Aaron Boring, et al v. Google Inc

Filing 3010000077

NOT PRECEDENTIAL OPINION Coram: RENDELL, JORDAN, Circuit Judges and *PADOVA, District Judge. *(Honorable John R. Padova, United States District Court Senior Judge for the Eastern District of Pennsylvania, sitting by designation). Total Pages: 17. Judge: JORDAN Authoring. (MLR)

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT _____________ N o . 09-2350 _____________ A A R O N C. BORING; CHRISTINE BORING, h u s b a n d and wife respectively, Appellants v. G O O G L E INC. _____________ O n Appeal from the United States District Court f o r the Western District of Pennsylvania (D .C . No. 08-cv-00694) M a g is tra te Judge: Honorable Amy Reynolds Hay _______________ S u b m itte d Under Third Circuit LAR 34.1(a) J a n u a ry 25, 2010 B ef o re : RENDELL and JORDAN, Circuit Judges, and PADOVA,* Senior District Judge. (F ile d : January 28, 2010) _______________ O P IN I O N OF THE COURT _______________ _______________ *Honorable John R. Padova, United States District Court Senior Judge for the Eastern D is tric t of Pennsylvania, sitting by designation.

J O R D A N , Circuit Judge. A a ro n C. Boring and Christine Boring appeal from an order of the United States D is tric t Court for the Western District of Pennsylvania dismissing their complaint under R u le 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, we a f f irm in part and reverse in part. I. B a c k gro u n d O n April 2, 2008, the Borings commenced an action in the Court of Common P le a s of Allegheny County, Pennsylvania against Google, Inc., asserting claims for in v a sio n of privacy, trespass, injunctive relief, negligence, and conversion. The Borings s o u g h t compensatory, incidental, and consequential damages in excess of $25,000 for e a c h claim, plus punitive damages and attorney's fees. The Borings' claims arise from Google's "Street View" program, a feature on G o o g le Maps1 that offers free access on the Internet to panoramic, navigable views of s tre e ts in and around major cities across the United States. To create the Street View p rog ram , representatives of Google attach panoramic digital cameras to passenger cars a n d drive around cities photographing the areas along the street. According to Google, " [ t]h e scope of Street View is public roads." (Appellee's Ans. Br. at 10.) Google allows

Google Maps is a service offered by Google that "gives users the ability to look up a d d re ss e s, search for businesses, and get point-to-point driving directions ­ all plotted on in te ra c tiv e street maps ... ." (App. at A5.) -2-

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in d iv id u a ls to report and request the removal of inappropriate images that they find on S tre e t View. The Borings, who live on a private road in Pittsburgh, discovered that Google had tak e n "colored imagery of their residence, including the swimming pool, from a vehicle in th e ir residence driveway months earlier without obtaining any privacy waiver or a u th o riz a tio n ." (App. at A31.) They allege that their road is clearly marked with a " P riv a te Road, No Trespassing" sign (Appellants' Op. Br. at 11), and they contend that, in d r iv i n g up their road to take photographs for Street View and in making those p h o to g ra p h s available to the public, Google "disregarded [their] privacy interest." (Id.) O n May 21, 2008, Google invoked diversity jurisdiction, removed the action to the U n ite d States District Court for the Western District of Pennsylvania, and filed a motion to dismiss. The Borings then filed an amended complaint, substituting a claim for unjust e n ric h m e n t for their earlier conversion claim.2 On August 14, 2008, Google again moved to dismiss the Borings' complaint for failure to state a claim. On February 17, 2009, the District Court granted Google's motion to dismiss as to a ll of the Borings' claims. The Court dismissed the invasion of privacy claim because the B o rin g s were unable to show that Google's conduct was highly offensive to a person of o rd in a ry sensibilities. Boring v. Google, Inc., 598 F. Supp. 2d 695, 699-700 (W.D. Pa. 2 0 0 9 ). The Court dismissed the negligence claim because it found that Google did not For ease of reference, the amended complaint is referred to herein simply as the " c o m p la in t." -32

