Nixon v. Pond5, Inc.

UNITED STATES DISTRICT COURT                                              
SOUTHERN DISTRICT OF NEW YORK                                             
MATTHEW NIXON and PETER FLEMING, on                                      
behalf of themselves and all others similarly situated,                  
                    Plaintiffs,                                          
                                       Case No. 1:24-cv-05823 (JLR)      
               -against-                                                 
                                       OPINION AND ORDER                 
POND5, INC.,                                                             
                    Defendant.                                           
JENNIFER L. ROCHON, United States District Judge:                         
    Matthew Nixon and Peter Fleming (together, “Plaintiffs”) bring claims on behalf of a 
putative class against Defendant Pond5, Inc. (“Pond5”), a stock-video seller, under the Video 
Privacy Protection Act (VPPA), 

18 U.S.C. § 2710

.  Dkt. 1 (“Compl.”).  Pond5 moves to 
dismiss the Complaint pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1) and Rule 
12(b)(6).  Dkt. 16.  For the reasons that follow, the Court GRANTS the motion to dismiss. 
                        BACKGROUND1                                      
I.  Factual Allegations                                                  
    Pond5 is a stock-video seller and operates a service by which its users can purchase 
and download prerecorded videos.  Compl. ¶¶ 3, 16.  On Pond5’s website, www.pond5.com, 
customers can choose from over 42 million prerecorded videos to watch, purchase (either 
individually or through a subscription), and download.  Compl. ¶¶ 17-18.  The price for 

1 Unless otherwise noted, the following facts are drawn from the Complaint, which the Court 
“constru[es] . . . liberally, accepting all factual allegations in the complaint as true, and 
drawing all reasonable inferences in the plaintiff’s favor.”  Herrera v. Comme des Garcons, 
Ltd., 

84 F.4th 110, 113

 (2d Cir. 2023) (quoting Miller v. Metro Life Ins. Co., 

979 F.3d 118, 121

 (2d Cir. 2020)).                                                      
individual prerecorded videos begins at $25, but Pond5 also offers a monthly subscription for 
$199 per month or an annual subscription for $999 per year.  Compl. ¶ 17.   
    Meta, the company that operates Facebook and Instagram, offers advertisers the option 
to use certain business tools to gather information about Facebook users to better target 
advertising.  Compl. ¶¶ 24-25, 27-28.  One such tool is the Meta Tracking Pixel (the “Pixel”), 
“a piece of code that advertisers . . . can integrate into their website[s].”  Compl. ¶¶ 28-29.  

Once activated, the Pixel tracks users and the types of actions they take, including what 
content a visitor views or purchases.  Compl. ¶¶ 29-30.  When the Pixel captures an action, it 
sends a record to Facebook, which processes, analyzes, and assimilates the information into 
datasets for use in targeted advertising.  Compl. ¶ 29.                   
    Pond5 implemented the Pixel in or about February 2018, and continues to use it.  
Compl. ¶¶ 21, 33.  Plaintiffs allege that Pond5 tracks, collects, and discloses its customers’ 
and subscribers’ information through the Pixel without their knowledge or consent.  Compl. 
¶¶ 4-5.  Plaintiffs allege that when they visited Pond5’s website, the Pixel “automatically 
caused” their personal identifiers, including “c_user,” “fr,” and “datr” cookies, to be sent to 
Meta, along with the fact that Plaintiffs visited the website and the titles of the videos they 

viewed.  Compl. ¶ 34.  The “c_user” cookie contains a visitor’s unencrypted Facebook ID 
(“FID”), which can be used to find their Facebook accounts.  Compl. ¶¶ 41-42.  A “fr” cookie 
contains a visitor’s encrypted FID and a browser identifier.  Compl. ¶ 45.  The “datr” cookie 
also contains a browser identifier.  Compl. ¶ 45.                         
    The Pixel transmits information associated with two distinct events, the “PageView” 
and “Purchase” events, to Facebook.  Compl. ¶ 36.  The PageView event occurs when a 
subscriber views a prerecorded video, while the Purchase event occurs when a subscriber or 
customer purchases and downloads a prerecorded video.  Compl. ¶¶ 37-39.  In both events, 
the Pixel transmits the URL and title of the video to Facebook.  Compl. ¶¶ 37-40.  If a visitor 
to Pond5’s website has not logged out of Facebook when they visit Pond5’s website, the Pixel 
transmits the “c_user,” “fr,” and “datr” cookies to Facebook.  Compl. ¶¶ 41-42, 41 fig. 4.  
When a visitor has recently logged out of Facebook, the Pixel transmits the “datr” and “fr” 
cookies, but not the “c_user” cookie.  Compl. ¶¶ 44-45, 44 fig. 5.        
    In or about September 2021, Plaintiff Matthew Nixon purchased two stock videos 

