1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL VITOR MORILHA, Case No. 24-cv-02793-JST
8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTIONS TO DISMISS
10 ALPHABET INC., et al., Re: ECF Nos. 30, 31 Defendants. 11
12 13 Before the Court are Defendants Alphabet, Inc. and Google LLC (together, “Google”) and 14 Defendant Meta Platforms Inc.’s motions to dismiss. ECF Nos. 30, 31. The Court will grant the 15 motions. 16 I. BACKGROUND 17 Plaintiff Daniel Morilha brings this action against Google and Meta over their alleged 18 collection and use of his data. ECF No. 1. Morilha has been a Google user since approximately 19 2000 and created a Google account in 2004. Id. ¶¶ 22, 23. He alleges he has entered “a lot of his 20 data on-line . . . [while] logged in with his Google account” and believes Google “holds an 21 enormous amount of information about him.” Id. ¶¶ 25, 26. Thus, he claims “Google might have 22 engaged . . . unlawfully [to] sell it to others for profit.” Id. ¶ 27. Morilha also uses Facebook 23 which is operated by Meta. Id. ¶¶ 34, 37. In January 2023, he noticed that “Facebook’s 24 messenger shared his internet IP address on messages containing external references: images and 25 links” which were “sent unencrypted.” Id. ¶ 38. He also alleges that Facebook messenger used 26 the geolocation data from his phone to track which “other Facebook messenger users he was in 27 contact with.” Id. ¶ 40. In addition, he claims Meta “used this data to infer who [he] would date” 1 may have granted others access to this information or used it in the development of surveillance 2 products. Id. ¶ 44. On May 9, 2024, Morilha filed this suit against Google and Meta for: (1) 3 violation of the Stored Communications Act (“SCA”); (2) breach of contract; and (3) breach of 4 privacy. 5 II. JURISDICTION 6 The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. 7 III. LEGAL STANDARD 8 A. Rule 12(b)(1) 9 A motion to dismiss under Rule 12(b)(1) tests the subject matter jurisdiction of the court. 10 See Fed. R. Civ. P. 12(b)(1). If a plaintiff lacks Article III standing to bring a suit, the federal 11 court lacks subject matter jurisdiction, and the suit must be dismissed under Rule 12(b)(1). 12 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). “A Rule 12(b)(1) jurisdictional 13 attack may be facial or factual. In a facial attack, the challenger asserts that the allegations 14 contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, 15 in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would 16 otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th 17 Cir. 2004) (citation omitted). In resolving a facial attack, the court assumes that the allegations are 18 true and draws all reasonable inferences in the plaintiff’s favor. Wolfe v. Strankman, 392 F.3d 19 358, 362 (9th Cir. 2004). A court addressing a facial attack must confine its inquiry to the 20 allegations in the complaint. See Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa 21 Cnty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). 22 B. Rule 12(b)(6) 23 A complaint must contain “a short and plain statement of the claim showing that the 24 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).1 “Dismissal under Rule 12(b)(6) is 25 1 Meta also argues Morilha’s complaint is subject to dismissal under Rule 8 because it consists of 26 “incomprehensible rambling[s],” and it is “unclear what claim for relief” he is asserting. ECF No. 31 at 9 (quoting Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1059 (9th Cir. 2011) and Knox 27 v. United States, No. 19-cv-01020-AJB-AGS, 2020 WL 12688365, at *2 (S.D. Cal. Dec. 1, 1 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support 2 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 3 Cir. 2008). A complaint need not contain detailed factual allegations, but facts pleaded by a 4 plaintiff “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain 6 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “A 8 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 9 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court 10 must “accept all factual allegations in the complaint as true and construe the pleadings in the light 11 most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 12 However, the Court is not “required to accept as true allegations that are merely conclusory, 13 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 14 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citation omitted). A pro se 15 complaint will be liberally construed and held to less stringent standards than formal pleadings 16 drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 17 IV. DISCUSSION 18 A. Article III Standing 19 To invoke the jurisdiction of a federal court, Morilha must demonstrate standing, which 20 consists of the “irreducible constitutional minimum” of (1) injury in fact; (2) a causal connection 21 between the injury and the conduct complained of; and (3) a likelihood that the injury will be 22 redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). 23 Standing is evaluated based on “the facts as they existed at the time the plaintiff filed the 24 complaint.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007) 25
