Rudgayzer et al v. Google Inc.

Filing 82

ORDER GRANTING 65 MOTION TO DISMISS without leave to amend. 67 Motion to Dismiss DENIED as moot. Signed by Hon. Beth Labson Freeman on 2/2/2015.(blflc2, COURT STAFF) (Filed on 2/2/2015) (Additional attachment(s) added on 2/3/2015: # 1 Certificate/Proof of Service) (tsh, COURT STAFF).

1
2
3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5

SAN JOSE DIVISION

6
MICHAEL AMALFITANO,

7

Case No. 14-cv-00673-BLF

Plaintiff,
8
v.

ORDER GRANTING MOTION TO
DISMISS

9
GOOGLE INC.,

10

[Re: ECF 65]

Defendant.

United States District Court
Northern District of California

11
12
In this putative class action under the Stored Communications Act, 18 U.S.C. § 2701 et

13
14

seq. (“the SCA”), pro se plaintiff Michael Amalfitano seeks to represent a class of individuals who

15

attempted to but were unable to opt out of a 2010 class action lawsuit concerning defendant

16

Google, Inc.’s Google Buzz application. Before the Court is Defendant’s Motion to Dismiss the

17

Complaint. Def.’s Mot., ECF 65. On January 29, 2015, the Court held a hearing on the motion.

18

Plaintiff did not appear.1 Based on the parties’ respective written submissions, the Court

19

GRANTS Defendant’s Motion to Dismiss without leave to amend.

20

I.

BACKGROUND
In 2010, Defendant introduced Google Buzz program, a social networking tool integrated

21
22
1

23
24
25
26
27
28

Plaintiff was originally one of three named plaintiffs, all of whom were represented by the same
counsel, Todd C. Bank, when this action was filed in the Eastern District of New York. After the
case was transferred to this district, the Court dismissed plaintiff Albert Rudgayzer pursuant to
Federal Rule of Civil Procedure 25. See ECF 63. Since the transfer to this district, Mr. Bank has
refused to appear or otherwise act substantively on the ground that he is not licensed to practice
law in California. On December 22, 2014, after two Orders to Show Cause in order to ascertain
the intentions of the named plaintiffs and their counsel, the Court ordered that Mr. Bank be
terminated as counsel of record for the plaintiffs; that plaintiff Lillian Ganci’s claims be dismissed
for failure to prosecute; and that Mr. Amalfitano respond to Defendant’s motions due to his
expressed intention to prosecute his claim pro se. See ECF 69, 71, 74. It appears that Mr.
Amalfitano still associates with former counsel, see Certificate of Service, ECF 76, but for all
intents and purposes the Court treats Mr. Amalfitano as a pro se plaintiff.

1

with a number of other Google programs such as Gmail, Picasa, and YouTube. Compl. ¶¶ 12-13.

2

At launch, Gmail users were automatically enrolled in Buzz and, upon logging into their accounts,

3

were informed that through Buzz they were “already following the people you email and chat with

4

the most in Gmail.” This automatic enrollment in Buzz caused the public disclosure of Gmail

5

users’ information such as contact lists, profile information, and Picasa and YouTube postings. Id.

6

¶¶ 12-13, 20. Plaintiff, as a Gmail user “at the time that Google Buzz was launched,” id. ¶ 23,

7

alleges that Defendant’s actions violated various provisions of the SCA, id. ¶¶ 47-75.
This precise SCA claim concerning Buzz was the subject of a 2010 class action lawsuit

8
9

filed in this district (the “Buzz Class Action”). See In re Google Buzz Privacy Litig., No. 10-cv00672-JW (filed Feb. 17, 2010); Decl. of Susan D. Fahringer Exh. 1, ECF 66. On October 7,

11
United States District Court
Northern District of California

10

2010, Judge James Ware preliminarily approved a settlement and proposed notice plan in the Buzz

12

Class Action. Compl. ¶ 24; Fahringer Decl. Exh. 4. There were several discrepancies between the

13

settlement agreement and class notice concerning the requirements for opting out of the class. Id.

