Davis v. Google Inc.

Filing 1

NOTICE OF REMOVAL by Google Inc. from District Court of Bowie, Texas, case number 12C0247-102. (Filing fee $ 350 receipt number 0540-3508442), filed by Google Inc.. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit 1 - Petition from State Court, # 3 Exhibit 2 - Amended Petition from State Court, # 4 Exhibit 3 - Discovery Requests, # 5 Exhibit 4 - Dunbar Complaint, # 6 Exhibit 5 - Dunbar Order, # 7 Exhibit 6 - Email, # 8 Exhibit 7 - AR Complaint, # 9 Exhibit 8 - Certified Copy of State Court Docket Sheet)(Babcock, Charles)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CAROL BETH DAVIS,
Plaintiff,
v.
GOOGLE INC., and AMAZON.COM,
INC., d/b/a ZAPPOS.COM, INC.
Defendants.

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Civil Action No. ____________

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL
Defendant Google Inc. (“Google”) hereby removes this action to this Court from the
Bowie County, State of Texas, pursuant to 28 U.S.C. §§ 1331, 1332, 1441, and 1446, and, to the
extent required, reserves any and all rights, objections, and defenses, and respectfully shows this
Honorable Court as follows:
I. FACTUAL BACKGROUND
1.

Google is the named Defendant in Civil Case No. 12C0247-102, filed in the

Judicial District Court of Bowie County, Texas (the “State Court Action”).
2.

Plaintiff’s Petition for Declaratory Judgment (the “Petition”) in the State Court

Action was filed on or about February 13, 2012. Google was served with the Petition on
February 23, 2012, when it accepted service via email from Plaintiff’s counsel.
3.

Plaintiff filed her First Amended Petition for Declaratory Judgment on March 13,

2012 (the “Amended Petition”).
4.

This Notice is being filed with this Court within thirty (30) days after Google

received a copy of Plaintiff’s initial pleading setting forth the claims for relief upon which

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 1

Plaintiff’s action is based.
5.

In accordance with 28 U.S.C. §1446(a), attached hereto are true and complete

copies of all process, pleadings, and orders served upon Google in the State Court Action. These
documents include the Petition (Ex. 1), Amended Petition (Ex. 2), Plaintiff’s Requests For (1)
Admissions And (2) Interrogatories Propounded To Defendant Google, Inc. (Ex. 3). Also
attached in support of this Notice, are true and correct copies of the Second Amended Complaint
(without exhibits) and an Order Denying Plaintiff’s Motion for Preliminary Injunction on file in
Keith Dunbar, Individually, and as Representative on Behalf of Similarly Situated Persons v.
Google Inc., No. 5:10-CV-00194 (E.D. Tex.) (Exs. 4 and 5, respectively), email correspondence
between Plaintiff’s counsel and Defendant’s counsel (Ex. 6), the Complaint for Declaratory
Judgment in Sheppard v. Google, No. CV2012-11-2, in the Circuit Court of Little River County,
Arkansas (Ex. 7) and a certified copy of the State Court Action docket sheet (Ex. 8).
6.

Venue is proper in this Court pursuant to 28 U.S.C. §1441 because the Eastern

District of Texas is the federal judicial district encompassing the District Court of Bowie County,
Texas, where this suit was originally filed.
II. FEDERAL QUESTION JURISDICTION
7.

This Court has “original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.” 28 U.S.C. §1331. Pursuant to 28 U.S.C.
§1441(b), “[a]ny civil action of which the district courts have original jurisdiction founded on a
claim or right arising under the Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of the parties.”
8.

Defendant is entitled to remove this action pursuant to 28 U.S.C. §1441 because it

arises under federal law, giving this Court original jurisdiction pursuant to 28 U.S.C. §1331.
9.

District courts have original jurisdiction when Congress “so completely preempts

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 2

a particular area that any civil complaint raising this select group of claims is necessarily federal
in character.” Elam v. Kansas City S. Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011). Federal
question jurisdiction may also exist when state law claims turn on substantial questions of federal
law. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). In
making the jurisdictional assessment, “[c]ourts look past words in the complaint to the substance
of the claim alleged, in order to determine whether the claim actually arises under federal law.”
Woodrow v. Inland Paperboard & Packaging, Inc., 2005 WL 6482749, *2 (E.D. Tex. Jul 21,
2005) (Hines, J.) (emphasis in original).
A. Plaintiff’s Amended Petition is artfully pleaded in an attempt to avoid ECPA.
10.

