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)

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FILED FOR RECORD

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BILLY F O X
DISTRICT CLERK B O W l E co T X
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CAROL BETH DAVIS,

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IN THE DS - EU Y
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Plaintiff

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GOOGLE, INC., and AMAZON.COM,
INC., dlbla ZAPPOS.COM, INC.

BOWIE COUNTY, TEXAS

1

Defendants

FIRST AMENDED PETITION FOR DECLARATORY JUDGMENT
COMES NOW the Plaintiff, CAROL BETH DAVIS, by and through her attorneys, and
for her First Amended Petition for Declaratory Judgment would show the Court as follows:
PARTIES AND JURISDICTION
1. Plaintiff intends to conduct discovery in this matter under Level 1 and affirmatively

pleads that she seeks monetary relief aggregating $50,000 or less, excluding costs, pre-judgment
interest and attorneys' fees.

2. This Complaint for Declaratory Judgment is brought pursuant to Texas Civil Practice &
Remedies Code 37.001, et seq., to determine:
a. the rights and status of the parties with regard to Plaintiff's claim of proprietary
ownership in certain data of her electronic mail (hereinafter "ernail") prior to the
receipt of the email by the recipients who are Gmail account holders of the
Defendant, Google, Inc. (hereinafter "Google"); and
b. the rights and status of the parties with regard to Plaintiffs claims of proprietary
ownership in all data of her Zappos.com, Inc., personal customer account information
that was stolen by hackers gaining access to Zappos.com, Inc.'s, network.

First Amended Petition for Declaratory Judgment

EXHIBIT 2

Page I of I 1

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3. Plaintiff is a resident of Bowie County, State of Texas.
4. Defendant, Google, Inc., is a Delaware corporation, whose principal place of business is
at 1600 Amphitheatre Parkway, Mountain View, County of Santa Clara, State of California.
Google may be served through its agent for service of process: CORPORATION SERVICE
COMPANY, dba CSC-Lawyers

Incoi-porating Service Company, 21 1 E. 7Ih Street, Suite 620,

Austin, Texas 78701-3218.
5. Defendant Amazon.com, Inc., is a Delaware corporation with its principal place ot
business and corporate headquarters located at 410 Terry Avenue North, Seattle, Washington
98109-5210.

Zappos.com, Inc., is an online shoe and apparel retailer headquartered in

Henderson, Nevada. In 2009, Amazon.com, Inc., acquired Zappos.com, Inc. Upon information
ind belief, Zappos.com operates as an unincorporated division of Amazon.com, Inc.
Amazon.com, Inc., does not maintain a registered agent for service of process in Texas.
Amazon.com, Inc., may be served by mail via its registered agent for service of process in
Washington State: Corporation Service Company, 300 Deschutes Way SW, Ste 304, Tumwater,
Washington 98501.

Defendant Amazon.com may herein be referred to as Defendant

Amazon.com, Amazon.com, Defendant Zappos.com, or Zappos.com.

6 . This Court has jurisdiction over this matter pursuant to Texas Civil Practice & Remedies
Code

5s

37.001, ef seq., specifically

5

37.003 and 37.004, in order to determine the property

interests in personal property toward which Plaintiff assei-ts Google and Amazon.com have acted
and continue to act adversely. Because Plaintiff seeks a declaration of property rights in her
electronic data, suit is brought against both Defendants due to the same or similar legal issues.
Should supplemental relief be sought pursuant to Texas Civil Practice & Remedies Code
37.01 1, additional subject matter jurisdiction exists pursuant to supplemental causes of action for

First Amended Petition for Declaratory Judgment

Page 2 of 11

conversion and violations of Texas law. Plaintiff expressly limits the value of her declaratory
relief and any supplemental relief thereafter sought to less than $75,000.

7. Plaintiff disclaims any cause of action arising under the United States Constitution,
treaties or other laws of the United States, including any act or omission by any officer of the
United States, or any agent or person acting on behalf of such individual.
8. Pleading further, Plaintiff specifically disclaims any cause of action arising under the
Electronic Con~munication
Privacy Act ("ECPA"), which is codified as 18 U.S.C.

$5 2510 and

following. ECPA prohibits the intentional intercepting and/or use of the "contents" of electronic
communications. ECPA defines "contents" as "information concerning the substance, purport,
or meaning of the electronic communication." 18 U.S.C.

5

2510(8). Plaintiff does not allege

Google intercepted her electronic communications or used their "contents".'

