United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS, Re: ECF No.
TIGAR UNITED STATES DISTRICT JUDGE
the Court is Defendant Facebook, Inc.'s motion to
dismiss. ECF No. 14. The Court will grant the motion in full.
Ibrahim Hassan, Anjeza Hassan, Kosta Hysa, and Mirela Hysa
are Facebook users who created accounts between 2007 and
2009. ECF No. 1 (“Compl.”) ¶¶ 3-6.
Plaintiffs used the Facebook Messenger application to
communicate with others via calls and instant messages.
Id. They shared “personal, intimate, secure
information” via Messenger including “current
addresses, social security numbers, birthdays, driver
licenses, personal and intimate pictures, personal and
intimate conversations, and life-making decisions.”
Id. ¶ 12. They assert that Facebook,
“without authorization, exposed all the above data
collected from all four Plaintiffs for its own financial
gain.” Id. ¶ 10.
now bring suit against Facebook asserting three causes of
action. First, Plaintiffs plead that Facebook violated the
Federal Trade Commission Act (“FTC Act”) by
falsely representing that their “personal data were
secured and private” and by “failing to implement
reasonable and appropriate security measures or follow
industry standards for data security, and failing to comply
with its own posted privacy policies.” Compl.
¶¶ 16-17. Specifically, Plaintiffs complain of the
harvesting and selling of data to Cambridge Analytica, as
well as Facebook “allow[ing] over 150 companies to
access and use [their] personal data for its own monetary
profits, without [their] permission and consent.”
Id. ¶ 18. Second, Plaintiffs allege public
disclosure of private facts based on Facebook giving
companies such as Netflix, Spotify, and the Royal Bank of
Canada access to “read, write, and delete” their
private messages without consent. Id. ¶¶
22-23. Third, Plaintiffs allege breach of contract based on
Facebook's “fail[ure] to comply with its own user
agreement knowing that it is misusing our personal
information.” Id. ¶ 26. Plaintiffs seek
damages in the amount of $5, 000, 000. Id. ¶
now moves to dismiss for failure to state a claim. ECF No.
14. Plaintiffs oppose. ECF No. 29. Facebook has filed a
reply. ECF No. 30.
complaint must contain a short and plain statement of the
claim showing that the pleader is entitled to relief in order
to give the defendant fair notice of what the claim is and
the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2);
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). To survive a Rule 12(b)(6) motion to dismiss, a
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).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In determining
whether a plaintiff has met this plausibility standard, the
Court accepts all factual allegations as true and construes
the pleadings in the light most favorable to the plaintiff.
Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.
reasons below, the Court will dismiss Plaintiffs'
complaint with leave to amend.
contends that “Plaintiffs' first cause of action
must be dismissed because the FTC Act does not create a
private right of action.” ECF No. 14 at 6. Facebook is
correct. “The [FTC] Act nowhere purports to confer upon
private individuals, either consumers or business
competitors, a right of action to enjoin the practices
prohibited by the Act or to obtain damages following the
commission of such acts.” Holloway v. Bristol-Myers
Corp., 485 F.2d 986, 988-89 (D.C. Cir. 1973). Courts
have consistently held “that consumers and members of
the public at large may not maintain a private action to
enforce the FTCA.” Gajo v. Chicago Brand, No.
17-cv-00380-EMC, 2017 WL 2473142, at *1 (N.D. Cal. June 8,
2017). Accordingly, “private litigants may not invoke
the jurisdiction of the federal district courts by alleging
that defendants engaged in business practices proscribed
by” the Act. Dreisbach v. Murphy, 658 F.2d
720, 730 (9th Cir. 1981).
this reason, Plaintiffs' first claim fails as a matter of
law. When granting a motion to dismiss, the court should
grant leave to amend “unless it determines that the
pleading could not possibly be cured by the allegation of
other facts.” Doe v. United States, 58 F.3d
494, 497 (9th Cir. 1995) (internal quotation marks and
citation omitted). Because there are no facts that can cure
Plaintiffs' legally defective claim under the FTC Act,
that claim is dismissed with prejudice.