Although Plaintiff’s Amended Petition purports to plead state law claims,

plaintiffs “do not enjoy absolute self-determination” in whether districts courts have original
jurisdiction. Id. The Fifth Circuit requires district courts to “disregard artful language in
complaints, when such language is designed to restrict potential implementation of federal
jurisdiction.” Id.
11.

Plaintiff artfully pleads under the Texas Declaratory Judgment Act a request “to

determine: the rights and status of the parties with regard to Plaintiff’s claim of proprietary
ownership in certain data of her electronic mail (hereinafter “email”) prior to the receipt of the
email by the recipients who are Gmail1 account holders of the Defendant, Google, Inc.” (Am.
Petition at ¶2.a.).2 Plaintiff also requests supplementary relief under Texas State law relating to
conversion, theft, forgery and breach of computer security, and further asks that Google “be
required to provide and disclose to the Court and Plaintiff all uses it makes of Plaintiff’s data for

1

Gmail is Google’s free email service enjoyed by millions throughout the world.
Plaintiff initially pleaded for declaratory relief as to “the rights and status of the parties with regard to Plaintiff’s
claim of proprietary ownership in all data of her electronic mail (hereinafter “email”) prior to the receipt of the email
by the recipients who are Gmail account holders of the Defendant, Google Inc.” (Petition at ¶2.a.) (emphasis
added).
2

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 3

purposes of Gmail, and, after March 1, 2012, any other uses by Google for any other services
offered by Google.” (Id. at ¶36.a.-e.).
12.

However, a review of Plaintiff’s Amended Petition reveals that Plaintiff’s alleged

claims and allegations fall within the Electronic Communications Privacy Act (“ECPA”). The
Wiretap Act and the Stored Communications Act (“SCA”) are both part of ECPA, and play
complementary roles in Congress’s regulatory scheme. 18 U.S.C. §2511 et seq.; 18 U.S.C.
§2701 et seq. Under ECPA, an email may either be intercepted and actionable under the Wiretap
Act or acquired while in electronic storage and actionable under SCA, but not both. Steve
Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457, 462-63 (5th Cir. 1994).
13.

The Wiretap Act imposes liability on a person who (1) intentionally (2)

intercepted (or used knowing or having reason to know the information was obtained through
interception)3 (3) the contents of (4) an electronic communication (5) using a device and (6) that
no statutory exceptions apply. 18 U.S.C. §2511(1)(a), (d). Additionally, there is no violation of
the Wiretap Act when the interception occurs with the consent of just one of the parties to the
communication. 18 U.S.C. §2511(2)(d). In other words, the Wiretap Act’s key elements are
“interception” or “use” of the contents of an email and an important exception is the “consent” of
one party to the communication.
14.

SCA imposes liability on a person who (1) intentionally (2) accesses (3) without

authorization or by exceeding an authorization (4) a facility through which an electronic
communication service is provided and (5) thereby obtains, alters, or prevents authorized access
to (6) an electronic communication (7) while it is in electronic storage. 18 U.S.C. §2701(a).

3

Specifically, ECPA provides liability for any person who “intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication” and
“intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the interception of a wire, oral, or electronic
communication in violation of this subsection.” 18 U.S.C. §2511(1)(a), (d).
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 4

Thus, “access” and “without authorization” represent key elements of an SCA claim.
15.

As indicated above, a number of Plaintiff’s counsel are all too familiar with this

statute, as they have spent more than a year prosecuting a putative class action solely under
ECPA on behalf of a putative class of non-Gmail users against Google relating to the exact same
conduct alleged here. Keith Dunbar, Individually, and as Representative on Behalf of Similarly
Situated Persons v. Google Inc., Cause No. 5:10-CV-00194 (E.D. Tex.) (“Dunbar v. Google”).4
On March 16, 2012, Judge Folsom denied certification.
16.

In addition, on February 1, 2012, Plaintiff’s lead counsel filed a nearly identical

suit to the present case in Arkansas on behalf of another plaintiff, styled Sheppard v. Google, No.
CV2012-11-2, in the Circuit Court of Little River County, Arkansas. (Ex. 7). One week after
Google removed the Sheppard case to the Western District of Arkansas on the grounds of federal
question (asserting complete preemption under ECPA) and diversity, Plaintiff amended her
petition in this action to attempt to artfully disclaim an ECPA claim. (Am. Petition at ¶8).
Rather than correct the deficiency, Plaintiff’s amended pleading only emphasizes her counsel’s
awareness of the clear application of ECPA.
17.

As demonstrated below, Plaintiff’s Amended Petition pleads and indeed

recognizes the necessity of ECPA findings, either under SCA or the Wiretap Act, to any relief
she might request:
a.