26 factual allegations relate to Defendants or the specific causes of action he intends to bring, “[i]n view of the requirement that pro se filings be held to less stringent pleading standards, the Court 27 does not view this as an ‘aggravated case’ in which it should exercise discretion to dismiss an 1 (citing Lujan, 504 U.S. at 569 n.4).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL VITOR MORILHA, Case No. 24-cv-02793-JST
8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTIONS TO DISMISS
10 ALPHABET INC., et al., Re: ECF Nos. 30, 31 Defendants. 11
12 13 Before the Court are Defendants Alphabet, Inc. and Google LLC (together, “Google”) and 14 Defendant Meta Platforms Inc.’s motions to dismiss. ECF Nos. 30, 31. The Court will grant the 15 motions. 16 I. BACKGROUND 17 Plaintiff Daniel Morilha brings this action against Google and Meta over their alleged 18 collection and use of his data. ECF No. 1. Morilha has been a Google user since approximately 19 2000 and created a Google account in 2004. Id. ¶¶ 22, 23. He alleges he has entered “a lot of his 20 data on-line . . . [while] logged in with his Google account” and believes Google “holds an 21 enormous amount of information about him.” Id. ¶¶ 25, 26. Thus, he claims “Google might have 22 engaged . . . unlawfully [to] sell it to others for profit.” Id. ¶ 27. Morilha also uses Facebook 23 which is operated by Meta. Id. ¶¶ 34, 37. In January 2023, he noticed that “Facebook’s 24 messenger shared his internet IP address on messages containing external references: images and 25 links” which were “sent unencrypted.” Id. ¶ 38. He also alleges that Facebook messenger used 26 the geolocation data from his phone to track which “other Facebook messenger users he was in 27 contact with.” Id. ¶ 40. In addition, he claims Meta “used this data to infer who [he] would date” 1 may have granted others access to this information or used it in the development of surveillance 2 products. Id. ¶ 44. On May 9, 2024, Morilha filed this suit against Google and Meta for: (1) 3 violation of the Stored Communications Act (“SCA”); (2) breach of contract; and (3) breach of 4 privacy. 5 II. JURISDICTION 6 The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1367. 7 III. LEGAL STANDARD 8 A. Rule 12(b)(1) 9 A motion to dismiss under Rule 12(b)(1) tests the subject matter jurisdiction of the court. 10 See Fed. R. Civ. P. 12(b)(1). If a plaintiff lacks Article III standing to bring a suit, the federal 11 court lacks subject matter jurisdiction, and the suit must be dismissed under Rule 12(b)(1). 12 Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). “A Rule 12(b)(1) jurisdictional 13 attack may be facial or factual. In a facial attack, the challenger asserts that the allegations 14 contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, 15 in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would 16 otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th 17 Cir. 2004) (citation omitted). In resolving a facial attack, the court assumes that the allegations are 18 true and draws all reasonable inferences in the plaintiff’s favor. Wolfe v. Strankman, 392 F.3d 19 358, 362 (9th Cir. 2004). A court addressing a facial attack must confine its inquiry to the 20 allegations in the complaint. See Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa 21 Cnty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). 22 B. Rule 12(b)(6) 23 A complaint must contain “a short and plain statement of the claim showing that the 24 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).1 “Dismissal under Rule 12(b)(6) is 25 1 Meta also argues Morilha’s complaint is subject to dismissal under Rule 8 because it consists of 26 “incomprehensible rambling[s],” and it is “unclear what claim for relief” he is asserting. ECF No. 31 at 9 (quoting Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1059 (9th Cir. 2011) and Knox 27 v. United States, No. 19-cv-01020-AJB-AGS, 2020 WL 12688365, at *2 (S.D. Cal. Dec. 1, 1 appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support 2 a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 3 Cir. 2008). A complaint need not contain detailed factual allegations, but facts pleaded by a 4 plaintiff “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 555 (2007). “To survive a motion to dismiss, a complaint must contain 6 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “A 8 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 9 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court 10 must “accept all factual allegations in the complaint as true and construe the pleadings in the light 11 most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). 