Cohen et al v. Facebook, Inc.
Filing
102
ORDER REQUESTING FURTHER BRIEFING. Signed by Judge Richard Seeborg on 2/3/12. (cl, COURT STAFF) (Filed on 2/3/2012)
**E-filed 2/3/12**
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE NORTHERN DISTRICT OF CALIFORNIA
9
SAN FRANCISCO DIVISION
11
For the Northern District of California
United States District Court
10
12
13
ROBYN COHEN, et al.,
Plaintiffs,
v.
14
15
ORDER REQUESTING FURTHER
BRIEFING
FACEBOOK, INC.,
16
No. C 10-5282 RS
Defendant.
____________________________________/
17
18
Plaintiffs’ opposition to Facebook’s motion for attorney fees offers one substantive, as
19
opposed to procedural, basis on which they contend Facebook should be precluded from recovering
20
any fees in this action. Plaintiffs argue that because Facebook successfully defended on the grounds
21
that they lacked standing under Constitutional principles to bring their claims in federal court,
22
Facebook cannot be seen as having “prevailed” on the claim under California Civil Code §3344 for
23
purposes of fee-shifting. Plaintiffs provide no authority in support of this argument, suggesting
24
instead that Facebook’s failure to cite precedent to the contrary in its moving papers should be fatal
25
to its fee request.
26
On reply, Facebook relies on Love Associated Newspapers, Ltd., 611 F.3d 601 (9th Cir.
27
2010). In Love, the defendants defeated a §3344 claim by showing that California law did not apply
28
to the allegedly wrongful conduct, all of which took place in England. Id. at 610-11. The court held
award, notwithstanding the ultimate determination that the statute did not govern their conduct.
3
The dismissal Facebook obtained in this action was different. Although the argument in
4
plaintiffs’ opposition is underdeveloped, there is a reasonable basis to contend that the dismissal
5
here falls short of establishing that plaintiffs have no potentially valid claim under §3344. Rather,
6
the order arguably only found that any such claim cannot be heard in federal court as a result of
7
Constitutional standing limitations applicable in this forum. Whether plaintiffs might have standing
8
to bring a claim under §3344 in California courts at least theoretically may remain an open question.
9
See Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322 n. 5 (2011) (“There are sound reasons to
10
be cautious in borrowing federal standing concepts, born of perceived constitutional necessity, and
11
For the Northern District of California
that because plaintiff had in fact brought an action “under” §3344, defendants were entitled to a fees
2
United States District Court
1
extending them to state court actions where no similar concerns apply.”) Thus, while the Love
12
defendants had succeeded in showing that the §3344 claim failed because the statute did not govern
13
their conduct, Facebook may have only shown that plaintiffs sued in a court system without
14
jurisdiction to hear their claims.
15
The parties are in agreement that California law governs the question of whether Facebook is
16
entitled to recover fees. The particular circumstances here, however, seem unlikely to have ever
17
arisen in a California court. Nevertheless, the question is whether, under California law, a defendant
18
can be considered to have “prevailed” for purposes of a fee-shifting statute where it did not
19
establish, for example, (1) the allegedly wrongful conduct did not occur, (2) the conduct was not
20
wrongful, (3) California law did not apply to the conduct, (4) the plaintiff lacked standing under
21
California law, or (4) any other similar basis for judgment in its favor more clearly equivalent to a
22
determination on the merits than was the dismissal here. More specifically, does a dismissal in
23
federal court for lack of Article III standing—i.e. a dismissal for lack of federal jurisdiction—equate
24
to having “prevailed” on a state statutory claim that has a fee shifting provision?
25
Within 20 days of the date of this order, Facebook may submit a supplemental brief, not to
26
exceed 15 pages, addressing this issue. Within 10 days after Facebook’s brief is filed, plaintiffs may
27
file a response, also not to exceed 15 pages. The matter will then be resubmitted for decision.
28
2
1
IT IS SO ORDERED.
2
3
4
Dated: 2/3/12
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
5
6
7
8
9
11
For the Northern District of California
United States District Court
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?