Wescott v. Google, LLC

Filing 11

ORDER DISMISSING 1 COMPLAINT WITHOUT PREJUDICE PURSUANT TO 28 U.S.C. § 1915(e)(2)(B); DENYING AS MOOT 5 MOTION FOR SERVICE.Signed by Judge Peter H. Kang on August 15, 2024. (phklc2, COURT STAFF) (Filed on 8/15/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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CARL A. WESCOTT,
Plaintiff,

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United States District Court
Northern District of California

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v.
GOOGLE, LLC,
Defendant.

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Case No. 24-cv-01513-PHK
ORDER DISMISSING COMPLAINT
WITHOUT PREJUDICE PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B) AND
DENYING MOTION FOR SERVICE
Re: Dkts. 1, 5

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Pro se Plaintiff Carl A. Westcott (“Plaintiff”) brings this action against Defendant Google

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LLC (“Google”). The Court previously granted Plaintiff’s application to proceed in forma

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pauperis (“IFP”), in accordance with 28 U.S.C. § 1915(a). [Dkt. 9]. The Court now analyzes

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whether Plaintiff’s Complaint satisfies the mandatory screening requirements of 28 U.S.C.

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§ 1915(e)(2)(B).

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LEGAL STANDARD
Any complaint filed pursuant to the IFP provisions of § 1915(a) is subject to mandatory

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review by the Court and sua sponte dismissal if the Court determines the complaint is “frivolous

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or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief

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against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see

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Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.

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§ 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an

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[IFP] complaint that fails to state a claim.”) (emphasis added); see also Chavez v. Robinson, 817

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F.3d 1162, 1167-68 (9th Cir. 2016) (noting that § 1915(e)(2)(B) “mandates dismissal—even if

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dismissal comes before the defendants are served”). Congress enacted this safeguard because “a

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litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks

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an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton

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v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
If the Court dismisses a complaint pursuant to § 1915(e)(2)(B), the plaintiff may still file

United States District Court
Northern District of California

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the same complaint by paying the filing fee because such dismissal is not on the merits; rather, the

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dismissal is an exercise of the Court’s discretion under the IFP statute. Biesenbach v. Does 1-3,

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No. 21-cv-08091-DMR, 2022 WL 204358, at *2 (N.D. Cal. Jan. 24, 2022) (citing Denton, 504

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U.S. at 32).

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Plaintiff proceeds in this matter pro se. Accordingly, in undertaking the mandatory

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screening of Plaintiff’s Complaint, the Court construes Plaintiff’s allegations liberally and affords

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him the “benefit of any doubt.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (citation

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omitted).
ANALYSIS

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I.

Whether the Complaint is Frivolous or Malicious
The Court first considers whether Plaintiff’s Complaint is “frivolous or malicious.” 28

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U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous if “it lacks an arguable basis either in law or

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in fact.” Denton, 504 U.S. at 31 (quoting Neitzke, 490 U.S. at 325). A complaint is legally

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frivolous if it fails to establish standing and subject matter jurisdiction. Castillo v. Marshall, 107

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F.3d 15 (9th Cir. 1997) (mem.) (quoting Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987)). A

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complaint is malicious “if it was filed with the ‘intention or desire to harm another.’” Andrews v.

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King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citations omitted).

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The Court finds that Plaintiff’s Complaint is sufficiently rooted in law and fact such that it

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should not be dismissed as frivolous. In his Complaint, Plaintiff invokes federal diversity

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jurisdiction, pursuant to 28 U.S.C. § 1332, which requires that there be complete diversity of

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citizenship between the Parties and that the amount in controversy exceeds $75,000 exclusive of

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interest and costs. With regard to diversity of citizenship, Plaintiff alleges that he is a citizen of

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Arizona and that Google is a citizen of California. [Dkt. 1 at ¶ 17]. With regard to the amount in
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controversy, Plaintiff alleges that he has suffered hundreds of thousands of dollars in damages due

