FILED

NOT FOR PUBLICATION

JUN 20 2025

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERICA MIKULSKY, individually and on No. 24-3564 behalf of all others similarly situated, D.C. No. Plaintiff-Appellant, 3:23-cv-00425-L-VET

v.

MEMORANDUM*

BLOOMINGDALE'S, LLC;

BLOOMINGDALES.COM, LLC,

Defendants - Appellees.

ERICA MIKULSKY, No. 24-3837

Plaintiff-Appellee, D.C. No. 3:23-cv-00425-L-VET v.

BLOOMINGDALES.COM, LLC;

BLOOMINGDALE’S, LLC,

Defendants - Appellants.

Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding

Argued and Submitted June 10, 2025

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Pasadena, California

Before: BYBEE, IKUTA, and FORREST, Circuit Judges.

Erica Mikulsky appeals the district court’s order granting the motion of

Bloomingdale’s, LLC and Bloomingdales.com, LLC (Defendants) to dismiss her

second amended complaint for failure to state a claim under Rule 12(b)(6) of the

Federal Rules of Civil Procedure. Defendants appeal the district court’s order

denying their motion to dismiss for lack of personal jurisdiction. We have

jurisdiction over the district court’s final order pursuant to 28 U.S.C. § 1291.

The district court did not err in denying the motion to dismiss for lack of

personal jurisdiction. See Briskin v. Shopify, Inc., 135 F.4th 739, 751, 756 (9th Cir.

2025) (en banc). As alleged, Defendants’ website “appeals to, and profits from, an

audience in” California, id. at 754 (quoting Mavrix Photo, Inc. v. Brand Techs.,

Inc., 647 F.3d 1218, 1231 (9th Cir. 2011)), and is used to collect information

intentionally from users, knowing that privacy harms will be suffered in California,

see id. at 756. Mikulsky’s alleged privacy injuries arise out of or relate to the

website’s contacts with California, and Defendants have not shown that the

exercise of jurisdiction over it would be unreasonable. Id. at 750–51. Therefore,

Defendants are subject to personal jurisdiction in California. It was not an error to

exercise jurisdiction over both Defendants where each was alleged to have engaged

2 in the same conduct and the allegations in the complaint were alleged collectively.

See United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir.

2016); Briskin, 135 F.4th at 762.

The district court erred in dismissing Mikulsky’s claim under the California

Invasion of Privacy Act, section 631(a) of the California Penal Code. The

complaint stated sufficient facts to allege that Defendants aided, agreed with,

employed, or conspired with Session Replay Code providers to enable the

providers to read, attempt to read, or to learn “the contents or meaning of any

message, report, or communication while the same [was] in transit or passing over

any wire, line, or cable, or [was] being sent from, or received at any place within

this state,” without the consent of all parties. Cal. Penal Code § 631(a). The

complaint alleged real-time capture of the contents of Mikulsky’s communications

on Defendants’ website without her consent, not merely the real-time capture of

information regarding the characteristics of the communications.

The district court properly dismissed Mikulsky’s claim for intrusion upon

seclusion. Mikulsky failed to plead a “highly offensive” violation under California

common law. See Hernandez v. Hillsides, Inc., 211 P.3d 1063, 1073 (Cal. 2009).

AFFIRMED IN PART AND REVERSED IN PART.

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