Asis Internet Services v. azoogle.com, Inc.

357 F. App'x 112

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 2, 2009
• Docket: 08-15979, 08-17779
• Status: Unpublished

Opinion

MEMORANDUM **

Plaintiff ASIS Internet Services, Inc. (“Plaintiff”) appeals a summary judgment for Defendant Azoogle.com (“Defendant”) and an award of costs. We have jurisdiction under 28 U.S.C. § 1291. We affirm both orders.

Plaintiffs claim under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), 15 U.S.C. §§ 7701, et seq., fails for lack of standing. “[T]he CAN-SPAM standing inquiry involves two general components: (1) whether the plaintiff is an ‘Internet access service’ provider (TAS provider’), and (2) whether the plaintiff was ‘adversely affected by’ statutory violations.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1049 (9th Cir.2009).

Here, the second requirement is not satisfied. The mere cost of carrying SPAM emails over Plaintiffs facilities does not constitute a harm as required by the statute. See id. at 1053 n. 11. While Plaintiff argues that employee time was spent on spam-related issues, Plaintiff concedes that it has no records detailing employee time. Plaintiff also spent money on email filtering, though the cost of email filtering did not increase due to the emails at issue. Such ordinary filtering costs do not constitute a harm. See Gordon, 575 F.3d at 1054 (“We expect a legitimate service provider to secure adequate bandwidth and storage capacity and take reasonable precautions, such as implementing spam filters, as part of its normal operations.”). Thus, Plaintiff has not suffered a harm within the meaning of the statute and lacks standing.

Plaintiffs California Business and Professions Code § 17529.5 claim also fails. Defendant neither sent nor procured the emails at issue, and therefore did not “advertise” within the meaning of the statute.

Accordingly, the district court’s grant of summary judgment for Defendant is affirmed.

We review for abuse of discretion an award of costs. Dawson v. City of Seattle, 435 F.3d 1054, 1070 (9th Cir.2006) (citing Miles v. California, 320 F.3d 986, 988 (9th Cir.2003)). Irrespective of whether the district court awarded costs under Federal Rule of Civil Procedure 54(d)(1) or 15 U.S.C. § 7706(g)(4), we find no abuse of discretion in the award. Accordingly, the order is affirmed.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Joseph C. Spero, Magistrate Judge, Presiding