Aaron Boring, et al v. Google Inc

Filing 3010018281

ECF FILER: Petition filed by Appellants Aaron C. Boring and Christine Boring for Rehearing before original panel and the court en banc. Certificate of Service dated 02/11/2010. (GRZ)

C.A. NO. 09-2350 _________________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________________________________________ AARON C. BORING and CHRISTINE BORING, husband and wife, Appellants, v. GOOGLE, INC., a California corporation, Appellee. _________________________________________________________________________ Appeal from Western District of Pennsylvania 2:08-cv-00694 PETITION FOR REHEARING EN BANC REGARDING ORDER OF THIS COURT DATED JANUARY 28, 2010, AFFIRMING IN PART AND REVERSING IN PART THE ORDER BELOW DISMISSING PLAINTIFFS' AMENDED COMPLAINT, GRANTING DEFENDANT'S 12(B)(6) MOTION ON ALL COUNTS; APPEAL FROM ORDER DATED APRIL 6, 2009, DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION _________________________________________________________________________ PETITION FOR REHEARING EN BANC AARON AND CHRISTINE BORING _________________________________________________________________________ Gregg R. Zegarelli, Esq. PA I.D. #52717 [e-mail] 412.765.0401 Dennis M. Moskal, Esq. PA I.D. #80106 [e-mail] 412.765.0405 ZEGARELLI Technology & Entrepreneurial Ventures Law Group, P.C. Allegheny Building, 12th Floor Pittsburgh, PA 15219-1616 v.412.765.0400 f.412.765.0531

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................... i TABLE OF AUTHORITIES .................................................. ii I. PANEL DECISION MISINTERPRETS AND MISAPPLIES THE TWOMBLYSTANDARD. ................................................. 1 II. PANEL FAILS TO ADDRESS PROPRIETY OF EX PARTE "GOOGLING" BY THE MAGISTRATE JUDGE. ............................................ 12 STATEMENT OF COUNSEL PURSUANT TO L.A.R. 35.1 ATTACHED: PANEL ORDER, OPINION and Cover Correspondence: M. Rendell, K. Jordan, Circuit Judges, and J. Padova (by designation), dated January 28, 2010

TABLE OF AUTHORITIES Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ............................... 1 Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992) ........... 4 Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007) ....................... 1 Diaz v. D.L. Recovery Corp., 486 F.Supp. 2d 474 (E.D. Pa. 2007). ..................................................... 1 Erie R. Co. v. Tompkins, 58 S.Ct. 817 (1938). .......................... 6 Hill v. National Collegiate Athletic Assoc., 7 Cal. 4th 1, 865 P.2d 633, 648 (Ca. 1994) ........................... 7 Jacque v. Steenberg Homes, 209 Wis. 2d 605; 563 N.W.2d 154, 159-162 (1997) ....................................... 3 Lackner v. Glosser, 892 A. 2d 21, 34 (Pa. Super 2006) .................. 10 Pacitti v. Durr, Civ. A. No. 05-317, 2008 WL 793875 (W.D. Pa. Mar. 24, 2008), aff'd, 310 F. App'x 526 (3d Cir. 2009) ...................................... 6 Phillips v. Cricket Lighters, 883 A.2d 439 (Pa. 2005) .................. 9 Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (Pa. 2002) ......................................... 4 Wolfson v. Lewis, 924 F. Supp. 1413 (1996 E.D.Pa) ...................... 7 Rules Fed. R. Civ. P. 8. ..................................................... 7 Fed. R. Civ. P. 9. ..................................................... 2 F.R.C.P. 12(b)(6) ................................................... 3, 13

Other Oxford English Dictionary (Online Subscr.), Second Ed. 1989 ............. 4 See, www.abanet.org/judicialethics/ ABA_MCJC_approved.pdf (ABA Model Code of Judicial Conduct) .......... 12 Ind. Code of Judicial Conduct Rule 2.9(C) ............................. 12

ii

I. PANEL DECISION MISINTERPRETS AND MISAPPLIES THE TWOMBLY STANDARD. The undersigned respectfully submit that the Panel1 misinterprets Bell Atlantic v. Twombly and Ashcroft v. Iqbal.2 Notwithstanding the par-

tial reversal of the Order below,3 error yet remains. 1. The Twombly Standard. Twombly and Iqbal rest upon complex

