SCOTT v. GOOGLE INC

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 1129-2472199.), filed by Brent Matthew Scott. (Attachments: # 1 Civil Cover Sheet) (KENNEDY, CAMERON)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

Brent Matthew Scott, individually,
and
behalf of all similarly situated persons,

on

Plaintiff,

4:12-614

CIVIL ACTION NO.
vs.

(JURY TRIAL DEMANDED)
Google, Inc.,
Defendant.

CLASS ACTION COMPLAINT
Plaintiff, Brent Matthew Scott, individually,

and on behalf

brings this state-wide

class action suit against Defendant,

and would respectfully

of the class described below,

show unto the Coutt the following:

Google, Inc. (hereinafter

"Google"),

PARTIES
1.

Plaintiff is a citizen of the State of Florida, and resides in Leon County, Florida,

which is within the Tallahassee Division

2.

Google is a corporation

Delaware, with its principal place

of the

Northern District

organized

of Florida.

and existing under the laws

of business at 1600 Amphitheatre

of the State of

Parkway, Mountain View,

California.

3.

At all time relevant herein Google was acting individually

officers, agents,
employment.

servants

and/or

employees

in the course

and

scope

and by and through its

of

their agency

and

JURISDICTION AND VENUE
4.

The Court has original jurisdiction

of

this matter,

inter alia, under the Class

Action Fairness Act ("CAFA"), 29 U.S.C. $ 1332(d)(2). Plaintiff and Defendant are citizens of
different states, the amount in controversy
than one hundred

State

in this action exceeds $ 5,000,000.00, there are more

(100) members of the putative class

and all class members

are citizens

of the

of Florida.
The Court has general

Google due to its sufficient minimum

and specific personal

jurisdiction

over the Defendant

contacts within the State of Florida and because the

material acts upon which Plaintiffs'laims

are based occurred within the Northern

District of

Florida,

6.

Venue is proper in the United States Northern District Court, District of Florida,

Tallahassee Division, pursuant
Northern

to 28 U.S.C. $ 1391(b) in that Defendant

Google resides in the

District of Florida under 28 U.S.C. $ 1391(c)(2) and a substantial

giving rise to the claims occuired within the State

part

of the

events

of Florida.

NATURE OF SUIT

7.

Plaintiff brings this state-wide

class action lawsuit against Google pursuant

F.R.C.P. 23 for violation of the Florida Wiretap Act, codified at Florida Statute
Specifically, Plaintiff alleges the Defendant
intentional

interception

and use

$ 934.03. et seq.

has violated the Florida Wiretap Act tlirough

of electronic commuiiications

to

sent by Plaintiffs and members

its

of

the Putative Class in Florida to Google's "Gmail" account holders within Florida.

8.
assigned

Google operates an e-mail service known as "Gmail". Gmail account holders are

a Gmail e-mail address

electronic communications.

by Google through

which they can send and/or

receive

9.

Upon

methodologies,

information

and

belief

Google,

utilizing

intercepts and scans all electronic communications

devices

multiple

and

sent to Gmail account holders

prior to their receipt and review by the Gmail account holder/recipient.

10.
Plaintiff's

The actions complained of herein involve the interception and use
and Class Member's

Florida electronic communications

sent to a Florida Gmail account holder,

conununication

whether

(e-mail) whose e-mails are

of

the initialization

through

of content fiom

an electronic

to the Gmail user, a response or reply to an electronic communication

Gmail user, or any subsequent

new electronic corrununication

transmitted

from the

by Plaintiff and/or

Class Members to a Gmail user.

11.

Google's systematic interception and use of electronic communications

Plaintiff and other non-Gmail account holders/users

sent from

violates Florida Statute $ 934.03 et seq.

STATEMENT OF FACTS
12.

Google owns and operates one of the world's

largest internet

search engines.

Google offers many services, including e-mail address and internet usage, for free to attract large
numbers

of customers or users. Google generates

aimed at its customers/users

or charge higher advertising

revenue by selling on-line advertising

utilizing its free services.

which is

Google is able to attract more advertisers

prices by virtue of attracting

or usage of

more customers/users

Google services than other internet search engines or service providers.

13.

"Gmail" is an electronic communication

service operated by Google.

14.

Google

holders

([e-mail])

assigns

Gmail

account

a

Grnail

e-mail

address

for the purposes of sending and receiving electronic commuI+cations

through the electronic communication

service operated by Google (i.e. Gmail).

Gmail account

holders can receive electronic communications

from other Gmail account holders and from non-

@gmail.corn account holders.

15.

Plaintiff has sent and continues to send electronic communications

in Florida to

@gmail.corn account holders in Florida.

16.

Upon information

mail, Google intercepts
mail communications

and belief, prior to Gmail users ever receiving

Plaintiff's
without

e-mail.

Plaintiff's

Google's interception
knowledge,

Plaintiff's

e-

of Plaintiffs confidential e-

consent or permission

is in violation

of

Florida Statute $ 934.03-934.09, et seq.

