Revitch v. New Moosejaw, LLC

Background

The opinion concerns NaviStone’s code and whether it tracked Revitch’s clickstream data. The court stated that the code had to place a cookie on the user’s web browser to track that data. The cookie was therefore both necessary for tracking and evidence that the code had operated. The court identified one possible exception: the cookie might have been deleted after the code ran. But Revitch produced no evidence that this occurred and stated that he had not deleted any cookies from his browser.

Standing and dismissal

NaviStone argued that Revitch had suffered no injury and therefore lacked standing. Standing is the requirement that a plaintiff have a legally sufficient injury allowing the federal court to hear the case. The court held that, on the record before it, no genuine factual dispute existed: any reasonable factfinder would have to conclude that NaviStone’s code never ran on Revitch’s browser.

The court granted NaviStone’s request to dismiss Revitch’s claims for lack of standing under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction. The court also dismissed NaviStone’s counterclaim under Rule 12(b)(1). The order stated that the court was ruling on standing because that was the argument NaviStone raised.

Other rulings

Because the claims and counterclaim were dismissed for lack of standing, the parties’ cross-motions for summary judgment were denied as moot. The court also granted the motions to file documents under seal identified by docket numbers 133, 137, 139, 141, 144, and 167.

The court added that, even if NaviStone’s code constituted wiretapping under the California Invasion of Privacy Act, it would grant summary judgment to NaviStone because the only reasonable conclusion from the record was that Revitch’s browser had never been wiretapped. That merits discussion was not the stated basis for the order’s dismissal. Judge Vince Chhabria signed the order dismissing the case for lack of jurisdiction.