federal questions without federalism issues and traditional common law state causes of action. A federal court ruling on a federal question may

entwine procedure and substance differently than when a federal court must restrain from creating general federal common law for a state claim.4 Having said that for the purpose of categorical consideration, the general pleading standard is straight-forward: A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.5 The Twombly Standard was not intended to create a "convince"6 or an "I know it when I see it" standard of pleading, or to deny access to the courts on a prejudicial conclusory basis. Yet, the undersigned re-

spectfully submit that both Opinions effectively do just that.7

M. Rendell, K. Jordan, Circuit Judges, and J. Padova (by designation) (the "Panel"); Opinion, dated January 28, 2010 (the "Panel Opinion"). 2 Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007) (Alito, Breyer, Kennedy, Roberts, Scalia, Souter, Thomas; Ginsburg and Stevens dissenting); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (Alito, Kennedy, Roberts, Scalia and Thomas; Breyer, Ginsburg, Souter and Stevens dissenting). Twombly and Iqbal referenced hereafter as, the "Twombly Standard." 3 A. Hay Opinion, February 17, 2009, A7, (the "Mag. Opinion"). The Panel Opinion and the Mag. Opinion, referred to as the "Opinions." 4 See, Erie R. Co. v. Tompkins, 58 S.Ct. 817 (1938). 5 Iqbal, at 1949; see, also, guidance of the four-justice dissent, at 1959 ("the [basis for dismissal] lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel...") 6 See Borings' Br., at 20. 7 See, Mag. Opinion, at pg. 4, A7; Borings Br., at 5; the Panel Opinion is addressed infra.

1

Both Opinions ignore assessment of crucial averments, such as the "Private Road No Trespassing" sign, the pleaded seclusion and the pleaded intent or disregard of Google for property or privacy. [Complaint ¶5, 6, 10, 11, 27; A30-31, A35] Formulaically, the pleading of all types of facts is not the same, because the inherent nature of all facts is not the same.8 There are

three types of facts for pleading: elemental, compound and abstract: 1. Elemental. The grass is green; the nose is broken. Without calling into the analysis existential philosophy or highscience (such as "is it really green?," a spectra scope or a doctor), these facts are self-evidencing. 2. Compound. The man was drunk; there is an agreement. These facts are conclusory. They rest on elemental facts at some tier. The man had alcohol on his breath and was wobbling. On October 31st, the man told me to paint the door. 3. Abstract. Love and deep love; hate and despise; anger and outrage; offense and high offense. These are facts, but they do not necessarily have simply-reduced elemental components, since, by their nature, they have unlimited particular implementations, which themselves may be abstract. Abstract facts are doubly if not impossibly analytically capable of objective degree separation. That is, how many degrees of love and hate are there? When does "offense" become "high offense"? Ultimately, the fact requires subjective judgment by a trier of fact, possibly with an expert report. These facts, by their very nature, press themselves as trial questions because, unless the claim element is exacting for purposes of demurrer, they beg, such as it is, "I know it when I see it" confusion. The Twombly Standard implicitly sets forth "common sense" factors: 1 2 Is the fact elemental, compound (conclusory) or abstract? Does the defendant need the benefit of more facts to frame a defense? "High offense" and "mental suffering" are abstracts. In Twombly, the "agreement" is a compound. Will the required fact change the nature of the response by the defendant. In Iqbal, the pleading standard was pursuant to the federal statute using a statutory term of art. Not existing in this case: irrespective of additional facts for mental suffering or offensiveness, Google's response is materially substantively unchanged.

8

See, Fed. R. Civ. P. 9. 2

3

Does the fact "possibly" flow from conduct averred; is it "plausible" (suggested); is it "contradicted"? Does the fact relate to conduct (cause) or damage (effect)? Is there an equally plausible alternative that creates facial ambiguity? Is there a claim to the scope of statutory intent or public policy? Is the cause of action federal or state based?