o w e a duty to the Borings. Id. at 701. In dismissing the trespass claim, the Court held th a t "the Borings have not alleged facts sufficient to establish that they suffered any d a m a g e s caused by the alleged trespass." Id. at 702. The Court found the unjust e n ric h m e n t claim wanting because the parties had no relationship that could be construed a s contractual and the Borings did not confer anything of value upon Google. Id. at 703. The Court also held that the Borings had failed to plead a plausible claim for injunctive re lie f under Pennsylvania's "demanding" standard for a mandatory injunction, and d ism iss e d the punitive damages claim because the Borings failed to "allege facts s u f f ic ie n t to support the contention that Google engaged in outrageous conduct." Id. at 7 0 1 n.3, 704. In sum, the Court concluded that the Borings "failed to state a claim under a n y count" and that "any attempted amendment would be futile." Id. at 698, 704 n.8. T h e Borings moved for reconsideration, asserting that it was error to dismiss their tre sp a ss and unjust enrichment claims, as well as their request for punitive damages. The D is tric t Court denied the motion. Boring v. Google, Civ. A. No. 08-694, 2009 WL 9 3 1 1 8 1 (W.D. Pa. Apr. 6, 2009). The Court again said that the Borings had failed to a lle g e conduct necessary to support a punitive damages award. 2009 WL 931181, at *2. It also declined to reconsider the dismissal of the unjust enrichment claim because the B o rin g s did not point to any flaw in the Court's disposition of that claim. Id. Finally, the C o u rt addressed the Borings' trespass claim only to "eliminate any possibility that the lan g u a g e in [its opinion] might be read to suggest that damages are part of a prima facie

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c a se for trespass." Id., at *1. To clarify, the Court explained that it had dismissed the tre sp a ss claim because the Borings had "failed to allege facts sufficient to support a p la u sib le claim that they suffered any damage as a result of the trespass" and because they f a ile d to request nominal damages in their complaint. Id., at *1. The Borings filed a timely notice of appeal from both the District Court's order g ra n tin g the motion to dismiss and the subsequent denial of their motion for re c o n s id e ra tio n . II. D is c u s s io n 3 A. S ta n d a r d of Review

W e conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See P h illip s v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). The Federal Rules of C iv il Procedure require that a complaint contain "a short and plain statement of the claim s h o w in g that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). To avoid dismissal, th e complaint must set forth facts that raise a "plausible inference" that the defendant in f lic te d a legally cognizable harm upon the plaintiff. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1 9 5 2 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (e x p lain in g that a plaintiff must "identify[] facts that are suggestive enough to render [his

Google timely removed the action to the District Court pursuant to 29 U.S.C. §§ 1441 a n d 1446. The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332. We h a v e appellate jurisdiction over the final orders of the District Court under 28 U.S.C. § 1291. -5-

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c laim ] plausible"); Phillips, 515 F.3d at 234 (stating that "a plaintiff must `nudge [his or h e r] claims across the line from conceivable to plausible' in order to survive a motion to d is m is s " ) (citations omitted). Conclusory allegations of liability do not suffice. See Iq b a l, 129 S. Ct. at 1950 (opining that the federal pleading standard "marks a notable and g e n e ro u s departure from the hyper-technical, code-pleading regime of a prior era, but it d o e s not unlock the doors of discovery for a plaintiff armed with nothing more than c o n c lu s io n s " ). We must disregard "formulaic recitation of the elements of a cause of a c tio n ... ." Twombly, 550 U.S. at 555. A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual a lle g a tio n s in the complaint and must draw all reasonable inferences in favor of the n o n -m o v a n t. Gross v. German Found. Indus. Initiative, 549 F.3d 605, 610 (3d Cir. 2 0 0 8 ). Legal conclusions receive no such deference, and the court is "not bound to a c ce p t as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U .S . 265, 286 (1886) (cited with approval in Twombly, 550 U.S. at 555 (citations o m itte d )). Although a plaintiff may use legal conclusions to provide the structure for the c o m p la in t, the pleading's factual content must independently "permit the court to infer m o re than the mere possibility of misconduct." Iqbal, 129 S. Ct. at 1950. In short, when th e well-pleaded complaint does not permit us "to infer more than the mere possibility of m is c o n d u c t," the pleader is not entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 2 0 3 , 211 (3d Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949).

