SCOTT v. GOOGLE INC

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 1129-2472199.), filed by Brent Matthew Scott. (Attachments: # 1 Civil Cover Sheet) (KENNEDY, CAMERON)

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION Brent Matthew Scott, individually, and behalf of all similarly situated persons, on Plaintiff, 4:12-614 CIVIL ACTION NO. vs. (JURY TRIAL DEMANDED) Google, Inc., Defendant. CLASS ACTION COMPLAINT Plaintiff, Brent Matthew Scott, individually, and on behalf brings this state-wide class action suit against Defendant, and would respectfully of the class described below, show unto the Coutt the following: Google, Inc. (hereinafter "Google"), PARTIES 1. Plaintiff is a citizen of the State of Florida, and resides in Leon County, Florida, which is within the Tallahassee Division 2. Google is a corporation Delaware, with its principal place of the Northern District organized of Florida. and existing under the laws of business at 1600 Amphitheatre of the State of Parkway, Mountain View, California. 3. At all time relevant herein Google was acting individually officers, agents, employment. servants and/or employees in the course and scope and by and through its of their agency and JURISDICTION AND VENUE 4. The Court has original jurisdiction of this matter, inter alia, under the Class Action Fairness Act ("CAFA"), 29 U.S.C. $ 1332(d)(2). Plaintiff and Defendant are citizens of different states, the amount in controversy than one hundred State in this action exceeds $ 5,000,000.00, there are more (100) members of the putative class and all class members are citizens of the of Florida. The Court has general Google due to its sufficient minimum and specific personal jurisdiction over the Defendant contacts within the State of Florida and because the material acts upon which Plaintiffs'laims are based occurred within the Northern District of Florida, 6. Venue is proper in the United States Northern District Court, District of Florida, Tallahassee Division, pursuant Northern to 28 U.S.C. $ 1391(b) in that Defendant Google resides in the District of Florida under 28 U.S.C. $ 1391(c)(2) and a substantial giving rise to the claims occuired within the State part of the events of Florida. NATURE OF SUIT 7. Plaintiff brings this state-wide class action lawsuit against Google pursuant F.R.C.P. 23 for violation of the Florida Wiretap Act, codified at Florida Statute Specifically, Plaintiff alleges the Defendant intentional interception and use $ 934.03. et seq. has violated the Florida Wiretap Act tlirough of electronic commuiiications to sent by Plaintiffs and members its of the Putative Class in Florida to Google's "Gmail" account holders within Florida. 8. assigned Google operates an e-mail service known as "Gmail". Gmail account holders are a Gmail e-mail address electronic communications. by Google through which they can send and/or receive 9. Upon methodologies, information and belief Google, utilizing intercepts and scans all electronic communications devices multiple and sent to Gmail account holders prior to their receipt and review by the Gmail account holder/recipient. 10. Plaintiff's The actions complained of herein involve the interception and use and Class Member's Florida electronic communications sent to a Florida Gmail account holder, conununication whether (e-mail) whose e-mails are of the initialization through of content fiom an electronic to the Gmail user, a response or reply to an electronic communication Gmail user, or any subsequent new electronic corrununication transmitted from the by Plaintiff and/or Class Members to a Gmail user. 11. Google's systematic interception and use of electronic communications Plaintiff and other non-Gmail account holders/users sent from violates Florida Statute $ 934.03 et seq. STATEMENT OF FACTS 12. Google owns and operates one of the world's largest internet search engines. Google offers many services, including e-mail address and internet usage, for free to attract large numbers of customers or users. Google generates aimed at its customers/users or charge higher advertising revenue by selling on-line advertising utilizing its free services. which is Google is able to attract more advertisers prices by virtue of attracting or usage of more customers/users Google services than other internet search engines or service providers. 13. "Gmail" is an electronic communication service operated by Google. 14. Google holders (username@gmail.corn) assigns Gmail account a Grnail e-mail address for the purposes of sending and receiving electronic commuI+cations through the electronic communication service operated by Google (i.e. Gmail). Gmail account holders can receive electronic communications from other Gmail account holders and from non- @gmail.corn account holders. 15. Plaintiff has sent and continues to send electronic communications in Florida to @gmail.corn account holders in Florida. 16. Upon information mail, Google intercepts mail communications and belief, prior to Gmail users ever receiving Plaintiff's without e-mail. Plaintiff's Google's interception knowledge, Plaintiff's e- of Plaintiffs confidential e- consent or permission is in violation of Florida Statute $ 934.03-934.09, et seq. 17. Google is not an intended recipient of or a party to Plaintiffs e-mails sent to Gmail users in Florida. 