14

¶¶ 25-28. For example, the settlement agreement provided that opt-out requests must be

15

postmarked by a certain date, while the notice provided that requests must be received by that

16

date.2 Id. ¶ 25; Fahringer Decl. Exh. 2. Plaintiff alleges that he “followed one requirement from

17

each set of requirements that were inconsistent with each other as between the Google Buzz

18

Settlement Agreement and the Google Buzz Class Notice.”3 Compl. ¶ 29. There are no other

19

allegations concerning what requirements Plaintiff actually followed in attempting to opt out.
Plaintiff seeks a declaration that he successfully opted out of the Buzz Class and seeks to

20
21

pursue an SCA claim on behalf of individuals who similarly attempted to opt out by following

22

“one or the other requirement from each set of those requirements that were inconsistent as

23
24
25
26
27
28

2

These discrepancies were noted in the objection to the Buzz Class Action settlement made by
class member Tanya Rudgayzer through her counsel, Todd C. Bank—former counsel of Plaintiff
here. See Fahringer Decl. Exh. 6. In entering final approval of the class settlement, Judge Ware
considered and overruled that objection. Fahringer Decl. Exh. 3 at 5 ¶, 12 (Amended Order
Granting Final Approval of Class Action Settlement).
3

Reading this sentence literally would suggest that Plaintiff attempted to opt out by picking and
choosing among the inconsistent requirements to arrive at a combination of the two that would not
have satisfied the requirements of either the Agreement or the Notice.
2

1

between the Google Buzz Settlement Agreement and the Google Buzz Class Notice, but have been

2

deemed, as a result of such inconsistency, to have failed to opt out of the class.” Id. ¶¶ 34, 77.
Defendant moved to dismiss the Complaint, arguing that res judicata precludes Plaintiff’s

3
4

claims here because he was a member of the Buzz Class Action and, alternatively that Plaintiff has

5

failed to state a claim and lacks standing to pursue a claim.4 See Def.’s Reply, ECF 79. The Court

6

finds the res judicata issue dispositive.

7

II.

LEGAL STANDARD
A.

9

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal

10

sufficiency of the claims alleged in the complaint. Ileto v. Glock Inc., 349 F.3d 1191, 1199-200

11
United States District Court
Northern District of California

8

(9th Cir. 2003). Factual allegations in the complaint are accepted as true and construed in the light

12

most favorable to the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

13

1025, 1031 (9th Cir. 2008). The allegations, read in this light, must state a plausible claim for

14

relief. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

15

(2007). Although a Rule 12(b)(6) motion is to be decided on the face of the complaint, a court

16

may consider “items subject to judicial notice, matters of public record, [and] orders.” 5B Wright

17

& Miller Fed. Prac. & Proc. Civ. § 1357 (3d ed. 2004); see also Tellabs, Inc. v. Makor Issues &

18

Rights, Ltd., 551 U.S. 308, 322 (2007).

Motion to Dismiss

19

B.

20

“[A] final judgment on the merits bars further claims by parties or their privies based on

Res Judicata

21

the same cause of action.” Montana v. United States, 440 U.S. 147, 153 (1979). This doctrine of

22

res judicata applies whenever there is “(1) an identity of claims, (2) a final judgment on the merits,

23

and (3) [identity or] privity between parties.” Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg’l

24

Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003); see also Blonder-Tongue Labs., Inc. v.

25
26
27
28

4

Defendant separately requested that the Court dismiss the case pursuant to Rule 16 in light of the
antics of Plaintiff’s former counsel described in an earlier footnote. Supra at n.1; Def.’s Rule 16
Mot., ECF 67. Defendant considers that motion moot as to Plaintiff in light of his declared intent
to litigate this case pro se. Def.’s Reply 1, n.1, ECF 79. Because the Court has dismissed the
other plaintiffs and counsel in this action, Defendant’s Rule 16 motion is DENIED as moot.
3

1

Univ. of Ill. Found., 402 U.S. 313 (1971). Although an affirmative defense under Rule 8(c), res

2

judicata may be raised by motion to dismiss if there are no facts in dispute. Scott v. Kuhlmann,

3

746 F.2d 1377, 1378 (9th Cir. 1984).
A court’s approval of a class action settlement constitutes a final judgment on the merits.

4
5

Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746-47 (9th Cir. 2006) (citing Green v.