from Pond5.  Compl. ¶ 7.  In or about October 2020, Plaintiff Peter Fleming purchased stock 
videos from Pond5.  Compl. ¶ 8.  Throughout the time that Fleming and Nixon viewed and 
downloaded videos on Pond5’s website, they had Facebook and/or Instagram accounts and 
used one of those accounts during that period.  Compl. ¶¶ 7-8.  Nixon did not discover that 
Pond5 had collected and transmitted his FID and browser identifiers, along with the videos 
and titles of videos he viewed, to Meta until July 8, 2024.  Compl. ¶¶ 52-53.  Similarly, 
Fleming did not discover that Pond5 had collected and transmitted his FID and browser 
identifiers, along with the videos and titles of videos he viewed, until July 10, 2024.  Compl. 
¶¶ 52-53, 58-59.                                                          

II.  Procedural History                                                  
    Plaintiffs filed this suit on July 31, 2024.  See generally Compl.  Pond5 moved to 
dismiss on September 20, 2024.  Dkt. 16; Dkt. 17 (“Br.”); Dkt. 18 (“McPherson Decl.”); 
Dkts. 18-1 to 18-16.  Plaintiffs filed their opposition on November 1, 2024, Dkt. 20 (“Opp.”), 
and Pond5 filed its reply on November 22, 2024, Dkt. 21 (“Reply”).  Pond5 filed notices of 
supplemental authority on May 5, 2025 and June 24, 2025.  Dkts. 22, 23.  The motion is thus 
fully briefed.2                                                           


2 Pond5 requested oral argument via notation on its motion.  The Court declines this request 
because the parties’ briefing was sufficient and oral argument would not materially assist the 
                      LEGAL STANDARDS                                    
    To survive a Rule 12(b)(1) motion to dismiss, “‘the plaintiff must clearly allege facts 
[in his complaint] demonstrating each element’ of standing,” Lugo v. City of Troy, 

114 F.4th 80, 87

 (2d Cir. 2024) (alteration in original) (quoting Spokeo, Inc. v. Robins, 

578 U.S. 330, 338

 (2016)), and “the complaint’s factual allegations of standing must be ‘plausible’ and 
‘nonconclusory,’” 

id.

 (quoting Ashcroft v. Iqbal, 

556 U.S. 662, 678, 680

 (2009)).  “In 
assessing whether there is subject matter jurisdiction, the Court must accept as true all 

material facts alleged in the complaint, but ‘the court may resolve [any] disputed jurisdictional 
fact issues by referring to evidence outside of the pleadings.’”  Lowell v. Lyft, Inc., 

352 F. Supp. 3d 248, 254

 (S.D.N.Y. 2018) (alteration in original) (citation omitted) (quoting Zappia 
Middle E. Constr. Co. v. Emirate of Abu Dhabi, 

215 F.3d 247, 253

 (2d Cir. 2000)). 
    Under Rule 12(b)(6), a complaint must contain “sufficient factual matter, accepted as 
true, to state a claim to relief that is plausible on its face.”  Francis v. Kings Park Manor, Inc., 

992 F.3d 67, 72

 (2d Cir. 2021) (en banc) (quoting Iqbal, 

556 U.S. at 678

).  The court draws all 
reasonable inferences in the plaintiff’s favor and accepts as true all nonconclusory allegations 
of fact.  

Id.

  However, a complaint must allege “more than a sheer possibility that a defendant 

has acted unlawfully” and more than “facts that are ‘merely consistent with’ a defendant’s 
liability.”  Iqbal, 

556 U.S. at 678

 (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 556, 557

 
(2007)).  Determining whether a complaint states a plausible claim is “a context-specific task 
that requires the reviewing court to draw on its judicial experience and common sense.”  

