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Hassan v. Facebook, Inc.

United States District Court, N.D. California

July 23, 2019

IBRAHIM HASSAN, et al., Plaintiffs,
FACEBOOK, INC., Defendant.



         Before the Court is Defendant Facebook, Inc.'s motion to dismiss. ECF No. 14. The Court will grant the motion in full.

         I. BACKGROUND

         Plaintiffs 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.

         Plaintiffs 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. ¶ 32.

         Facebook 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.


         A 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. 2005).


         For the reasons below, the Court will dismiss Plaintiffs' complaint with leave to amend.

         A. Claim One

         Facebook 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).

         For 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.

         B.Claim ...

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