Plaintiff claims that there is an interception of Plaintiff’s email while the email is

in transit to the Gmail user by alleging: “Prior to receiving Plaintiff’s emails, Gmail users are

4

For example, in Dunbar v. Google, the Second Amended Complaint alleges “Google scans the content of all
electronic communications received by Gmail account holders . . . Google intercepts all electronic communications
sent to Gmail account holders . . . Google uses the information and content obtained from the scanning of incoming
electronic communications to sell and place in certain account holders’ browser windows advertisements that are
related to the content and meaning of intercepted electronic communications.” (Ex. 4, at ¶7). It further alleges: “No
party to the electronic communications sent by Plaintiff and the Class Members as made the basis of this suit
consented to Google’s interception or use of the contents of the electronic communications.” (Ex. 4, at ¶226). It
also sought “[a]ppropriate declaratory relief.” (Ex. 4, at ¶227.b.).
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 5

without authority to grant any person rights to, license to, use of, or any control over Plaintiff’s
property interest in the Plaintiff’s data” (Am. Petition at ¶ 22) (emphasis added); and “Plaintiff
seeks from this Court a declaration that … all data in Plaintiff’s email header fields, prior to the
receipt of that email by a Gmail user, is the sole personal property of Plaintiff” (Id. at ¶ 32)
(emphasis added). Plaintiff alleges an interception under the Wiretap Act, see 18 U.S.C.
§2511(1)(a);5
b.

Plaintiff also claims that Google uses or accesses Plaintiff’s email by alleging:

“Google uses Plaintiff’s data in these header fields in connection with various activities” (Am.
Petition at ¶15) (emphasis added), “Google has exercised control and will continue to exercise
control over Plaintiff’s data” (Id. at ¶18) and “Plaintiff seeks from this Court a declaration that
Google has no ownership interest in or property rights in Plaintiff’s data” (Id. at ¶33).6 Plaintiff
thus pleads use or access under ECPA, see 18 U.S.C. §2511(1)(d), §2701(a).
c.

Plaintiff claims she has not consented to any interception or authorized any access

to her emails, by alleging: “Plaintiff has not authorized Google to in any way exercise control of
Plaintiff’s data for any purpose” (Am. Petition at ¶21).7 Plaintiff clearly seeks to avoid the
statutory exception of consent to interception, see 18 U.S.C. §2511(2)(d), or to affirmatively
allege access without authorization, see 18 U.S.C. §2701(a); and
5

In her original Petition, Plaintiff also alleged: “Prior to the Gmail users ever receiving Plaintiff’s email, Google
takes data from Plaintiff’s email” (Petition at ¶11), “Prior to the Gmail user ever receiving Plaintiff’s email, Google
uses Plaintiff’s data” (Id. at ¶12), “Google’s exercise of control of Plaintiff’s data occurs prior to the Gmail user’s
receipt” (Id. at ¶17), “Google has exercised control . . . by taking data from Plaintiff’s email prior to those emails
being received by Gmail users” (Id. at ¶18) and “Plaintiff seeks from this Court a declaration that (a) all data in
Plaintiff’s email, prior to the receipt and review of that email by a Gmail user, is the sole personal property of
Plaintiff” (Id. at ¶32).
6
In her original Petition, Plaintiff also alleged: “Google takes data from Plaintiff’s email” (Petition at ¶11), “Google
uses Plaintiff’s data” (Id. at ¶12) (emphasis added), “Google generates income from advertisers as a result of taking
Plaintiff’s data from Plaintiff’s email and using Plaintiff’s data to deliver advertisements to the Gmail user when the
Gmail user opens the email” (Id. at ¶13), “Google’s exercise of control of Plaintiff’s data” (Id. at ¶17), “Google has
exercised control and will continue to exercise control over Plaintiff’s data by taking data from Plaintiff’s email”
(Id. at ¶18), and “Plaintiff seeks from this Court a declaration that Google has no ownership interest in or property
rights in Plaintiff’s data” (Id. at ¶33).
7
Plaintiff’s allegation in the original Petition was identical. (Petition at ¶21).
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 6

d.