18. The devices used by Google are not a telephone or telegraph instrument, not telephone or telegraph. equipment, not any component thereof. they are they are not a telephone or telegraph facility, and they are Therefore, any exception set out in Florida Statute $ 934.03-934.09, et seq. do not apply. 19. Google's interception and use of content of electronic communications Plaintiff and the Class Members is not witlun the ordinary course communication of business of an electronic service such as an email provider, is not a necessary incident to providing email services and does not functionally 20. from enhance providing email service to Gmail account holders. Within the Class Period, Plaintiff has sent and continues to send e-mails to Gmail account holders in Florida from various locations within Florida. 21. Plaintiff s e-mails are electronic communications. 22. At the time Plaintiff sent the e-mails to @gmail.corn account holders, Plaintiff did so from his Hotmail account. 23. content Upon information and belief, Google intentionally intercepted and used the of Plaintiff's e-mails to @gmail.corn account holders. 24. Google did not compensate Plaintiff for the interception and use of the content of Plaintiff s e-mail or the use of the content of Plaintiff s e-mail, did not have his permission or, indeed, even advise Plaintiff that his emails to @gmail.corn account holders within Florida were being intercepted and used by Google for its own purposes. CLASS ALLEGATIONS 25. Plaintiff hereby repleads and incorporates by reference each and every allegation set for above, and further states as follows: 26. Plaintiff brings this class action, pursuant to Rule 23 of the Federal Rules Procedure, individually and on behalf of Civil of all members of the following Class. The Class consists All natural persons located within the State of Florida who sent e-mails from a non-@gmail.corn account e-mail address to an @gmail.corn account e-mail address the owner of which was also located within Florida from within the longest period of time allowed by statute before the filing of this action up through and including the date of the judgment in this case; Excluded from the class are the following individuals and/or entities: a. Any and all federal, state, or local governments, including but not limited to their department, agencies, divisions, bureaus, boards, sections, groups, counsels, and/or subdivisions; b. Individuals, if any, who timely opt out of this proceeding using the correct protocol for opting out; c. Current or former employees f. Individuals, if any, who have previously settled or compromised claims(s) as identified herein for the class; and of Google; g. Any ciuTently sitting federal judge and/or person within the third degree of consanguinity to any federal judge. A. Numerosity 27. The Class is so numerous that joinder of all members is impracticable. 28. The number of separate individuals who sent e-mails from a non@gmail.corn account e-mail addresses to a @gmail.corn account e-mail address from within the longest period of time allowed by statute before the filing of this action is excess of 100 persons. 29. Upon information and belief, the munber of Gmail account holders more than two hundred and fifty thousand users. Correspondingly, in Florida is Plaintiff alleges the numbers for the Class are some multiple of that number. B. 30. There are questions Commonality of law or fact common to the class. These questions include, but are not limited to, the following: Whether Google intentionally intercepted, endeavored to intercept, or procured any other person to intercept or endeavor to intercept Plaintiff s and Class Members'lectronic communications to @gmail.corn account recipients. Inclusive in this common question are the common questions regarding the elements of Florida statutes based upon the statutory definitions: Whether or not Google acted intentionally; Whether or not Google acquired Class members e-mail; any content of Plaintiffs and or not Plaintiff's and Class Members'-mails to the @gmail.corn account recipients were electronic communications; Whether Whether or not statutory assessed; and damages Whether or not injunctive should be issued. and declaratory against Google should be relief against Google C. 31. Typicality Plaintiff s claims are typical of the claims of the Class in that Plaintiff and the Class sent e-mails to @gmail.corn account holders, Google intercepted and acquired the e-mails'ontents, Google used or endeavored Members'-mails, the users of Gmail to use the contents of the Plaintiff's did not consent to the interception and the Class and uses made the basis of this suit, neither Plaintiff nor the Class consented to Google's interception and uses of content made the basis of this suit, Plaintiff and the Class Members are entitled to declaratory relief, statutory damages, and injunctive relief due to Google's conduct. D. 32. interests Adequacy of Representation Plaintiff will fairly and adequately do not conflict with the interests retained competent counsel experienced of common the Class members. in class action litigation. and adequately protect and represent the interests 33. protect the interests of the Class. Plaintiff's Furthermore, Plaintiff has Plaintiff's counsel will fairly of the Class. Plaintiff asseits that pursuant to Fed. R. Civ. P. 23(b)(3), questions of law or fact to the Class Members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. CAUSE OF ACTION VIOLATIONS OF FLORIDA STATUTE 5934.03 ET SE0. 