4

5 6 7

Mental suffering and high offense can occur for a trespass.9 More so, trespass that infringes a pleaded seclusion interest and is wrapped into the context of worldwide publication derived from the trespass, is tantamount to a million eyes of invasion. Notice of the averred conduct [Twombly, Iqbal] is distinct from notice of damages, often a function of post-discovery with the aid of experts. Google was on the Borings land, took pictures and commercialized, as it intended. Particularly with statutory causes of action, there may be a need to plead into or over a governmental interest. Federalism issues require deference to general federal common law, such as, creating de facto state claim elements. Importantly, federal use of state case law with fact-pleading must separate the claim element standard from the pleading standard. Is the court's requirement tantamount to creating an implicit element in violation of general federal common law. For example, does a plaintiff have a reasonable basis for satisfying or "convincing" the court, apart from notice to the defendant for the claimed conduct. What is the appropriate pre-evidentiary objective pleading standard, and where is that standard articulated: for example, does the federal standard to survive a 12(b)(6) demurrer require pleading of taking aspirins, more, different or less. Compare loss of consortium prior to legal recognition; the existence of the fact did not permit relief. Here, the facts are claimed by the court to be "not good enough" to "convince" the court.

8

If the fact is abstract, is there objective legal clarity on satisfaction of the claim element, thereby making the fact elemental? Is the fact request tantamount to fact pleading or "magic words"?

9

Is the quality of fact a matter of degree or a bursting bubble for satisfaction of the element?

Moreover, pleading demands for abstract facts is inherently a slippery slope, as demonstrated by the Magistrate Judge's own admission: See Jacque v. Steenberg Homes, 209 Wis. 2d 605; 563 N.W.2d 154, 159-162 (1997) (emphasis added). ("Although dueling is rarely a modern form of self-help, one can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser, like [defendant], who refuses to heed no trespass warnings...."), emphasis added. It is reasonable, and easy to imagine, that resentment, mental suffering and high offense can exist per the Wisconsin Supreme Court framework of dueling and someone willing to injury or kill. 3
9

[I]t is easy to imagine that many whose property appears on Google's virtual maps resent the privacy implications..."10 "Resent" means "to have a feeling of pain or distress..." means "the bearing of pain or distress."
11

"Suffering"

The Supreme Court did not in-

tend to deny access on such pre-evidentiary hair-splitting distinctions. 2. Error in Dismissing Privacy Count. The Panel Opinion states, at pg. 8: Publication is not an element of the claim, and thus we must examine the harm caused by the intrusion itself. No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there. i. Error by Misapplication of Borse.12 A plain reading of the Panel

Opinion states that "publication is not an element of the claim" apparently for the proposition to ignore and to dissect publication from the claim. The conclusion does not follow the premise, it inverts it. This

is clear error and confuses the interpretation of Borse. The concept to remove the "expanse of view"13 from an invasion of privacy claim is not comprehensible. weight of the expectation of privacy. the view. The expanse of view is the counterIt is seclusion from the expanse of

Privacy seclusion is relative to a view or intrusion. It does

not follow that, because I live on a cul-de-sac with an occasional driveby, means that I expect the million eyes of a televised daily New York parade. [Borings' Reply Br., at 11; n. 21, supra]

10 11

Opinion, at 4, A7; see, infra. n. 9. Oxford English Dictionary (Online Subscr.), Second Ed. 1989. 12 This Court will note that the Panel uses Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (Pa. 2002), quoting a statement of the required averment in a fact-pleading jurisdiction. The Panel does not analyze or distinguish the element for purposes of liability from the pleading difference under the Federal Rules. 13 See Borings Reply Br., at 11. 4

ii. Error by "Door Knock" Immunity.

The Panel Opinion concludes

that a claim for trespass and worldwide publication of data is less than a door knock and, therefore, Google is immune. The Panel changes the facts

and rules on an entirely different context argumentatively, in clear error to the Twombly Standard. Although it may be subtle, the Panel discloses

prejudice on the merits apart from the Borings' filed pleading. iii. Error by the "Fleeting Presence" Immunity. The amount of time

necessary to do the averred injury is immaterial; it is clear error to assert otherwise. There is no basis to assert that the time of presence is

insufficient intrusion when the result of that presence is recorded with worldwide publication. Injury can be done in a nanosecond. Google prof-

ited until its conduct was discovered.14

The Panel describes the presence

as "fleeting," but that term is not supported in the pleading at issue. iv. The Conclusion Begs the Trial Question. All that remains in the

Panel Opinion is exactly the draconian conclusory determination that begs the ultimate trial question, as a matter of law, without evidence: No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there.15 The Panel clearly admits its error, ignoring pleaded seclusion, trespass and a "Private Road No Trespassing" expectation of privacy: It is plausible that a reasonable person could be highly offended and incur mental suffering, shame or humiliation, having discovered that someone recently entered onto secluded private property, took 360° pictures within and while close-up on the driveway close to the home and swimming pool, while trespassing, after also trespassing and driving far down a privately maintained road and past "Private Road No Trespassing" signage, having commercialized the pictures, as intended by the trespass, with publication throughout the world via the trespasser's pervasive proprietary index system.