Plaintiff claims that the other party to the email communication, a Gmail user,

could not consent to any interception or authorize any access, by alleging “Prior to receiving
Plaintiff’s emails, Gmail users are without authority to grant any person rights to, license to, use
of, or any control over Plaintiff’s property interest in the Plaintiff’s data and value of that data
contained therein” (Am. Petition at ¶22), and “Plaintiff seeks from this Court a declaration that
prior to receiving Plaintiff’s emails, Gmail users are without authority to grant any person rights
to, license to, use of, or any control over Plaintiff’s property interest in Plaintiff’s data” (Id. at
¶34).8 Here, again, Plaintiff seeks to avoid a finding of consent or authorization under ECPA,
see 18 U.S.C. §2511(2)(d), §2701(a), and seeks declaratory relief under ECPA, see 18 U.S.C.
§2520(b)(1), §2707(b)(1).
18.

Plaintiff’s attempt to artfully re-characterize her ECPA claim as various state law

causes of action must be rejected. A similar attempt to avoid ECPA was rejected in Muskovich
v. Crowell, 1995 WL 905403, *1 (S.D. Iowa Mar 21, 1995). There, a plaintiff’s alleged state
law claims of intentional infliction of emotional distress and breach of duty to protect
confidentiality were found to be based on “conduct regulated by ECPA” and therefore preempted
by ECPA. Id.9
B. ECPA completely preempts Plaintiff’s state law claims.
19.

While it is presently unclear whether Plaintiff pled an interception and use claim

8

In her original Petition, Plaintiff similarly alleged: “Prior to receiving and reviewing Plaintiff’s emails, Gmail users
are without authority to grant any person rights to, license to, use of, or any control over Plaintiff’s property interest
in the Plaintiff’s data and value of that data contained therein” (Petition at ¶22), “Plaintiff seeks from this Court a
declaration that prior to receiving and reviewing Plaintiff’s emails, Gmail users are without authority to grant any
person rights to, license to, use of, or any control over Plaintiff’s property interest in Plaintiff’s data” (Id. at ¶34).
9
Plaintiff’s attempt to artfully plead herself out of an ECPA claim by alleging she only seeks a determination of
“data” that is contained in the “envelope” or “header fields”, and not the “body” of an email, must also be rejected.
(See Am. Petition ¶¶12-14). Setting aside the oddity that Plaintiff now only cares about the parts of email that she
admits “most users in fact rarely see” and may not even be created by Plaintiff (id. at ¶14), the distinction does not
alter the fact that the conduct alleged – interception of or unauthorized access to electronic communications – is
regulated by ECPA. See 18 U.S.C. §2511 et seq., §2701 et seq. Of course, whether Plaintiff’s allegations are
sufficient to state a claim for relief under ECPA is another matter. See FED. R. CIV. P. 12(b)(6).
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 7

under the Wiretap Act or an unauthorized access claim under SCA, the answer is of no
consequence for purposes of removal. Under either provision, ECPA completely preempts
Plaintiff’s state law claims and presents a federal question for purposes of removal. 18 U.S.C.
§2518(10)(c), §2708. To determine whether a federal statute completely preempts a state law
cause of action, a court must evaluate whether Congress intended the federal cause of action to
be exclusive. Elam, 635 F.3d at 803 (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1
(2003)). “In determining the nature and reach of federal preemption, Congress’s intent is the
‘ultimate touchstone.’” Id. Congressional intent can be “expressly through a statute’s plain
language, or impliedly through a statute’s ‘structure and purpose.’” Id.10
20.

Congressional intent is plain from the statutory language of ECPA, which

provides this exclusivity of remedies provision:
The remedies and sanctions described in this chapter with respect to the
interception of electronic communications are the only judicial remedies and
sanctions for nonconstitutional violations of this chapter involving such
communications.
18 U.S.C. §2518(10)(c) (emphasis added). Nearly identical language is found in SCA, which
likewise provides that the “remedies and sanctions described in this chapter are the only judicial
remedies and sanctions for nonconstitutional violations of this chapter.” 18 U.S.C. §2708
(emphasis added).
21.

Muskovich is helpful here. There, the defendant removed the case to federal

court on the basis that plaintiff’s state law causes of action were completely preempted by SCA,
18 U.S.C. §2708.

The district court in Muskovich found removal proper, and denied the

10

Under the Fifth Circuit’s prior precedent, to demonstrate complete preemption a defendant had to show that: (1)
the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the
analogous area of state law; (2) there is a specific grant to the federal courts for enforcement of that right; and (3)
“there is a clear Congressional intent that claims brought under federal law be removable.” Hoskins v. Bekins Van
Lines, 343 F.3d 769, 775 (5th Cir. 2003) (emphasis in original). However, in light of Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1 (2003), the Fifth Circuit revised and broadened the test to grant preemption when there is
Congressional intent that “the federal action be exclusive.” Hoskins, 343 F.3d at 775-76 (emphasis added). ECPA
meets all prongs of this test. See 18 U.S.C. §§ 2518, 2520; 18 U.S.C. §§ 2708, 2707.
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 8