Plaintiff does not

seek a declaration related to the "contents" of her electronic communications.

Plaintiff is

concerned in this case about data other than the "contents" of her electronic communications,
which Plaintiff herein identifies as "Plaintiffs data" or "data".

9. Venue is proper in Bowie County pursuant to Texas Civil Practice & Remedies Code

5

15.002, in that the proprietary interest was created in Bowie County, Texas, and Plaintiff resides
in Bowie County, Texas.

FACTS
10. Google operates a webmail service known as "Gmail."

11. Plaintiff has and continues to send email to Gmail recipients.

'

In fact, there is a nationwide class-action styled as Dunbar, eta/. v. Google, Inc, pending in the Eastern District of
Texas (Texarkana Division), as Case No. 5:IOCV00194 before Judge Folsom that seeks to remedy Google's
ongoing ECPA violations related to Gmail. This case deals with a class of data that is not protected by ECPA
because it is not "contents" as ECPA defines that word.

First Amended Petition for Declaratory Judgment

12. In addition to what a lay person would consider the contents or the body of an email,
Plaintiffs elnail has additional data associated with it-the

so-called meta-data; it is the

ownership of this data about which Plaintiff seeks a declaration. Emails have two parts: the
"envelope" and the "content" of the envelope. The "content" of the envelope of an email
comprises two parts: the header fields and the body. This case deals with data in the "envelope"
and in the header fields of Plaintiffs emails. This data is not in the body of Plaintiffs emails,
nor does it indicate the "contents" of her emails.
13. Data associated with Plaintiffs emails are included in the "envelope" of Plaintiffs
emails, such as the following:
a. Plaintiffs Internet Protocol Address, which (i) identifies the computer from
which Plaintiff sent her email and (ii) implies the geographical location of that
computer (and, hence, Plaintiff),

b. an originator address,
c. one or more recipient addresses,
d. Plaintiffs domain name, which identifies Plaintiffs host (i.e., the computer
systenl that is attached to the Internet), and
e. various state tables and buffers.
14. Plaintiffs data can also be found in the header fields of her emails, which are either
cotnpleted by Plaintiff or are generated by the computer system she used to generate and send the
email. This data is not in the body of Plaintiffs emails, nor does it indicate the "contents" of her
en~ails. Most users in fact rarely see the majority of this type of data. This data nevertheless
belongs to Plaintiff. This data is in the header fields of Plaintiffs emails, which could be labeled
as follows:

First Amended Petition for Declaratory Judgment

Page 4 of 11

a. trace,
b. resent-date,
c. resent-from,
d. resent-sender,
e. resent-to,
f. resent-cc,
g. resent-bcc,

h. resent-msg-id,
i. orig-date,
j.

from,

k. sender,
1. reply-to,
m. to,
n. cc,
o. bcc,
p. message-id,

q, in-reply-to,
r. references,

s. subject,
t. comments,
u. keywords, andlor
v. optional-field.

First Amended Petition for Declaratory Judgment

15. Google uses Plaintiffs data in these header fields in connection with various activities,
all of which have as their goal generating additional revenue for Google.
16. Google states in its Gmail Legal Notices to Gmail users:
Your Intellectual Property Rights
Google does not claim any ownership in any of the content,
including text, data, information, images, photographs,
music, sound video, or other material, that you upload,
transmit or store in your Gmail account.
See h t t ~ : i / w ~ \ ~ . ~ o o ~ I e . c o ~ l l / ~ l l a i l l hnotices.html (emphasis supplied).
elp/Ieal

17. Google is not a party to Plaintiffs emails sent to Gmail users.
18. Google has exercised control and will continue to exercise control over Plaintiffs data by

deriving revenue from Plaintiffs data.
19. The data associated with Plaintiffs emails, such as the data in envelope and the header

fields and other data, amount to Plaintiffs personal property.

20. Any value associated with Plaintiffs data is Plaintiffs personal property.
21. Plaintiff has not authorized Google to in any way exercise control of Plaintiffs data for
any purpose, but certainly not for the purpose of deriving revenue from that data for Google.

22. Prior to receiving Plaintiffs emails, Gmail users are without authority to grant any person
rights to, license to, use of, or any control over Plaintiffs property interest in the Plaintiffs data
and value of that data contained therein.

23. Google has not and does not compensate Plaintiff for the exercise of control over
Plaintiffs data; the use of any of Plaintiffs data; or the benefit of the value from Plaintiff's data.