Id. at 679

.                                                                      

Court.  See Dotson v. Griesa, 

398 F.3d 156, 159

 (2d Cir. 2005) (“[A] district court acts well 
within its discretion in deciding dispositive motions on the parties’ written submissions 
without oral argument.”).                                                 
                         DISCUSSION                                      
    Pond5 moves to dismiss for lack of standing under Rule 12(b)(1) and for failure to 
state a claim under the VPPA, pursuant to Rule 12(b)(6).  Br. at 7, 10.  The Court begins with 
Pond5’s Rule 12(b)(1) motion.  See Daly v. Citigroup Inc., 

939 F.3d 415, 426

 (2d Cir. 2019) 
(where defendants move to dismiss under Rules 12(b)(1) and 12(b)(6), the court “consider[s] 
the Rule 12(b)(1) challenge first since ‘if [the court] must dismiss the complaint for lack of 
subject matter jurisdiction, the [defendants’] defenses and objections become moot and do not 

need to be determined’” (quoting Rhulen Agency, Inc. v. Ala. Ins. Guar. Ass’n, 

896 F.2d 674, 678

 (2d Cir. 1990))); Narcisse v. Progressive Cas. Ins. Co., --- F. Supp. 3d ---, 

2025 WL 1114855

, at *4 (S.D.N.Y. Apr. 15, 2025) (resolving Rule 12(b)(1) motion to dismiss for lack 
of standing before Rule 12(b)(6) motion to dismiss for failure to state a claim). 
I.  Standing                                                             
    Pond5 moves to dismiss Plaintiffs’ claim for lack of subject matter jurisdiction, 
arguing that Plaintiffs lack standing because they have not suffered a concrete injury.  Br. at 
7-10.                                                                     
    To demonstrate standing, “a plaintiff must show (i) that he suffered an injury in fact 
that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused 

by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”  
TransUnion LLC v. Ramirez, 

141 S. Ct. 2190, 2203

 (2021) (citing Lujan v. Defenders of 
Wildlife, 

504 U.S. 555, 560-61

 (1992)).  In cases involving statutory violations, Article III’s 
injury-in-fact requirement means that “[o]nly those plaintiffs who have been concretely 
harmed by a defendant’s statutory violation may sue that private defendant over that violation 
in federal court.’”  Id. at 2205.  “To allege a concrete harm, a plaintiff must point to ‘a close 
historical or common-law analogue for their asserted injury,’” but “need not present an ‘exact 
duplicate.’”  Salazar v. Nat’l Basketball Ass’n, 

118 F.4th 533, 541

 (2d Cir. 2024) (quoting 
TransUnion, 

141 S. Ct. at 2204, 2209

).  Instead, “what matters is ‘whether the alleged injury 
to the plaintiff has a “close relationship” to a harm “traditionally” recognized as providing a 
basis for a lawsuit in American courts.’”  Packer ex rel. 1-800-Flowers.Com, Inc. v. Raging 
Cap. Mgmt., LLC, 

105 F.4th 46

, 52 (2d Cir. 2024) (quoting TransUnion, 

141 S. Ct. at 2204

). 
    Pond5 argues that the Complaint fails to allege an injury in fact because Plaintiffs’ 

injury does not bear a close relationship to “a harm traditionally recognized as providing a 
basis for a lawsuit in American courts,” TransUnion, 

141 S. Ct. at 2200

.  See Br. at 8-9.  The 
Court is not persuaded.                                                   
    In Salazar, the Second Circuit held that the plaintiff, who alleged “that his personally 
identifiable information was exposed to an unauthorized third party” in violation of the VPPA 
“as a result of an arrangement between the [defendant] and Meta pursuant to which the 
[defendant] deliberately use[d] the Facebook Pixel,” was “sufficiently concrete” since the 
alleged harm was closely related to the traditional common-law claim for public disclosure of 
private facts.  

118 F.4th at 542

.  Plaintiffs here have similarly alleged that Pond5 disclosed 
their private viewing information (the titles of the Pond5 videos they downloaded and 

watched) to a third party, Meta, without their consent.  Compl. ¶¶ 81-84.  Pond5 argues that 
the facts of this case differ from those in Salazar because Pond5’s stock videos are designed 
to be redisplayed to the public and so any disclosure of the videos viewed do not involve 
private information.  Reply at 1-4.  But the fact that Pond5 sells stock videos and offers 
commercial licenses for those videos does not make Plaintiffs’ viewing history public, 
particularly given that the claims are not based on allegations that Plaintiffs displayed the 
downloaded videos to the public; rather, the claims concern the downloading of those videos 
by Plaintiffs.  As in Salazar, the fact that Meta could leverage Plaintiffs’ personal viewing or 
downloading information for “its own commercial purposes” (showing the user targeted ads) 
renders the harm alleged sufficiently similar to “the public disclosure of private facts 
common-law analog.”  

