"In Re: Facebook Privacy Litigation"

Filing 109

MOTION to Alter Judgment filed by David Gould, Mike Robertson. Motion Hearing set for 1/30/2012 09:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. James Ware. Responses due by 1/3/2012. Replies due by 1/10/2012. (Attachments: # 1 Proposed Order)(Aschenbrener, Michael) (Filed on 12/20/2011) Modified on 1/3/2012 (sis, COURT STAFF).

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KASSRA P. NASSIRI (215405)
([e-mail])
CHARLES H. JUNG (217909)
([e-mail])
NASSIRI & JUNG LLP
47 Kearny Street, Suite 700
San Francisco, California 94108
Telephone:
[phone]
Facsimile:
[phone]
MICHAEL J. ASCHENBRENER (277114)
([e-mail])
ASCHENBRENER LAW, P.C.
795 Folsom Street, First Floor
San Francisco, California 94107
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFF AND THE PUTATIVE CLASS

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
Case No. 10-cv-02389-JW

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CLASS ACTION

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PLAINTIFFS’ MOTION TO
ALTER OR AMEND
JUDGMENT, OR,
ALTERNATIVELY, FOR RELIEF
FROM JUDGMENT AND
SUPPORTING MEMORANDUM

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ACTION FILED: 05/28/10

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Date: January 30, 2012
Time: 9:00 a.m.
Judge: Hon. James Ware

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IN RE: FACEBOOK PRIVACY LITIGATION

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PLAINTIFFS’ MOTION TO ALTER OR
AMEND JUDGMENT

10-cv-2389-JW

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I.

INTRODUCTION & PROCEDURAL BACKGROUND

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On November 22, 2011, the Court granted Facebook’s Motion to Dismiss Plaintiffs’ First

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Amended Complaint with Prejudice. (Dkt. No. 106 (the “Order”).) The Court further concluded

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that because Plaintiffs had thus far failed to allege specific facts supporting its claims,

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amendment would be futile. (Order at 9-10.) Plaintiffs respectfully contend that the Court’s

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Order contains manifest errors of fact concerning Plaintiffs’ Stored Communications Act

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(“SCA”) claim, and thus the Court should amend its judgment to deny Defendant’s motion to

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dismiss the SCA claim, or in the alternative, to grant leave to amend to allow Plaintiffs to clarify

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any ambiguities concerning their SCA claim.1

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II.

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LEGAL STANDARD
Motions to alter or amend a judgment are permissible in cases, like here, where the court

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enters an order of dismissal. Roque v. City of Redlands, 79 F.R.D. 433 (C.D. Cal. 1978).

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Plaintiffs recognize that Rule 59(e) and 60(b) motions are granted sparingly and that such

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motions may not be used to re-litigate old matters or present new arguments or allegations that

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could have been introduced prior to the entry of judgment. The Ninth Circuit, however, has held

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that a Rule 59(e) motion may be granted where a party identifies “manifest errors of law or fact

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upon which the judgment is based.” Turner v. Burlington Northern Santa Fe R. Co., 338 F.3d

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1058, 1063 (9th Cir. 2003). “Since specific grounds for a motion to amend or alter are not listed

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in the rule, the district court enjoys considerable discretion in granting or denying the motion.”

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Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). In this case, Plaintiffs

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respectfully contend that there are manifest errors of fact requiring the relief requested.

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Similarly, a Rule 60(b) motion may provide relief from a judgment due to: “(1) mistake,

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inadvertence, surprise, or excusable neglect; … or (6) any other reason justifying relief from the

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operation of the judgment.” In re Sasson, 424 F.3d 864, 875 (9th Cir. 2005). Plaintiffs

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respectfully contend that there are mistakes and other reasons inherent in the Court’s judgment

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This motion is directed solely at Plaintiffs’ SCA cause of action, and not any of Plaintiffs’ other
causes of action.
PLAINTIFFS’ MOTION TO ALTER OR
AMEND JUDGMENT

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10-cv-2389-JW

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that entitle Plaintiffs to relief from that judgment.

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III.