14 15

See, Borings Br., at 7. Panel Opinion, at 8, emphasis added. 5

The Panel's use of fact that it is "ungated" may be Google's argumentative defense, but it is certainly not plaintiffs' averment. The

Twombly Standard is not a carte blanche for dismissal for what a court may believe is a better argument or better facts. and ignoring pleaded facts, is clear error. Dissection of the context, The undersigned is respect-

fully trying to assess the claim element: as a matter of law, would a blinking "Private Road No Trespassing" sign satisfy the element? the required gate be locked? Should

Is a guard dog an equivalent to a gate?

What exactly is the objective federal law claim element for reference to survive the "so what" of a demurrer and allow the claim to pass?16 Panel creates the new general federal element of a required "gate." v. Other Examples of Case Law. The Panel issued a non-precedential The lower courts are presumably The

opinion, then cites to lower courts.17

acting in accordance with the precedent that should be established by this Court as a case of first impression, causing an endless loop of nonauthority. E.g., the Panel citing to Diaz18 for the proposition that the

district courts sustain cases for "highly offensive"19 is non-responsive

See also, Panel Opinion, at 9. The existence of "relevant factors," such as viewing inside the home on the merits, does not defeat plaintiffs' pleading. Once again, it does not follow that the failure to find a relevant factor means that the pleaded factors are finally adjudicated on the merits or may be ignored. Pacitti v. Durr, Civ. A. No. 05-317, 2008 WL 793875 (W.D. Pa. Mar. 24, 2008), aff'd, 310 F. App'x 526 (3d Cir. 2009), is another inapplicable example; dismissal was based upon truth as a defense. 17 Panel Opinion, at 9. 18 Diaz v. D.L. Recovery, 486 F.Supp. 2d 474, 475-480 (E.D. Pa. 2007). 19 Panel Opinion, at n. 4, pg. 9: " [W]e note Google's assertion, which is not seriously 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 website." That is incorrect. The Borings contest any reliance upon an unconstitutional entry on, and surveillance of, their property by a government agency as any basis for adjudication herein. Allegheny County's removal of the picture tacitly admits it is not permitted to publish data that taken by illegal entry. It suggests extrinsic evidence that is not properly qualified is unreliable. 6

16

as a pleading standard in this case: courts uphold and dismiss cases in their own contexts.20 As set forth in the Distinction Table,21 no case is

comparable to this: there is no case that has both two key elements that are here intertwined and unseparable: trespass and worldwide publication.22 ist. Controlling case law is not cited because it is not known to ex-

Offense and outrage in the privacy count are serviced and supported The Panel Opinion merely identifies other cases which

by the trespass.

have their own particular facts, and doing so is not a proper analysis of legal principles applied to plaintiffs' pleading. For example, in neither

of the Opinions does the court analyze and articulate the obvious meaning of the "Private Road No Trespassing" sign, which would make the claim more plausible. The fact is ignored in clear error.

3. Error in Dismissing Punitive Damages. The Panel states: The Borrings' [sic] 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 Google was even aware that its driver had entered onto the property. Moreover, there are no facts suggesting that Google acted maliciously or recklessly or that Google intentionally disregarded the Borings' rights. The undersigned most respectfully asserts that the above is legally incomprehensible pursuant to Fed. R. Civ. P. 8. It demonstrates how far

the Twombly Standard is misinterpreted: Twombly is now the unintended standard for conclusory opinions, prejudice and the creation of unintended

20

See Wolfson v. Lewis, 924 F. Supp. 1413 (1996 E.D.Pa), Borings Reply Br., at 13 ("a court should consider all of the circumstances ..."), citing, Hill v. National Collegiate Athletic Assoc., 7 Cal. 4th 1, 865 P.2d 633, 648 (Ca. 1994) [following evidentiary hearing] (emphasis added). The Panel Opinion identifying examples of cases is not a replacement for proper analysis of the facts actually pleaded in this case. 21 See Borings' Reply Br., Addendum A. 22 Id. 7

elements and burdens of proof at the pleading stage. 11, 27 A30-31, A35.]