6

Ancora Citronelle Corp., 577 F.2d 1380, 1383 (9th Cir. 1978)). “[U]nder elementary principles of

7

prior adjudication a judgment in a properly entertained class action is binding on class members in

8

any subsequent litigation.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874 (1984).

9

III.

DISCUSSION
Defendant’s argument that res judicata bars Plaintiff’s claim may be adjudicated on the

10

United States District Court
Northern District of California

11

face of the Complaint because the facts are not in dispute. The SCA claim alleged here is identical

12

to the one raised in the Buzz Class Action. Fahringer Decl. Exh. 1. The Buzz Class Action

13

concluded with a court-approved class settlement constituting a final judgment on the merits.

14

Plaintiff attempted to opt out of the Buzz Class and that opt-out was deemed untimely. See

15

Compl. ¶ 29; Fahringer Decl. Exh. 5 (affidavit of claims administrator with appendices identifying

16

the timely and untimely opt-outs; Plaintiff’s is the second name on the list of 40 untimely opt-

17

outs). Plaintiff challenges the legal effect of those facts, arguing that the “key element” of whether

18

he was a party to the Buzz Class Action “is in dispute.” Pl.’s Opp. 8. The Court, however,

19

perceives no such dispute because Judge Ware’s final approval and judgment was binding “upon

20

all Class Members who have not timely opted-out.” Fahringer Decl. Exh. 3 at 7, ¶ 15 (Amended

21

Order Granting Final Approval of Class Action Settlement). As a class member who did not

22

timely opt out, Plaintiff is therefore bound by the class settlement, and by res judicata.5

23

In fact, Plaintiff acknowledges that res judicata bars him from pursuing his claims unless

24

this Court declares that he successfully opted out of the Buzz Class. Pl.’s Opp. 8-9 (“Amalfitano

25

recognizes that this Court’s jurisdiction over his underlying claims, i.e., his claims under the SCA,

26

depends on recognition that he is not a party to the Google Buzz Class Settlement”). He does not,

27
5

28

The claims administrator’s affidavit does not indicate that opt-out requests were rejected for any
reason other than timeliness.
4

however, provide any authority supporting the declaratory relief that he seeks from this Court. A

2

district court judge has discretion to extend a class member’s time to opt out. Fed. R. Civ. P.

3

6(b)(2), 23, 60(b)(6); In re Gypsum Antitrust Cases, 565 F.2d 1123, 1128 (9th Cir. 1977); Silber v.

4

Mabon, 18 F.3d 1449, 1454 (9th Cir. 1994). Plaintiff could have sought an extension of the opt-

5

out period by way of a Rule 60(b) motion in the Buzz Class Action. Plaintiff did not do so. That

6

he instead chose to file his own lawsuit a year and a half after judgment in the Buzz Class Action

7

does not present the type of “rare situation” in which this Court would entertain an independent

8

action to undermine the judgment rendered by another court. Treadaway v. Acad. of Motion

9

Picture Arts & Sciences, 783 F.2d 1418, 1422 (9th Cir. 1986) (independent actions for relief from

10

the final order of another court “interferes with and usurps the power of the rendering court” and is

11
United States District Court
Northern District of California

1

only permitted in “rare situations”); accord Arata v. Nu Skin Int’l, Inc., 96 F.3d 1265, 1269 n.2

12

(9th Cir. 1996) (citing Treadaway for proposition that Rule 60(b) motion for relief from a court

13

order “should generally be brought only in that court”).
Because this Court declines to entertain Plaintiff’s request that his attempted opt-out of the

14
15

Buzz Class Action be declared valid, Plaintiff is deemed to be a member of the Buzz class and,

16

accordingly, precluded by the doctrine of res judicata from re-litigating the Buzz SCA claim here.

17

Although leave to amend is liberally granted, amendment here would be futile in light of the res

18

judicata bar on Plaintiff’s SCA claim. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (leave

19

to amend need not be granted if amendment would be futile). Defendant’s Motion to Dismiss is

20

accordingly GRANTED without leave to amend.

21

IV.

ORDER
For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED, and the

22
23

Complaint is DISMISSED without leave to amend. The Clerk of the Court shall close the case

24

file.

25
26
27
28

IT IS SO ORDERED.
Dated: February 2, 2015
______________________________________
BETH LABSON FREEMAN
United States District Judge
5