E.K.D. et al v. Facebook, Inc.

Filing 14

EXHIBIT by Facebook, Inc.. Exhibit to 12 Motion to Dismiss for Failure to State a Claim Declaration of Matthew D. Brown. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Brown, Matthew)

EXHIBIT E

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION
NO. C 10-04809 JW

Paloma Gaos,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS WITH LEAVE TO
AMEND

Plaintiff,
v.

For the Northern District of California

United States District Court

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Google, Inc.,
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Defendant.
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/

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Presently before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint.

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(hereafter, “Motion,” Docket Item No. 19.) The Court finds it appropriate to take the Motion under

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submission without oral argument. See Civ. L.R. 7-1(b). Based on the papers submitted to date, the

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Court GRANTS Defendants’ Motion to Dismiss.

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A.

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Background
In a Complaint1 filed on October 25, 2010, Plaintiff alleges as follows:
Plaintiff is a resident of San Francisco County, California. (Complaint ¶ 6.)

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Defendant is a Delaware corporation that maintains its headquarters in Mountain View,

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California. (Id.) Defendant conducts business throughout California and the nation. (Id.)

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Defendant’s primary business enterprise centers on its proprietary search engine.

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(Complaint ¶ 13.) Defendant runs millions of servers around the world and processes over

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one billion user-generated search requests every day. (Id.) Defendant generates substantial

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(Class Action Complaint, herafter, “Complaint,” Docket Item No. 1.)

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profits from selling advertising. (Id.) Defendant is able to operate its search engine more

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efficiently by analyzing user search data and Defendant benefits from Search Engine

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Optimization (“SEO”) companies who also use this data to better target their websites to

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particular user search terms. (Id. ¶ 16.)

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Since the launch of Defendant’s search service, and continuing until the present,

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Defendant’s search engine has intentionally included the search terms in the URL of the

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search results page. (Complaint ¶¶ 37, 41.) Neither Defendant’s search technology nor the

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technological architecture of the Internet requires Defendant divulge these search terms.

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(Id.) As a result of the search terms being included in the URL, when a user of Defendant’s
search service clicks on a link from Defendant’s search results page, the owner of the

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For the Northern District of California

United States District Court

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website that the user clicks on will receive the user’s search terms in the Referrer Header

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from Defendant. (Id.) Several web analytics services parse the search query information

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from web server logs, or otherwise collect the search query from the Referrer Header

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transmitted by each visitor’s web browser. (Id. ¶ 39.) Defendant’s own analytics products

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provide webmasters with this information in the aggregate. (Id.)

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Search terms could be linked together with the identity of the user through the

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process of “reidentification,” either by linking the terms with the user’s IP address, which is

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also sometimes released with the clicked link; with any cookies stored on the user’s

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computer; or with “vanity searches,” where the user searches for their own name.

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(Complaint ¶¶ 31, 70-73.)

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On the basis of the allegations outlined above, Plaintiff alleges seven causes of action: (1)

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Violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510; (2) Violation

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of the Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq.; (3) Violation of Cal. Bus. &

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Prof. Code §§ 17500, et seq.; (4) Violation of Cal. Bus. & Prof. Code §§ 17500, et seq.; (5) Public

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Disclosure of Private Facts; (6) Violation of Cal. Civ. Code §§ 1572, 1573; and (7) Unjust

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Enrichment. (See Complaint.)

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B.

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Standards
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a motion to dismiss for

is confined to the allegations in the complaint, or factual, where the court is permitted to look

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beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

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On a facial challenge, all material allegations in the complaint are assumed true, and the question for

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the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See

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Wolfe, 392 F.3d at 362; Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730,

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733 (9th Cir. 1979). When a defendant makes a factual challenge “by presenting affidavits or other

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evidence properly brought before the court, the party opposing the motion must furnish affidavits or

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For the Northern District of California

lack of subject-matter jurisdiction. A Rule 12(b)(1) motion may be either facial, where the inquiry

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United States District Court

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other evidence necessary to satisfy its burden of establishing subject-matter jurisdiction.” Safe Air

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For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court need not presume the

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truthfulness of the plaintiff's allegations under a factual attack. White v. Lee, 227 F.3d 1214, 1242

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(9th Cir. 2000); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). However, in the

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absence of a full-fledged evidentiary hearing, disputes in the facts pertinent to subject-matter are

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viewed in the light most favorable to the opposing party. Dreier v. United States, 106 F.3d 844, 847

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(9th Cir. 1996). The disputed facts related to subject-matter jurisdiction should be treated in the

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same way as one would adjudicate a motion for summary judgment. Id.

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C.