[See Complaint ¶¶6,

The Borings have secured a valid claim for intentional trespass. Google is the driver, and its driver was trespassing onto secluded property, taking the pictures it intended to take for the benefit of its commercial enterprise, not requesting opt-ins, and publishing the illegal fruits of the trespass for its enrichment. Google drove past the clearly

marked "Private Road No Trespassing" sign, and, with nowhere to go but to drive into the pool, turned around in the driveway, drove back and published the pictures anyway, worldwide. Under the Twombly Standard, it is clearly error to determine that Google is immune from trespassing with intentional disregard or recklessly when expressly pleaded. [See, Complaint ¶¶6, 11, 27; A30-31, A35] If the

Panel Opinion element is to be facially understood, it appears that wouldbe tortfeasors are immune from liability for being generally reckless, such as being immune to the particular person hit for intentionally or recklessly shooting a gun into a crowd. Moreover, the Panel denies the A plaintiff

legal right to acquire or to present evidence of intention.

should not have to plead workproduct or evidence to plead its general claim of the defendant's intention and/or reckless disregard. it is clearly error. Regarding the use of Jacques,23 undersigned understand the point of the stated Barnard Rule. As expressly stated, "the Supreme Court of WisRequiring

consin also eloquently stated the socio-philosophical policy behind puni-

23

Borings' Br., at 29. 8

tive damages in a trespass count."24

It speaks well for itself and the

importance of punitive damages in a trespass action. Finally, damage claims can be dismissed in state court "in advance of trial."25 But, it is clearly error for the Panel to immunize Google

for its profit activities by attributing intention against the inference to which the Borings are entitled. For purposes of pleading, the plausi-

bility regarding intention speaks for itself: Google is not supposed to be on the Borings' land or pass the "Private Road No Trespassing Sign." 4. Error in Dismissing Unjust Enrichment. Data is the new oil. If an oilman trespassed onto my land, took my

oil and commercialized it for a profit, I would have a claim not only for the trespass but also a claim for the commercialized value of the oil. The obligation to pay is implied because the use is for a commercial profit by the taker. If an oilman can take oil from a public domain But if the oilman trespasses That is simply

source, that is not at issue in this case.

onto my land to take my oil, he is liable for its value. fair.

Each property owner is entitled to extract any and all value from

their own private investment in their land. The value of the oil remains to be determined. But, we know that

each generation has its clever buyer who knows the ultimate value, but would never, of course, admit the value. Land for beads.

The complaint does not allege, however, that the Borings gave or that Google took anything that would enrich Google at the Borings' expense.26 This is a conclusion not supported in the pleadings. The Panel cannot, at

the pleading stage, without the aid of the information provided by discovId. The Panel cites to Phillips v. Cricket Lighters, 883 A.2d 439, 445, 447 (Pa. 2005), a post-evidence summary judgment ruling. 26 Panel Opinion, at 14.
25 24

9

ery rule as a matter of law, make value determinations regarding the value of the extracted data in Google's hands.27 The Borings properly satisfy

the elements of the state-law claim, and the same have been pleaded: (1) benefits conferred on Google; (2) appreciation of such benefits by Google; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Lackner v. Glosser, 892 A. 2d 21, 34 (Pa. Super 2006).

If Google extracted data acquired from the Borings' land, the Borings are entitled to the fair value, and have clearly pleaded a plausible claim. 5. Error in Dismissing Equitable Relief. In denying the right to claim equitable relief, the Panel stated: The complaint claims nothing more than a single, brief entry by Google onto the Borings' property. Importantly, the Borings do not allege any facts to suggest injury resulting from Google's retention of the photographs at issue, which is unsurprising since we are told that the allegedly offending images have long since been removed from the Street View program. [Panel Opinion, at 15-16, emphasis added.] As the Panel reviewed de novo,28 the undersigned has been unable to reference in the record the circumstances under which the Panel was "told" anything about particular "offending images" or that the entry was "single" or "brief." The Panel Opinion does not provide references, nor are The offending images, as claimed in

those facts in the Amended Complaint.