24. Google has acted adversely to the property interests of Plaintiff.

First Amended Petition for Declaratory Judgment

Page 6 of I 1

25. Zappos.com, Inc., is an online shoe and apparel retailer.

On or about January 16, 2012,

Plaintiff received an email from Zappos.com notifying her that her personal account information
had been stolen or compromised.
26. Zappos.com has admitted that Plaintiffs personal account information, including her
name, account numbers, passwords, email addresses, billing and shipping addresses, phone
numbers, and last four digits of her credit card numbers, was stolen by hackers. The hackers
gained access to Zappos.com, Iuc.'s internal network through its unprotected servers.

27. As a result of Zappos.com, Inc.'s failure to properly secure and safeguard its servers, the
Plaintiffs personal property was invaded, compromised, intruded upon, and her proprietary and
private information has been disclosed to unauthorized third-parties.

28. Zappos.com, Inc.'s wrongful actions or omissions directly and proximately caused the
theft and dissemination of Plaintiffs proprietary and private information into the public domain
without her knowledge, authorization, or consent.
29. Although Zappos.com, Inc., recommended that Plaintiff should reset her Zappos.com,

Inc., password and change the passwords on any other web site where she uses the same or
similar password, to date, Zappos.com, Inc., has not offered Plaintiff any identity protection
program or credit monitoring program, any assurances that the incident will not reoccur, or any
method to curb the continued unlawful use of Plaintiffs data. Additionally, Zappos.com, Inc.,
has not provided any information regarding the breach, including an explanation of what
happened or an explanation of what Plaintiff do to further protect her identity with Zappos.com.
Zappos.com, Inc., has offered nothing to Plaintiff to prevent future breaches and uses of the
proprietary information stemming from the initial breach.
Zappos.com, Inc., is continuing for Plaintiff.

First Amended Petition for Declaratory Judgment

As such, the harm caused by

30. Zappos.com, Inc.'s actions above violated Plaintiffs property rights in her personal
account information.

CAUSE(S) OF ACTION
Count I: Declaration of Personal Property Interest
31. Pursuant to Texas Civil Practice and Remedies Code 3 37.001, Google and Amazon.com
are each a "person," in that both are corporations of any character whatsoever.
32. Pursuant to Texas Civil Practice and Remedies Code

5 37.003, Plaintiff seeks from this

Court a declaration that (a) all data in Plaintiffs email header fields, prior to the receipt of that
email by a Gmail user, is the sole personal property of Plaintiff, and (b) all data and content in
Plaintiffs Zappos.com, Inc, account are the personal property of Plaintiff, based in part, but not
limited to:
a. Common law;
b. Legislative intent pursuant to Texas Penal Code 5 31.01(5), "'Property' means: (A) real
property; (B) tangible or intangible personal property including anything severed from
land; or (C) a document, including money, that represents or embodies anything of value.
c. Legislative intent pursuant to Texas Penal Code 3 32.01(2), "'Property' means: (A) real
property; (B) tangible or intangible personal property including anything severed from
land; or (C) a document, including money, that represents or embodies anything of value
d. Legislative intent pursuant to Texas Penal Code 5 33.01(16), ""Property' means: (A)
tangible or intangible personal property including a computer, computer system,
computer network, computer software, or data; or (B) the use of a computer, computer
system, computer network, computer software, or data.
33. Pursuant to Texas Civil Practice and Remedies Code

5 37.003, Plaintiff seeks from this

Court a declaration that Google has no ownership interest or property rights in Plaintiffs data.
34. Pursuant to Texas Civil Practice and Remedies Code

$5

37.003 and 37.004, Plaintiff

seeks from this Court a declaration that prior to receiving Plaintiffs emails, Gmail users are

First Amended Petition for Declaratory Judgment

Page 8 of 11

without authority to grant any person rights to, license to, use of, or any control over Plaintiffs
property interest in Plaintiffs data.
35. Pursuant to Texas Civil Practice and Remedies Code

5 37.003, Plaintiff seeks from this

Court a declaration that Defendant Amazon.com, Inc., was and is a bailee of the Plaintiffs
personal property.
Count 11: Supplementaw Relief

