The opinion of the court was delivered by: Edward J. Davila United States District Judge
States District Court For the Northern District of California
ORDER GRANTING-IN-PART AND DENYING-IN-PART MOTION TO DISMISS (Re: Docket No. 29)
Pending before the court is Defendant Google Inc.'s ("Google") motion to dismiss the First Amended Complaint ("FAC"). On May 16, 2011, Google filed this motion to dismiss. The court 19 heard oral argument on October 28, 2011. For the reasons discussed below, Google's motion is 20 GRANTED IN PART as to claims 2-7 and DENIED IN PART as to claim 1. 21
On October 25, 2010, Plaintiff Paloma Gaos ("Gaos") filed the Complaint initiating this 23 action. On April 7, 2011, Chief Judge Ware granted Google's motion to dismiss the Complaint 24 with leave to amend because Gaos had failed to allege an "injury in fact" sufficient to establish 25 Article III standing. See ECF No. 24. On May 2, 2011, Gaos filed the FAC. In the FAC, Gaos 26 makes the following allegations: 27 28 Gaos is a resident of San Francisco County, California. FAC ¶ 6. Google is a Delaware 2 corporation that maintains its headquarters in Mountain View, California. Id. ¶ 7. Defendant 3 conducts business throughout California and the nation. Id. 4 Defendant's primary business enterprise centers on its proprietary search engine. Id. ¶ 13.
Defendant runs millions of servers around the world and processes over one billion user-generated 6 search requests every day. Id. Defendant generates substantial profits from selling advertising. Id. 7
¶ 14. Defendant is able to operate its search engine more efficiently by analyzing user search data 8 and Defendant benefits from Search Engine Optimization ("SEO") companies who also use this 9 data to better target their websites to particular user search terms. Id. ¶ 17. 10
Since the launch of Defendant's search service, and continuing until the present, Defendant's search engine has intentionally included the search terms in the URL of the search results page. Id. ¶ 39. Neither Defendant's search technology nor the technological architecture of 13 the Internet requires Defendant divulge these search terms. Id. ¶ 43. As a result of the search terms 14 being included in the URL, when a user of Defendant's search service clicks on a link from 15 Defendant's search results page, the owner of the website that the user clicks on will receive the user's search terms in the Referrer Header from Defendant. Id. ¶ 40. Several web analytics services 17 parse the search query information from web server logs, or otherwise collect the search query 18 from the Referrer Header transmitted by each visitor's web browser. Id. ¶ 41. Defendant's own 19 analytics products provide webmasters with this information in the aggregate. Id. 20
Search terms could be linked together with the identity of the user through the process of "reidentification," either by linking the terms with the user's IP address, which is also sometimes 22 released with the clicked link; with any cookies stored on the user's computer; or with "vanity 23 searches," where the user searches for their own name. Id. ¶¶ 32, 60-63. 24
On the basis of the allegations outlined above, Plaintiff brings seven causes of action: (1) Violation of the Electronic Communications Privacy Act, 18 U.S.C. § 2510, specifically of the 26 Stored Communications Act ("SCA"), 18 U.S.C. § 2701; (2) Fraudulent Misrepresentation; (3) 27 Negligent Misrepresentation; (4) Public Disclosure of Private Facts; (5) Actual and Constructive 28 Fraud; (6) Breach of Contract; and (7) Unjust Enrichment.
On May 16, 2011, Google filed this motion to dismiss arguing that this court lacks subject 2 matter jurisdiction because Gaos has again failed to establish that she has standing under Article III 3 of the United States Constitution because she has not alleged she suffered an injury in fact. In the 4 alternative, Google argues that the FAC should be dismissed because Gaos has failed to state a 5 claim upon which relief can be granted as to her privacy claim, breach of contract claim, fraud-6 based claims, and unjust enrichment claim. Additionally, Google argues that all the state-law 7 claims are preempted by the SCA. 8
An Article III federal court must ask whether a plaintiff has suffered sufficient injury to 10 satisfy the "case or controversy" requirement of Article III of the U.S. Constitution. To satisfy Article III standing, plaintiff must allege: (1) an injury in fact that is concrete and particularized, as well as actual and imminent; (2) that the injury is fairly traceable to the challenged action of the 13 defendant; and (3) that it is likely (not merely speculative) that injury will be redressed by a 14 favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 (1992). A suit brought by a plaintiff without Article III standing is not a "case or controversy," and an Article III federal court 17 there- fore lacks subject matter jurisdiction over the suit. Steel Co. v. Citizens for a Better 18 Environment, 523 U.S. 83, 101 (1998). In that event, the suit should be dismissed under Rule 19 12(b)(1). Seeid.at 109-110. At least one named plaintiff must have suffered an injury in fact. See Lierboe v. State Farm ...