the Amended Complaint, are all images taken while trespassing on the Borings' property. [Amended Complaint, 21-22; A33] Exactly for the reasons

stated in this appeal, plaintiffs have not had the opportunity to discover, adduce evidence and/or reference exactly what images are in

Google's possession, irrespective of publication; therefore, plaintiffs

27

Google is enriched by use of the wrongfully acquired data. Complaint, ¶¶27-28, A35. 28 Panel Opinion, at 5. 10

See Amended

themselves do not yet completely know of the scope of the offending images. There is no proper record indicating Google only appeared one-time,

for how long, and whether any other pictures exist containing the Borings and/or their swimming pool guests of various ages. That said, a "single, brief entry" is all it takes to injure, and, in a digital world, to continue to injure or risk injury. As stated in

Borings' Br. at 31 and Reply Br., at 18, the original digital picture remains available on Google's worldwide computers, and the claim for a destruction order is appropriate under the Twombly Standard. There is a

distinction between the publicized data and the unredacted retained data that is expressly disregarded as a matter of law by the Panel. Formula-

ically, let us take a hypothetical situation, testing the metes and bounds of the Panel rationale: The streets of a low-rent neighborhood. It is a 90° day in August. Children are playing in a rarely travelled dead-end street. The proverbial fire hydrant is uncapped and the children are running past it. Children are in their underwear instead of more modest swimwear. In a "single, brief" drive-by, a "Street Watch" car drives by. The Street Watch car records the children in their wet underwear because, "it records what anyone would see on the street." This recording is stored on the Street Watch disks. The original source images of the children are replicated and distributed on computers distributed throughout the world. Technicians necessarily have access to these pictures. There are thousand of technicians working on the project. As a matter of statistical probability, some technicians may have predatory inclinations and the original source pictures are subject to mischief. Later, one of the children becomes President of the United States, which creates interest for a specific archived picture, which could yield a lot of money in certain markets.29 The point is that the pictures are subject to continued misuse and mischief, and there should be a right to claim an equitable injunction orSee, e.g., http://googlesightseeing.com/2009/03/24/naked-people-on-googlestreet-view.
29

11

der for destruction under penalty of law. a solution. tree.

Removal from public view is not

Google must endure the destruction of the poison fruit of the

The greater the destruction burden, the more the admission of wideGoogle could eliminate the risk and cost of a de-

spread distribution.

struction order by electing an "opt-in" program, but it purposefully does not do so. [Borings' Br., at 7] If removal from public view is the formula for relief, then the injured party whose picture exists has no further remedy. How does removing

from public view solve the risk: the pictures are replicated and archived. It might be that the Panel holds, through the creation of a new implied element for claiming equity, that the picture must be human being as a matter of law, but what if the pictures look like a winter-wonderland scene with a holiday card scene? What exactly must be pleaded to have a

pre-evidentiary hearing injunction claim survive when the conduct of trespass and publication virtually admitted? II. PANEL FAILS TO ADDRESS PROPRIETY OF EX PARTE "GOOGLING" BY THE MAGISTRATE JUDGE 1. Error in Failure to Properly Address Googling. The undersigned re-

The Magistrate Judge was ex parte "googling."30

spectfully submit that the action prejudiced the Magistrate Judge's determination on the merits, and that prejudice appears to have ascended to the Panel, notwithstanding a de novo review. Either: a) the act of ex parte googling is improper; b) ex parte googling is proper; or c) is immaterial and condoned by this Court when the ex parte googling is sequentially stated in an opinion after a purported conclusion.31 The Panel stated:

30 31

Mag. Opinion, at 4-5, A7-8. Panel Opinion, at 10 (compounded use of defendant's own services not 12

The Borings also suggest that the Court erred in expressing skepticism about whether the Borings were actually offended by Google's conduct in light of the Borings' public filing of the present lawsuit. However, the District Court's comments came after the Court had already concluded that Google's conduct would not be highly offensive.... [Panel Opinion, at 10] First, the use of the term "skepticism" is a minimizing characterization for a highly serious issue of ex parte research. Second, the Panel

appears to purposefully avoid the clarity of situation: the Magistrate Judge was "googling." The reference merely to the public filing statement It is "especially true" that

is neither accurate nor complete as stated.

the Magistrate Judge's "googling" underpinned multiple errors.32 Third, we know the methodology of decision-making is not necessarily -- if ever -- sequential; it is circular, drawing forward, backward and around until a conclusion is derived on a rational basis of consideration, contemplation and reflection. sentences into a sequence. Grammatical structure must necessarily put

In no way does it follow that the fact that

sentences are necessarily in a sequence reflects the deliberative process underpinning the ex parte substantive conduct of a trial judge. Even so,

the location of the "googling" language in the first privacy section sequentially preceded the second part of the same privacy count which addresses viability and other comments by the Magistrate Judge. 2. Ascension of Googling Prejudice.

