4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE
NATHAN CAMPOS and JANET Case No. C22-1806-RSM 7 GARVEY, ORDER GRANTING MOTION TO 8 Plaintiffs, DISMISS
9 v.
10 BIG FISH GAMES, INC., a Washington corporation, et al., 11
Defendants. 12
14 I. INTRODUCTION 15 This matter comes before the Court on Defendants Big Fish Games, Inc. and Product 16 Madness, Inc. (collectively, “Defendants”)’ Motion to Dismiss. Dkt. #116. Plaintiff Janet 17 Garvey opposes the Motion. Dkt. #125. For the reasons set forth below, the Court GRANTS 18 Defendants’ Motion to Dismiss. 19 II. BACKGROUND 20 The facts of this case are well-known from this Court’s prior Order. See Dkt. #112. The 21 Court limits the following facts from Plaintiffs’ Fourth Amended Complaint (“4AC”) to those 22 pertaining to Defendants’ Motion. 23 24 1 In 2015, the Kater case was filed in this District, alleging that the Games were illegal gambling games and bringing user claims for violations of WCPA RCW 4.24.070 and other 2 statutory and common law claims. As part of the approved class action settlement, class members 3 agreed to release all claims, accrued or not, that arise out of or relate to actions relating to the 4 Games’ operations or the sale of virtual coins or chips, such as claims that the Games are illegal 5 gambling games and that the coins or chips are “things of value.” Class members also stipulated 6 that these virtual coins or chips are not things of value, and members were estopped from this 7 contention. The settlement also released claims as to Defendant Big Fish Games and its 8 successors, assigns, and corporate affiliates. Plaintiff Garvey was a class member in the Kater 9 settlement. 10 In Plaintiffs’ Third Amended Complaint, Plaintiff Garvey alleged under Washington’s 11 RCW 2.24.070 that Defendants’ “online gambling games are illegal gambling games because 12 they are online games at which players wager things of value (the chips/coins) and by an element 13 of chance . . . are able to obtain additional entertainment and extend gameplay[.]” Dkt. #92 at 14 30-32. On June 3, 2024, the Court dismissed this claim with leave to amend, finding that Plaintiff 15 Garvey’s claims asserted the exact issues and facts as those estopped by the Kater settlement. 16 Dkt. #112 at 9. Though Plaintiff Garvey attempted to argue that Defendants were in breach of 17 the Kater settlement agreement, the Court found that Plaintiffs’ Third Amended Complaint was 18 “devoid of sufficient detail for this Court to determine how Defendants’ current game mechanics 19 violate the settlement’s terms that users do not have to wait for free chips in the ordinary course 20 of events or purchase new chips to continue play.” Id. 21 Plaintiffs now bring this claim again in the 4AC. Dkt. #113. Plaintiffs allege that, “[f]or 22 most of the games of chance within the Games,” players continue to be materially delayed and 23 disrupted through gameplay being stopped by running out of coins, then being prompted to watch 24 1 a one-minute advertisement, purchase coins, exit the game currently being played, or close out a series of pop-up advertisements. Id. at 16-17. 2 III. DISCUSSION 3 A. Legal Standard 4 Rule 12(b)(6) allows for dismissal of a complaint due to a plaintiff’s “failure to state a 5 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal may “be based on 6 the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable 7 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The 8 complaint must “contain factual matter, accepted as true, to ‘state a claim to relief that is plausible 9 on its face[,]’ requiring more than “an unadorned, the defendant-unlawfully-harmed-me 10 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). 12 When considering a 12(b)(6) motion, the court takes well-pleaded factual allegations as 13 true and views them in a light most favorable to the plaintiff. See Wyler Summit P’ship v. Turner 14 Broad. Sys., Inc., 125 F.3d 658, 661 (9th Cir. 1998). The court does not have to take presented 15 legal conclusions as factual allegations or accept as true “allegations that are merely conclusory, 16 unwarranted deductions of fact, or unreasonable inferences[.]” See Iqbal, 556 U.S. at 678; 17 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “Dismissal without 18 prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint 19 could not be saved by amendment.” Creech v. Tewalt, 84 F.4 777, 789 (9th Cir. 2023) (quoting 20 Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). 21 // 22 // 23 // 24 1 B. Analysis Defendants argue that Plaintiff Garvey’s third cause of action should, again, be dismissed 2 because Plaintiff Garvey continues to fail to provide any information showing that Defendants’ 3 games are not in compliance with the Kater settlement. 