Powers v. Airbnb, Inc. et al

Filing 53

ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS re 47 - Signed by JUDGE LESLIE E. KOBAYASHI on 8/30/2024. On the basis of the foregoing, Airbnb's Motion for Judgment on the Pleadings, filed June 7, 2024, is HEREBY GRANTED. There being no remaining claims in this case, the Clerk's Office is DIRECTED to enter judgment in favor of Airbnb on September 16, 2024. (eta)COURT 'S CERTIFICATE OF SERVICE - Henry Powers shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on September 3, 2024. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF).

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
HENRY POWERS,

CIV. NO. 23-00243 LEK-WRP
Plaintiff,

vs.
AIRBNB, INC.,

AIRBNB PAYMENTS,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
Before the Court is Defendants Airbnb, Inc. and Airbnb
Payments’ (collectively “Airbnb”) Motion for Judgment on the
Pleadings, filed June 7, 2024 (“Motion”). [Dkt. no. 47.] Pro se
Plaintiff Henry Powers (“Powers”) did not file a memorandum in
opposition. Airbnb filed its reply on July 5, 2024. [Dkt.
no. 50.] The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.1(c) of the Local Rules
of Practice for the United States District Court for the
District of Hawaii (“Local Rules”). Airbnb’s Motion is hereby
granted.
BACKGROUND
The operative complaint is the Amended Complaint for a
Civil Case, filed on January 2, 2024 (“Amended Complaint”).
[Dkt. no. 25.] Powers’s sole remaining claim is the claim for
misleading advertising, in violation of the Lanham Act, Title 15

United States Code Section 1125(a)(1)(B). See id. at PageID.86,
§ II.A; id. at PageID.89-90, ¶ 10; Order Granting in Part and
Denying in Part Defendants’ Motion to Dismiss Plaintiff Henry
Powers’ Amended Complaint, Filed January 2, 2024, filed 4/30/24
(dkt. no. 43) (“4/30 Order”), at 13.1
Powers alleges he owns land in and around a
subdivision in the County of Hawai`i where Airbnb operates.
[Amended Complaint at PageID.88, ¶ 4.] Powers alleges: “Airbnb’s
rating structure provides incentive for it’s [sic]
subcontractors to instruct Airbnb’s clients to trespass or allow
them to be a nuisance”; [id. at PageID.89, ¶ 7;] the “Superhost”
badge Airbnb puts on certain subcontractors’ listings “gives
these illegal operations an appearance of legitimacy”; [id.;]
and “Airbnb is a contributing editor and content provider” of
such listings, [id.]. Powers alleges “Airbnb specifically
marketed to hosts to provide illegal accommodations knowing that
problems would occur,” [id. at PageID.90, ¶ 13,] and Airbnb’s
television advertising and website “giv[e] the appearance their
service is something that is legal to do,” [id. at PageID.89,
¶ 10]. Powers alleges Airbnb’s content, including the Superhost
content and content referencing local laws, constitutes false
and misleading advertising. [Id. at PageID.90, ¶ 10.]

1

The 4/30 Order is also available at 2024 WL 1885727.
2

Powers alleges the illegal conduct by Airbnb also
includes: entering into agreements with subcontractors selling
services that are illegal under the applicable zoning laws;
entering into contracts with members of the public to provide
services that violate the applicable laws; and failing to take
steps to ensure their contracts comply with the applicable laws.
[Id. at PageID.88, ¶¶ 1-3.] According to Powers, Airbnb’s
promotion of and engagement in these contracts have led to: “a
flood of illegal rentals which have diminished the
enjoyability[,] livability, value, and marketability of [his]
property”; [id. at PageID.89, ¶ 8;] and daily trespassing over
his property by Airbnb clients going to the ocean, [id. at
PageID.88, ¶ 5]. Powers alleges the subcontractors are hosts,
the hosts are employed by Airbnb and are acting under Airbnb’s
control, and therefore respondeat superior liability applies.
[Id. at PageID.89, ¶ 7.] Powers requests punitive damages. [Id.
at PageID.85, § IV.]2
Airbnb argues judgment should be entered in Airbnb’s
favor on the sole remaining Lanham Act claim pursuant to Federal
Rule of Civil Procedure 12(c) because Powers does not and cannot