36. Pursuant to Texas Civil Practice & Remedies Code 37.01 1. should the Court find in favor
of Plaintiffs requested declarations above, Plaintiff respectively asks the Court to order Google
and Amazon.com to show cause why further relief should not be granted forthwith, to include a
demonstration by Google as to why future acts adverse to Plaintiffs property interests would not
amount to:
a. conversion;
b. violation of Texas Penal Code 5 3 1.03;
c. violation of Texas Penal Code $5 32.21, et seq.;
d. violation of Texas Penal Code 5 33.02; and
e. In addition, Google should be required to provide and disclose to the Court and Plaintiff
all uses it makes of Plaintiffs data for purposes of Gmail, and, after March 1, 2012, any
other uses by Google for any other service offered by Google.
Further, should the Court find in favor of Plaintiffs requested declarations above, Plaintiff
respectively asks the Court to order Amazon.com to show cause:
a.
Why the following actions on the part of bailee Amazon.com, Inc., would
not be necessary to demonstrate an exercise of due care in the handling of the
bailed personal property of the Plaintiff:
1.
That Amazon.com, Inc., provide any and all information on the
Zappos.com website or to Plaintiff explaining the data breach occurrence, the
steps being taken to prevent future breaches and to secure Plaintiffs property;
and/or

First Amended Petition for Declaratory Judgment

..

11.
That Amazon.com, Inc., provide theft protection plans for Plaintiff
for a reasonable period of time; andlor
iv.
That Amazon.com, Inc., provide credit monitoring plans for
Plaintiff for a reasonable period of time.
Why other actions on the part of bailee Amazon.com, Inc., would
b.
not be necessary to demonstrate an exercise of due care in the handling of the
bailed personal property of the Plaintiff;
Why actions on the part of Amazon.com contrary to the property
c.
interests of Plaintiff would not amount to conversion.
WHEREFORE PREMISES CONSIDERED, Plaintiff prays this Court find in favor of
Plaintiff through the requested declarations of property interests against these Defendants, and
grant and award Plaintiff all other relief to which she may prove herself entitled.
Respectfully submitted,

Texas Bar No 2401 1612
~ 1 0 1 l l l l l C1~\ \ ~ ~ ~ l ~ ~ Ll( U l ll l l l ~ ~
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James C. Wyly
Texas Bar No. 22100050
pJU(1 \\ \ I\ r ~ l l l ~ l l l ~ l . c ~ l l l l
WYLY-ROMMEL, PLLC
4004 Texas Boulevard
Texarkana, Texas 75503
[phone] (Telephone)
[phone] (Facsimile)
Kyle B. Davis
Texas Bar No. 2403 1995
LANGDON DAVIS
625 Sam Houston
P.O. Box 1221
New Boston, Texas 75570
[phone] (Telephone)
[phone] (Facsimile)

First Amended Petition for Declaratory Judgment

Page 10 of l l

M. Chad Trammel1
Texas Bar No. 20183750
chad:'cZtlietra~~i~iieIltir~i~.co~li
.
THE TRAMMELL LAW FIRM, PLLC
418 North State Line Avenue
Texarkana, AR 71854
[phone] (Telephone)
[phone] (Facsimile)

Drake Mann
Texas Bar No. 12929510
mann'li gill-Ia\\.com
GILL ELROD RAGON OWEN
& SHERMAN, P.A.
425 West Capitol Avenue, Suite 3801
Little Rock, Arkansas 72201
[phone] (Telephone)
[phone] (Facsimile)

ATTORNEYS FOR PLAINTIFF

First Amended Petition for Declaratory Judgment

Page 11 of 11

CITATION-PERSONAL SERVICE
THE STATE OF TEXAS
12CO247-102
CAROL BETH DAVIS
VS.
GOOGLE INC ET AL
.

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____--___--------==========

................................................

TO:

, .

GOOGLE INC BY SERVING;
CORPORATION SERVICE COMPANY
D/B/A CSC LAWYERS INCORPORATING SERVICE CO
211 E 7TH STREET SUITE 620
AUSTIN TX 78701

DEFENDANT in the above styled and numbered cause:
YOU HAVE BEEN SUED. You may employ an attorney. If you do not file a written answer with the clerk who issued this citation by 10:OO
a.m. on the Monday next following the expiration of twenty days after you were served this citation and
petition, a default judgment may be taken against you.
Attached is a copy of the AMENDED PETITION in the above styled and numbered cause, which was filed on March 13,2012 in the
102nd District Court of Bowie County, New Boston, Texas. This instrument describes the claim against you.
h a i d Court at office, ON THIS THE 13TH DAY OF MARCH, 2012.