34. Plaintiff hereby repleads and incorporates by reference each and every allegation set forth above, and fisher states as follows: 35. Google, as a corporation, is a "person" pursuant to Florida Statute $ 934.02 (5). 36. Throughout of the conduct upon which this suit is brought, Google's the entirety actions were/are willful. 37. endeavored information Upon or endeavors Class members'-mails and belief, Google willfully to intercept the electronic conununications intercepted, intercepts, or of Plaintiff's e-mail and as follows: Google acquired(s) the content of Plaintiff's and Class Members'-mail; Plaintiff's and Class Members'-mails are electronic communications; Google utilized(s) one or more devices composing of an electronic, mechanical or other device or apparatus to intercept Plaintiff s and Class Members'lectronic communications; Google's intercepting devices are not a telephone or telegraph instriunent, are not telephone or telegraph equipment, are not a telephone or telegraph facility, or are not any component thereof; Google does not furnish the devices used to intercept the emails to Gmail users and users do not use the devices for connection to the facilities; The devices are not used by Google, operating as an electronic communication service, in the ordinary course of its business as a provider of an electronic communication service, are not a necessary incident of the rendition of email services and do not functionally enhance providing email service to Gmail account holders; interception of Plaintiff's and Class Members'lectronic communications for undisclosed and improper purposes delivering targeted advertisements, for purposes beyond the Service of Gmail, in violation of its user agreements, in violation of its contracts with third paries, and in violation of its statements to users are not within the ordinary course of business of a provider of an electronic communication Google's service. 38. Google intentionally used, uses, or endeavored or endeavors to use the contents Plaintiff's and Class Members'lectronic that the information violation communications was obtained through the interception of Florida Statute $ 934.03, et seq. knowing of or having reason to know of the electronic communication in 39. Google's interception of and use of the contents of Plaintiff's and Class Members'lectronic were not subject to any of the exceptions set out in Florida Statute $ ( communications 934.03 — 934.09. 40. Plaintiff not As a result to the consent and, upon information communications 41. did of Google's and belief, either did any violations $ 934.10, Plaintiff and the Class are entitled or use interception of his electronic of the Class Members. of Florida Statute $ 934.03 et seq, pursuant to to: injunctive relief to halt Google's violations; a. Preliminary and permanent b. Appropriate declaratory relief; For Plaintiff and each Class members, the greater of $ 100 a day for each day of violation or $ 1,000 whichever is higher; d. Punitive damages; and Reasonable attorneys'ees and other litigation costs reasonably incurred. JURY DKMANDKD to the Seventh Amendment Pursuant to the U.S. Constitution Procedure 38, Plaintiff demands a jury on any issue triable and Federal Rule of Civil of right by a jury. PRAYER FOR RELIEF WHEREFORE, Plaintiff, on behalf of himself and all Class members, requests judgment be entered against Defendant and that the Coutt grant the following: An order certifying the Class and appointing represent the Class; Plaintiff and his counsel to 2. Judgment against the Defendant cause of action; 3. Appropriate 4. Preliminary and permanent Class'sserted declaratory relief against Defendant; for Plaintiff's and the injunctive relief against Defendant; 5. An award of statutory damages to the Plaintiff and the Class, for each, the greater of $ 100 a day for each day of violation or $ 1,000, whichever is higher; 6. Punitive damages; 7. An award of reasonable reasonably incuned; and 8. Any and all other relief to which the Plaintiff and the Class may be entitled. This/P dsy of+/(y attorneys'ees and other litigation M~+20 1 2. Respectfully submitte, /J CAMERON M. KENNEDY Florida Bar No.: 0020548 Searcy Denney Scarola Barnhart Shipley, P.A. Towle House, 517 N. Calhoun St. Tallahassee, FL 32301-1231 Tel. No. (850) 224-7600 4 E-mail:CMK@searcylaw.corn DEMAND FOR TRIAL BY JURY The Plaintiff demands a trial by struck jury of all the issues in this ca e. CAMERON M. KEIgkEDY FOR THE PLA ATTO~Y F REOUEST FOR SERVICE OF PROCESS The Plaintiff requests that the Summons and Complaint in this case be served upon Defendant by Process Server, as follows: Google, Inc. c/o Registered Agent: CSC Lawyers Incorporatin 11 East Chase Street Baltimore, Maryland 21202 Service Compa l CAMERON M. DY ATTORNEY FOR THE PLA 10 costs