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O n appeal, the Borings contend that the District Court erred in dismissing their in v a sio n of privacy, trespass, unjust enrichment, and punitive damages claims, as well as th e ir request for injunctive relief. We address each claim in turn. B. In v a sio n of Privacy

Pennsylvania law recognizes four torts under the umbrella of invasion of privacy: " [1] unreasonable intrusion upon the seclusion of another; [2] appropriation of another's n a m e or likeness; [3] unreasonable publicity given to another's private life; and [4] p u b lic ity that unreasonably places the other in a false light before the public." See Burger v . Blair Med. Assocs., Inc., 964 A.2d 374, 376-77 (Pa. 2009) (citing RESTATEMENT (S ECOND) OF TORTS §§ 652B-E (1977)). The District Court treated the Borings' c o m p lain t as asserting claims for both intrusion upon seclusion and publicity to private lif e , and it held that the complaint failed to state a claim for either, focusing on the lack of f a cts in the complaint to support a conclusion that the Street View images would be h ig h ly offensive to a reasonable person. The Borings contend that the District Court was w ro n g to decide, on a 12(b)(6) motion to dismiss, that "a reasonable person would not be h ig h ly offended" after having discovered, as the Borings did, that someone "entered onto s e c lu d e d private property [and] took 360 [degree] pictures ... ." (Appellants' Op Br. at 1 9 .)

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i.

In tr u s io n upon Seclusion

T o state a claim for intrusion upon seclusion, plaintiffs must allege conduct d e m o n s tra tin g "an intentional intrusion upon the seclusion of their private concerns which w a s substantial and highly offensive to a reasonable person, and aver sufficient facts to e sta b lis h that the information disclosed would have caused mental suffering, shame or h u m ilia tio n to a person of ordinary sensibilities." Pro Golf Mfg., Inc. v. Tribune Review N e w s p a p e r Co., 809 A.2d 243, 247 (Pa. 2002) (citations omitted). Publication is not an e le m e n t of the claim, and thus we must examine the harm caused by the intrusion itself. See Borse v. Piece Goods Shop, Inc., 963 F.2d 611, 621 (3d Cir. 1992). No person of ordinary sensibilities would be shamed, humiliated, or have suffered m e n ta lly as a result of a vehicle entering into his or her ungated driveway and p h o to g ra p h in g the view from there. The Restatement cites knocking on the door of a p riv a te residence as an example of conduct that would not be highly offensive to a person o f ordinary sensibilities. See RESTATEMENT (SECOND) OF TORTS, § 652B cmt. d. The B o rin g s ' claim is pinned to an arguably less intrusive event than a door knock. Indeed, th e privacy allegedly intruded upon was the external view of the Borings' house, garage, a n d pool ­ a view that would be seen by any person who entered onto their driveway, in c lu d in g a visitor or a delivery man. Thus, what really seems to be at the heart of the c o m p la in t is not Google's fleeting presence in the driveway, but the photographic image

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c a p tu re d at that time. The existence of that image, though, does not in itself rise to the le v e l of an intrusion that could reasonably be called highly offensive.4 Significantly, the Borings do not allege that they themselves were viewed inside th e ir home, which is a relevant factor in analyzing intrusion upon seclusion claims. See, e .g ., Pacitti v. Durr, Civ. A. No. 05-317, 2008 WL 793875, at *26 (W.D. Pa. Mar. 24, 2 0 0 8 ) (holding that no reasonable person would find the fact that defendant entered into p la in tif f 's condominium to speak with a third party highly offensive because plaintiff was n o t in the condominium at the time), aff'd, 310 F. App'x 526 (3d Cir. 2009); GTE M o b iln e t of S. Texas Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 618 (Tex. App. 2001) (f in d in g that "the mere fact that maintenance workers ... look[ed] over into the adjoining yard is legally insufficient evidence of highly offensive conduct."). T h e Borings suggest that the District Court erred in determining what would be h ig h ly offensive to a person of ordinary sensibilities at the pleading stage, but they do not c ite to any authority for this proposition. Courts do in fact, decide the "highly offensive" is s u e as a matter of law at the pleading stage when appropriate. See, e.g., Diaz v. D.L. R e c o ve ry Corp., 486 F.Supp. 2d 474, 475-480 (E.D. Pa. 2007) (denying defendant's m o tio n to dismiss as to plaintiff's invasion of privacy claim because allegations that debt

Though not pertinent to our decision, we note Google's assertion, which is not s e rio u s ly contested by the Borings, that the Street View photograph is similar to a view of the Borings' house that was once publicly available online through the County Assessor's w e b site . -9-

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c o llec to r called debtor at her home stating he would "repossess all of her household b e l o n g i n g s and even her car" stated a claim for invasion of privacy). The Borings also su g g est that the Court erred in expressing skepticism about whether the Borings were a c tu a lly offended by Google's conduct in light of the Borings' public filing of the present la w s u it. However, the District Court's comments came after the Court had already co n clud ed that Google's conduct would not be highly offensive to a person of ordinary s e n sib ilitie s. Thus, the Court properly applied an objective standard in deciding whether th e conduct was highly offensive.5 In sum, accepting the Borings' allegations as true, their claim for intrusion upon se c lu sio n fails as a matter of law, because the alleged conduct would not be highly o f f e n s iv e to a person of ordinary sensibilities. ii. P u b licity Given to Private Life