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to “los[t] emails, including gmail accounts, that were ‘hijacked.’” Id. at ¶¶ 30, 34-45. Plaintiff

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asserts a single cause of action for negligence against Google for “not helping the Plaintiff get his

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gmail accounts back.” Id. at ¶¶ 110-17.
The Court finds no indication that Plaintiff’s Complaint was “filed with the intention or

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desire to harm another.” King, 398 F.3d at 1121. Accordingly, the Complaint as drafted does not

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appear to be malicious.
Accordingly, the Court determines that Plaintiff’s Complaint is neither frivolous nor

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United States District Court
Northern District of California

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malicious for purposes of 28 U.S.C. § 1915(e)(2)(B)(i). Therefore, Plaintiff’s Complaint satisfies
the first requirement of the mandatory screening statute.
II.

Whether the Complaint Fails to State a Claim for Relief

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The Court next considers whether the Complaint should be dismissed for failure to state a

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claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii). “The standard for determining whether a plaintiff

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has failed to state a claim upon which relief may be granted under § 1915(e)(2)(B)(ii) is the same

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as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison, 668

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F.3d at 1112 (citing Lopez, 203 F.3d at 1127). “The Rule 12(b)(6) standard requires a complaint

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to contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

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face.” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009)). Detailed factual allegations are not required but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

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556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A pleading must

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“contain either direct or inferential allegations respecting all the material elements necessary to

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sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562 (citation omitted)

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(emphasis in original).

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Here, Plaintiff alleges that he is the owner of multiple Google Gmail accounts, which he

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uses for both “personal and business communications.” [Dkt. 1 at ¶¶ 36, 71]. Plaintiff alleges

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that, since 2019, at least twenty-seven of his Gmail accounts have been “hijacked,” meaning that

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“someone else took over the account[s] and changed the password[s], with [] Plaintiff no longer
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able to access his email[s].” Id. at ¶¶ 38-40, 65. Plaintiff alleges that “Mr. Robert J. Block

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(‘Block’) is the main person who has been doing this, with many people in his criminal gang

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involved (‘the Bob Block Criminal Gang[,’] or the ‘Block Criminal Gang’).” Id. at ¶¶ 43-45.

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Plaintiff alleges that because “Mr. Block and his criminal gang” have also “take[n] over his cell

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phone service” and “shut [him] out of many of his laptops,” he has been “unable to recover his

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gmail accounts using the online recovery process.” Id. at ¶¶ 57-63. Plaintiff alleges that he has

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“contacted people in Google customer service and customer support in various ways to get help

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getting his gmail accounts back.” Id. at ¶ 74. He complains that despite “many attempts” to

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obtain Google’s assistance, he “still does not have the gmail accounts back.” Id. at ¶ 82.

United States District Court
Northern District of California

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Claiming that he has lost “hundreds of thousands of dollars” in business opportunities

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resulting from the loss of his “hijacked” Gmail accounts, Plaintiff asserts a single claim against

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Google for negligence. Id. at ¶¶ 94-102, 110-17. Specifically, Plaintiff alleges that “Google had

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legal duties to the Plaintiff, as a customer of Google, LLC[;]” that “Google employees shirked

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their duties and were negligent in not helping the Plaintiff get his gmail accounts back[;]” that

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“Google is responsible for the negligent acts of its employees under respondeat superior and

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vicarious liability[;]” and that Google’s negligence caused Plaintiff to suffer “financial harm in

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multiple categories, among them the loss of revenue he otherwise would have earned.” Id. at ¶¶

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111-16.

