Clemons v. Google, Inc.

Filing 24

ORDER granting 10 Motion to Dismiss for Failure to State a Claim; denying 22 Motion to Amend/Correct. Signed by District Judge Anthony J Trenga on 12/29/2017. (see order for further details) (c/s as directed in Order) (dvanm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

RICHARD CLEMONS,
Plaintiff,

v.
GOOGLE, INC.,
Defendant.

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Civil Action No. 1: l 7-cv-00963 (AJT/TCB)

ORDER
This matter is before the Court on Defendant's Motion to Dismiss for Failure to State
Claim [Doc. No. 10] (the "Motion"). On December 22, 2017, the Court held a hearing on the
Motion, following which the Court took the Motion under advisement. Upon consideration of the
Motion, the memorandum of law in support thereof, the arguments presented by counsel and pro

se Plaintiff at the December 22, 2017 hearing, and for the reasons discussed below, Plaintiff fails
to state a claim of relief pursuant to the Stored Communications Act ("SCA"), 18 U.S.C. § 2701,

et seq. Accordingly, Defendant's Motion to Dismiss for Failure to State a Claim is GRANTED.
On August 28, 2017, Plaintiff filed a "[c]ivil complaint pursuant to [T]itle 2 ofSCA[the
Stored Communications Act]" Compl. 11. While it is unclear precisely which provision of the
Stored Communications Act ("SCA"), 18 U.S.C. § 2701 et seq., Plaintiff contends was violated,
he expressly seeks relief pursuant to 18 U.S.C. § 2707(a), (b)(l). Plaintiff also seeks damages of
$100,000 and an order requiring the Defendant to "surrender" the email account at issue and to
produce his electronically stored writings. Compl. at 3. On November 16, 2017, Defendant filed
a Motion to Dismiss. On December 20, 2017, Plaintiff filed a Motion to Amend the Original

Claim for Relief [Doc. No. 22]("Motion to Amend Complaint"), in which he seeks leave to add
an additional claim under the Digital Millennium Copyright Act, 17 U.S.C. § 1201(2)(a), (c).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.' "Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although a prose party's complaint must be construed liberally, it must nevertheless comply
with the proper pleading rules and allege some comprehensible basis for the Court's jurisdiction.

See Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008) (a prose complaint must
provide "more than labels and conclusions") (quoting Bell At/. Corp. v. Twombly, 550 U.S. 544,
555 (2007)) (internal quotations omitted); Weller v. Dep't ofSoc. Servs., 901 F.2d 387, 391 (4th
Cir. 1990) ("The 'special judicial solicitude' with which a district court should view ... prose
complaints does not transform the court into an advocate. Only those questions which are
squarely presented to a court may be properly addressed"); Beaudett v. City of Hampton, 775
F.2d 1274, 1278 (4th Cir. 1985) ("Principles requiring generous construction of prose complaints
are not ... without limits" and district judges "cannot be expected to construct full blown claims
from sentence fragments"). No matter how liberally construed, Plaintiffs Complaint fails to state
a cause of action that entitles him to relief.
In the Complaint, Plaintiff alleges that he entered a service agreement for an email
account he maintained with the service provider, Defendant Google Inc., 1 Compl. ~ 1; that his
email account was "maintained in good standing" and contained "valuable intellectual
properties[,]" Compl. ~ 2; that his email account was "compromised" and that he made repeated
attempts to contact Defendant to inquire about "a procedure adequate to resolve what was

1

On November 16, 2017, Defendant filed a Motion [Doc. No. 14] to modify the case caption from Google, Inc. to
Google, LLC, which was granted on November 20, 2017.
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identity theft and fraud perpetrated upon the [email] account." Compl. ii 3. He further alleges that
Defendant responded by automatic reply that it was unable to verify whether the email account
belonged to the Plaintiff since he no longer possessed the same cell phone associated with the
account's email address, Id, following which he made numerous attempts to contact the
Defendant regarding the loss of his "copy right material with commercial value" but his requests
were "simply ignored." Compl. ~ii 4, 5. Since he has been unable to access his email account, he
has "suffered deadlines of contract dispute with his publisher Thom Byxbe, an independent
internet publisher." Compl. ii 5.
Although the Plaintiff fails to allege which provision of the SCA Defendant purportedly
violated, Plaintiff seeks relief under 18 U.S.C. § 2707(a), which provides that "any provider of
electronic communication service, subscriber, or customer aggrieved by any violation of this
chapter in which the conduct constituting the violation is engaged in with a knowing or
intentional state of mind may, in a civil action, recover from the person or entity which engaged

