Boring v. Google Inc.

362 F. App'x 273
CourtCourt of Appeals for the Third Circuit
DecidedJanuary 28, 2010
DocketNo. 09-2350
StatusPublished

This text of 362 F. App'x 273 (Boring v. Google Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boring v. Google Inc., 362 F. App'x 273 (3d Cir. 2010).

Opinion

OPINION OF THE COURT

JORDAN, Circuit Judge.

Aaron C. Boring and Christine Boring appeal from an order of the United States District Court for the Western District of Pennsylvania dismissing their complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, we affirm in part and reverse in part.

I. Background

On April 2, 2008, the Borings commenced an action in the Court of Common Pleas of Allegheny County, Pennsylvania against Google, Inc., asserting claims for invasion of privacy, trespass, injunctive relief, negligence, and conversion. The Bor-.ings sought compensatory, incidental, and consequential damages in excess of $25,000 for each claim, plus punitive damages and attorney’s fees.

The Borings’ claims arise from Google’s “Street View” program, a feature on Google Maps1 that offers free access on the Internet to panoramic, navigable views of streets in and around major cities across the United States. To create the Street View program, representatives of Google attach panoramic digital cameras to passenger cars and drive around cities photographing the areas along the street. According to Google, “[t]he scope of Street View is public roads.” (Appellee’s Ans. Br. at 10.) Google allows individuals to report and request the removal of inappropriate images that they find on Street View.

The Borings, who live on a private road in Pittsburgh, discovered that Google had taken “colored imagery of their residence, including the swimming pool, from a vehicle in their residence driveway months earlier without obtaining any privacy waiver or authorization.” (App. at A81.) They allege that their road is clearly marked with a “Private Road, No Trespassing” sign (Appellants’ Op. Br. at 11), and they contend that, in driving up their road to take photographs for Street View and in making those photographs available to the public, Google “disregarded [their] privacy interest.” (Id.)

On May 21, 2008, Google invoked diversity jurisdiction, removed the action to the United States District Court for the Western District of Pennsylvania, and filed a motion to dismiss. The Borings then filed an amended complaint, substituting a claim for unjust enrichment for their earli[277]*277er conversion claim.2 On August 14, 2008, Google again moved to dismiss the Borings’ complaint for failure to state a claim.

On February 17, 2009, the District Court granted Google’s motion to dismiss as to all of the Borings’ claims. The Court dismissed the invasion of privacy claim because the Borings were unable to show that Google’s conduct was highly offensive to a person of ordinary sensibilities. Boring v. Google, Inc., 598 F.Supp.2d 695, 699-700 (W.D.Pa.2009). The Court dismissed the negligence claim because it found that Google did not owe a duty to the Borings. Id. at 701. In dismissing the trespass claim, the Court held that “the Borings have not alleged facts sufficient to establish that they suffered any damages caused by the alleged trespass.” Id. at 702. The Court found the unjust enrichment claim wanting because the parties had no relationship that could be construed as contractual and the Borings did not confer anything of value upon Google. Id. at 703. The Court also held that the Borings had failed to plead a plausible claim for injunctive relief under Pennsylvania’s “demanding” standard for a mandatory injunction, and dismissed the punitive damages claim because the Borings failed to “allege facts sufficient to support the contention that Google engaged in outrageous conduct.” Id. at 701 n. 3, 704. In sum, the Court concluded that the Borings “failed to state a claim under any count” and that “any attempted amendment would be futile.” Id. at 698, 704 n. 8.

The Borings moved for reconsideration, asserting that it was error to dismiss their trespass and unjust enrichment claims, as well as their request for punitive damages. The District Court denied the motion. Boring v. Google, Civ. A. No. 08-694, 2009 WL 931181 (W.D.Pa. Apr. 6, 2009). The Court again said that the Borings had failed to allege conduct necessary to support a punitive damages award. 2009 WL 931181, at *2. It also declined to reconsider the dismissal of the unjust enrichment claim because the Borings did not point to any flaw in the Court’s disposition of that claim. Id. Finally, the Court addressed the Borings’ trespass claim only to “eliminate any possibility that the language in [its opinion] might be read to suggest that damages are part of a prima facie case for trespass.” Id., at *1. To clarify, the Court explained that it had dismissed the trespass claim because the Borings had “failed to allege facts sufficient to support a plausible claim that they suffered any damage as a result of the trespass” and because they failed to request nominal damages in their complaint. Id., at *1.

The Borings filed a timely notice of appeal from both the District Court’s order granting the motion to dismiss and the subsequent denial of their motion for reconsideration.

II. Discussion3

A. Standard of Review

We conduct a de novo review of a Rule 12(b)(6) dismissal of a complaint. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.2008). The Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To avoid [278]*278dismissal, the complaint must set forth facts that raise a “plausible inference” that the defendant inflicted a legally cognizable harm upon the plaintiff. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1952, 173 L.Ed.2d 868 (2009); see also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (explaining that a plaintiff must “identify!] facts that are suggestive enough to render [his claim] plausible”); Phillips, 515 F.3d at 234 (stating that “a plaintiff must ‘nudge [his or her] claims across the line from conceivable to plausible’ in order to survive a motion to dismiss”) (citations omitted). Conclusory allegations of liability do not suffice. See Iqbal, 129 S.Ct. at 1950 (opining that the federal pleading standard “marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”). We must disregard “formulaic recitation of the elements of a cause of action....” Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

A court confronted with a Rule 12(b)(6) motion must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non-movant. Gross v. German Found. Indus. Initiative,

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362 F. App'x 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boring-v-google-inc-ca3-2010.