T o state a claim for publicity given to private life, a plaintiff must allege that the m a tter publicized is "(1) publicity, given to (2) private facts, (3) which would be highly o f f en s iv e to a reasonable person, and (4) is not of legitimate concern to the public." Harris by Harris v. Eastern Pub. Co., 483 A.2d 1377, 1384 (Pa. Super. Ct. 1984) (citing

Google spends much time arguing that the Borings' driveway was not actually a p riv a te place sufficient to sustain an invasion of privacy claim. It notes that numerous c o u rts have found no intrusion upon seclusion based upon a view that can be seen from the outside of the home, and points to the fact that images of the Borings' home were a lre a d y available on the Internet. Because we conclude that the alleged conduct would n o t be highly offensive to a person of ordinary sensibilities, we need not decide whether th e Borings' driveway was a "private place" for purposes of an invasion of privacy claim. -10-

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R ESTATEMENT (SECOND) OF TORTS § 652D). For the reasons just described with respect to the intrusion upon seclusion claim, we agree with the District Court that the Borings h a v e failed to allege facts sufficient to establish the third element of a publicity to private life claim, i.e., that the publicity would be highly offensive to a reasonable person. It is th e r e f o r e unnecessary to address the other three prongs.6 In conclusion, accepting the Borings' allegations as true, their claim for publicity g iv e n to private life fails as a matter of law, because the alleged conduct would not be h ig h ly offensive to a person of ordinary sensibilities. C. Trespass

The District Court dismissed the Borings' trespass claim, holding that trespass was n o t the proximate cause of any compensatory damages sought in the complaint and that, w h ile nominal damages are generally available in a trespass claim, the Borings did not s e e k nominal damages in their complaint. While the District Court's evident skepticism a b o u t the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was e r ro n e o u s . T re sp a ss is a strict liability tort, "both exceptionally simple and exceptionally rig o ro u s ." Prosser on Torts at 63 (West, 4th ed. 1971). Under Pennsylvania law, it is We note, however, that the facts revealed may not actually be "private facts," as re q u ire d by prong 2, because the Borings' property allegedly is or recently was available to public view by virtue of tax records and maps on other Internet sites. See Strickland v. U n iv . of Scranton, 700 A.2d 979, 987 (Pa. Super. Ct. 1997) (explaining that "a matter w h ich was of public record [was] not a private fact").
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d e f in e d as an "unprivileged, intentional intrusion upon land in possession of another." Graham Oil Co. v. BP Oil Co., 885 F. Supp. 716, 725 (W.D. Pa. 1994) (citing Kopka v. B e ll Tel. Co., 91 A.2d 232, 235 (Pa. 1952)). Though claiming not to have done so, it a p p e ars that the District Court effectively made damages an element of the claim, and that is problematic, since "[o]ne who intentionally enters land in the possession of another is s u b je c t to liability to the possessor for a trespass, although his presence on the land causes n o harm to the land, its possessor, or to any thing or person in whose security the p o s s e s s o r has a legally protected interest." RESTATEMENT (SECOND) TORTS § 163; see a l so Corr. Med. Care, Inc. v. Gray, Civ. A. No. 07-2840, 2008 WL 248977, *11 (E.D. Pa. J a n . 30, 2008) (holding that a complaint alleging that defendants entered into plaintiffs' h o m e on specified dates was "sufficient to survive a motion to dismiss under P e n n s ylv a n ia trespass law."). Here, the Borings have alleged that Google entered upon their property without p e rm iss io n . If proven, that is a trespass, pure and simple. There is no requirement in P e n n sylv a n ia law that damages be pled, either nominal or consequential.7 Cf. 1 STEIN ON The District Court cited to a single case from 1899 to support its claim that plaintiffs in a trespass case are required to plead nominal damages. However, the case it cited was n o t a trespass case. See Morris & Essex Mut. Coal Co. v. Del., L. & W. R. Co., 42 A. 883, 8 8 4 (Pa. 1899). In fact, that case is expressly inapplicable to this case. See id. ("The w h o le proceeding was to recover damages based, not upon a wrongful invasion of p la in tif f 's [property] rights, but upon an act of assembly which authorized the taking of th e property."). Similarly, none of the cases cited by Google in its brief are trespass c a s e s . In fact, Google itself indicates the possibility that we may have to remand the case to proceed with a nominal damages trespass claim. While it may be true that for some c laim s, the failure to seek nominal damages waives a claim for nominal damages, that is -127