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DISCUSSION
Plaintiffs contend that the Court’s dismissal of the SCA claim was based on a mistake of

fact. That mistake is most clearly evidenced by the following excerpt from the Order:
Plaintiffs contend that Defendant acted as an RCS provider for
purposes of Plaintiffs’ claim under the SCA. … [I]f Defendant was
acting as an RCS provider for purposes of Plaintiffs’ claim, then it
must be the case that Plaintiffs’ communications consisted of
“data” which Plaintiffs sent to Defendant for “processing or
storage.” However, Plaintiffs allege that the communications at
issue were requests to be connected to advertisements, not data
to be processed or stored.
Accordingly, the Court finds that Plaintiffs fail to state a claim
under the SCA.
(Order at 5-6 (emphasis added).)
As Plaintiffs argued in their Opposition to Facebook’s Motion to Dismiss (Dkt. No. 101)

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and at oral argument on the motion, the communications at issue were not requests to be

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connected to advertisers, but rather were communications between Plaintiffs and Facebook

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concerning their private Facebook browsing and virtual filing cabinet activities. Facebook

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unnecessarily disclosed Plaintiffs’ private RCS communications to third parties when Plaintiffs

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later clicked on advertisements. Although sharing Plaintiffs’ advertisement requests with the

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advertisers was permissible, it was not permissible (or necessary) to bundle Plaintiffs’ private

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RCS communications with the otherwise permissible and unrelated advertisement requests.

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THE COURT: As I understand the allegation here, it's the click
that is the subject of this lawsuit, not the establishment of a page.
MR. NASSIRI: It's not, Your Honor. The click-through is just the
means by which the improper disclosure is made.
(October 17, 2011 Hearing Transcript at 52:19-24.)
MR. NASSIRI: So if I've stored my pictures on Facebook, and
they're acting as a virtual filing cabinet, and I'm going through -using their service to go through my picture and browse through
my albums, I'm communicating with Facebook.
They know what pictures I'm looking at, everything I've done that
day, because -- and they're holding that information, because that's

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PLAINTIFFS’ MOTION TO ALTER OR
AMEND JUDGMENT

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10-cv-2389-JW

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how they provide to service to me. They're holding that
information about what pictures I'm looking at, solely to provide
that service to me.
Then when I click on an ad, they take information that they had
about what I was looking at when they were providing the storage
service to me, and they pass it on to the advertiser, via the click on
the ad. And they embed it, by choice, into the URL, and send it off
to the advertiser.
So what they've done is they've revealed to advertiser what I was
looking at as I was browsing my virtual filing cabinet.
THE COURT: Now, you're closer. In other words, that gets to the
issue, in other words, whether or not the statute covers whatever is
sent along with your click-through.
(Transcript at 53:7-54:2; see also Transcript at 27:25-30:23.)
Although Facebook allows users to send private messages to one
another (the ECS function), Plaintiffs’ claims concern Facebook’s
remote computing service. Plaintiffs allege Facebook provided to
them computer storage and processing services by allowing them
to process, store, and share content, including pictures, videos,
biographical information and more. (FAC ¶¶ 80-81.) Plaintiffs
further allege that Facebook allows its users the choice to grant
certain other users a license to view information stored on its
remote computing service. (Id.) This content storage and sharing
function forms the crux of Plaintiffs’ claims and makes Facebook
an RCS provider subject to section 2702(a)(2) of the SCA. See,
e.g., Viacom Int’l Inc. v. YouTube, Inc., 253 F.R.D. 256 (S.D.N.Y.
2008) (holding that YouTube is an RCS provider because it
provides storage, processing and sharing of videos); Crispin, 717
F. Supp. 2d at 990 (holding that Facebook is an RCS provider and
subject to § 2702(a)(2)).
Plaintiffs allege that the non-consensual disclosures occurred while
Facebook users browsed stored content on Facebook’s site (an
RCS function). (FAC ¶ 44.) Plaintiffs also allege that they sent
communications (i.e., communications concerning their identities
and which of their own stored content or friends’ stored content
they wished to view) to Facebook for the specific and sole purpose
of using Facebook’s remote computing services and did not
authorize Facebook to use those communications for any other
purpose. (Id. ¶ 76.) Accordingly, in the context of Plaintiffs’
allegations, Facebook was acting as an RCS provider and did not
have Plaintiffs’ consent to further divulge the subject
communications to third parties. By divulging the contents of those
communications to third-party advertisers without Plaintiffs’
consent, Facebook violated section 2702(a)(2).
PLAINTIFFS’ MOTION TO ALTER OR
AMEND JUDGMENT

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10-cv-2389-JW

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(Dkt. No. 101, Plaintiffs’ Opposition, 3-4.)
Because the Order misconstrues Plaintiffs’ position as demonstrated above, the Court did

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not reach the “merits of Plaintiffs’ contention that ‘only ECS providers, and not RCS providers

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like [Defendant], may avail themselves of the SCA’s ‘intended recipient’ exception.’” (Order at

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6, n. 7.) The Court also “[did] not reach the question of whether Defendant was acting as an

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RCS provider.” (Id.)

