Nexstar Asks Court to Delay Dismissal Pending Mass. Ruling in VPPA Case

Citing “suspect timing” of plaintiffs’ May 1 notice of voluntary dismissal in a Video Privacy Protection Act (VPPA) lawsuit, defendant Nexstar Media asked the court to hold the dismissal in abeyance, in a Tuesday response (docket 1:23-cv-01050) in U.S. District Court for Central Illinois in Peoria.

Plaintiff Zachary Rohlfs voluntarily dismissed without prejudice his complaint May 1, a week after Nexstar moved to dismiss the complaint for failure to state a plausible claim. Rohlfs’ Feb. 9 class action alleged Nexstar knowingly disclosed to Facebook data containing subscribers’ personal identifiable information and digital files of videos viewed on its WGNTV.com website.

Nexstar agrees Rohlfs’ claim should be dismissed “because it is totally without merit,” said the response, but the voluntary dismissal came seven days after Nexstar filed a motion to dismiss or transfer in an overlapping class action, Frawley v. Nexstar, that was filed after Rohlfs' action in U.S. District Court for Massachusetts.

Both cases involve nearly identical VPPA claims, and plaintiff Allin Frawley (docket 1:23-cv-10384) was a member of the putative class in the Rohlfs’ case and vice versa, said Nexstar’s response. “Given the substantial overlap in the claims and putative classes,” Nexstar filed a motion to dismiss or transfer in Frawley on April 24, asking that if the court there didn't dismiss the case outright, it should be transferred to the Illinois court for consolidation with Rohlfs’ first-filed action “to conserve resources and avoid conflicting results.”

The timing of Rohlfs’ dismissal “appears to be trying to prevent Frawley from being transferred” to the Illinois court, said Nexstar. Filing voluntary dismissal without prejudice leaves Rohlfs “free to simply re-file the claim at a later point and in another jurisdiction,” it said. Rohlfs “appears to be preserving his ability to forum shop, right after he had forced Nexstar to incur unnecessary costs in preparing a comprehensive dismissal motion in this case,” it said.

Nexstar asked the court to hold Rohlfs’ voluntary dismissal in abeyance pending a ruling from the court in Frawley regarding Nexstar’s motion to dismiss or transfer that case, said the response. And to “dissuade any potential forum shopping,” Rohlfs “should be put on notice that if he files another action ‘based on or including the same claim’ against Nexstar, he may be ordered to pay Nexstar’s costs in this action,” it said.