United States District Court, N.D. California
ORDER ON MOTIONS TO DISMISS RE: DKT. NOS. 6,
418 Media LLC ("418 Media) and Lewis Howes, and
specially appearing Defendants Keynetics, Inc.
("Keynetics") and Click Sales, Inc. ("Click
Sales), separately move pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 12(b)(2) to dismiss Plaintiff William
Silverstein's amended complaint. [Docket Nos. 6, 13.] The
court ordered the parties to file supplemental briefing on
the motions, which the parties timely filed. [Docket Nos.
34-36.] The court held a hearing on April 28, 2016. For the
following reasons, Defendants' motions to dismiss are
granted because Plaintiff's claims for relief are
preempted by federal law.
following facts are taken from the allegations in
Plaintiff's amended complaint, and are assumed to be true
for purposes of this motion.
brings this putative class action alleging violations of
California's restrictions on unsolicited commercial
email. Plaintiff is a member of the group "C, Linux and
Networking Group" on LinkedIn, a professional networking
website. FAC ¶ 4. Through his membership in that group,
he received unlawful commercial emails ("spam"
emails) that came from fictitiously named senders through the
LinkedIn group email system. The emails were sent from the
domain "linkedin.com, " even though non-party
LinkedIn did not authorize the use of its domain, and was not
the actual sender of the emails. Id. at ¶¶
bodies of the emails contain links to web pages at
takesurveysforcash.com, click4surveys.com, and
getcashforsurveys.com. Id. at ¶ 4. Plaintiff
alleges upon information and belief that these links "go
through clickbank.net, " which is owned and operated by
Click Sales, and that Click Sales is a wholly owned
subsidiary of Keynetics. Id. at ¶¶ 6, 14.
He also alleges upon information and belief that 418 Media
owns the domain name linkedinfluence.com, and that Doe 2 is
Lewis Howes, an individual who owns and operates 418 Media.
Id. at ¶ 12.
alleges that the information in the "from" name
field in the email headers falsely states who is actually
sending or advertising in the spam emails. Id. at
¶¶ 32, 34. For example, the "from" names
include "Liana Christian, " "Whitney Spence,
" "Ariella Rosales, " and "Nona Paine,
" none of whom are the true senders of the emails.
Moreover, the "from" names do not identify the web
page links contained in the bodies of the emails, nor do they
appear to be associated with any of the Defendants.
Id. at ¶¶ 36, 37.
attached an exemplar email to his amended complaint. It
contains the following email header information:
From: "Liana Christian"
<firstname.lastname@example.org> Subject: [New
discussion] How a newbie banked $5K THIS WEEK…What
Nobody Told You About 1:22 am To: "William
Id. at ¶ 26, Ex. A. The body of the email
contains a web link. Id. Plaintiff received at least
86 spam emails from July 6, 2015 to November 17, 2015
advertising linkedinfluence.com, paidsurveyauthority.com,
takesurveysforcash.com, click4surveys.com, and
getcashforsurveys.com, all of which had falsified or
misrepresented "from" names in their headers.
Id. at ¶¶ 35, 36.
asserts one claim for violation of California Business and
Professions Code section 17529.5, which prohibits certain
unlawful activities related to commercial email
advertisements. He seeks liquidated damages of $1, 000 per
unlawful email message, as well as attorneys' fees and
costs. Id. at ¶¶ 65-71. Defendants 418
Media and Howes move pursuant to Rule 12(b)(6) to dismiss
Plaintiff's amended complaint on three grounds: 1)
Plaintiff's section 17529.5 claims are preempted by the
federal Controlling the Assault of Non-Solicited Pornography
and Marketing Act of 2003 ("CAN-SPAM Act"), 15
U.S.C. §§ 7701-7713; 2) the amended complaint is
not pled with the requisite specificity; and 3) Plaintiff
does not plead specific facts regarding Howes's
liability. Defendants Keynetics and Click Sales join in 418
Media and Howes's motion to dismiss on the ground of
federal preemption. [Docket No. 13 at 8.] Keynetics and Click
Sales also move pursuant to Rule 12(b)(6) for failure to
state a claim against Keynetics, and pursuant to Rule
12(b)(2) to dismiss Plaintiff's amended complaint for
lack of personal jurisdiction.
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the claims alleged in the complaint. See
Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480,
1484 (9th Cir. 1995). When reviewing a motion to dismiss for
failure to state a claim, the court must "accept as true
all of the factual allegations contained in the complaint,
" Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(per curiam) (citation omitted), and may dismiss a claim
"only where there is no cognizable legal theory" or
there is an absence of "sufficient factual matter to
state a facially plausible claim to relief." Shroyer
v. New Cingular Wireless Servs., Inc., 622 F.3d 1035,
1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009); Navarro v. Block, 250 F.3d
729, 732 (9th Cir. 2001)) (quotation marks omitted). A claim
has facial plausibility when a plaintiff "pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678 (citation
omitted). In other words, the facts alleged must demonstrate
"more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do." Bell Atl. Corp. v. Twombly, 550 U.S. 554,
555 (2007) (citing Papasan v. Allain, 478 U.S. 265,
286 (1986)); see Lee v. City of L.A., 250 F.3d 668,
679 (9th Cir. 2001), overruled on other grounds by
Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119
(9th Cir. 2002).
Business and Professions Code section 17529.5 governs
unsolicited commercial email. It provides that it is unlawful
for a person or entity "to advertise in a commercial
e-mail advertisement either sent from California or sent to a
California electronic mail address under any of the following
(1) The e-mail advertisement contains or is accompanied by a
third-party's domain name without the permission of the
(2) The e-mail advertisement contains or is accompanied by
falsified, misrepresented, or forged header
information. This paragraph does not apply to truthful
information used by a third party who has been lawfully