118 F.4th at 543-44

.  That harm still exists even if Plaintiffs may one 
day use Pond5’s videos publicly.  Since Pond5 has not offered any persuasive reason why this 
case meaningfully differs from the facts at issue in Salazar, the Court finds that Plaintiffs have 
adequately pleaded a concrete injury sufficient to withstand dismissal under Rule 12(b)(1).3 

    Pond5 does not otherwise argue that Plaintiffs have failed to plead facts that satisfy 
Article III’s other standing requirements.  The Court is satisfied that the alleged injury, the 
disclosure of Plaintiffs’ personal viewing information to a third party without their consent, is 
particularized and actual, that the injury is traceable to Pond5’s installation of the Pixel on its 
website, and that Plaintiffs’ requested injunctive and monetary relief would redress their 
injuries.  See Salazar, 

118 F.4th at 544

 (similar).                       
    Since Plaintiffs have alleged facts that satisfy Article III standing, the Court denies 
Pond5’s motion to dismiss under Rule 12(b)(1).                            
II.  The VPPA Claim                                                      
    Plaintiffs allege that Pond5 disclosed their personally identifiable information to Meta 

and other unauthorized third parties through the Meta Tracking Pixel in violation of the 


3 Pond5’s attempt to analogize Plaintiffs’ viewing to the facts of Osheske v. Silver Cinemas 
Acquisition Co., 

700 F. Supp. 3d 921

 (C.D. Cal. 2023), aff’d, 

132 F.4th 1110

 (9th Cir. 2025), 
is unpersuasive, since that case did not address standing and instead held that a movie theater 
defendant was not covered by the VPPA because it was not a “video tape service provider.”  
Id. at 927-28.  Pond5 has now withdrawn its argument that it is not a videotape service 
provider in light of Salazar.  Reply at 6.  Similarly, the Court is unmoved by Pond5’s citation 
to a series of cases, all involving Fourth Amendment claims (or its state-constitution 
equivalent) in the criminal context, holding that individuals lack a privacy interest in 
information they post on public websites, see Br. at 9-10, given the differing factual and 
statutory context here.                                                   
VPPA.  Compl. ¶¶ 77-86.  Pond5 moves to dismiss this claim, arguing that Plaintiffs have 
failed to state a claim under the VPPA.                                   
    The VPPA provides that “[a] video tape service provider who knowingly discloses, to 
any person, personally identifiable information concerning any consumer of such provider 
shall be liable to the aggrieved person.”  

18 U.S.C. § 2710

(b)(1).  “To state a claim under the 
VPPA, a plaintiff must plausibly allege that (1) a video tape service provider (2) knowingly 

disclosed to any person (3) personally identifiable information concerning her use of the 
service.”  Solomon v. Flipps Media, Inc., 

136 F.4th 41, 44

 (2d Cir. 2025). 
    Pond5 argues that Plaintiffs’ claims should be dismissed because (1) they are time-
barred, Br. at 11-15, (2)  Plaintiffs do not allege disclosure of personally identifiable 
information, 

id.

 at 18-20 and (3) Plaintiffs consented to Pond5’s use of the Meta Tracking 
Pixel and its alleged disclosure of personally identifiable information, id. at 20-22.4  The 
Court need only address Pond5’s second argument, that Plaintiffs have failed to state a claim 
because they have not alleged the disclosure of personally identifiable information. 
    The VPPA defines “personally identifiable information” as “includ[ing] information 
which identifies a person as having requested or obtained specific video materials or services 

from a video tape service provider.”  

18 U.S.C. § 2710

(a)(3).  The Courts of Appeals have 
diverged in their interpretation of this term.  The First Circuit has adopted a “reasonable 
foreseeability” standard, holding that “personally identifiable information is ‘not limited to 
information that explicitly names a person,’ but also includes information disclosed to a third 


4 Pond5 also initially argued that the Complaint should be dismissed because Pond5 is not a 
video tape service provider within the meaning of the VPPA, Br. at 15-18, but has withdrawn 
this argument in light of the Second Circuit’s contrary holding in Salazar, Reply at 6; Salazar, 

118 F.4th at 549

.  The Court thus does not address this argument.         
party that is ‘reasonably and foreseeably likely to reveal which . . . videos [the plaintiff] has 
obtained.’”  Solomon, 

136 F.4th at 49

 (alteration in original) (quoting Yershov v. Gannett 
Satellite Info. Network, Inc., 