ISSUED AND GIVEN UNI

lILLY FOX
lOWIE COUNTY DISTRICT CLERK
1 0 JAMES BOWIE DRIVE
\
IEW B P a O N , TX75570

ATTY FOR PETITIONER
SEAN F ROMMEL
2311 MOORES LANE
TEXARKANA TX 75503

3

OFFICER'S RETURN

-

-,ato'clock -.M.
Came to hand on the
day of
EXECUTED at
,within the County of
ato'clock . M . on
,in person a true
1
1 by delivering to the within named
theday of
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery.

FEE FOR SERVING CITATION: $

,the

; for the following reason

NOT EXECUTED, the diligence used to execute being
defendant may be found

T O CERTIFY WHICH WITNESS MY HAND OFFICIALLY.
SHERIFFICONSTABLE
COUNTY, TEXAS
DEPUTY

BY:

COMPLETE IF YOU ARE A PERSON OTHER THAN A SHERIFF. CONSTABLE OR CLERK OF THE COURT
In accordance with Rule 107: The officer or authorized person who serves, or attempts to serve, a citation shall sign the return. The return
must either be verified or be signed under penalty of perjury. A return signed under penalty of perjury must contain the statement below in
substantially the following form:
,and my address is
,my date of birth is
"My name is
(First. .
,- - ., Middle.,Last) ~ - ~ ,
~
(Street, City, State, Zip)
I DECLARE UNDER PENALTY OF PERJURY THAT THE FORGOING IS TRUE AND CORRECT.
~~

Executed in

County, State of

Declarant/Authorized Process Server

,on the

day of

(ID # & Expiration of Certification)

,20

-.

CITATION-PERSONAL SERVICE
THE STATE OF TEXAS
12CO247-102
CAROL BETH DAVIS
VS.
GOOGLE INC ET AL
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

TO:

GOOGLE INC BY SERVING;
CORPORATION SERVICE COMPANY
D/B/A CSC LAWYERS INCORPORATING SERVICE CO
211 E 7TH STREET SUITE 620
AUSTIN TX 78701
.,

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DEFENDANT in the above styled and numbered cause:
YOU HAVE BEEN SUED. You may employ an attorney. If you do not file a written answer with the clerk who issued this citation by 10:00
a.m. on the Monday next following the expiration of twenty days after you were served this citation and
petition, a default judgment may be taken against you.

Attached is a copy of the AMENDED PETITION in the above styled and numbered cause, which was filed on March 13,2012 in the
102nd District Court of Bowie County, New Boston, Texas. This instrument describes the claim against you.
ISSUED AND GIVEN UNDER MY HAND AND SEAL of said Court at office, ON THIS THE 13TH DAY OF MARCH, 2012.
ILLY FOX
OWIE COUNTY DISTRICT CLERK
10 JAMES BOWIE DRIVE

ATTY FOR PETITIONER OR PETITIONE
SEAN F ROMMEL
231 1 MOORES LANE
TEXARKANA TX 75503

OFFICER'S RETURN

-

-,ato'clock-.M.
Came to hand on the
day of
EXECUTED at
,within the County of
9 ato'clock . M e on
,in person a true
,,
by delivering to the within named
theday of
copy of such petition to such copy of citation and endorsed on such copy of citation the date of delivery.

FEE FOR SERVING CITATION: $

,the

; for the following reason

NOT EXECUTED, the diligence used to execute being
defendant may be found

T O CERTIFY WHICH WITNESS MY HAND OFFICIALLY.
SHERIFFICONSTABLE
COUNTY, TEXAS
DEPUTY

BY:

COMPLETE IF YOU ARE A PERSON OTHER THAN A SHERIFF. CONSTABLE OR CLERK OF THE COURT

In accordance with Rule 107: The officer or nuthorized person who serves, or attempts to serve, a citation shall sign the return. The return
must either be verified or be signed under penalty of perjury. A return signed under penalty of perjury must contain the statement below in
substantially the following form:
,and my address is
,my date of birth is
"My name is
(First, Middle, Last)
(Street, City, State, Zip)
I DECLARE UNDER PENALTY OF PERJURY THAT THE FORGOING IS TRUE AND CORRECT.
Executed in

County, State of

DeclarantlAuthorized Process Server

,on the

day of

,20

(ID # & Expiration of Certification)

-.