United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS RE:
DKT. NO. 162
J. DAVILA UNITED STATES DISTRICT JUDGE
third amended complaint alleges that Defendant Facebook, Inc.
violated its contractual obligations by tracking logged-out
Facebook users on third-party websites. Facebook now moves to
dismiss for the third time. Facebook's motion will be
putative class action, Plaintiffs allege that Facebook
improperly tracked the web browsing activity of logged-out
Facebook users on third-party websites. Third Am. Compl.
("TAC"), Dkt. No. 157. Plaintiffs previously
asserted a variety of common law claims and claims for
violations of federal and state statutes. After two rounds of
motions to dismiss, this Court dismissed the majority of
Plaintiffs' claims with prejudice for lack of standing
and for failure to state a claim. Order Granting Def's
Mot. to Dismiss ("MTD Order"), Dkt. No. 148. This
Court granted leave to amend only as to Plaintiffs'
claims for breach of contract and breach of the duty of good
faith and fair dealing. Id. Plaintiffs timely filed
their third amended complaint. Facebook now moves to dismiss
under Fed.R.Civ.P. 12(b)(6) and 15(c). Def's Mot. to
Dismiss ("MTD"), Dkt. No. 162.
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the legal
sufficiency of claims alleged in the complaint. Parks
Sch. of Bus.. Inc. v. Symington. 51 F.3d 1480, 1484 (9th
Cir. 1995). Dismissal "is proper only where there is no
cognizable legal theory or an absence of sufficient facts
alleged to support a cognizable legal theory."
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
The complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.' " Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twomblv. 550 U.S. 544, 570 (2007)).
TAC asserts causes of action for (1) breach of contract (TAC
¶¶ 139-48) and (2) breach of the duty of good faith
and fair dealing (TAC ¶¶ 149-61). Plaintiffs also
seek to enlarge the scope of the proposed class.
Breach of Contract
allege that each of them entered into a contract with
Facebook that consisted of (1) Facebook's Statement of
Rights and Responsibilities ("SRR"), (2)
Facebook's Help Center. TAC ¶ 140. According to
Plaintiffs, Facebook promised in the contract that it would
not track the web browsing activity of logged-out Facebook
users on third-party websites. Id. ¶ 142.
Plaintiffs allege that Facebook broke that promise by
collecting data about logged-out users' browsing activity
and using cookies to connect that activity to users'
state a claim for breach of contract, Plaintiffs must allege
that (1) they entered into a contract with Facebook, (2)
Plaintiffs performed or were excused from performance under
the contract, (3) Facebook breached the contract, and (4)
Plaintiffs suffered damages from the breach. Oasis W.
Realty. LLC. v. Goldman. 51 Cal.4th 811, 821 (2011)
(citing Reichert v. General Ins. Co., 68 Cal. 2d
822, 830 (1968)). "In an action for breach of a written
contract, a plaintiff must allege the specific provisions in
the contract creating the obligation the defendant is said to
have breached." Woods v. Google Inc.. No.
05:ll-cv-1263-JF, 2011 WL 3501403, at *3 (N.D. Cal. Aug. 10,
parties agree that the SRR constitutes a contract. MTD 8;
Pis.' Opp'n to Def's Mot. to Dismiss
("Opp'n"), Dkt. No. 163. However, the SRR
itself does not contain a promise to not track logged-out
users. Rather, Plaintiffs argue that the operative contract
is a combination of provisions from Facebook's SRR,
The Data Use Policy was not incorporated by reference into
the Statement of Rights and Responsibilities.
cite the following language from Facebook's Data Use
Policy (dated September 7, 2011):
We receive data whenever you visit a . . . site with a
Facebook feature (such as a social plugin). This may include
the date and time you visit the site; the web address, or
URL, you're on; technical information about the IP
address, browser and the operating ...