in that violation such relief as may be appropriate." Tucker v. Waddell, 83 F.3d 688, 690 (4th
Cir. 1996) (citing 18 U.S.C. § 2707(a)) (emphasis added). Here, Plaintiff fails to allege any facts
that make plausible any claim that Defendant acted with knowledge or intent. Moreover, as
Defendant correctly contends, the only cause of action that could reasonably be read into the
Complaint is 18 U.S.C. § 2701(a) 2 and plaintiff concedes that Defendant as a service provider

2

Section 2701 (a) provides:
Except as provided in subsection (c) of this section whoever ( 1) intentionally accesses without authorization a facility through which an electronic
communication service is provided; or
(2) intentionally exceeds an authorization to access that facility;
and thereby obtains, alters, or prevents authorization access to a wire or
electronic communication while it is in electronic storage in such system
shall be punished as provided in subsection (b) of this section.
18 U.S.C. § 2701(a).

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statutory immunity for any liability under that provision. 3 See [Doc. No. 22] ~ l(where plaintiff
admits in his Motion to Amend Complaint that Defendant "correctly aver[s] that they are
immune from suit under [T]itle 2 of the SCA .... "). For these reasons, Plaintiff has failed to
allege a cause of action that entitles him to relief under the SCA and Defendant's Motion to
Dismiss will accordingly be granted.
The Court also denies Plaintiffs request for leave to amend the Complaint to file a claim
under the Digital Millennium Copyright Act, 17 U.S.C. § 1201 (2)(a), (c). First, Plaintiff is not
entitled to amend as a matter of right since he did not file an amended complaint within the time
limits specified under Fed. R. Civ. P. 15(a)(l). Second, Plaintiff relies on the same factual
allegations as set forth in his Compliant, together with some additional allegations stated in his
Motion to Amend Complaint. Upon review of those allegations for the purposes of his Motion
to Amend Complaint, the Court concludes that the Plaintiff has failed to state facts that make
plausible any cognizable claim and that any attempt to amend his Complaint would be futile.
Accordingly, it is hereby
ORDERED that the Defendant's Motion to Dismiss for Failure to State Claim [Doc. No.
1O] be, and the same hereby is, GRANTED, and this action is DISMISSED; and it is further
ORDERED that Plaintiffs MOTION to Amend the Original Claim for Relief [Doc. No.
22] be, and the same hereby is, DENIED.

3

Section 2701 (c)( 1) provides, in pertinent part, "Subsection (a) of[§ 2701] does not apply with respect to conduct
authorized- (I) by the person or entity providing a wire or electronic communications service .... " See In re Yahoo
Mail Litig., 7 F. Supp. 3d 1016, 1032 (N.D. Cal. 2014) (granting motion to dismiss on the basis that Section
2701(c)(I) "grants immunity for alleged violations of§ 2701(a) to [electronic communication service providers] like
Yahoo."); Hoofnagle v. Smyth-Wythe Airport Comm 'n, No. 1:15CV00008,2016 WL 3014702, at *10 (W.D. Va.
May 24, 2016)(Section 2701(c)(I) of"[t]he SCA exempts a party from liability if the conduct at issue was
authorized ... by the person or entity providing a wire or electronic communications service ... ").

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The C lerk is directed to forward copies of this Order to all counsel of record and to prose
Plaintiff at the address on record and to enter judgment in defendant 's favor pursuant to Fed. R.
Civ. P. 58.

This is a final order for purposes of appeal. To appeal, Plaintiff must file a written
Notice of Appeal wi th the C lerk of the Court w ithin thirty (30) days of the date of thi s Order. A
Notice of Appeal is a short statement stating a desire to appeal an order and identify ing the date
of the order Plaintiff wishes to appeal. Fai lure to file a timely Notice of Appeal waives
Plaintiffs right to appeal this decision.

Alexandria, Virgini a
December 29, 20 17

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