17.

Google is not an intended

recipient of or a party to Plaintiffs

e-mails sent to

Gmail users in Florida.

18.

The devices used by Google are not a telephone or telegraph instrument,

not telephone or telegraph. equipment,
not any component thereof.

they are

they are not a telephone or telegraph facility, and they are

Therefore, any exception set out in Florida Statute $ 934.03-934.09,

et seq. do not apply.

19.

Google's interception

and use

of content of electronic communications

Plaintiff and the Class Members is not witlun the ordinary course
communication

of business of an electronic

service such as an email provider, is not a necessary incident to providing email

services and does not functionally

20.

from

enhance providing email service to Gmail account holders.

Within the Class Period, Plaintiff has sent and continues to send e-mails to Gmail

account holders in Florida from various locations within Florida.

21.

Plaintiff s e-mails are electronic communications.

22.

At the time Plaintiff sent the e-mails to @gmail.corn account holders, Plaintiff did

so from his Hotmail

account.

23.
content

Upon information

and belief,

Google intentionally

intercepted

and used the

of Plaintiff's e-mails to @gmail.corn account holders.
24.

Google did not compensate Plaintiff for the interception and use of the content of

Plaintiff s e-mail or the use of the content of Plaintiff s e-mail, did not have his permission or,
indeed, even advise Plaintiff that his emails to @gmail.corn account holders within Florida were

being intercepted and used by Google for its own purposes.

CLASS ALLEGATIONS
25.

Plaintiff hereby repleads and incorporates by reference each and every allegation

set for above, and further states as follows:

26.

Plaintiff brings this class action, pursuant to Rule 23 of the Federal Rules

Procedure, individually

and on behalf

of Civil

of all members of the following Class. The Class consists

All natural persons located within the State of Florida who sent e-mails
from a [e-mail] account e-mail address to an @gmail.corn
account e-mail address the owner of which was also located within Florida
from within the longest period of time allowed by statute before the filing
of this action up through and including the date of the judgment in this

case;
Excluded from the class are the following individuals

and/or entities:

a.

Any and all federal, state, or local governments, including but not
limited to their department, agencies, divisions, bureaus, boards,
sections, groups, counsels, and/or subdivisions;

b.

Individuals,

if any,

who timely opt out

of this proceeding

using the

correct protocol for opting out;

c.

Current or former employees

f.

Individuals, if any, who have previously settled or compromised
claims(s) as identified herein for the class; and

of Google;

g.

Any ciuTently sitting federal judge and/or person within the third
degree of consanguinity to any federal judge.

A.

Numerosity

27.

The Class is so numerous that joinder of all members is impracticable.

28.

The number

of separate

individuals

who sent e-mails from a [e-mail]

account e-mail addresses to a @gmail.corn account e-mail address from within the longest period

of time allowed by statute before the filing of this action is excess of 100 persons.
29.

Upon information

and belief, the munber

of Gmail account holders

more than two hundred and fifty thousand users. Correspondingly,

in Florida is

Plaintiff alleges the numbers

for the Class are some multiple of that number.

B.
30.

There are questions

Commonality

of law or fact common to the class. These

questions include,

but are not limited to, the following:

Whether Google intentionally intercepted, endeavored to intercept, or
procured any other person to intercept or endeavor to intercept Plaintiff s
and Class Members'lectronic
communications to @gmail.corn account
recipients. Inclusive in this common question are the common questions
regarding the elements of Florida statutes based upon the statutory
definitions:
Whether or not Google acted intentionally;
Whether or not Google acquired
Class members e-mail;

any content

of Plaintiffs

and

or not Plaintiff's and Class Members'-mails
to the
@gmail.corn account recipients were electronic communications;

Whether

Whether or not statutory
assessed; and

damages

Whether or not injunctive
should be issued.

and declaratory

against

Google

should

be

relief against Google

C.

31.

Typicality

Plaintiff s claims are typical of the claims of the Class in that Plaintiff and the

Class sent e-mails to @gmail.corn account holders, Google intercepted and acquired the
e-mails'ontents,

Google used or endeavored

Members'-mails,

the users

of Gmail

to use the contents

of the Plaintiff's

did not consent to the interception

and the Class

and uses made the basis

of this suit, neither Plaintiff nor the Class consented to Google's interception and uses of content
made the basis

of this

suit, Plaintiff and the Class Members

are entitled to declaratory

relief,

statutory damages, and injunctive relief due to Google's conduct.

D.
32.
interests

Adequacy of Representation

Plaintiff will fairly and adequately

do not conflict with the interests

retained competent counsel experienced

of

common

the Class members.

in class action litigation.

and adequately protect and represent the interests

33.

protect the interests

of the Class. Plaintiff's
Furthermore,

Plaintiff has

Plaintiff's counsel will fairly

of the Class.

