Wilson v. Ancestry.com LLC

             UNITED STATES DISTRICT COURT                            
               SOUTHERN DISTRICT OF OHIO                             
                   EASTERN DIVISION                                  

JOHN WILSON, on behalf of himself                                         
and all others similarly situated,                                        

     Plaintiff,                                                      
                              Case No. 2:22-cv-861                   
v.                            JUDGE EDMUND A. SARGUS, JR.            
                              Magistrate Judge Kimberly A. Jolson    

ANCESTRY.COM LLC, et al.,                                                 

     Defendant.                                                      

                  OPINION AND ORDER                                  
This matter is before the Court on Defendants Ancestry.com Operations Inc., Ancestry.com 
Inc., and Ancestry.com LLC’s (collectively, “Ancestry”) “Motion for Reconsideration of Their 
Motion to Dismiss for Lack of Personal Jurisdiction.”  (Def. Mot., ECF No. 69.)  For the reasons 
set forth below, the Court DENIES Ancestry’s Motion for Reconsideration.  
                     BACKGROUND                                      
On February 21, 2022, Plaintiff John Wilson, on behalf of himself and all others similarly 
situated, filed this putative class action alleging that Ancestry, which owns www.ancestry.com, 
used Wilson and the proposed class members’ names and personas to promote paid subscriptions 
to the Ancestry website without their consent. (Compl. ¶ 1, ECF No. 1.) The factual allegations in 
the Complaint are set forth more fully in the Court’s Order on Ancestry’s Motion to Dismiss.  
(Order, ECF No. 41.)                                                      
Ancestry moved to dismiss Wilson’s Complaint, arguing that the Court lacked personal 
jurisdiction over Ancestry.  (ECF No. 13.)  The Court denied Ancestry’s motion to dismiss for 
lack of personal jurisdiction.  (Order, ECF No. 41.)                      
Ancestry moved for reconsideration of the Court’s previous ruling that this Court could 
exercise personal jurisdiction over Ancestry.  (Def. Mot., ECF No. 69.)  Ancestry argues that 
“intervening law, contrary to the Court’s previous ruling, has established a test that demonstrates 
the alleged in-forum contacts arising from the nationwide availability of Ancestry’s website are 

insufficient to establish personal jurisdiction.”  (Id. at PageID # 1026.)   
In its Order on Ancestry’s Motion to Dismiss, the Court found the reasoning in a District 
Court of Nevada case persuasive.  (Order, ECF No. 41, at PageID # 412–13, discussing the 
reasoning in Sessa v. Ancestry.com Operations Inc., 

561 F. Supp. 3d 1008

, 1023 (D. Nev. 2021) 
(“Sessa I”).)  The Ninth Circuit Court of Appeals—the Circuit in which the District of Nevada 
sits—subsequently held that in-forum contacts arising from a website’s nationwide availability is 
insufficient to establish personal jurisdiction.  Briskin v. Shopify, Inc., 

87 F.4th 404, 409

 (9th Cir. 
2023) (“Briskin I”), reh’g en banc granted, opinion vacated, 

101 F.4th 706

 (9th Cir. 2024).  In light 
of Briskin I, the district court in Sessa I revisited and vacated its prior finding of personal 
jurisdiction.  Sessa v. Ancestry.com Operations Inc., No. 2:20-cv-2292-GMN-BNW, 

2024 WL 195995

, at *6 (D. Nev. Jan. 17, 2024) (“Sessa II”) (vacating Sessa I and finding that the court 
lacked personal jurisdiction over Ancestry).  Due to these developments, Ancestry requests that 
this Court reconsider its finding of personal jurisdiction.  Wilson responded in opposition (ECF 
No. 71), and Ancestry filed a reply in support of its motion (ECF No. 76.) 
                  STANDARD OF REVIEW                                 
Motions for reconsideration can generally be warranted under three circumstances: (1) an 
intervening change in controlling law; (2) the availability of new evidence; and (3) the need to 
correct clear error to prevent manifest injustice.  Zobel v. Contech Enters., No. 2:14-CV-2721, 