plaintiff’s motion to remand due to complete preemption, holding:
The clear import of section 2708 is that Congress intended for ECPA remedies to
be exclusive and to preempt state law claims. . . . Plaintiff contends
defendant[’s] conduct constitutes intentional infliction of emotional distress under
Iowa tort law. But that claim based on Iowa law concerns conduct regulated by
ECPA and is therefore preempted.
Muskovich, 1995 WL 905403 at *1-2. So, here too, Plaintiff’s Amended Petition requests
declaratory relief and alleges either interception and use of email without consent or
unauthorized access of email, and thus comes plainly within the contours of ECPA. See supra
¶¶17-18, see also Quon v. Arch Wireless Op. Co., 445 F. Supp. 2d 1116 (C.D. Cal. 2006), aff’d
in part, rev’d in part on other grounds, 529 F.3d 892 (9th Cir. 2008), and rev’d and remanded,
130 S. Ct. 2619 (2010) (granting summary judgment on invasion of privacy and state
constitutional claims due to express preemption under 18 U.S.C. §2708); Bunnell v. Motion
Picture Assoc. of Am., 567 F. Supp. 2d 1148 (C.D. Cal. 2007) (granting summary judgment on
invasion of privacy claim due to express preemption under 18 U.S.C. §2518(10)(c)).11
22.

The remedy for the alleged conduct is not found under the Texas Declaratory

Judgment Act; rather, ECPA offers the “only judicial remedies and sanctions” available to
Plaintiff. 18 U.S.C. §2518(10)(c), §2708. Because Congress has “unequivocally expressed an
intent to ‘occupy the field’ and provide the exclusive remedies for conduct regulated by ECPA,”
Muskovich, 1995 WL 905403 at *1, Plaintiff’s state law claims for declaratory and
supplementary relief are completely preempted and removal is appropriate. See also Hoskins,
343 F.3d at 777-78 (finding complete preemption of state law claims by Carmack Amendment
due, in large measure, to the statute’s “exclusive” and “sole remedy” provision).

11

Although other district courts have found ECPA preemption on other grounds, see In re Google Inc. Street View
Elec. Commc’ns Litig., 794 F. Supp. 2d 1067, 1084-85 (N.D. Cal. 2011), Google submits that Muskovich correctly
determined that ECPA completely preempts state law claims and provides grounds for removal. Muskovich, 1995
WL 905403 at *1.
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 9

C. The Amended Petition raises a substantial federal question.
23.

In the alternative, Plaintiff’s Amended Petition raises a substantial federal

question. Substantial federal question is another variety of federal “arising under” jurisdiction
that the U.S. Supreme Court has recognized for nearly 100 years. Grable, 545 U.S. at 312. In
certain cases federal-question jurisdiction will lie over state law claims that implicate “significant
federal issues.” Id. This Court has found that federal question jurisdiction exists where “(1)
resolving a federal issue is necessary to resolution of the state-law claim, (2) the federal issue is
actually disputed, (3) the federal issue is substantial, and (4) federal jurisdiction will not disturb
the balance of federal and state judicial responsibilities.” Clauer v. Heritage Homeowners
Assoc., Inc., 2010 WL 446545, *3 (E.D. Tex. Feb. 3, 2010) (Schneider, J.). These elements are
plainly met here.
24.

As demonstrated above, Plaintiff requests declaratory relief and alleges

interception and use of email without consent or unauthorized access to email – all of which are
essential elements of an ECPA claim. See supra ¶¶17-18. Thus, Plaintiff’s state law claim under
the Texas Declaratory Judgment Act raises federal issues that are necessary, actually disputed
and substantial. See Grable, 545 U.S. at 312. In Grable, a single element raising an important
issue under federal law was held to be sufficient to confer federal jurisdiction. Id. at 314-15.
Here, Plaintiff’s Amended Petition concedes not only that there are many such elements, but also
that these elements so completely control the outcome of Plaintiff’s case, Plaintiff does not even
assert supplemental relief under state law without positive declaratory findings on those issues.
(Am. Petition at ¶¶32-34). In addition, the remedies available for Plaintiff’s claim are limited to
ECPA. 18 U.S.C. §2518(10)(c), §2708. ECPA’s exclusivity of remedies provision further
demonstrates that federal jurisdiction would not disturb “any congressionally approved balance
of federal and state judicial responsibilities.” Grable, 545 U.S. at 314. To the contrary, federal

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 10

question jurisdiction here would be in furtherance of the express intent of Congress. See 18
U.S.C. §2518(10)(c), §2708.
25.