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Plaintiffs respectfully contend that had the Order correctly construed Plaintiffs’ claims,

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the Court would not have dismissed Plaintiffs’ SCA claim at all, much less with prejudice.

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Plaintiffs SCA claim is properly summarized as follows:

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(a)

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Plaintiffs communicated data to Defendant concerning their private
browsing/virtual filing cabinet activities on Facebook’s website;

(b)

Defendant was acting as an RCS provider when it received those virtual filing

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cabinet-related communications from Plaintiffs and thus, the intended

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recipient exception does not apply; and

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(c)

Defendant divulged those communications to third-party advertisers when

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Plaintiffs clicked on ads by unnecessarily and intentionally embedding the

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virtual filing cabinet information into the ad request URLs.

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Plaintiffs submit that if the Court views the arguments advanced in Plaintiffs’ Opposition

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to the Motion to Dismiss and at the hearing on the motion with the proper understanding of the

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communications alleged to have been wrongly disclosed, it will reach a different conclusion—

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the Court will deny Defendant’s motion to dismiss Plaintiffs’ SCA claim. Accordingly,

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Plaintiffs respectfully request that the Court alter its prior Judgment to allow Plaintiffs to proceed

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with their claim under the SCA. See, e.g., All West Pet Supply Co. v. Hill's Pet Products Div.,

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847 F. Supp. 858 (D. Kan. 1994) (appropriate grounds for motion to reconsider include court's

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obvious misapprehension of party's position, facts, or law).

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Alternatively, if the Court determines that Plaintiffs’ contentions here, in Plaintiffs’
Opposition to the Motion to Dismiss, and at the hearing, are not adequately supported by the

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PLAINTIFFS’ MOTION TO ALTER OR
AMEND JUDGMENT

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10-cv-2389-JW

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First Amended Complaint, then the Court should alter its prior Judgment to allow Plaintiffs to

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amend. See, e.g., Flett v. W. A. Alexander & Co., 302 F.2d 321 (D. Ill. 1962), cert. denied, 83 S.

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Ct. 71, 371 U.S. 841, 9 L.Ed.2d 77 (plaintiff whose complaint had been dismissed could have

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filed motion under this rule for modification of judgment dismissing action and for leave to file

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amended complaint).

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“[L]eave to amend should be granted ‘if it appears at all possible that the plaintiff can

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correct the defect.’” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 701 (9th Cir. 1990)

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(quoting 3 Moore, Federal Practice, Sec. 15.10 at 838 (2d ed. 1948)). If the Court can merely

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“conceive of facts” that would render Plaintiffs’ claim viable, then leave to amend should be

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granted. Id. (quoting Scott v. Eversole Mortuary, 522 F.2d 1110, 1116 (9th Cir. 1975)). As

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Plaintiffs’ Opposition to the Motion to Dismiss and the transcript of the hearing on the motion

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demonstrate, Plaintiffs can correct the pleading defect through amendment by clarifying the

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details concerning Facebook’s status as an RCS, what communications Facebook impermissibly

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shared with third parties, and how Facebook impermissibly shared those communications. Doing

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so would allow the Court to rule on the merits of Plaintiffs’ argument that Facebook, in its role

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as an RCS, may not rely on the intended recipient exception to avoid liability under the SCA—

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which the Court has thus far declined to do. (Order at 6, n. 7.)

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Dated: December 20, 2011

Respectfully submitted,
NASSIRI & JUNG LLP

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s/ Kassra P. Nassiri_____
Kassra P. Nassiri
Attorneys for Plaintiffs and the Putative Class

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Dated: December 20, 2011

Respectfully submitted,
ASCHENBRENER LAW, P.C.

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s/ Michael Aschenbrener_
Michael Aschenbrener
Attorneys for plaintiffs and the Putative Class

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PLAINTIFFS’ MOTION TO ALTER OR
AMEND JUDGMENT

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10-cv-2389-JW

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CERTIFICATE OF SERVICE
The undersigned certifies that, on December 20, 2011, he caused this document to be

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electronically filed with the Clerk of Court using the CM/ECF system, which will send

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notification of filing to counsel of record for each party.

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Dated: December 20, 2011

ASCHENBRENER LAW, P.C.

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By: s/ Michael Aschenbrener
Michael Aschenbrener

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PLAINTIFFS’ MOTION TO ALTER OR
AMEND JUDGMENT

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10-cv-2389-JW