 20 originally passed on April 14, 2016. FAC ¶ 28. Following the departure of the U.K. from 21 the E.U. (i.e., “Brexit”), residents of the U.K. are only covered by the U.K.’s GDPR, not 22 the EU GDPR. FAC ¶ 32. 23 The U.K. legislation contains “materially identical” obligations to the EU GDPR. 24 FAC ¶ 33. However, there is one substantive difference relevant here: unlike the EU’s 25 GDPR, the U.K. GDPR does not require complaints to be filed in a European court. FAC 26 ¶ 35. Plaintiff contends that this enables “UK plaintiffs to sue outside of the UK, including 27 within the United States.” FAC ¶ 35. 28 2 Case 4:21-cv-01497-PJH Document 35 Filed 08/16/21 Page 3 of 7 1 Procedural History 2 Elliott filed the original complaint in this court on March 3, 2021. Dkt. 1. In 3 response to a motion to dismiss, he filed the first amended complaint (“FAC”), the 4 pleading now at issue. Dkt. 21. Elliott asserts one cause of action for violation of the U.K. GDPR, FAC ¶¶ 36, 267, 5 6 which he specifies as the “General Data Protection Regulation in force in the United 7 Kingdom at the time of this Complaint.” FAC ¶ 2; see id. ¶ 37 & Ex. A. PubMatic filed the instant motion to dismiss the FAC in its entirety on June 4, United States District Court Northern District of California 8 9 2021. Dkt. 23. Alongside, PubMatic included an attorney declaration certifying that “if 10 this Court dismisses Plaintiff’s First Amended Complaint on forum non conveniens or 11 international comity grounds, PubMatic agrees to submit to jurisdiction in the courts of 12 England and Wales for the purposes of Count 1 of Plaintiff’s First Amended Complaint.” 13 Mao Decl. (Dkt. 23-1) ¶ 2. 14 II. 15 DISCUSSION Defendant’s motion is brought under Federal Rules of Civil Procedure 12(b)(1) and 16 12(b)(6), and the motion raises issues of standing, forum non conveniens, and 17 international comity. Because the court grants dismissal on forum non conveniens and 18 international comity grounds, it does not reach the issue of standing. 19 A. Forum Non Conveniens 20 In general, “[a] district court has discretion to decline to exercise jurisdiction in a 21 case where litigation in a foreign forum would be more convenient for the parties.” Lueck 22 v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001) (citing Gulf Oil Corp. v. Gilbert, 23 330 U.S. 501, 504 (1947)). Once a district court determines that the appropriate forum is 24 located in a foreign country, the court may dismiss the case. Cheng v. Boeing Co., 708 25 F.2d 1406, 1409 (9th Cir. 1983). 26 Before dismissing an action based on forum non conveniens, district courts 27 analyze whether an adequate alternative forum exists, and whether the balance of private 28 and public interest factors favors dismissal. Lueck, 236 F.3d at 1142; see also Gutierrez 3 Case 4:21-cv-01497-PJH Document 35 Filed 08/16/21 Page 4 of 7 1 v. Advanced Medical Optics, Inc., 640 F.3d 1025, 1029 (9th Cir. 2011). Generally, the 2 requirement of an adequate alternative forum will be met when the defendant is 3 “amenable to process” in the other jurisdiction. Piper Aircraft, 454 U.S. at 255, (quoting 4 Gulf Oil, 330 U.S. at 506-7). United States District Court Northern District of California 5 The private interest factors include: “(1) the residence of the parties and the 6 witnesses; (2) the forum’s convenience to the litigants; (3) access to physical evidence 7 and other sources of proof; (4) whether unwilling witnesses can be compelled to testify; 8 (5) the cost of bringing witnesses to trial; (6) the enforceability of the judgment; and (7) all 9 other practical problems that make trial of a case easy, expeditious and inexpensive.” 10 Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1229 (9th Cir. 2011) (internal 11 citations omitted). The public-interest factors include: “(1) the local interest in the lawsuit, 12 (2) the court's familiarity with the governing law, (3) the burden on local courts and juries, 13 (4) congestion in the court, and (5) the costs of resolving a dispute unrelated to a 14 particular forum.” Bos. Telecommunications Grp., Inc. v. Wood, 588 F.3d 1201, 1211 15 (9th Cir. 2009) (internal quotation marks and citations omitted). 16 Here, there is no argument—there exists an adequate alternative forum. 17 Defendant is amenable to process in the U.K. if this court dismisses the case on forum 18 non conveniens or international comity grounds. Mao Decl. at ¶¶ 2-3. Both sides 19 acknowledge that the courts of the U.K. would serve as an adequate alternative forum. 20 Even though a plaintiff’s choice of forum is typically entitled to substantial deference, the 21 choice of Mr. Elliott, as a foreign plaintiff, deserves less deference. Piper Aircraft, 454 22 U.S. at 256; see Lueck, 236 F.3d at 1143. Cutting further against the deference usually 23 owed to a plaintiff’s choice of forum, Mr. Elliott seeks to represent a putative class 24 comprised solely of foreign putative class members. Lou v. Belzberg, 834 F.2d 730, 739 25 (9th Cir. 1987). With the adequacy of an alternative forum established and the weight of 26 plaintiff’s forum selection diminished, the analysis proceeds to the balancing of both 27 private interest and public interest factors. 28 As explained at the hearing, the court finds that the private interest factors do not 4 United States District Court Northern District of California Case 4:21-cv-01497-PJH Document 35 Filed 08/16/21 Page 5 of 7 1 cut sharply in favor of either the U.S. or the U.K as a forum. The court does not consider 2 all the private interest factors again here, but they generally come out neutral where 3 neither jurisdiction is entirely convenient to either side and the locations of necessary 4 evidence and witnesses remains unclear. 