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As relief, Plaintiff seeks: (1) a declaration that he is “the rightful owner of the Gmail

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accounts listed in Exhibit A;” (2) a Court order requiring “Google, Inc. to return the Plaintiff’s

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email accounts to the Plaintiff, the rightful owner;” (3) “all direct and consequential damages the

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Plaintiff incurred as a proximate cause of [Google’s] negligence;” (4) “reasonable compensation

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for the value of his time in representing himself while he cannot afford an attorney (quantum

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meruit);” (5) “reasonable future attorney’s and paralegal fees and costs[;]” and (6) “such other and

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further relief as this Court deems just and proper.” Id. at 15, 17.

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To state a claim for negligence under California law, a plaintiff must plausibly allege: (1) a

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legal duty to use due care, (2) a breach of that legal duty, and (3) proximate cause between the

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breach and the plaintiff’s injury. Brown v. USA Taekwondo, 483 P.3d 159, 213 (Cal. 2021).
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establishing a claim for negligence.” Nymark v. Heart Fed. Savings & Loan Ass’n, 231 Cal. App.

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3d 1089, 1095 (1991). “Duty is not universal; not every defendant owes every plaintiff a duty of

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care.” Brown, 483 P.3d at 164. Rather, “[a] duty exists only if the plaintiff’s interests are entitled

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to legal protection against the defendant’s conduct.” Id. (internal quotation marks and citation

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omitted).

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United States District Court
Northern District of California

“The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to

Here, Plaintiff alleges that Google owed “legal duties” to him “as a customer,” and that

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Google “shirked those duties” by failing to help him recover his stolen Gmail accounts. [Dkt. 1 at

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¶¶ 111, 113]. However, Plaintiff fails to plead the existence of any facts regarding the source of

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and the nature of Google’s purported duty. Plaintiff cannot rely on conclusory allegations to state

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a claim for relief. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, due not suffice.”); see, e.g., Langan v. United

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Servs. Auto Ass’n, 69 F. Supp. 3d 965, 987 (N.D. Cal. 2014) (dismissing a negligence claim with

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leave to amend where the plaintiff failed to allege any facts to raise a reasonable inference that the

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defendants owed him a duty of care). Simply stating that duties were owed because Plaintiff is a

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customer does not identify sufficiently how those duties arose, what the scope and nature of those

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duties are, or what kind of “care” is involved in those duties.

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Further, Plaintiff has failed to allege specific facts showing how Google breached its duties

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(i.e., what Google and/or its employees did or did not do in connection with Plaintiff’s request for

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assistance with his Gmail accounts). Again, simply asserting that Google employees “shirked”

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their duties does not identify sufficiently what those employees did that was allegedly insufficient,

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or what they failed to do that was allegedly required, or how they performed actions in ways that

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were allegedly insufficient.

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In addition, Plaintiff fails to allege sufficient facts from which to reasonably infer that the

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alleged breach of duties proximately caused Plaintiff’s injury. See Day v. Google, Inc., No. 15-cv-

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01224-NC, 2015 WL 1545051, at *2 (N.D. Cal. Apr. 6, 2015) (dismissing a negligence claim

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arising from the plaintiff’s purchase of a Google Nexus 9 tablet where the plaintiff failed to

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provide any specific facts regarding his interactions with Google support or the nature of the harm
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caused to him by such interaction). Because the pleading as to how Google allegedly breached its

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alleged duties to Plaintiff is insufficient, the pleading is similarly deficient in identifying a

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sufficient causal link between the alleged breaches of duties and the alleged harms.
Accordingly, the Court finds that Plaintiff has failed to plausibly allege the requisite

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elements of a negligence claim. For that reason, Plaintiff’s Complaint is subject to dismissal for

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failure to state a claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii).

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United States District Court
Northern District of California

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III.

Whether the Defendant has Immunity from Monetary Relief
While the Court finds that the Complaint must be dismissed for failure to state a claim for

relief as discussed above, for completeness the Court turns to the third factor under §

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1915(e)(2)(B). Under the mandatory screening statute, the final inquiry is whether the Complaint

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seeks monetary relief against defendants who are immune from such relief. 28 U.S.C.