The undersigned believes that the "googling" error ascended to the Panel. For example, on the trespass claim, for which serious error was

determined, the Panel nevertheless frames the error in a coddle, to wit:

addressed). See, www.abanet.org/judicialethics/ABA_MCJC_approved.pdf (ABA Model Code of Judicial Conduct); Ind. Code of Judicial Conduct Rule 2.9(C) (no independent investigation in any medium, including electronic). 32 See Borings Br., at 5; Hays Opinion, at 4, A5 ("This is especially true"). 13

While the District Court's evident skepticism about the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was erroneous. [Panel Op., at 12.] Why understandable? statement? What is the pre-evidentiary basis for the Panel

What is the purpose of a predicate that gives the appearance of a The

favor to an seriously errant lower court or a strictly liable defendant? framing predicate is injurious, superfluous, unnecessary and prejudicial. 1) Liability and damage are the basis of a "claim."

2) The "skepti-

cism" means doubt on the claim, which is doubt to liability and/or damage. 3) For trespass, damage is not part of the prima facie claim, so it cannot be skepticism as to the pleading of damage. skepticism as to liability. Panel. So, it must be, therefore,

But, strict liability is admitted by the

So, it cannot be on that point either. 4) That leaves one thing: If the Panel is as-

prejudice as to the final adjudication of the claim.

serting doubt on damages for the "claim" as would be ultimately determined after trial, then it is an admission of prejudice, as well as terribly wrong, since some damage is always presumed in trespass by operation of law. Accordingly, the Borings seek rehearing en banc. /s/Gregg R. Zegarelli/ Gregg R. Zegarelli PA I.D. #52717 [e-mail] 412.765.0401 /s/Dennis M. Moskal/ Dennis M. Moskal, Esq. PA I.D. #80106 [e-mail] 412.765.0405 Counsel for Appellants Aaron and Christine Boring ZEGARELLI Technology & Entrepreneurial Ventures Law Group, P.C. Allegheny Building, 12th Floor Pittsburgh, PA 15219-1616 412.765.0400 14

Date: February 11, 2010

STATEMENT OF COUNSEL PURSUANT TO L.A.R. 35.1 I, the undersigned, make the following representation, in accordance with 3rd Cir. L.A.R. 35.1 (2008): I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to decisions of the United States Court of Appeals for the Third Circuit and the Supreme Court of the United States, and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court in Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (3d Cir. 1992) and the Supreme Court in Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and that this appeal involves a question of exceptional importance as it summarily denies the right to a trial. Furthermore, I express a belief the "googling" of trial judge "so far departed from the accepted and usual course of judicial proceedings" that this court's supervisory power is called for and the Panel did not acknowledge the act, as such, for a determination of propriety. Date: February 11, 2010 /s/Gregg R. Zegarelli/ Gregg R. Zegarelli PA I.D. #52717 [e-mail] 412.765.0401 /s/Dennis M. Moskal/ Dennis M. Moskal, Esq. PA I.D. #80106 [e-mail] 412.765.0405 Counsel for Appellants Aaron and Christine Boring ZEGARELLI Technology & Entrepreneurial Ventures Law Group, P.C. Allegheny Building, 12th Floor Pittsburgh, PA 15219-1616 412.765.0400

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing PETITION FOR REHEARING EN BANC was filed electronically with the Court on the 11th day of February, 2010, and I believe that notice of this filing will be sent to all counsel of record by operation of the Court's electronic filing system, including the following counsel of record for Appellee: Darlyn J. Durie, Esq. Durie Tangri, LLP 332 Pine Street, Suite 200 San Francisco, CA 94104, USA [e-mail] Brian P. Fagan, Esq. Keevican Weiss Bauerle & Hirsch LLC 11th Floor Federated Investors Tower 1001 Liberty Avenue, Pittsburgh, PA 15222, USA [e-mail] Tonia Ouellette Klausner, Esq. Wilson Sonsini Goodrich & Rosati PC 1301 Avenue of the Americas, New York, New York [e-mail] Date: February 11, 2010