5 On the other hand, the public interest factors weigh heavily in favor of the U.K. as 6 the appropriate forum for this dispute. The first public interest factor, the local interest in 7 the dispute, weighs in favor of the U.K. Plaintiff is a resident of England and suffered his 8 alleged injuries in England; the Proposed Class is made up entirely of residents or former 9 residents of England and Wales, who suffered any alleged injuries in England and Wales; 10 and Plaintiff’s claims expressly arise only under (a new) U.K. law. While there may 11 indeed be some local interest in ensuring California-based entities do not violate 12 regulations elsewhere, a foreign forum’s interests in protecting its citizens and vindicating 13 its own regulatory scheme far outweigh the local interest in overseeing a U.S.-based 14 business. The second factor, the court’s familiarity with the governing law, additionally 15 weighs against this court as the appropriate forum. This court lacks familiarity with the 16 U.K. GDPR, a law that is still being developed in the U.K. It would be burdensome for the 17 court to familiarize itself with, interpret, and apply this foreign law. The third, fourth, and 18 fifth factors, the burden on local courts and juries, the congestion in the court, and the 19 costs of resolving a dispute unrelated to a particular forum, additionally weigh against this 20 forum where plaintiff asks California jurors to apply foreign law to award damages to an 21 entirely foreign class. 22 On balance, the private interest factors and the public interest factors together 23 weigh in favor of dismissal on forum non conveniens grounds. California has little 24 interest in hosting this dispute, and PubMatic’s willingness to submit to U.K. jurisdiction 25 mitigates against this foreign plaintiff’s choice of forum. The court therefore dismisses 26 the case on forum non conveniens grounds. 27 B. International comity 28 International comity “is the recognition which one nation allows within its territory to 5 Case 4:21-cv-01497-PJH Document 35 Filed 08/16/21 Page 6 of 7 1 the legislative, executive or judicial acts of another nation, having due regard both to 2 international duty and convenience, and to the rights of its own citizens or of other 3 persons who are under the protection of its laws.” In re Simon, 153 F.3d 991, 998 (9th 4 Cir.1998) (internal quotation omitted). “International comity is a doctrine of prudential 5 abstention, one that ‘counsels voluntary forbearance when a sovereign which has a 6 legitimate claim to jurisdiction concludes that a second sovereign also has a legitimate 7 claim to jurisdiction under principles of international law.’” Mujica v. AirScan Inc., 771 8 F.3d 580, 598 (9th Cir. 2014) (quoting United States v. Nippon Paper Indus. Co., 109 9 F.3d 1, 8 (1st Cir.1997)). United States District Court Northern District of California 10 There are two doctrines recognized under “international comity.” In re Korean 11 Ramen Antitrust Litig., 281 F. Supp. 3d 892, 907 (N.D. Cal. 2017). The first is “legislative 12 or prescriptive comity,” which “guides domestic courts as they decide the extraterritorial 13 reach of federal statutes.” Mujica, 771 F.3d at 598. The second “is referred to as ‘comity 14 among courts’ or adjudicatory comity, which ‘may be viewed as a discretionary act of 15 deference by a national court to decline to exercise jurisdiction in a case properly 16 adjudicated in a foreign state.’” Id. at 599 (quoting In re Maxwell Commc’n Corp. plc by 17 Homan, 93 F.3d 1036, 1047 (2d Cir.1996)). Considerations in determining whether to 18 abstain for comity to an international tribunal include the strength of the various 19 governments’ interests, the adequacy of the foreign forum, any conflicts between the 20 laws of the jurisdictions, and the extraterritorial reach of the laws at issue. Mujica, 771 21 F.3d at 600-604. In looking to the various governmental interests, the critical factor is 22 where the conduct in question took place, “conduct” including not only the actions of the 23 defendants but the injury suffered by plaintiffs. Mujica, 771 F.3d at 605 (citing Torres v. 24 S. Peru Copper Corp., 965 F. Supp. 899, 909 (S.D. Tex. 1996), dismissing action under 25 comity where the “activity and the alleged harm occurred entirely in Peru [and] Plaintiffs 26 are all residents of Peru.”) (emphasis added). 27 28 Here, there is no need to repeat the earlier discussion regarding an adequate alternative forum. The courts of the U.K. provide an adequate alternative, and defendant 6 United States District Court Northern District of California Case 4:21-cv-01497-PJH Document 35 Filed 08/16/21 Page 7 of 7 1 already certified its acceptance of U.K. jurisdiction over this case should it be dismissed 2 here. But further, adjudicatory comity clearly applies given that this case is properly 3 adjudicated in a foreign state. The U.K. has a strong interest in addressing injuries to 4 English and Welsh subjects, particularly injuries to rights created by U.K. legislation. 5 While plaintiff focuses on the California-based conduct of PubMatic, he glosses over any 6 potential conduct by the company in the U.K. and the injuries suffered to a class of 7 plaintiffs in England and Wales. Moreover, the U.K. has a strong interest in interpreting 8 and applying its own regulatory scheme for Internet privacy, a scheme largely lacking in 9 precedent. All of these considerations lead to the conclusion that this court must abstain 10 from this case. The court therefore alternatively dismisses the case on international 11 comity grounds. 12 III. 13 CONCLUSION For the reasons stated above, including the applicability of the doctrines of forum 14 non conveniens and international comity, the court GRANTS defendant’s motion to 15 dismiss without prejudice to filing the case in the appropriate forum. 16 17 18 19 IT IS SO ORDERED. Dated: August 16, 2021 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON United States District Judge 20 21 22 23 24 25 26 27 28 7
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