4 Plaintiff Garvey continues to argue that she has provided sufficient information for this 5 Court to find, taking all reasonable inferences in her favor, that Defendants are not complying 6 with the settlement agreement. Plaintiff Garvey alleges that she “reasonably construes” the Kater 7 settlement terms such that this Court should find in her favor. Dkt. #125 at 8. 8 However, taking all reasonable inferences in Plaintiff Garvey’s favor, the Court 9 disagrees. As Plaintiff Garvey argues, the Kater settlement required Defendants to allow players 10 to continue to play games within Defendants’ applications without requiring additional chip 11 purchases or waiting periods for free additional chips in the ordinary course. Id. “Specifically,” 12 the Kater settlement states, “players who run out of chips will be able to continue to play at least 13 one game within the Application they are playing that is similar in kind to other games within 14 the Application.” Id. (emphasis added). Plaintiff Garvey construes this provision to mean that 15 Defendants must “allow users to play the Games continuously and without material interruption.” 16 Id. 17 The Court agrees but finds Plaintiff Garvey’s interpretation overbroad. While allowing 18 for continuous play without coin purchase or obtaining free coins in the “ordinary course,” the 19 Kater settlement provides that players will be able to continuously play “at least one game within 20 the Application they are playing that is similar in kind to other games within the Application.” 21 Id. The Court fails to see how this provision means that players are guaranteed continuous play 22 within every game in the applications but rather that they are guaranteed to be able to continue 23 24 1 play in at least one, similar game. Plaintiffs’ allegations in the 4AC fail to provide sufficient detail for this Court to reasonably infer that players cannot continue play within the applications.
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4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE
NATHAN CAMPOS and JANET Case No. C22-1806-RSM 7 GARVEY, ORDER GRANTING MOTION TO 8 Plaintiffs, DISMISS
9 v.
10 BIG FISH GAMES, INC., a Washington corporation, et al., 11
Defendants. 12
14 I. INTRODUCTION 15 This matter comes before the Court on Defendants Big Fish Games, Inc. and Product 16 Madness, Inc. (collectively, “Defendants”)’ Motion to Dismiss. Dkt. #116. Plaintiff Janet 17 Garvey opposes the Motion. Dkt. #125. For the reasons set forth below, the Court GRANTS 18 Defendants’ Motion to Dismiss. 19 II. BACKGROUND 20 The facts of this case are well-known from this Court’s prior Order. See Dkt. #112. The 21 Court limits the following facts from Plaintiffs’ Fourth Amended Complaint (“4AC”) to those 22 pertaining to Defendants’ Motion. 23 24 1 In 2015, the Kater case was filed in this District, alleging that the Games were illegal gambling games and bringing user claims for violations of WCPA RCW 4.24.070 and other 2 statutory and common law claims. As part of the approved class action settlement, class members 3 agreed to release all claims, accrued or not, that arise out of or relate to actions relating to the 4 Games’ operations or the sale of virtual coins or chips, such as claims that the Games are illegal 5 gambling games and that the coins or chips are “things of value.” Class members also stipulated 6 that these virtual coins or chips are not things of value, and members were estopped from this 7 contention. The settlement also released claims as to Defendant Big Fish Games and its 8 successors, assigns, and corporate affiliates. Plaintiff Garvey was a class member in the Kater 9 settlement. 10 In Plaintiffs’ Third Amended Complaint, Plaintiff Garvey alleged under Washington’s 11 RCW 2.24.070 that Defendants’ “online gambling games are illegal gambling games because 12 they are online games at which players wager things of value (the chips/coins) and by an element 13 of chance . . . are able to obtain additional entertainment and extend gameplay[.]” Dkt. #92 at 14 30-32. On June 3, 2024, the Court dismissed this claim with leave to amend, finding that Plaintiff 15 Garvey’s claims asserted the exact issues and facts as those estopped by the Kater settlement. 16 Dkt. #112 at 9. Though Plaintiff Garvey attempted to argue that Defendants were in breach of 17 the Kater settlement agreement, the Court found that Plaintiffs’ Third Amended Complaint was 18 “devoid of sufficient detail for this Court to determine how Defendants’ current game mechanics 19 violate the settlement’s terms that users do not have to wait for free chips in the ordinary course 20 of events or purchase new chips to continue play.” Id. 21 Plaintiffs now bring this claim again in the 4AC. Dkt. #113. Plaintiffs allege that, “[f]or 22 most of the games of chance within the Games,” players continue to be materially delayed and 23 disrupted through gameplay being stopped by running out of coins, then being prompted to watch 24 1 a one-minute advertisement, purchase coins, exit the game currently being played, or close out a series of pop-up advertisements. Id. at 16-17. 