12 However, the Court is not “required to accept as true allegations that are merely conclusory, 13 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 14 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citation omitted). A pro se 15 complaint will be liberally construed and held to less stringent standards than formal pleadings 16 drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 17 IV. DISCUSSION 18 A. Article III Standing 19 To invoke the jurisdiction of a federal court, Morilha must demonstrate standing, which 20 consists of the “irreducible constitutional minimum” of (1) injury in fact; (2) a causal connection 21 between the injury and the conduct complained of; and (3) a likelihood that the injury will be 22 redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). 23 Standing is evaluated based on “the facts as they existed at the time the plaintiff filed the 24 complaint.” Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007) 25
26 factual allegations relate to Defendants or the specific causes of action he intends to bring, “[i]n view of the requirement that pro se filings be held to less stringent pleading standards, the Court 27 does not view this as an ‘aggravated case’ in which it should exercise discretion to dismiss an 1 (citing Lujan, 504 U.S. at 569 n.4). 2 To demonstrate an injury in fact, Morilha must “ha[ve] sustained or [be] immediately in 3 danger of sustaining some direct injury” as a result of the conduct he challenges, “and the injury or 4 threat of injury must be both real and immediate, not conjectural or hypothetical.” City of Los 5 Angeles v. Lyons, 461 U.S. 95, 101–02 (1983) (internal quotations and citation omitted). Morilha 6 alleges that Google “holds an enormous amount of information about him . . . and therefore 7 Google might have engaged [in] unlawfully sell[ing] [information about him] to others for profit.” 8 ECF No. 1 ¶¶ 26, 27. In addition, he alleges “Google might have granted access to . . . his search 9 history[,] . . . his emails,” and other data. Id. ¶ 31. While Morilha is correct that in some instances 10 harm to a concrete privacy interest is sufficient to confer Article III standing, his allegations that 11 Google may have disclosed private information is too speculative to satisfy the injury-in-fact 12 requirement. See TransUnion LLC v. Ramirez, 594 U.S. 413, 433–439 (2021) (finding class 13 members whose reports were disseminated to third parties suffered a concrete injury but class 14 members whose reports were not disseminated did not suffer a concrete harm); see also Clapper v. 15 Amnesty Intern. USA, 568 U.S. 398, 411 (2013) (speculation and assumptions “about whether 16 their communications with their foreign contacts will be acquired under § 1881a” did not establish 17 injury). Because Morilha fails to allege any concrete injury caused by Google, his claims against 18 Google must be dismissed. 19 B. Stored Communications Act Claim 20 Section 2707 allows an individual to bring a private cause of action under the SCA. 18 21 U.S.C. § 2707(a). Morilha brings a claim under Section 2707 against Meta but does not specify 22 which provision of the SCA he believes Meta violated. ECF No. 1 at 11. Accordingly, the Court 23 addresses both. 24 1. Section 2701 25 A violation of Section 2701(a) occurs when someone “(1) intentionally accesses without 26 authorization a facility through which an electronic communication service is provided; or (2) 27 intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or 1 in such system.” 18 U.S.C. § 2701(a). 2 Morilha fails to plead a claim under 2701(a). For one, Morilha doesn’t allege that Meta 3 was not authorized to access the geolocation data at issue. Regardless, his claim fails to allege the 4 first element of a claim under Section 2701(a) because an individual’s personal computer or phone 5 is not a “facility through which an electronic communication service is provided” under the SCA. 6 In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1058 (N.D. Cal. 2012). Morilha also fails 7 to allege the second element of a claim under Section 2701(a) because he doesn’t allege Meta 8 accessed any data “while . . . in electronic storage.” 