Plaintiff’s State Court Action is removable to this Court and this Court has

jurisdiction over this litigation under Electronic Communications Privacy Act of 1986, 18 U.S.C.
§2510 et seq., 18 U.S.C. §2701 et seq., and 28 U.S.C. §§ 1331 and 1441.
III. DIVERSITY OF CITIZENSHIP JURISDICTION
26.

This Court has “original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
. . . (1) citizens of different States. . .” 28 U.S.C. §1332(a). Pursuant to 28 U.S.C. §1441(a),
“[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State
court of which the district courts of the United States have original jurisdiction, may be removed
by the defendant, or the defendants, to the district court of the United States for the district and
division embracing the place where such action is pending.”
27.

Defendant is entitled to remove this action pursuant to 28 U.S.C. §1441 because

diversity jurisdiction exists, giving this Court original jurisdiction pursuant to 28 U.S.C. §1331.
A. There is complete diversity among the parties.
28.

Plaintiff’s Amended Petition asserts that Plaintiff is a citizen of the State of Texas,

and “is a resident of Bowie County, State of Texas.” (Am. Petition at ¶3). Plaintiff is a citizen
of the State of Texas at the time of the filing of the Petition and of this removal.
29.

Plaintiff’s Amended Petition asserts that Google is a Delaware corporation with a

principal place of business in California. (Am. Petition at ¶4). Google is incorporated in a state
other than the State of Texas and has its principal place of business in a state other than the State
of Texas and therefore is not a citizen of the State of Texas for diversity purposes.
30.

Plaintiff’s Amended Petition asserts that Defendant Amazon.com, Inc. is a

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 11

Delaware corporation with a principal place of business in California. (Am. Petition at ¶5).
Amazon.com, Inc. is incorporated in a state other than the State of Texas and has its principal
place of business in a state other than the State of Texas and therefore is not a citizen of the State
of Texas for diversity purposes. There is complete diversity.
B. Amazon’s consent to removal is not required.
31.

When defendants have been both properly joined and served, they are generally

required to consent to removal pursuant to section 1441(a). 28 U.S.C. § 1446(b)(2)(A). Neither
is true as to Amazon and consent is not required.
32.

First, there is no indication that Amazon has been served. The docket sheet for

the State Court Action does not show that Amazon has been served, and Google is not otherwise
aware of service upon Amazon. (Ex. 8). Thus, Amazon’s consent to removal is unnecessary.
Waffer v. City of Garland, 2001 WL 1148174, at *2 (N.D. Tex. Sep. 19, 2001) (holding that
because state court case file gave no indication that non-removing defendant was served, consent
to removal was unnecessary); LinkEx, Inc. v. CH Robinson Co., Inc., CH, 2011 WL 1447570, at
**1-2 (N.D. Tex. Apr. 12, 2011) (denying remand and noting that even though non-removing
defendant was served, state court docket sheet did not reflect service).
33.

Second, Amazon is not properly joined to this action under the doctrine of

fraudulent misjoinder. See Crockett v. R.J. Reynolds Tobacco Co., 436 F.3d 529, 533 (5th Cir.),
cert. denied, 548 U.S. 907 (2006).12 Fraudulent misjoinder exists when the claims against the
defendants are (1) improperly joined under state law and (2) “the connection between the joined
claims is ‘so tenuous as to justify disregarding the citizenship of the joined parties.’” Wells
Fargo Bank, N.A. v. American Gen. Life Ins. Co., 670 F. Supp. 2d 555, 563 (N.D. Tex. 2009)
12

“Fraudulent misjoinder” or “Tapscott-misjoinder” was first recognized by the Eleventh Circuit in Tapscott v. MS
Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir. 1996). The Fifth Circuit relied on the reasoning of the Tapscott
opinion in allowing removal when it would otherwise have been barred in Crockett. See Crockett, 436 F.3d at 533;
Wells Fargo Bank, 670 F. Supp. 2d at 561-62.
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 12

(citation omitted).
34.

Here, joinder is governed by the Texas Rule of Civil Procedure 40, Wells Fargo

Bank, 670 F. Supp. 2d at 563, which provides that defendants may be joined in the same action
only if:
(1) there is asserted against them jointly, severally, or in the alternative any right
to relief in respect of or arising out of the same transaction, occurrence, or series
of transactions or occurrences; and
(2) at least one question of law or fact common to all of them will arise in the
action.
TEX. R. CIV. P. 40(a).13 Neither element is satisfied here.
35.

