Matthew Carlsen, individually and on behalf of all others similarly situated Plaintiff - Appellant
GameStop, Inc., a Minnesota corporation; Sunrise Publications, Inc., doing business as Game Informer, a Minnesota corporation Defendants-Appellees
Submitted: March 15, 2016
from United States District Court for the District of
Minnesota - Minneapolis
MURPHY, BEAM, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Carlsen, individually and purportedly on behalf of others
similarly situated, brought claims against GameStop, Inc. and
Sunrise Publications, Inc. (collectively,
"GameStop") for breach of contract, unjust
enrichment, money had and received, and violation of
Minnesota's Consumer Fraud Act (CFA), Minn. Stat.
§§ 325F.68, et seq., for GameStop's
alleged disclosure of personal information to a third party
in violation of an express agreement not to do so. GameStop
filed a motion to dismiss Carlsen's complaint for lack of
subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) and failure to state a claim under Rule
12(b)(6). The district court granted the motion to dismiss for
lack of subject-matter jurisdiction, finding that Carlsen
lacked standing. We affirm the district court on the basis
that Carlsen's complaint failed to state a claim upon
which relief can be granted.
Carlsen is a user of print and online materials published by
GameStop, including Game Informer Magazine. Game Informer
Magazine offers news, reviews, and commentary about the
video-game industry. Registered subscribers can access
digital versions of the magazine through a website,
www.gameinformer.com, where they also can manage
their subscriptions and access enhanced content and message
boards. Carlsen paid a one-year subscription fee of $14.99
for access to the magazine and enhanced content. The terms of
service for the online subscription include Game
a provision stating that, with certain exceptions, "Game
Informer does not share personal information with
anyone." According to Carlsen, a user must agree to the
purchase subscription access.
complaint, Carlsen alleged that GameStop shared his
personally identifiable information ("PII") with
GameStop shared this information through the Game Informer
website, which includes features that allow Game Informer
users to log in to the website using their Facebook accounts
and to use Facebook's "Like, " "Share,
" and "Comment" functions through the Game
Informer site. Game Informer provides these features by
adding a Facebook Software Development Kit ("SDK")
to the source code on the Game Informer website. Carlsen
alleged that this SDK transmitted a user's unique
Facebook ID and Game Informer browsing history to Facebook if
the user previously had opted to stay logged in to Facebook.
further alleged that GameStop breached a term of the privacy
policy by disclosing his Facebook ID and browsing
information. He also claimed that this disclosure constituted
a material misrepresentation about Game Informer
subscriptions because he believed his PII would not be
disclosed and because part of his subscription fee paid for
the protection of that PII. He alleged that, had he known
about the disclosures, he either would not have paid for the
subscription or would have refrained from accessing the
online content for which he paid.
on these allegations, Carlsen's amended complaint sought
class certification and asserted four claims: (1) breach of
contract; (2) unjust enrichment; (3) money had and received;
and (4) violation of Minnesota's CFA, Minn. Stat.
§§ 325F.68, et seq. GameStop filed a
motion to dismiss for lack of subject matter jurisdiction and
for failure to state a claim. The district court granted the
motion to dismiss for lack of subject-matter jurisdiction,
finding that Carlsen lacked standing for failure to allege an
injury in fact with respect to his overpayment and
would-not-have-shopped theories because his allegations were
equally to both paid and non-paid Game Informer
existence of subject-matter jurisdiction is a question of law
that this court reviews de novo." ABF Freight Sys.,
Inc. v. Int'l Bhd. of Teamsters, 645 F.3d 954, 958
(8th Cir. 2011). "A court deciding a motion under Rule
12(b)(1) must distinguish between a 'facial attack'
and a 'factual attack'" on jurisdiction.
Osborn v. United States, 918 F.2d 724, 729 n.6 (8th
Cir. 1990). In a facial attack, "the court restricts
itself to the face of the pleadings, and the non-moving party
receives the same protections as it would defending against a
motion brought under Rule 12(b)(6)." Id.
(internal citations omitted). "In a factual attack, the
court considers matters outside the pleadings, and the
non-moving party does not have the benefit of 12(b)(6)
safeguards." Id. (internal citation omitted).
The method in which the district court resolves a Rule
12(b)(1) motion-that is, whether the district court treats
the motion as a facial attack or a factual attack-obliges us
to follow the same approach. BP Chemicals Ltd. v. Jiangsu
Sopo Corp., 285 F.3d 677, 680 (8th Cir. 2002).
the district court discussed both standards but did not state
which approach it followed. Toward the end of its opinion,
however, the court stated that it was "accepting as true
all of Plaintiff's allegations and construing all
reasonable inferences in Plaintiff's favor"-
i.e., that it was following the Rule 12(b)(6)
standard used for a facial attack. We thus examine the Rule
12(b)(1) motion as a facial attack on jurisdiction, affording
Carlsen's complaint Rule 12(b)(6) protection by
"accepting as true all facts alleged in the
complaint." See Trooien v. Mansour, 608 F.3d
1020, 1026 (8th Cir. 2010). As such, we "consider only
the materials that are 'necessarily embraced by the
pleadings and exhibits attached to the complaint.'"
Cox v. Mortgage Elec. Registration Sys., Inc., 685
F.3d 663, 668 (8th Cir. 2012) (quoting Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)).
begin by addressing the sufficiency of the complaint with
respect to Carlsen's standing. "Federal jurisdiction
is limited by Article III of the Constitution to cases or
controversies; if a plaintiff lacks standing to sue, the
district court has no subject-matter jurisdiction."
ABF, 645 F.3d at 958. "The 'irreducible
constitutional minimum of standing' is that a plaintiff
show (1) an 'injury-in-fact' that (2) is 'fairly
. . . trace[able] to the challenged action of the
defendant' and (3) is 'likely . . . [to] be redressed
by a favorable decision' in court." Id.
(alterations in original) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)). A plaintiff has
suffered an injury-in-fact if he has experienced "an
invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S.
at 560 (internal citations and quotation marks omitted).
Further, "[a] 'legally protected interest'
requires only a 'judicially cognizable
interest.'" ABF, 645 F.3d at 959.
district court addressed the standing issue by evaluating
Carlsen's theories of damages. The court first discussed
whether Carlsen's alleged monetary damages based on a
theory of "overpayment" constituted a cognizable
injury in fact. Under this theory, Carlsen alleged that he
would not have paid as much as he did for his Game Informer
subscription had he known GameStop would violate the terms of
analogizing to identity-theft and data-breach cases, found
this overpayment theory insufficient to establish injury
because Carlsen had failed to allege that he paid any
for additional data privacy over that received by non-paying
Game Informer visitors. The court next discussed
Carlsen's alleged injury based on a
"would-not-have-shopped" theory. Under this theory,
Carlsen alleged that he would not have purchased the Game
Informer subscription if he had known his data would be
shared. The court likewise found this theory insufficient to
that it applied equally to paid and non-paid Game Informer