18 U.S.C. § 2701(a); see also In re iPhone 9 Application Litig., 844 F. Supp. 2d 1040 at 1059 (plaintiffs failed to state a claim when they did 10 not allege defendants “accessed the data at a time when the data was only in temporary, 11 intermediate storage”). 12 2. Section 2702 13 Section 2702(a) prohibits providers of electronic communication services from “knowingly 14 divulg[ing] to any person or entity the contents of a communication while in electronic storage by 15 that service.” 18 U.S.C. § 2702(a)(1). 16 Morilha also fails to state a claim under Section 2702(a). First, Morilha does not actually 17 plead that Meta divulged any of his information or communications. Rather, he alleges that Meta 18 “might have granted others access to . . . [his] information.” ECF No. 1 ¶ 44 (emphasis added). 19 Second, the information Morilha alleges Meta may have shared—IP addresses and geolocation 20 data—do not qualify as “contents of a communication” under the SCA. See In re Zygna Privacy 21 Litig., 750 F.3d 1098, 1105 (9th Cir. 2014) (“For purposes of §§ 2511(3)(a) and 2702(a), the word 22 contents is defined as any information concerning the substance, purport, or meaning of [a] 23 communication”); see also In re iPhone Application Litig., 844 F. Supp. at 1061 (holding that 24 geolocation data does not qualify as “content” of the communication because “content” is limited 25 to information the user intended to communicate). 26 C. Breach of Contract 27 To plead a claim for breach of contract under California law, a plaintiff must allege: “(1) 1 defendant’s breach; and (4) damages to plaintiff as a result of the breach.” Appling v. Wachovia 2 Mortg., FSB, 745 F. Supp. 2d 961, 974 (N.D. Cal. 2010) (quoting CDF Firefighters v. Maldonado, 3 158 Cal. App. 4th 1226, 1239 (2008)). 4 “To properly plead breach of contract, ‘[t]he complaint must identify the specific 5 provisions of the contract allegedly breached by the defendant.’” Caraccioli v. Facebook, Inc., 6 167 F. Supp. 3d 1056, 1064 (N.D. Cal. 2016), aff’d, 700 F. App’x 588 (9th Cir. 2017) (quoting 7 Donohue v. Apple, Inc., 871 F. Supp. 2d 913, 930 (N.D. Cal. 2012)). Morilha not only fails to 8 allege a specific contract provision Meta is alleged to have breached but fails to allege the 9 existence of a contract at all. Consequently, he fails to allege the other elements for breach of 10 contract, including his own performance or excuse for nonperformance and Meta’s breach. 11 Accordingly, his breach of contract claim is dismissed. See Lloyd v. Facebook, Inc., No. 21-cv- 12 10075-EMC, 2022 WL 4913347, at * 9 (N.D. Cal. Oct. 3, 2022) (finding plaintiff failed to state a 13 claim for breach of contract when they failed to allege any “facts that would indicate that 14 Facebook made a promise with the constructive intent that it be enforceable”) (internal quotation 15 marks and citation omitted). 16 D. Invasion of Privacy 17 “The California Constitution creates a privacy right that protects individuals from the 18 invasion of their privacy by private parties.” In re Yahoo Mail Litig., 7 F. Supp. 3d 1016, 1037 19 (N.D. Cal. 2014). To state a claim for invasion of privacy a plaintiff must plead: “(1) a legally 20 protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) 21 conduct by defendant constituting a serious invasion of privacy.” Hill v. Nat’l Collegiate Athletic 22 Ass’n, 7 Cal. 4th 1, 39–40 (1994). “The California Constitution sets a ‘high bar’ for establishing 23 an invasion of privacy claim.” In re Yahoo Mail Litig., 7 F. Supp. 3d at 1038. “Even the 24 disclosure of very personal information has not been deemed an ‘egregious breach of social 25 norms’ sufficient to establish a constitutional right to privacy.” Id. at 1038. 26 In his cause of action for breach of privacy Morilha alleges that “he did not consent” to 27 having his data sold. ECF No. 1 ¶ 49. However, as explained, Morilha does not actually allege 1 survive a motion to dismiss. See Twombly, 550 U.S. at 555. Regardless, disclosure of IP 2 || addresses and geolocation data is not sufficiently “egregious” to support an invasion of privacy 3 || claim. In re iPhone Application Litig., 844 F. Supp. 2d at 1063. Accordingly, Morilha’s privacy 4 || claim is also dismissed. 5 CONCLUSION 6 For the foregoing reasons Defendants’ motions to dismiss are granted. Dismissal is with 7 || leave to amend. Morilha may file an amended complaint within 28 days solely to correct the 8 || deficiencies identified in this order. If no amended complaint is filed by that date, the claims 9 dismissed in this order will be dismissed with prejudice. 10 IT IS SO ORDERED.
11 Dated: December 23, 2024 12 JON S. TIGA 13 nited States District Judge
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