820 F.3d 482, 486

 (1st Cir. 2016)).  Meanwhile, the Third and 
Ninth Circuits have adopted the “ordinary person” standard, holding that personally 
identifiable information is limited to “the kind of information that would readily permit an 
ordinary person to identify a specific individual’s video-watching behavior.”  In re 

Nickelodeon Consumer Privacy Litig., 

827 F.3d 262, 267

 (3d Cir. 2016); Eichenberger v. 
ESPN, Inc., 

876 F.3d 979, 985

 (9th Cir. 2017) (adopting ordinary person standard)   
    Recently, in Solomon v. Flipps Media, Inc., 

136 F.4th 41

, the Second Circuit adopted 
the “ordinary person” standard and held that “‘personally identifiable information’ 
encompasses information that would allow an ordinary person to identify a consumer’s video-
watching habits, but not information that only a sophisticated technology company could use 
to do so.”  Solomon, 

136 F.4th at 52

.  Thus, to survive a motion to dismiss, plaintiffs must 
“plausibly allege[] that [the defendant’s] disclosure of [information] ‘would, with little or no 
extra effort, permit an ordinary recipient to identify [the plaintiff’s] video-watching habits.’”  

Id.

 at 54 (quoting In re Nickelodeon, 

827 F.3d at 284

).                   

    After adopting the ordinary person standard, the Second Circuit rejected Pixel-based 
VPPA claims on the ground that such claims do not plausibly allege the disclosure of 
personally identifiable information.  See Solomon, 

136 F.4th at 54-55

.  In Solomon, as here, 
the plaintiff brought a VPPA claim against a defendant that had installed the Pixel on its 
website.  See 

id. at 54

.  Among other things, the Second Circuit found that the complaint did 
not “plausibly allege that an ordinary person could identify [the plaintiff] through her FID,” 
since an ordinary person would not see the “c_user” cookie and the corresponding string of 
letters “and conclude that the phrase was a person’s FID.”  Id.; see also In re Nickelodeon, 

827 F.3d at 283

 (“To an average person, an IP address or a digital code in a cookie file would 
likely be of little help in trying to identify an actual person.”).  Shortly thereafter, in Hughes v. 
National Football League, No. 24-2656, 

2025 WL 1720295

, (2d Cir. June 20, 2025) 
(summary order), the Second Circuit affirmed the dismissal of another VPPA action on this 
basis, even though the district court had not addressed it.  /d. at *2.  The Second Circuit 
declared that “Solomon effectively shut the door for Pixel-based VPPA claims.”  Hughes, 

2025 WL 1720295

, at *2; see 

id. at *3

 (rejecting the argument that “a viewer’s FID can be 
identified based on the string of numerals following the ‘c_user’ field” since it was “not 
plausible that an ordinary person, without [] annotation ..., would see the ‘c_user’ phrase on 
[this communication] and conclude that the phrase was a person’s FID” (alterations and 
omission in original) (quoting So/omon, 

136 F.4th at 54

)). 
      Plaintiffs’ allegations mirror those found insufficient in Salazar and Hughes.  Here 
too, Plaintiff alleges that “the Meta Pixel automatically caused the Plaintiffs’ . . . personal 
identifiers, including the c_user, fr, and datr cookies, to be transmitted to Meta, attached to 
the fact that the Plaintiffs . .  . had viewed the website and the titles of the videos the 
Plaintiffs  ... viewed.”  Compl. § 34.  Like the plaintiffs in Hughes and Solomon, Plaintiffs 
include screenshots depicting the information sent to Meta from a visitor’s browser by the 
Meta Tracking Pixel when a visitor watches or downloads a video on PondS’s website: 
      5                = 
      c_user                        10000” <— 
      datr                          saFWZXu696kRJfnBDt3cUDkn 
      dpr
      fr                           1paMCZGP2m6rSPhH2.AWXupRLWPhICWMU2bbdLyN8V17A.B... 
Compl. § 41 fig. 4 (arrow identifying redacted FID); see also id. J 44 fig. 5; Hughes, 

2025 WL 1720295

, at *2; Solomon, 

136 F.4th at 46

.  While Plaintiffs assert that their FIDs can be 
identified from the c_user cookie and can thus be used to identify their individual video- 

                                     10 

watching habits, Opp. at 16, the Second Circuit has now twice rejected this theory, finding it 
implausible “that an ordinary person, without [] annotation . . . , would see the ‘c_user’ phrase 
on [this transmission] and conclude that the phrase was a person’s FID” or “use an FID to 
identify [plaintiff].”  Solomon, 