There is no common occurrence as between the claims against Amazon and the

claims against Google. Google and Amazon have no affiliation with one another. (Am. Petition
at ¶5). Plaintiff’s claims against Amazon allege theft of customer account information from the
Zappos.com, Inc. network. (Am. Petition at ¶¶25-26). In contrast, the claims asserted against
Google relate to the alleged unauthorized access, interception and use of purported “data in the
‘envelope’ and in the header fields of Plaintiff’s email.” (Am. Petition at ¶¶11-14). There is also
no common question of law or fact. While Plaintiff artfully pleads some of the same state laws
for each defendant, Plaintiff seeks separate and distinct declaratory and supplemental relief as to
Amazon. (Am. Petition at ¶¶35-36). Thus, Plaintiff’s Amended Petition misjoins Amazon under
Texas Rule of Civil Procedure 40(a).
36.

As the above makes clear, Plaintiff’s claims against defendants Google and

Amazon have no relation to one another. Indeed, the “connection is not just tenuous, it is nonexistent.” Wells Fargo Bank, 670 F. Supp. 2d at 564 (finding fraudulent misjoinder where there
was no palpable connection between the claims against the defendants). As a result, Amazon has

13

The Fifth Circuit has recognized that the joinder requirements under Federal Rule of Civil Procedure 20(a) and
Texas Rule of Civil Procedure 40(a) are the same. Crockett, 436 F.3d at 533.
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 13

been fraudulently misjoined and Amazon’s consent is unnecessary. Id.; see also Augustine v.
Employers Mut. Cas. Co., 2010 WL 4930317, at *17 (W.D. La. Nov. 30, 2010) (denying
removal and recognizing defendant had been fraudulently misjoined).
C. The amount in controversy exceeds $75,000.
37.

The matter in controversy in the State Court Action easily exceeds the sum or

value of $75,000, exclusive of interest and costs.14 Against Google, Plaintiff claims she seeks a
declaration of property rights in Plaintiff’s data and a Court order to show why Google’s acts
would not amount to tortious conduct and violations of various Texas statutes. In Count I of the
Amended Petition, Plaintiff contends she is entitled to a declaration of personal property interest
from the Court that “all data” in “Plaintiff’s email header fields” she has sent to Gmail recipients,
“prior to the receipt of that email by a Gmail user, is the sole personal property of Plaintiff. . .”
(Am. Petition at ¶32). Plaintiff asserts she is entitled to such declaratory relief based on common
law, and the definitions of the term “property” in Texas Penal Code Ann. §§ 31.01(5), 32.01(2),
and 33.01(16). (Am. Petition at ¶32a.-d.).15 In Count II of the Amended Petition, entitled
“Supplementary Relief,” Plaintiff alleges: “should the Court find in favor of Plaintiff’s requested
declarations . . . Plaintiff respectively [sic] asks the Court to order Google . . . to show cause why
further relief should not be granted forthwith, to include a demonstration by Google as to why
future acts adverse to Plaintiff’s property interests would not amount to:” conversion and
violations of Texas Penal Code §§ 31.03, 32.21, et seq., and 33.02.” (Am. Petition at ¶36 a.-d.).
Plaintiff also asserts “Google should be required to provide and disclose to the Court and
Plaintiff all uses it makes of Plaintiff’s data for purposes of Gmail, and, after March 1, 2012, any

14

This does not even take into account the costs associated with complying with the terms of any requested
injunction order.
15
Plaintiff also seeks declarations that “Google has no ownership interest or property rights in Plaintiff’s data” (Am.
Petition at ¶33), and that Gmail users have no authority “to grant any person rights to, license to, use of, or any
control over Plaintiffs property interest in Plaintiff’s data.” (Am. Petition at ¶34).
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 14

other uses by Google for any other served offered by Google.” (Am. Petition at ¶36e.).
38.

In addition to declaratory and supplementary relief, Plaintiff requests the Court to

“grant and award Plaintiff all other relief to which she may prove herself entitled.” (Am. Petition
at Prayer).
39.