10019, USA

/s/Gregg R. Zegarelli/ Gregg R. Zegarelli PA I.D. #52717 [e-mail] 412.765.0401 Dennis M. Moskal Dennis M. Moskal, Esq. PA I.D. #80106 [e-mail] 412.765.0405 Counsel for Appellants Aaron and Christine Boring ZEGARELLI Technology & Entrepreneurial Ventures Law Group, P.C. Allegheny Building, 12th Floor Pittsburgh, PA 15219-1616 412.765.0400

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OFFICE OF THE CLERK

M A R C IA M. WALDRON CLERK

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT 21400 UNITED STATES COURTHOUSE 601 MARKET STREET PHILADELPHIA, PA 19106-1790

TELEPHONE

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Website: www.ca3.uscourts.gov

January 28, 2010 Daralyn J. Durie, Esq. Durie Tangri 332 Pine StreetSuite 200 San Francisco, CA 94104

Brian P. Fagan, Esq. Keevican, Weiss, Bauerle & Hirsch 1001 Liberty Avenue11th Floor, Federated Investors Tower Pittsburgh, PA 15222

Tonia O. Klausner, Esq. Wilson, Sonsini, Goodrich & Rosati 1301 Avenue of the Americas40th Floor New York, NY 10019 Dennis M. Moskal, Esq. TEV Law Group 429 Forbes AvenueSuite 1212 Pittsburgh, PA 15219 Gregg R. Zegarelli, Esq. TEV Law Group 429 Forbes AvenueSuite 1212 Pittsburgh, PA 15219 RE: Aaron Boring, et al v. Google Inc Case Number: 09-2350 District Case Number: 2-08-cv-00694 ENTRY OF JUDGMENT Today, January 28, 2010 the Court entered its judgment in the above-captioned matter pursuant to Fed. R. App. P. 36.

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If you wish to seek review of the Court's decision, you may file a petition for rehearing. The procedures for filing a petition for rehearing are set forth in Fed. R. App. P. 35 and 40, 3rd Cir. LAR 35 and 40, and summarized below. Time for Filing: 14 days after entry of judgment. 45 days after entry of judgment in a civil case if the United States is a party. Page Limits: 15 pages Attachments: A copy of the panel's opinion and judgment only. No other attachments are permitted without first obtaining leave from the Court. Unless the petition specifies that the petition seeks only panel rehearing, the petition will be construed as requesting both panel and en banc rehearing. If separate petitions for panel rehearing and rehearing en banc are submitted, they will be treated as a single document and will be subject to a combined 15 page limit. If only panel rehearing is sought, the Court's rules do not provide for the subsequent filing of a petition for rehearing en banc in the event that the petition seeking only panel rehearing is denied. A party who is entitled to costs pursuant to Fed.R.App.P. 39 must file an itemized and verified bill of costs within 14 days from the entry of judgment. The bill of costs must be submitted on the proper form which is available on the court's website. A mandate will be issued at the appropriate time in accordance with the Fed.R.App.P. 41. Please consult the Rules of the Supreme Court of the United States regarding the timing and requirements for filing a petition for writ of certiorari. Very truly yours,

Marcia M. Waldron, Clerk

By:/s/Aina/MLR Case Manager 267-299-4937

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UNITED 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.

_______________ JU D G M E N T _______________

_______________ *Honorable John R. Padova, United States District Court Senior Judge for the Eastern D is tric t of Pennsylvania, sitting by designation.

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T h is cause came on to be considered on the record from the United States District C o u rt for the Western District of Pennsylvania and was submitted pursuant to Third C irc u it LAR 34.1(a) on January 25, 2010. On consideration whereof, it is now hereby O R D E R E D and ADJUDGED by this Court that the order entered by the District C o u rt on February 17, 2009 and April 6, 2009 is AFFIRMED in part and REVERSED in p a rt, in accordance with the opinion of this Court. Each party to bear its own costs.

ATTEST: /s /M a rc ia M. Waldron, Clerk D a te : January 28, 2010

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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.

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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

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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

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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

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Date Filed: 01/28/2010

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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Case: 09-2350

Document: 003110000077

Page: 15

Date Filed: 01/28/2010

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 he