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Rosado v. eBay, Inc.

United States District Court, N.D. California, San Jose Division

June 30, 2014

LUIS ROSADO, individually, and on behalf of other members of the general public similarly situated, Plaintiff,
EBAY INC., a Delaware corporation, Defendant

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[Copyrighted Material Omitted]

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[Re: Docket Item No. 62].

For Luis Rosado, individually, and on behalf of other members of the general public similarly situated, Plaintiff: Dale James Morgado, LEAD ATTORNEY, PRO HAC VICE, Feldman Fox and Morgado PA, Miami, FL; Jordan L. Lurie, Mark Samuel Greenstone, Rebecca Labat, Robert Kenneth Friedl, LEAD ATTORNEYS, Arvin Ratanavongse, Cody Robert Padgett, Sue Jin Kim, Capstone Law, APC, Los Angeles, CA; David Lishian Cheng, Ford & Harrison LLP, Los Angeles, CA; Lesley Elizabeth Weaver, Green & Noblin, P.C., Larkspur, CA; Sharon G Yaacobi, Beverly Hills, CA; Tarek H. Zohdy, Capstone Lawyers, APC, Los Angeles, CA.

For eBay Inc., a Delaware corporation, Defendant: Maco Stewart, LEAD ATTORNEY, Whitty Somvichian, Cooley LLP, San Francisco, CA.

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EDWARD J. DAVILA, United States District Judge

In this putative class action, Defendant eBay Inc. (" eBay" or " Defendant" ) moves to dismiss the Second Amended Class Action Complaint (" SAC" ) filed by Plaintiff Luis Rosado (" Rosado" or " Plaintiff" ). See Docket Item No. 62. Per Civ. L.R. 7-1(b), the motion was taken under submission without oral argument. Having fully reviewed the parties' papers, the Court denies eBay's motion to dismiss.


Plaintiff is a citizen and resident of Florida who began using eBay as a seller in May of 2005. See Docket Item No. 59 ¶ 9. eBay is a Delaware corporation with its

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principle place of business in San Jose, California. eBay operates as an online auction and classified advertisement website serving more than 100 million active users worldwide. eBay Motors is a specialty site on that allows users to buy and sell vehicles and vehicle-related merchandise online. Id. ¶ ¶ 10-15.

In order to list items for sale on eBay Motors, sellers must accept eBay's " User Agreement." Id. ¶ 16. The User Agreement and Fee Schedules are the operative contractual documents for determining the manner and method of calculating the fees that should be charged to sellers on eBay Motors.[1] Id. ¶ 18.

When a seller lists an item for sale, eBay charges an " Insertion Fee." Sellers can also upgrade their listings by adding additional features and paying " Optional Feature Fees." Plaintiff refers to the Insertion Fees and Optional Feature Fees collectively as " Listing Fees." There are three general listing formats on eBay: auction-style, fixed-price for a set amount of time, or an online classified advertisement. Id. ¶ ¶ 19-20. For an auction-style listing, the seller sets a starting price for bidding. For a fixed-price listing, the seller sets a designated price at which a buyer can purchase the item. Ewert v. eBay, Inc., 2010 WL 4269259, at *1 (N.D. Cal. Oct. 25, 2010).

When items are sold at a fixed-price, a " Buy It Now" option appears in the listing. When a prospective buyer clicks the Buy It Now button in the listing, the item is delisted from eBay, even if the prospective buyer does not complete the transaction. Dkt. No. 59 ¶ ¶ 20-21. However, if the sale is not consummated, eBay does not relist the item for the time remaining on the listing duration or offer sellers a refund. Plaintiff contends that prospective sellers are on notice that they will not receive a refund in such a situation, but they are not notified that they will lose a portion of the prepaid listing duration. Id. ¶ 21.

On February 8, 2011, upon paying a listing fee of $36 for 21 days and a picture fee of $0.25, Plaintiff listed his vehicle for sale on eBay Motors. Id. ¶ 26. Plaintiff used a fixed-price listing, so his listing had a Buy It Now option. Id. ¶ 25. Plaintiff's vehicle failed to sell and he relisted it on March 1, 2011, again paying a $36 listing fee for 21 days. Id. ¶ 27. On March 8, a prospective buyer clicked the Buy It Now button on Plaintiff's listing and the item was immediately delisted from eBay's website. Id. ¶ 28. The buyer did not deposit money into Plaintiff's PayPal account, instead requesting that Plaintiff cash a check and send the difference back to the buyer, which Plaintiff did not do.[2] Id. ¶ 29; see Docket Item No. 65 at 6 n.1. On March 9, Plaintiff relisted his vehicle by paying an additional $36. Dkt. No. 59 ¶ 30. On

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March 22, Plaintiff requested a refund for the remaining time on the March 1 listing (a $24 value), but eBay only agreed to provide a credit of $4.25. Id. ¶ 33.

On July 30, 2012, Plaintiff filed his original class action complaint. See Docket Item No. 1. eBay filed a Motion to Dismiss on October 22, 2012. See Docket Item No. 20. Plaintiff filed his First Amended Complaint (" FAC" ) on December 28, 2012. See Docket Item No. 41. eBay moved to dismiss the FAC on January 31, 2013. See Docket Item No. 42. The Court issued an Order denying eBay's motion to dismiss and granting Plaintiff leave to amend. See Docket Item No. 58.

On October 1, 2013, Plaintiff filed the SAC asserting six causes of action: (i) violation of California's False Advertising Law (" FAL" ), Cal. Bus. & Prof. Code § § 17500 et seq.; (ii) violation of the Consumers Legal Remedies Act (" CLRA" ), Cal. Civ. Code § § 1750 et seq.; (iii) breach of the covenant of good faith and fair dealing; (iv) violation of the Unfair Competition Law (" UCL" ), Cal. Bus. & Prof. Code § § 17200 et seq.; (v) breach of quasi-contract; and (vi) declaratory judgment. Dkt. No. 59. eBay filed its present motion on December 6, 2013 (Dkt. No. 62), Plaintiff filed a response on January 24, 2014 (Dkt. No. 65), and eBay filed a reply on February 7, 2014 (Dkt. No. 67).


Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to " give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). " Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Moreover, the factual allegations " must be enough to raise a right to relief above the speculative level" such that the claim " is plausible on its face." Twombly, 550 U.S. at 556-57.

When deciding whether to grant a motion to dismiss, the court generally " may not consider any material beyond the pleadings." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). The court must accept as true all " well-pleaded factual allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1988). However, the court may consider material submitted as part of the complaint or relied upon in the complaint, and may also consider material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d ...

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