136 F.4th at 54

; see also Hughes, 

2025 WL 1720295

, at *3 
(same).  Since an ordinary person would not plausibly be able to identify Plaintiffs’ video-
watching habits as a result of the Pixel transmissions, Plaintiffs have not plausibly alleged that 

Pond5 disclosed “personally identifiable information” in violation of the VPPA.  The Court 
thus grants the motion to dismiss.                                        
III.  Leave to Amend                                                      
    Plaintiffs briefly request leave to amend should the Court grant the motion to dismiss.  
Opp. at 20-21.  Rule 15 provides that courts “should freely give leave [to amend] when justice 
so requires.”  Fed. R. Civ. P. 15(a)(2); accord Rejuvenating Fertility Ctr., PLLC v. TD Bank, 
N.A., No. 23-cv-05973 (JLR), 

2025 WL 588570

, at *7 (S.D.N.Y. Feb. 24, 2025) (same).  
“Nonetheless, ‘it is within the sound discretion of the district court to grant or deny leave to 
amend,’ and ‘a district court may properly deny leave when amendment would be futile.’”  
Veras v. N.Y.C. Dep’t of Educ., No. 22-cv-00056 (JLR) (SN), 

2024 WL 3446498

, at *8 

(S.D.N.Y. July 17, 2024) (first quoting Kim v. Kimm, 

884 F.3d 98, 105

 (2d Cir. 2018); and 
then quoting Jones v. N.Y. State Div. of Mil. & Naval Affs., 

166 F.3d 45, 50

 (2d Cir. 1999)).  
“[T]he standard for denying leave to amend based on futility is the same as the standard for 
granting a motion to dismiss.”  Carroll v. Trump, 

590 F. Supp. 3d 575

, 579 (S.D.N.Y. 2022) 
(quoting IBEW Loc. Union No. 58 Pension Tr. Fund & Annuity Fund v. Royal Bank of Scot. 
Grp., PLC, 

783 F.3d 383, 389

 (2d Cir. 2015)).                             
    The Court denies leave to amend in light of Hughes.  In Hughes, the Second Circuit 
rejected the plaintiff’s request to vacate and remand so that he could amend his complaint to 
include greater detail about his Pixel-based VPPA claims, namely that “(1) Facebook receives 
communications from the Pixel ‘in a way that is automatically translated into a readable 
format and is displayed (or is displayable) on a user interface as plain text’; (2) an ordinary 
person could plug the code into ‘ubiquitous internet-based tools like ChatGPT’ to ‘translate 
the code to reveal the Facebook ID and video title in plain English’; and (3) 75% of 
Americans have a Facebook account.”  

2025 WL 1720295

, at *3 (citation omitted).  The 

Second Circuit found that “amendment would likely be futile” in light of Solomon, since none 
of the plaintiff’s proposed allegations made it plausible that “an ordinary person would be 
able to understand the actual underlying code communication itself.”  

Id.

   
    Here, Plaintiffs do not offer any insight into how they would amend their Complaint if 
given the opportunity, see Opp. at 20-21, nor have they provided any such details following 
the Second Circuit’s decisions in Solomon and Hughes.  Thus, the Court concludes that leave 
to amend would be futile.  See Gregory v. ProNAi Therapeutics Inc., 

757 F. App’x 35

, 39 (2d 
Cir. 2018) (summary order) (affirming denial of leave to amend where plaintiffs sought leave 
to amend only briefly at the end of their opposition to defendants’ motion to dismiss and 
“included no proposed amendments”); Hughes, 

2025 WL 1720295

, at *3 (despite plaintiff’s 

requests to add greater detail about his Pixel-based claims, explaining that there was “no basis 
for remanding because amendment would likely be futile”).  Plaintiffs’ request for leave to 
amend is DENIED.                                                          
                         CONCLUSION                                      
    For the foregoing reasons, the Court DENIES Pond5’s motion to dismiss pursuant to 
Rule 12(b)(1), but GRANTS its motion to dismiss pursuant to Rule 12(b)(6).  Plaintiffs’ 
request for leave to amend is DENIED.  The Complaint is dismissed with prejudice.  The 
Clerk of Court is respectfully directed to terminate the motion at Dkt. 16 and close the case. 
Dated: July 21, 2025 
    New York, New York 
                                            SO ORDERED. 

                                            ;   NIFEW L. ROCHON 
                                              nited States District Judge 

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