Greetings CIPAWorld!
Happy Halloween! On this spookiest of days, the Southern District of California delivered a decision that should haunt plaintiffs’ counsel who file CIPA cases without solid evidence. In Glinoga v. Sullivan Entm’t Inc. et al., No. 25CV0707-GPC(SBC), 2025 WL 3035032 (S.D. Cal. Oct. 30, 2025), Judge Gonzalo P. Curiel showed exactly what happens when defendants bring server logs from both Vimeo and Google Analytics proving the plaintiff never did what he claimed.
Here, Plaintiff filed a class action against Sullivan Entertainment, which operates Gazebo TV, a streaming service for classic movies and TV series. The allegations were typical of recent Meta Pixel cases: Sullivan Entertainment’s website allegedly used Meta’s Pixel to intercept his search terms, video viewing information, and unique Facebook ID, then disclosed this data to Meta without consent. After visiting the site, Plaintiff claimed he received targeted ads. The Complaint included CIPA claims under California Penal Code sections 631 (wiretapping) and 638 (trap and trace), as well as federal claims under the Video Privacy Protection Act and the Federal Wiretap Act, and intrusion upon seclusion.
But Sullivan Entertainment didn’t just file legal arguments. They brought data. Their President submitted declarations with server logs showing Plaintiff created an account on December 28, 2024, and logged in once for exactly 2 minutes and 18 seconds. During that session? No videos watched. No search terms entered. No video pages visited. Six pages were viewed in total, none of which contained video content. Vimeo’s VP of Data Engineering backed this up by also providing a declaration that the account never viewed videos on their platform. Smart move.
Here’s what makes this procedurally interesting. Sullivan Entertainment moved to dismiss under Rule 12(b)(1), launching a factual attack on standing. That’s key because under Ninth Circuit precedent, a factual attack “disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When defendants present evidence contesting jurisdictional facts, courts may look beyond the pleadings and plaintiffs must respond with competent proof, not mere argument. See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003); Johnson v. Oishi, 362 F. Supp. 3d 843, 847 (E.D. Cal. 2019).
Plaintiff’s response? A purely legal argument that extrinsic evidence isn’t proper when jurisdictional issues are “intertwined” with the merits. Judge Curiel rejected this. The intertwining doctrine only applies when there are disputed facts. As the Court explained in Burns v. Mammoth Media, Inc., 2021 WL 3500964, at *4 (C.D. Cal. Aug. 6, 2021), when a plaintiff fails to present evidence in response to defendant’s evidence, “any factual overlap between Plaintiffs’ standing and the merits is not an impediment to granting [a] Rule 12(b)(1) motion.” Glinoga, 2025 WL 3035032 at *4. Because Plaintiff presented no evidence challenging the server logs, “the issue whether Plaintiff suffered a concrete injury is not disputed.” Id. As a result, the Court found Sullivan Entertainment “has presented evidence that Plaintiff did not suffer a concrete injury because he did not view any videos, did not use search terms and was not navigated to any pages associated with specific films, series or other content.” Id.
Under Spokeo, Inc. v. Robins, 578 U.S. 330, 338-39 (2016), Article III standing requires: (1) a concrete and particularized injury that is actual or imminent; (2) fairly traceable to the defendant’s conduct; and (3) likely to be redressed by a favorable decision. The undisputed evidence showed Plaintiff never watched videos, never entered search terms, and never visited video content pages. Without those facts, Plaintiff’s alleged harm (disclosure of video viewing data) vanished like a ghost in the night. The Court dismissed for lack of subject-matter jurisdiction with leave to amend, denying the 12(b)(6) motion as moot per Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without jurisdiction the court cannot proceed at all in any cause.”).
Very interesting to see what Plaintiff will try next. The server logs show 138 seconds on the website, zero videos watched, zero search terms entered. An amended complaint can’t create facts that server data contradicts. Plaintiff alleged his video viewing information was intercepted, but the data proves he never viewed videos.
In the spirit of Halloween, the Court refused to chase ghosts. The data spoke, and the claims disappeared into the night.
As always,
Keep it legal, keep it smart, and stay ahead of the game.
Talk soon!
CIPAWorld 