At the very least, a fact finder might legally conclude that damages are greater

than the jurisdictional limit required for diversity jurisdiction. See Wofford v. Allstate Ins. Co.,
2005 WL 755761, at *2 (N.D. Tex. Apr. 4, 2005) (denying remand where fact finder could
award attorneys’ fees and punitive damages above federal jurisdictional minimum). The tort
claims and statutory provisions invoked by Plaintiff provide for various forms of relief. Plaintiff
further demands “all other relief to which she may prove herself entitled.” (Am. Petition at
Prayer). The Texas Declaratory Judgment Act provides for an award of attorneys’ fees to a
successful litigant. TEX. CIV. PRAC. AND REM. CODE § 37.009. Where an award of attorneys’
fees is provided by contract or statute, they count toward determining the amount in controversy.
See Dow Agrosciences LLC v. Bates, 332 F.3d 323, 326 (5th Cir. 2003), vacated on other
grounds, Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005). In addition, by seeking relief
concerning conversion, Plaintiff raises the possibility of punitive damages, which also are
included in determining the amount in controversy. See Dow Agrosciences, 332 F.3d at 326.16
40.

Plaintiff purports to limit the “value of her declaratory relief and any

supplemental relief . . . sought to less than $75,000.” (Am. Petition at ¶6).
41.

Plaintiff’s allegations are ineffectual because Plaintiff has not expressly

disclaimed actual damages, attorneys’ fees, punitive damages, or any other damages. And, even
16

Plaintiff further alleges: “Google uses Plaintiff’s data in these header fields in connection with various activities,
all of which have as their goal generating additional revenue for Google.” (Am. Petition at ¶15); “Any value
associated with Plaintiff’s data is Plaintiff’s personal property” (Am. Petition at ¶20); “Plaintiff has not authorized
Google to in any way exercise control of Plaintiff’s data for any purpose, but certainly not for the purpose of . . .
deriving revenue from that data for Google” (Am. Petition at ¶21); and “Google has not and does not compensate
Plaintiff for . . . the benefit of the value from Plaintiff’s data” (Am. Petition at ¶23).
DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 15

if Plaintiff’s purported limitation were effective, it is incomplete. Plaintiff seeks three forms of
relief: declaratory relief, supplementary relief, and an actual demand that the Court “grant and
award Plaintiff all other relief to which she may prove herself entitled.” (Am. Petition at Prayer).
At most, Plaintiff’s attempted limitation applies only to the first two types of relief, and not the
third.

This transparent attempt to avoid removal is unavailing, and Plaintiff’s purported

limitation is ineffectual.
42.

Because the parties are citizens of different states and the amount in controversy,

exclusive of interest and costs, exceeds $75,000.00, this Court has diversity jurisdiction pursuant
to 28 U.S.C. §1332. Accordingly, the State Court Action may properly be removed to this Court
pursuant to 28 U.S.C. §1441.
43.

Promptly after the filing of this Notice of Removal, Google shall provide notice of

the removal to Plaintiff in the State Court Action and to the Clerk of the Court in the State Court
action, as required by 28 U.S.C. §1446(d).
Wherefore, Google removes the State Court Action to federal court based on federal
question jurisdiction and complete diversity of citizenship of the parties, and requests that this
Court proceed with this action as if it had originally commenced in this Court and make all
orders necessary and appropriate to effectuate this removal.

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 16

Respectfully submitted,
/s/ Charles L. Babcock
Charles L. “Chip” Babcock, Lead Attorney
Texas State Bar No. 01479500
David T. Moran
Texas State Bar No. 14419400
Carl C. Butzer
Texas State Bar No. 03545900
Shannon Zmud Teicher
Texas State Bar No. 24047169
Jackson Walker L.L.P.
901 Main Street, Suite 6000
Dallas, Texas 75202
[phone]
[phone] - Fax
Email: [e-mail]
George L. McWilliams
Texas State Bar No. 13877000
Law Office of George L. McWilliams, P.C.
Post Office Box 58
Texarkana, Texas-Arkansas 75504
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
ATTORNEYS FOR DEFENDANT GOOGLE INC.

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 17

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of this Notice of Removal
was served on the following persons on the 23rd day of March, 2012, as follows:
Sean F. Rommel
Via Hand Delivery
James C. Wyly
Wyly-Rommel, PLLC
4004 Texas Boulevard
Texarkana, TX 75503
M. Chad Trammell Via Certified Mail Return Receipt Requested
The Trammell Law Firm, PLLC
418 North State Line Avenue
Texarkana, AR 71854
Kyle B. Davis
Via Certified Mail Return Receipt Requested
Langdon Davis
625 Sam Houston
P.O. Box 1221
New Boston, TX 75570
Drake Mann
Via Certified Mail Return Receipt Requested
GILL ELROD RAGON OWEN
& SHERMAN, P.A.
425 West Capitol Avenue, Suite 3801
Little Rock, Arkansas 72201

/s/ Charles L. Babcock
Charles L. Babcock

DEFENDANT GOOGLE INC.’S NOTICE OF REMOVAL - PAGE 18