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§ 1915(e)(2)(B)(iii). Here, Plaintiff seeks money damages from a corporate entity, Google, for

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alleged negligence in connection with Plaintiff’s Gmail accounts as detailed above. There is

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nothing to suggest that Google is immune from such relief. Accordingly, the Court determines

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that Plaintiff’s Complaint satisfies the “immunity” prong for purposes of § 1915(e)(2)(B)(iii).
CONCLUSION

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For the reasons set forth herein, IT IS ORDERED THAT:
1. Plaintiff’s Complaint [Dkt. 1] is DISMISSED WITHOUT PREJUDICE, pursuant to 28
U.S.C. § 1915(e)(2)(B), for failure to state a claim for relief.
2. Plaintiff is GRANTED LEAVE to file an amended complaint that addresses the issues
discussed herein by no later than September 16, 2024.

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3. Plaintiff’s motion requesting service of process [Dkt. 5] is DENIED AS MOOT.

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4. If Plaintiff does not file an amended complaint by the ordered deadline or if he cannot cure

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the identified deficiencies, the Court will recommend the dismissal of this action in whole

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or in part.

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5. Plaintiff is ADVISED that there are several resources for pro se litigants. The Court

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makes available a guide for pro se litigants called Representing Yourself in Federal Court:

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A Handbook for Pro Se Litigants, which provides instructions on how to proceed at every
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United States District Court
Northern District of California

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stage of a case, including discovery, motions, and trial. This guide is available

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electronically online at https://www.cand.uscourts.gov/wp-

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content/uploads/2020/02/Pro_Se_Handbook_2020ed_links_12-2021_MBB.pdf or in hard

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copy form free of charge from the Clerk of Court’s Office. The Court additionally has a

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webpage with resources for pro se litigants: https://www.cand.uscourts.gov/pro-se-

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litigants/. In addition, Plaintiff has the option to seek assistance from the Legal Help

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Center by making an appointment by telephone at [phone] or by email at

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[e-mail]. The Legal Help Center is a free service provided by the Justice &

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Diversity Center of the Bar Association of San Francisco (“JDC”), and is not part of the

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United States District Court. The Legal Help Center is staffed by attorneys employed by

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the JDC to provide information and limited-scope legal assistance to pro se litigants in

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civil cases. See https://cand.uscourts.gov/about/court-programs/legal-helpdesks/.

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6. The Court further ADVISES that the amended complaint shall include the caption and civil

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case number used in this Order (24-cv-01513-PHK) and the words FIRST AMENDED

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COMPLAINT shall be written on the caption page. The Court recommends that Plaintiff

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Wescott use this Court’s form complaint (available on the Court website) for drafting the

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amended complaint.

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7. Because an amended complaint completely replaces the previous complaint, Plaintiff

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Wescott SHALL include in his first amended complaint all the claims he wishes to present

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and all the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

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Cir. 1992). The amended complaint SHALL NOT incorporate material from the prior

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complaint by reference.

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8. Plaintiff Wescott SHALL comply with all of this Court’s Orders (including all Standing

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Orders, available on the Court’s website) and all deadlines required by the Federal Rules of

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Civil Procedure and the Local Rules of this Court, in a timely fashion. When needed,

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Plaintiff Wescott may file a motion (prior to a deadline) requesting an extension of time to

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meet a Court-ordered deadline. In order to be granted, any such motion SHALL show good

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cause why there exists a need for a reasonable amount of additional time to complete the
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necessary tasks. Failure to file an amended complaint by the deadline herein and failure to

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prosecute this action timely may result in negative consequences for Plaintiff Wescott’s case,

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including recommendation for dismissal of this action with prejudice such as under Federal

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Rule of Civil Procedure 41(b) for failure to prosecute.

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IT IS SO ORDERED.

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Dated: August 15, 2024

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______________________________________
PETER H. KANG
United States Magistrate Judge

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United States District Court
Northern District of California

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