2 III. DISCUSSION 3 A. Legal Standard 4 Rule 12(b)(6) allows for dismissal of a complaint due to a plaintiff’s “failure to state a 5 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal may “be based on 6 the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable 7 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). The 8 complaint must “contain factual matter, accepted as true, to ‘state a claim to relief that is plausible 9 on its face[,]’ requiring more than “an unadorned, the defendant-unlawfully-harmed-me 10 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 11 550 U.S. 544, 570 (2007)). 12 When considering a 12(b)(6) motion, the court takes well-pleaded factual allegations as 13 true and views them in a light most favorable to the plaintiff. See Wyler Summit P’ship v. Turner 14 Broad. Sys., Inc., 125 F.3d 658, 661 (9th Cir. 1998). The court does not have to take presented 15 legal conclusions as factual allegations or accept as true “allegations that are merely conclusory, 16 unwarranted deductions of fact, or unreasonable inferences[.]” See Iqbal, 556 U.S. at 678; 17 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “Dismissal without 18 prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint 19 could not be saved by amendment.” Creech v. Tewalt, 84 F.4 777, 789 (9th Cir. 2023) (quoting 20 Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). 21 // 22 // 23 // 24 1 B. Analysis Defendants argue that Plaintiff Garvey’s third cause of action should, again, be dismissed 2 because Plaintiff Garvey continues to fail to provide any information showing that Defendants’ 3 games are not in compliance with the Kater settlement. 4 Plaintiff Garvey continues to argue that she has provided sufficient information for this 5 Court to find, taking all reasonable inferences in her favor, that Defendants are not complying 6 with the settlement agreement. Plaintiff Garvey alleges that she “reasonably construes” the Kater 7 settlement terms such that this Court should find in her favor. Dkt. #125 at 8. 8 However, taking all reasonable inferences in Plaintiff Garvey’s favor, the Court 9 disagrees. As Plaintiff Garvey argues, the Kater settlement required Defendants to allow players 10 to continue to play games within Defendants’ applications without requiring additional chip 11 purchases or waiting periods for free additional chips in the ordinary course. Id. “Specifically,” 12 the Kater settlement states, “players who run out of chips will be able to continue to play at least 13 one game within the Application they are playing that is similar in kind to other games within 14 the Application.” Id. (emphasis added). Plaintiff Garvey construes this provision to mean that 15 Defendants must “allow users to play the Games continuously and without material interruption.” 16 Id. 17 The Court agrees but finds Plaintiff Garvey’s interpretation overbroad. While allowing 18 for continuous play without coin purchase or obtaining free coins in the “ordinary course,” the 19 Kater settlement provides that players will be able to continuously play “at least one game within 20 the Application they are playing that is similar in kind to other games within the Application.” 21 Id. The Court fails to see how this provision means that players are guaranteed continuous play 22 within every game in the applications but rather that they are guaranteed to be able to continue 23 24 1 play in at least one, similar game. Plaintiffs’ allegations in the 4AC fail to provide sufficient detail for this Court to reasonably infer that players cannot continue play within the applications. 2 Moreover, as Defendants point out, the 4AC includes a screenshot “conceding that a 3 player in this situation could either continue playing the mini-game that they are playing simply 4 by lowering their bet amount, or could choose to play another similar slots-style mini-game with 5 a lower minimum bet amount.” Dkt. #116 at 8. Again, taking all reasonable inferences in 6 Plaintiff’s favor, the Court cannot infer from Plaintiff’s provided facts and allegations that 7 Defendants provide no means for continuous play. Therefore, the Court shall dismiss Plaintiff 8 Garvey’s third cause of action with prejudice. 9 CONCLUSION 10 Having reviewed the relevant briefings and the remainder of the record, the Court hereby 11 finds and ORDERS that Defendants’ Motion to Dismiss Plaintiff Janet Garvey’s Third Claim for 12 Relief, Dkt. #116, is GRANTED. Plaintiff’s third cause of action is dismissed with prejudice. 13
14 DATED this 9th day of October, 2024. 15 16 A 17 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 18
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