P ERSONAL INJURY DAMAGES § 1.3 (3d ed. 2009) ("harm is not a prerequisite to a cause of a c tio n [for trespass,] and nominal damages can be awarded [even though] there has been a n d will be no substantial harm."); 75 AM. JUR. 2D Trespass § 112 (2009) ("[I]n the a b se n c e of proven or actual damages, plaintiffs are entitled to nominal damages in an a c tio n for trespass." (citations omitted)). It was thus improper for the District Court to d ism iss the trespass claim for failure to state a claim. Of course, it may well be that, w h e n it comes to proving damages from the alleged trespass, the Borings are left to c o lle c t one dollar and whatever sense of vindication that may bring, but that is for another d a y.8 For now, it is enough to note that they "bear the burden of proving that the trespass w a s the legal cause, i.e., a substantial factor in bringing about actual harm or damage" C & K Coal Co. v. United Mine Workers of Am., 537 F. Supp. 480, 511 (W.D. Pa. 1982), r e v 'd in part on other grounds, 704 F.2d 690, 699 (3d Cir. 1983), if they want more than a dollar. D. U n ju s t Enrichment

T o succeed on a claim of unjust enrichment, a plaintiff must allege facts sufficient to establish "benefits conferred on defendant by plaintiff, appreciation of such benefits by d e f e n d a n t, and acceptance and retention of such benefits under such circumstances that it w o u ld be inequitable for defendant to retain the benefit without payment of value."

not the case with trespass claims. We imply nothing about whether the claim would survive summary judgment, either a s to liability or damages, or about the limits on proof that may be appropriate. -138

L a c k n e r v. Glosser, 892 A.2d 21, 34 (Pa. Super. Ct. 2006) (quotation omitted). Typically, w ith an unjust enrichment claim, a "plaintiff seeks to recover from defendant for a benefit c o n f e r re d under an unconsummated or void contact," and the law then implies a q u a si-c o n tra c t which requires the defendant to compensate the plaintiff for the value of th e benefit conferred. See Steamfitters Local Union No. 420 Welfare Fund v. Phillip M o r r is , Inc., 171 F.3d 912, 936 (3d Cir. 1999) (citations omitted); Hershey Foods Corp. v . Ralph Chapek, Inc., 828 F.2d 989, 998-99 (3d Cir. 1987). T h e District Court dismissed the Borings' unjust enrichment claim after finding th a t they had not alleged any relationship between themselves and Google that could be c o n stru e d as contractual, and because "it cannot be fairly said that the Borings conferred a n yth in g of value upon Google." (App. at A12-A13.) The Court further held that the u n ju s t enrichment claim failed because the Borings had not adequately alleged any other to rt, and Pennsylvania does not recognize unjust enrichment as a stand-alone tort. We agree that the facts alleged by the Borings provide no basis for an unjust e n ric h m e n t claim against Google. The complaint not only fails to allege a void or u n c o n su m m a te d contract, it does not allege any benefit conferred upon Google by the B o rin g s , let alone a benefit for which the Borings could reasonably expect to be c o m p e n s a te d . The complaint alleges that Google committed various torts when it took p h o to g ra p h s of the Borings' property without their consent. The complaint does not a lle g e , however, that the Borings gave or that Google took anything that would enrich

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G o o g le at the Borings' expense. An unjust enrichment "claim makes sense in cases in v o lv in g a contract or a quasi-contract, but not, as here, where plaintiffs are claiming d a m a g e s for torts committed against them by [the] defendant[]." 9 Romy v. Burke, No. 1 2 3 6 , 2003 WL 21205975, at *5 (Pa. Com. Pl. Philadelphia May 2, 2003). E. In ju n c tiv e Relief

