Aaron Boring, et al v. Google Inc

Filing 309606811

CIVIL CASE DOCKETED. Notice filed by Appellants Aaron C. Boring and Christine Boring. (ARL)

Case 2:08-cv-00694-ARH

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IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF PENNSYLVANIA

A A R O N C. BORING; CHRISTINE B O R IN G , P l a i n t i f fs v s. G O O G LE INC., D e fe n d a n t

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Civil Action No. 08-694 Magistrate Judge Amy Reynolds Hay

M E M O R A N D U M OPINION H a y, Magistrate Judge T h e Court addresses here the Plaintiffs' Motion for Reconsideration (Doc. 45) of the C o u rt's Order (Doc. 43) granting Defendant's Motion to Dismiss the Amended Complaint (Doc. 2 2 ) with prejudice.1 "The purpose of a motion for reconsideration is to correct manifest errors of la w or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 9 0 9 (3d Cir.1985) (citation omitted). "Because of the interest in finality, at least at the district c o u r t level, motions for reconsideration should be granted sparingly; the parties are not free to re litiga te issues the court has already decided." Williams v. City of Pittsburgh, 32 F. Supp.2d 2 3 6 , 238 (W.D.Pa.1996). The Plaintiffs argue that the Court committed an error of law when it dismissed their

The Plaintiffs' Brief makes clear that they have abandoned their privacy and negligence claims, as w e ll as their request for injunctive relief and attorneys fees: "In good faith and for judicial efficiency, P la in tiff [sic] request that the . . . Judge . . . reinstate the Counts II (Trespass) and V (Unjust Enrichment) w i t h the claim for punitive damages. (Doc. 45 at 10).

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tre s p a s s claim.2 The Court considers this argument in order to eliminate any possibility that the la n gu a ge of its Memorandum Opinion addressing the Defendant's Motion to Dismiss might be re a d to suggest that damages are part of a prima facie claim for trespass. Clearly, under P e n n s ylv a n ia law, they are not. The tort is complete once there has been an unprivileged in te n tio n a l entry upon property in the possession of another. See Graham Oil v. BP Oil Co., 885 F . Supp. 716, 725 (W.D. Pa. 1994). What the Court did hold was that the Borings, in their A m e n d e d Complaint, failed to allege facts sufficient to support a plausible claim that they s u ffe re d any damage as a result of the trespass. Furthermore, although under Pennsylvania law, a P l a in t iff who establishes that a trespass occurred is entitled to nominal damages, see Morris & E s s e x Mut. Coal Co. v. Delaware, L. & W. R. Co., 42 A. 883, 884 (Pa. 1899), the Court found th at this entitlement was not sufficient to save the trespass claim from dismissal under Fed. R. 1 2 (b ) (6 ) . This was because the Borings did not, as Pennsylvania law requires, request nominal d a m a g e s in the Amended Complaint. W h i le a Plaintiff may be entitled to recover nominal damages, he must first establish that h e seeks them. See Bastian v. Marienville Glass Co., 126 A. 798 (Pa. 1924) (affirming trial c o u rt's binding instruction for defendant because plaintiff failed to provide proof of actual

Their statement of error is not nearly as straightforward as the Court's discussion suggests. The s u b s ta n c e and tenor of the Plaintiffs' argument is illustrated by this hyperbolic statement in their Brief: T h e Court tells Google that it is okay to enter onto a person's private p ro p e rty without permission. I would not teach that rule to my child. T h i s Court's ruling makes our private property a Google Slave; our Property is no longer our own: it is forced to work for another, a g a i n s t its will, without compensation, for the profit of another. T h e Federal Court should free slavery, not create it. (Doc. 45 at 3).

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d a m a ge s , and although nominal damages may have been permitted, plaintiff failed to request th e m ). See also Thorsen v. Iron and Glass Bank, 476 A.2d 928 (Pa. Super. 1984) (affirming trial c o u rt's grant of summary judgment because plaintiff failed to request nominal damages and failed to show any harm from the alleged breach). In Cohen v. Resolution Trust, No. 03-2729, 107 Fed. A p p x . 287, (3d Cir. 2004), the Court of Appeals wrote: "Here, plaintiffs requested only c o m p e n s a t o r y and punitive damages in their amended complaint, and nothing in the record s u gge s ts that they asked to amend their complaint to include nominal damages. Accordingly, the c o u rt did not err in refusing to award nominal damages." Id. at 289-290. T h e Borings, too, failed to mention nominal damages in their Amended Complaint. They a d m i tt e d as much in their Memorandum in Opposition to the Motion to Dismiss (Doc. 25 ): [A ]s id e from any compensatory damages in relation to the tre s p a s s . . . Plaintiffs could seek nominal damages and punitive damages in relation to a trespass action. Plaintiffs h a v e already sought punitive damages in relation to the tre s p a s s , and to the extent Defendant asserts that nominal d a m a ge s have not been properly pled, Plaintiffs could amend t h e complaint. Id . at 19 (emphasis added). Plaintiffs did not, however, file a second Amended Complaint, nor d id they seek leave to do so. In this context, the Court's decision not to consider the issue of n o m in a l damages was fully consistent with Pennsylvania law, and does not provide a basis for gra n tin g the pending Motion for Reconsideration. T h e Plaintiffs also challenge the Court's conclusion that the allegations set out in the A m e n d e d Complaint do not approach the type of outrageous conduct that warrants a punitive d a m a ge s award under Pennsylvania law. The Borings' account of Google's conduct has t ra n s m o g ri fi e d during the course of this litigation. In their Amended Complaint (Doc. 18) - to

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w h ic h the Court must confine its attention in evaluating a Motion to Dismiss - the Plaintiffs a lle ge d that "the scope of Google Street View was all paved, non-private roads." Id. at ¶ 7. The a lle ga tio n s relating to the trespass as set out in the Amended Complaint differ dramatically from th e account of Google's activity in the Plaintiffs' Brief in Support of the Motion for R e c o n s id e r a tio n (Doc. 45), where they state: G o o gle 's argument that punitive damages are not warranted b e c a u s e Plaintiffs do not point to aggravating or outrageous conduct found in the complaint is factually conclusory in that th e illegal entry upon property, pursuant to a calculated scheme o f approach, is a crime and clearly warrants punitive damages. Id . at 8-9. This unsupported alteration in the characterization of Google's conduct does not c h a n ge the Court's conclusion that the allegations in the Amended Complaint fail to establish a p l a u s i b l e claim of entitlement to punitive damages. A l th o u gh the Plaintiffs ask that their claim for unjust enrichment be reinstated, they do n o t address or point to error in the Court's disposition of that claim. Consequently, the Court d o e s not consider that issue here, adhering to the analysis in the Memorandum Opinion a d d re s s in g Google's Motion to Dismiss. B e c a u s e it finds no ground upon which to do otherwise, the Court will deny the Plaintiffs' M o t io n for Reconsideration (Doc. 45) in its entirety. An appropriate Order follows. /s / Amy Reynolds Hay United States Magistrate Judge

D a te d : 6 April, 2009

cc:

Counsel of Record via CM-ECF

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