United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS
William Alsup United States District Judge
pro se antitrust action, plaintiff accuses defendant
of using its monopoly power to suppress competition.
Defendant moves to dismiss all claims. The motion to dismiss
Paul Joseph Sayre is the owner and creator of RDevice. In
2009, Sayre filed a provisional patent on messenger
technology for RDevice. In 2010, he filed a formal patent
application and launched RDevice as a web and mobile
messenger developed to work on defendant Google's Android
mobile operating system. Sayre alleges that RDevice had many
features that directly competed with Google in the
communication and social space because it was one of the
first messengers ever launched (Dkt. No. 58 at 2).
Play is the primary method for installing applications on
Android devices; Google automatically blocks devices from
downloading apps from any other source. RDevice is an app
designed specifically for Android smart phones and will not
work on another operating system without completely
reprogramming the software code. Users may install RDevice
without Google Play by overriding the device security
features but losing automatic updates. This may be
disconcerting to some users and could expose the device to
malware or hackers (Dkt. No. 1 at 6).
sought to utilize Google's mobile app distribution
platform, Google Play, and Google's web search engine,
Google Web, to access users for his messenger app. He alleges
RDevice has been removed from Google Play numerous times and
denied any attempts to reverse the decision. Additionally,
RDevice does not appear in the category search results for
messengers while published in Google Play and only appears
near the end of the list if it is specifically searched. As a
result, RDevice has one of the lowest installation records
and essentially does not exist. Sayre blames this all on
Google's alleged monopoly on app distribution with Google
Play and Android (Dkt. No. 58 at 3).
contends that Google targeted RDevice specifically because it
was one of the first messengers ever launched and included a
patent application. He states that other messengers grew
simply because they were found on Google Play. The value of
messengers is based on user acquisition rather than revenue.
Sayre speculates that RDevice would amount to $1.6 billion
had it reached its full market potential, similar to the
value of others in the same space (Dkt. No. 58 at 4-5).
on the above, Sayre alleges that Google “engaged in
antitrust behavior” and seeks relief for
monopolization. This claim will be construed as a claim under
Section 2 of the Sherman Act because the absence of other
conspiring parties makes a Section 1 claim inconceivable. He
also claims a violation of Section 17200 of California's
Unfair Competition Law. Sayre seeks $1.6 billion in
compensatory damages for loss of capital, revenue, market
value, and userbase, as well as punitive damages and
injunctive relief (id. at 2-5).
claims were originally filed in the United States District
Court of the Eastern District of Texas, which transferred the
case here. Although a prior order requested Sayre to file an
amended complaint by August 14, 2019 (Dkt. No. 52), he did
not file it until August 26, 2019 (Dkt. No. 58). Google now
moves to dismiss the amended complaint. A hearing was
calendared on November 7, 2019. Sayre did not appear when the
case was called. As a courtesy, the hearing was then moved to
the end of the calendar, but Sayre never appeared. Google
agreed to submit on the papers. This order follows full
briefing (Dkt. Nos. 69, 73, 75).
survive a 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) (quotations
omitted). A claim is facially plausible “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. at 678.
Plausibility requires pleading facts, as opposed to
conclusory allegations or the “formulaic recitation of
the elements of a cause of action, ” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, (2007), and must
rise above the mere conceivability or possibility of unlawful
conduct that entitles the pleader to relief. Iqbal,
556 U.S. at 678-79. “Where a complaint pleads facts
that are merely consistent with a defendant's liability,
it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. at
678 (citation and quotation omitted). Nor is it enough that
the complaint is “factually neutral”; rather, it
must be “factually suggestive.” Twombly,
550 U.S. at 557 n.5.
Monopoly Maintenance Under Section 2 of the Sherman
2 of the Sherman Act prohibits monopolization, attempted
monopolization, and conspiracies to monopolize. More
specifically, Section 2 provides that anyone who attempts
“to monopolize any part of the trade or commerce among
the several States, or with foreign nations, shall be deemed
guilty of a felony . . . .” 15 U.S.C. § 2. To
successfully claim a Section 2 violation, Sayre must
establish: (1) antitrust injury; (2) possession of monopoly
power in a relevant market; and (3) ...