P e n n s ylv a n ia law provides that in order to establish the right to injunctive relief, a p lain tiff must "establish that his right to relief is clear, that an injunction is necessary to a v o id an injury that cannot be compensated by damages, and that greater injury will result f ro m refusing rather than granting the relief requested." Kuznik v. Westmoreland County B d . of Comm'rs, 902 A.2d 476, 489 (Pa. 2006) (citing Harding v. Stickman, 823 A.2d 1 1 1 0 , 1111 (Pa. Commw. Ct. 2003)). An injunction is an extraordinary remedy. See A m b r o g i v. Reber, 932 A.2d 969, 974 (Pa. Super. Ct. 2007). The District Court held that the complaint failed to set out facts supporting a p la u sib le claim of entitlement to injunctive relief. We agree that the Borings have not a lle g e d any claim warranting injunctive relief. The complaint claims nothing more than a s in g le , brief entry by Google onto the Borings' property. Importantly, the Borings do not

Because we find that the Borings stated a claim for trespass (see supra, Section II.C.ii) a n d thus survived a 12(b)(6) motion to dismiss as to that claim, we need not address w h e th e r unjust enrichment is a stand-alone tort under Pennsylvania law. Instead, we hold th a t the Borings have failed to state a claim for unjust enrichment, regardless of whether it is a stand-alone tort, because they have failed to allege facts sufficient to establish a b e n e fit conferred upon Google by the Borings. Thus, on remand, the Borings are not e n title d to recover under their unjust enrichment claim. -15-

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a lle g e any facts to suggest injury resulting from Google's retention of the photographs at is s u e , which is unsurprising since we are told that the allegedly offending images have lo n g since been removed from the Street View program. F. P u n itiv e Damages

P e n n s ylv a n ia law provides that a defendant must have engaged in "outrageous" or " in te n tio n a l, reckless or malicious" conduct to sustain a claim for punitive damages. Feld v . Merriam, 485 A.2d 742, 747-48 (Pa. 1984). Indeed, "punitive damages cannot be b a se d upon ordinary negligence." Hutchinson ex rel. Hutchinson v. Luddy, 946 A.2d 744, 7 4 7 (Pa. Super. Ct. 2008). T h e Borrings' complaint fails to allege conduct that is outrageous or malicious. There is no allegation that Google intentionally sent its driver onto their property or that G o o g le was even aware that its driver had entered onto the property. Moreover, there are n o facts suggesting that Google acted maliciously or recklessly or that Google in t e n tio n a lly disregarded the Borings' rights. T h e Borings argue that a claim for punitive damages must always be determined b y a jury, after discovery. But courts do indeed dismiss claims for punitive damages in a d v a n c e of trial. See Phillips v. Cricket Lighters, 883 A.2d 439, 445, 447 (Pa. 2005) (re v e rs in g a denial of summary judgment as to a punitive damages claim because "[a] s h o w in g of mere negligence, or even gross negligence, will not suffice to establish that p u n itiv e damages should be imposed"); Feld, 485 A.2d at 748 (holding that submission of

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p u n itive damages issue to jury was error).1 0 And, under the pleading standards we are b o u n d to apply, there is simply no foundation in the complaint for a demand for punitive d a m a g e s . Cf. Iqbal, 129 S. Ct. at 1950 (explaining that while a plaintiff may use legal c o n c lu s io n s to provide the structure for the complaint, the pleading's factual content must ind ep en d en tly "permit the court to infer more than the mere possibility of misconduct"); T w o m b ly , 550 U.S. at 556 (explaining that a plaintiff must "identify[] facts that are su g g estiv e enough to render [his claim] plausible"). III. C o n c lu s io n F o r the foregoing reasons, we will affirm the District Court's grant of Google's m o tio n to dismiss the Borings' claims for invasion of privacy, unjust enrichment, in j u n c tiv e relief, and punitive damages. We reverse, however, with respect to the trespass c la im , and remand with instructions that the District Court permit that claim to go f o rw a rd .

Appellants rely on two cases to argue that punitive damages must always be d e ter m in e d by a jury after discovery: Kirkbride v. Libson Contractors, Inc., 555 A.2d 800 (P a . 1989), and Jacque v. Steenberg Homes, Inc., 563 N.W. 2d 154 (Wis. 1997). Kirkbride addressed whether a punitive damages award must bear a reasonable r e la tio n s h ip to the compensatory award, rather than addressing what kind of conduct must b e alleged in order to survive a 12(b)(6) motion to dismiss on a punitive damages claim. 555 A.2d at 801. The Jacque case, in addition to having no binding authority on our C o u rt, addressed whether a punitive damages claim may be awarded in connection with a tre sp a ss claim, where nominal damages had been awarded and the trespass was c o m m itte d "for an outrageous purpose but no significant harm resulted." 563 N.W.2d at 1 6 1 . Thus, that court did not hold that the issue of punitive damages must always go to th e jury. -17-

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