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)

Download PDF
EXHIBIT E Case5:10-cv-04809-EJD Document24 Filed04/07/11 Page1 of 6 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION NO. C 10-04809 JW Paloma Gaos, 11 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS WITH LEAVE TO AMEND Plaintiff, v. For the Northern District of California United States District Court 10 12 Google, Inc., 13 Defendant. 14 / 15 Presently before the Court is Defendant’s Motion to Dismiss Plaintiff’s Complaint. 16 (hereafter, “Motion,” Docket Item No. 19.) The Court finds it appropriate to take the Motion under 17 submission without oral argument. See Civ. L.R. 7-1(b). Based on the papers submitted to date, the 18 Court GRANTS Defendants’ Motion to Dismiss. 19 A. 20 Background In a Complaint1 filed on October 25, 2010, Plaintiff alleges as follows: Plaintiff is a resident of San Francisco County, California. (Complaint ¶ 6.) 21 22 Defendant is a Delaware corporation that maintains its headquarters in Mountain View, 23 California. (Id.) Defendant conducts business throughout California and the nation. (Id.) 24 Defendant’s primary business enterprise centers on its proprietary search engine. 25 (Complaint ¶ 13.) Defendant runs millions of servers around the world and processes over 26 one billion user-generated search requests every day. (Id.) Defendant generates substantial 27 28 1 (Class Action Complaint, herafter, “Complaint,” Docket Item No. 1.) Case5:10-cv-04809-EJD Document24 Filed04/07/11 Page2 of 6 1 profits from selling advertising. (Id.) Defendant is able to operate its search engine more 2 efficiently by analyzing user search data and Defendant benefits from Search Engine 3 Optimization (“SEO”) companies who also use this data to better target their websites to 4 particular user search terms. (Id. ¶ 16.) 5 Since the launch of Defendant’s search service, and continuing until the present, 6 Defendant’s search engine has intentionally included the search terms in the URL of the 7 search results page. (Complaint ¶¶ 37, 41.) Neither Defendant’s search technology nor the 8 technological architecture of the Internet requires Defendant divulge these search terms. 9 (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 11 For the Northern District of California United States District Court 10 website that the user clicks on will receive the user’s search terms in the Referrer Header 12 from Defendant. (Id.) Several web analytics services parse the search query information 13 from web server logs, or otherwise collect the search query from the Referrer Header 14 transmitted by each visitor’s web browser. (Id. ¶ 39.) Defendant’s own analytics products 15 provide webmasters with this information in the aggregate. (Id.) 16 Search terms could be linked together with the identity of the user through the 17 process of “reidentification,” either by linking the terms with the user’s IP address, which is 18 also sometimes released with the clicked link; with any cookies stored on the user’s 19 computer; or with “vanity searches,” where the user searches for their own name. 20 (Complaint ¶¶ 31, 70-73.) 21 On the basis of the allegations outlined above, Plaintiff alleges seven causes of action: (1) 22 Violation of the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510; (2) Violation 23 of the Consumers Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq.; (3) Violation of Cal. Bus. & 24 Prof. Code §§ 17500, et seq.; (4) Violation of Cal. Bus. & Prof. Code §§ 17500, et seq.; (5) Public 25 Disclosure of Private Facts; (6) Violation of Cal. Civ. Code §§ 1572, 1573; and (7) Unjust 26 Enrichment. (See Complaint.) 27 28 2 Case5:10-cv-04809-EJD Document24 1 B. 2 Filed04/07/11 Page3 of 6 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 5 beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). 6 On a facial challenge, all material allegations in the complaint are assumed true, and the question for 7 the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. See 8 Wolfe, 392 F.3d at 362; Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 9 733 (9th Cir. 1979). When a defendant makes a factual challenge “by presenting affidavits or other 10 evidence properly brought before the court, the party opposing the motion must furnish affidavits or 11 For the Northern District of California lack of subject-matter jurisdiction. A Rule 12(b)(1) motion may be either facial, where the inquiry 4 United States District Court 3 other evidence necessary to satisfy its burden of establishing subject-matter jurisdiction.” Safe Air 12 For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court need not presume the 13 truthfulness of the plaintiff's allegations under a factual attack. White v. Lee, 227 F.3d 1214, 1242 14 (9th Cir. 2000); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). However, in the 15 absence of a full-fledged evidentiary hearing, disputes in the facts pertinent to subject-matter are 16 viewed in the light most favorable to the opposing party. Dreier v. United States, 106 F.3d 844, 847 17 (9th Cir. 1996). The disputed facts related to subject-matter jurisdiction should be treated in the 18 same way as one would adjudicate a motion for summary judgment. Id. 19 C. 20 Discussion Defendant moves to dismiss Plaintiff’s Complaint on the grounds that: (1) Plaintiff fails to 21 allege injury-in-fact sufficient to establish