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Discussion
Defendant moves to dismiss Plaintiff’s Complaint on the grounds that: (1) Plaintiff fails to

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allege injury-in-fact sufficient to establish Article III standing; (2) Plaintiff’s state law claims are

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preempted by the Stored Communications Act (“SCA”); (3) Plaintiff’s Consumer Legal Remedies

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Claim (“CLRC”) is inapplicable as the alleged transaction does not involve the “sale or lease of

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goods to any consumer,” as required by Cal. Civ. Code § 1770(a); (4) Plaintiff fails to allege facts

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sufficient to meet the stringent standing requirements of her Unfair Competition Laws (“UCL”) and

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False Advertising Laws (“FAL”), further Plaintiff fails to state a claim under these statutes; (5)

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Plaintiff fails to plead public disclosure of private facts sufficient to state a claim for common law

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violation of privacy; (6) Plaintiff’s cause of action for Unjust Enrichment fails as there is no such

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cause of action under California law. (Motion at 5-22.) Plaintiff responds that dismissal is improper

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as: (1) alleging violation of Plaintiff’s statutory rights under the SCA is sufficient to establish Article

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III standing; (2) Plaintiff has alleged actual harm through the disclosure of her private information

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sufficient to convey standing for her state law claims; (3) Defendant’s citation to a provision of the

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SCA as an express preemption clause misinterprets the provision, which is solely intended to

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address the exclusionary rule; (4) Plaintiff pleads her fraud claims with sufficient particularity to

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satisfy Rule 9(b); (5) Plaintiff alleges that Defendant disclosed her private search queries, which is

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sufficient to state a claim for common law privacy violation; (6) California law does, in fact,

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For the Northern District of California

United States District Court

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recognize a cause of action for unjust enrichment. (Opp’n at 6-20.)
Because the issue of whether Plaintiff’s allegations are sufficient to convey Article III
standing may be dispositive, the Court addresses it first.
To satisfy the standing requirements of Article III, a plaintiff must show that she has suffered

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an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural

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or hypothetical. Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006) (citing Friends of the Earth

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v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000)). The injury required

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by Article III can exist solely by virtue of “statutes creating legal rights, the invasion of which

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creates standing.” Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010) (quoting Warth v.

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Seldin, 422 U.S. 490, 500 (1975)). In such cases, the “standing question . . . is whether the

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constitutional or statutory provision on which the claim rests properly can be understood as granting

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persons in the plaintiff’s position a right to judicial relief.” Id. (quoting Warth, 422 U.S. at 500)).

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However, the requirements of Article III remain: “the plaintiff must still allege a distinct and

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palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.”

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Warth, 422 U.S. at 500.

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Here, Plaintiff alleges in pertinent part:

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Plaintiff has at all material times been a user of Google’s search engine services
and has conducted “vanity searches,” including searches for her actual name and the names
of her family members and has clicked on links contained in Google’s search results.

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(Complaint ¶ 6.) As alleged herein, Google has knowingly divulged the contents of
communications of Plaintiff and members of the Class while those communications were in
electronic storage on its service, in violation of 18 U.S.C. § 2702(a)(1). (Id. ¶ 93.) Plaintiff
and members of the Class have suffered harm as a result of Google’s violations of 18 U.S.C.
§ 2702. (Id. ¶ 95.)

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Based on the allegations above, the Court finds that Plaintiff has failed to plead facts

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sufficient to establish Article III standing. While a plaintiff may establish standing through

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allegations of violation of a statutory right, Plaintiff has failed to plead facts sufficient to support a

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claim for violation of her statutory rights. In particular, Plaintiff failed to plead that she clicked on a

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link from the Google search page during the same time period that Defendant allegedly released

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search terms via referrer headers. Rather, Plaintiff’s Complaint alleges that, at numerous times

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during the putative class period, Defendant ceased the practice of allowing search terms to pass

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through referrer headers either because of the implementation of a new technology or mere error.

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(Complaint ¶¶ 43-57.) Further, Plaintiff’s conclusory allegations of disclosures of communications

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resulting in unspecified harm in violation of the ECPA, not supported by any facts, are insufficient

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to allege violation of Plaintiff’s statutory rights. Thus, the Court finds that Plaintiff lacks Article III

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standing to assert her claims.

For the Northern District of California

United States District Court

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Accordingly, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Complaint

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without prejudice to Plaintiff to amend to add facts sufficient to establish Article III standing.

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C.

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Conclusion
The Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Complaint without prejudice.

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On or before May 2, 2011, Plaintiff shall file an Amended Complaint consistent with the terms of

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this Order.

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Dated: April 7, 2011
JAMES WARE
United States District Chief Judge

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THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO:

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Bradley Michael Baglien [e-mail]
Charles Hyunchul Jung [e-mail]
Christopher Lilliard Dore [e-mail]
Jean Bastian Niehaus [e-mail]
Kassra Powell Nassiri [e-mail]
Michael James Aschenbrener [e-mail]
Michael Patrick Dillingham [e-mail]
Randall W. Edwards [e-mail]

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Dated: April 7, 2011

Richard W. Wieking, Clerk

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By:
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For the Northern District of California

United States District Court

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/s/ JW Chambers
Elizabeth Garcia
Courtroom Deputy