Plaintiff asseits that pursuant to Fed. R. Civ. P. 23(b)(3), questions of law or fact

to the Class Members

predominate

over any questions

affecting

only individual

members, and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.

CAUSE OF ACTION
VIOLATIONS OF FLORIDA STATUTE 5934.03 ET SE0.

34.

Plaintiff hereby repleads and incorporates by reference each and every allegation

set forth above, and fisher states as follows:

35.

Google, as a corporation, is a "person" pursuant to Florida Statute $ 934.02 (5).

36.

Throughout

of the conduct upon which this suit is brought, Google's

the entirety

actions were/are willful.

37.
endeavored

information

Upon

or endeavors

Class members'-mails

and

belief,

Google

willfully

to intercept the electronic conununications

intercepted,

intercepts,

or

of Plaintiff's e-mail

and

as follows:

Google acquired(s) the content of Plaintiff's and Class Members'-mail;

Plaintiff's and Class Members'-mails

are electronic communications;

Google utilized(s) one or more devices composing of an electronic,
mechanical or other device or apparatus to intercept Plaintiff s and Class
Members'lectronic communications;

Google's intercepting devices are not a telephone or telegraph instriunent,
are not telephone or telegraph equipment, are not a telephone or telegraph
facility, or are not any component thereof;
Google does not furnish the devices used to intercept the emails to Gmail
users and users do not use the devices for connection to the facilities;
The devices are not used by Google, operating as an electronic
communication service, in the ordinary course of its business as a provider
of an electronic communication service, are not a necessary incident of the
rendition of email services and do not functionally enhance providing
email service to Gmail account holders;
interception
of Plaintiff's and Class Members'lectronic
communications
for undisclosed
and improper
purposes delivering
targeted advertisements,
for purposes beyond the Service of Gmail, in
violation of its user agreements, in violation of its contracts with third
paries, and in violation of its statements to users are not within the
ordinary course of business of a provider of an electronic communication

Google's

service.

38.

Google intentionally

used, uses, or endeavored or endeavors to use the contents

Plaintiff's and Class Members'lectronic
that the information

violation

communications

was obtained through the interception

of Florida Statute

$ 934.03, et

seq.

knowing

of

or having reason to know

of the electronic communication

in

39.

Google's interception of and use of the contents of Plaintiff's and Class
Members'lectronic

were not subject to any of the exceptions set out in Florida Statute $ (

communications

934.03 —
934.09.

40.

Plaintiff

not

As a result

to the

consent

and, upon information

communications

41.

did

of Google's

and belief, either did any

violations

$ 934.10, Plaintiff and the Class are entitled

or use

interception

of

his

electronic

of the Class Members.

of Florida Statute

$ 934.03

et seq, pursuant to

to:
injunctive relief to halt Google's violations;

a.

Preliminary

and permanent

b.

Appropriate

declaratory relief;

For Plaintiff and each Class members, the greater of $ 100 a day for each
day of violation or $ 1,000 whichever is higher;
d.

Punitive damages; and

Reasonable attorneys'ees

and other litigation costs reasonably incurred.

JURY DKMANDKD
to the Seventh Amendment

Pursuant

to the U.S. Constitution

Procedure 38, Plaintiff demands a jury on any issue triable

and Federal Rule

of Civil

of right by a jury.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and all Class members, requests judgment
be entered against Defendant and that the Coutt grant the following:
An order certifying the Class and appointing
represent the Class;

Plaintiff and his counsel to

2.

Judgment against the Defendant
cause of action;

3.

Appropriate

4.

Preliminary

and permanent

Class'sserted

declaratory relief against Defendant;

for Plaintiff's

and the

injunctive relief against Defendant;

5.

An award of statutory damages to the Plaintiff and the Class, for each, the
greater of $ 100 a day for each day of violation or $ 1,000, whichever is
higher;

6.

Punitive damages;

7.

An award of reasonable
reasonably incuned; and

8.

Any and all other relief to which the Plaintiff and the Class may be
entitled.

This/P

dsy of+/(y

attorneys'ees

and

other

litigation

M~+20 1 2.
Respectfully submitte,

/J

CAMERON M. KENNEDY
Florida Bar No.: 0020548
Searcy Denney Scarola Barnhart
Shipley, P.A.
Towle House, 517 N. Calhoun St.
Tallahassee, FL 32301-1231
Tel. No. [phone]

4

E-mail:[e-mail]
DEMAND FOR TRIAL BY JURY
The Plaintiff demands a trial by struck jury

of all the issues

in this ca e.

CAMERON M. KEIgkEDY
FOR THE PLA

ATTO~Y

F

REOUEST FOR SERVICE OF PROCESS
The Plaintiff requests that the Summons and Complaint in this case be served upon
Defendant by Process Server, as follows:

Google, Inc.
c/o Registered Agent:

CSC Lawyers Incorporatin

11 East Chase Street
Baltimore, Maryland 21202

Service Compa

l
CAMERON M.
DY
ATTORNEY FOR THE PLA
10

costs