2017 WL 1064731

, at *1 (S.D. Ohio Mar. 21, 2017).  These motions are looked at with disfavor 
and are granted sparingly, typically only when the prior decision appears clearly to be legally or 
factually erroneous.  Id.; see also Bethel v. Warden Chillicothe Corr. Inst., No. 2:20-cv-5275, 

2023 U.S. Dist. LEXIS 32669

, at *4 (S.D. Ohio Feb. 27, 2023).  The Court’s reluctance to grant such 
motions is to prevent the filing of endless motions for reconsideration and for the judicial interest 

in finality.  Id.; see also Libertarian Party v. Wilhem, 

465 F. Supp. 3d 780

, 785 (S.D. Ohio 2020).  
Therefore, a motion for reconsideration is inappropriate if the plaintiff is merely trying “to 
relitigate issues previously considered and rejected, or to submit evidence [that] could have been 
submitted earlier.”  Zobel, 

2017 WL 1064731

, at *1 (internal citations omitted). 
                       ANALYSIS                                      
The Court denies Ancestry’s motion for reconsideration for two reasons.  First, a change 
in Ninth Circuit caselaw is indisputably not a change in controlling law warranting the rare relief 
sought in a motion for reconsideration.  Second, the Ninth Circuit has since vacated the decision 
Ancestry bases its argument on and will rehear the case en banc.          
First, this Court is bound by the Sixth Circuit Court of Appeals and the United States 

Supreme Court, not the Ninth Circuit.  Reconsideration is warranted in the rarest of circumstances, 
such as a change in controlling law—not, as Ancestry requests, when an out-of-circuit decision 
establishes a test “contrary to the Court’s previous ruling”:             
This Court is only bound by decisions of the U.S. Supreme Court and the Sixth 
Circuit Court of Appeals. While this Court may, and often does, consider opinions 
of the other Courts of Appeals, those decisions are not binding and do not require 
reconsideration of an earlier decision of this Court.                

Owner-Operator Indep. Drivers Ass’n, Inc. v. Arctic Exp., Inc., 

288 F. Supp. 2d 895, 900

 (S.D. 
Ohio 2003).  Accordingly, the Court declines to revisit its decision due to a change in law which 
is merely persuasive.                                                     
Second, even if the Court was persuaded by the Ninth Circuit’s decision in Briskin I, the 
Ninth Circuit has since vacated Briskin I and will rehear the case en banc.  Briskin v. Shopify, Inc., 

101 F.4th 706

 (9th Cir. 2024) (“Briskin II”) (vacating Briskin I and ordering that the case be 
reheard en banc).  Ancestry has recognized this and appropriately notified the Court.  (Ancestry 

Not., ECF No. 92.)  Regardless of how the Ninth Circuit decides Briskin II, this Court will not 
reconsider its finding of personal jurisdiction over Ancestry.  While the Court noted it was 
“particularly persuaded” by the decision in Sessa I, it did not base its finding entirely upon that 
case.  Rather, the Court agreed with the reasoning in Sessa I, and used similar reasoning to find 
personal jurisdiction over Ancestry in this case.  A reconsidered opinion by the District of Nevada 
and a decision by the Ninth Circuit Court of Appeals—which has since been vacated—are not 
intervening changes in controlling law warranting the rare relief Ancestry seeks here.  Indeed, 
subsequent controlling law supports this Court’s prior ruling.  See generally AMB Media, LLC v. 
OneMB, LLC, No. 23-5607, 

2024 WL 2052151

, at *4–7 (6th Cir. May 8, 2024) (discussing a 
company’s use of a website to welcome customers from Tennessee, finding personal jurisdiction 

over the company, and reiterating that “if a company holds itself out to a jurisdiction’s business 
and does regular commerce there, it has fair warning that it could be subject to suit in that 
location”).                                                               
                      CONCLUSION                                     
For the reason stated above, the Court DENIES Ancestry’s Motion for Reconsideration.  
(ECF No. 69.)                                                             
This case remains open.                                              
IT IS SO ORDERED.                                                    
6/25/2024                        s/Edmund A. Sargus, Jr.      _           
DATE                             EDMUND A. SARGUS, JR.                    
                            UNITED STATES DISTRICT JUDGE