Powers also seeks compensatory damages for claims that the
Court has previously dismissed. See Amended Complaint at
PageID.85, § IV; 4/30 Order at 4, 13.
2

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plead that he is a competitor of Airbnb. [Motion, Mem. in Supp.
at 4.]
DISCUSSION
Airbnb argues the Amended Complaint does not allege
Powers competes with Airbnb’s online marketplace. [Id. at 5.]
“The Lanham Act creates a cause of action for unfair
competition through misleading advertising or labeling. Though
in the end consumers also benefit from the Act’s proper
enforcement, the cause of action is for competitors, not
consumers.” POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102,
107 (2014). This “private remedy may be invoked only by those
who ‘allege an injury to a commercial interest in reputation or
sales.’” Id. at 108 (quoting Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 132 (2014)). “[W]hen [a]
plaintiff competes directly with [a] defendant, a
misrepresentation will give rise to a presumed commercial injury
that is sufficient to establish standing.” ThermoLife Int’l, LLC
v. BPI Sports, LLC, No. 21-15339, 2022 WL 612669, at *2 (9th
Cir. Mar. 2, 2022) (some alterations in original) (citation and
internal quotation marks omitted). “[W]hen the parties are not
direct competitors, a plaintiff must plead a competitive injury
with sufficient particularity to survive a motion to dismiss.”
ThermoLife Int’l LLC v. BPI Sports LLC, No. CV-18-04663-PHX-SPL,

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2019 WL 6135140, at *2 (D. Ariz. Nov. 19, 2019) (citation
omitted).
Even liberally construing the Amended Complaint,
Powers does not allege that he has suffered “an injury to a
commercial interest in reputation or sales.” See POM Wonderful,
573 U.S. at 108. Powers alleges his property “has lost
competitive value and market value he would have otherwise had.”
[Amended Complaint at PageID.89, ¶ 8.] Powers alleges his
“property is zoned for use as a campground,” but that the
“property could not . . . be economically viable as a campground
due to the amount of inexpensive illegal rentals that Airbnb
supports in the area.” [Id.] Here, Powers does not allege he is
in an industry that competes with Airbnb. Powers has not alleged
any harm to reputation, or to sales. Powers does not allege he
conducts sales, or runs a business of any kind. Instead, Powers
implies he is not conducting a business. See id. Because Powers
fails to allege he has engaged in commercial activity of any
kind, Powers fails to allege commercial injury under the Lanham
Act. See, e.g., Altair Instruments, Inc. v. Telebrands Corp.,
Case No. 2:19-cv-08967-SJO-JC, 2020 WL 1942320, at *5-6 (C.D.
Cal. Mar. 31, 2020) (dismissing a Lanham Act claim where the
parties were not direct competitors and the defendants/counter
claimants could not “allege injury from a direct diversion of
sales” and did not allege “facts sufficient to show lessening of
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goodwill which its products enjoy with the buying public”
(citing Lexmark Int’l, 572 U.S. at 138)). Therefore, taking the
allegations in the pleading as true, Airbnb is entitled to
judgment as a matter of law on Powers’s Lanham Act claim. See
Knappenberger v. City of Phoenix, 566 F.3d 936, 939 (9th Cir.
2009).
Because Powers has been afforded an opportunity to
amend his complaint, and amendment has not cured the defects in
his Lanham Act claim, it is clear that further amendment would
be futile. Therefore, judgment will be entered in favor of
Airbnb with prejudice as to Powers’s Lanham Act claim. See Hoang
v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018)
(“Dismissal with prejudice and without leave to amend is not
appropriate unless it is clear . . . that the complaint could
not be saved by amendment.” (citation and quotation marks
omitted)).
CONCLUSION
On the basis of the foregoing, Airbnb’s Motion for
Judgment on the Pleadings, filed June 7, 2024, is HEREBY
GRANTED. There being no remaining claims in this case, the
Clerk’s Office is DIRECTED to enter judgment in favor of Airbnb
on September 16, 2024.
IT IS SO ORDERED.

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DATED AT HONOLULU, HAWAII, August 30, 2024.

HENRY POWERS VS. AIRBNB, INC., ET AL; CV 23-00243 LEK-WRP; ORDER
GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

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