Article III standing; (2) Plaintiff’s state law claims are 22 preempted by the Stored Communications Act (“SCA”); (3) Plaintiff’s Consumer Legal Remedies 23 Claim (“CLRC”) is inapplicable as the alleged transaction does not involve the “sale or lease of 24 goods to any consumer,” as required by Cal. Civ. Code § 1770(a); (4) Plaintiff fails to allege facts 25 sufficient to meet the stringent standing requirements of her Unfair Competition Laws (“UCL”) and 26 False Advertising Laws (“FAL”), further Plaintiff fails to state a claim under these statutes; (5) 27 Plaintiff fails to plead public disclosure of private facts sufficient to state a claim for common law 28 3 Case5:10-cv-04809-EJD Document24 Filed04/07/11 Page4 of 6 1 violation of privacy; (6) Plaintiff’s cause of action for Unjust Enrichment fails as there is no such 2 cause of action under California law. (Motion at 5-22.) Plaintiff responds that dismissal is improper 3 as: (1) alleging violation of Plaintiff’s statutory rights under the SCA is sufficient to establish Article 4 III standing; (2) Plaintiff has alleged actual harm through the disclosure of her private information 5 sufficient to convey standing for her state law claims; (3) Defendant’s citation to a provision of the 6 SCA as an express preemption clause misinterprets the provision, which is solely intended to 7 address the exclusionary rule; (4) Plaintiff pleads her fraud claims with sufficient particularity to 8 satisfy Rule 9(b); (5) Plaintiff alleges that Defendant disclosed her private search queries, which is 9 sufficient to state a claim for common law privacy violation; (6) California law does, in fact, 11 For the Northern District of California United States District Court 10 12 13 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 14 an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural 15 or hypothetical. Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir. 2006) (citing Friends of the Earth 16 v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 180-81 (2000)). The injury required 17 by Article III can exist solely by virtue of “statutes creating legal rights, the invasion of which 18 creates standing.” Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010) (quoting Warth v. 19 Seldin, 422 U.S. 490, 500 (1975)). In such cases, the “standing question . . . is whether the 20 constitutional or statutory provision on which the claim rests properly can be understood as granting 21 persons in the plaintiff’s position a right to judicial relief.” Id. (quoting Warth, 422 U.S. at 500)). 22 However, the requirements of Article III remain: “the plaintiff must still allege a distinct and 23 palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.” 24 Warth, 422 U.S. at 500. 25 Here, Plaintiff alleges in pertinent part: 26 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. 27 28 4 Case5:10-cv-04809-EJD Document24 1 Filed04/07/11 Page5 of 6 3 (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.) 4 Based on the allegations above, the Court finds that Plaintiff has failed to plead facts 5 sufficient to establish Article III standing. While a plaintiff may establish standing through 6 allegations of violation of a statutory right, Plaintiff has failed to plead facts sufficient to support a 7 claim for violation of her statutory rights. In particular, Plaintiff failed to plead that she clicked on a 8 link from the Google search page during the same time period that Defendant allegedly released 9 search terms via referrer headers. Rather, Plaintiff’s Complaint alleges that, at numerous times 10 during the putative class period, Defendant ceased the practice of allowing search terms to pass 11 through referrer headers either because of the implementation of a new technology or mere error. 12 (Complaint ¶¶ 43-57.) Further, Plaintiff’s conclusory allegations of disclosures of communications 13 resulting in unspecified harm in violation of the ECPA, not supported by any facts, are insufficient 14 to allege violation of Plaintiff’s statutory rights. Thus, the Court finds that Plaintiff lacks Article III 15 standing to assert her claims. For the Northern District of California United States District Court 2 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Complaint 16 17 without prejudice to Plaintiff to amend to add facts sufficient to establish Article III standing. 18 C. 19 Conclusion The Court GRANTS Defendant’s Motion to Dismiss Plaintiff’s Complaint without prejudice. 20 On or before May 2, 2011, Plaintiff shall file an Amended Complaint consistent with the terms of 21 this Order. 22 23 Dated: April 7, 2011 JAMES WARE United States District Chief Judge 24 25 26 27 28 5 Case5:10-cv-04809-EJD Document24 Filed04/07/11 Page6 of 6 1 THIS IS TO CERTIFY THAT COPIES OF THIS ORDER HAVE BEEN DELIVERED TO: 2 Bradley Michael Baglien bbaglien@edelson.com Charles Hyunchul Jung cjung@nassiri-jung.com Christopher Lilliard Dore cdore@edelson.com Jean Bastian Niehaus jniehaus@omm.com Kassra Powell Nassiri knassiri@nassiri-jung.com Michael James Aschenbrener maschenbrener@edelson.com Michael Patrick Dillingham mdillingham@nassiri-jung.com Randall W. Edwards REdwards@omm.com 3 4 5 6 7 Dated: April 7, 2011 Richard W. Wieking, Clerk 8 By: 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 /s/ JW Chambers Elizabeth Garcia Courtroom Deputy

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?