Jones v. Google LLC, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

JOSEPH LEE JONES,

Plaintiff,

vs. Case No. 20-3072-SAC

GOOGLE LLC, INC.,

Defendant.

O R D E R

This case is before the court upon defendant’s motion to

dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. No. 7) and other

motions filed by plaintiff. Plaintiff is proceeding pro se. This

case was originally filed in state district court and removed to

this court by defendant.

I. The complaint and proposed amended complaint.

Plaintiff’s original complaint alleges that a web address –

www.google.com/+JoeJones21176 - is no longer accessible and

therefore materials plaintiff has stored at the address cannot be

viewed and that plaintiff has lost access to “various Google

services.” Doc. No. 1-1, p. 2. Plaintiff alleges that the web

address was lost around June 2019 when Google Plus was shut down.

Id. at p. 5. He contends that he “responded to solicitations for

services sold in the State of Kansas via the internet” and that

now he is unable to benefit from the transactions in violation of

the Kansas Consumer Protection Act (KCPA) , K.S.A. 50-626 & 627.

Id. He further asserts that “Google is a business, a supplier of

services it advertises for free, but responding and utilizing

amounts to a consumer transaction.” Id. He complains that an

educational and teaching platform has been made unavailable and

that this marginalizes him because he has no place to direct people

to see his works. Id.

Proposed amendments to the state court petition, which are

part of plaintiff’s motion to amend filed in state court the day

before this case was removed, include the following contentions:

- that despite defendant’s representations the web

address was not permanently accessible for posts and as

a repository of works;

- that defendant misrepresented its status as an

artificial intelligence research company;

- that defendant misrepresented Google Plus as original

or new;

- that defendant misrepresented the uses of Google Plus;

- that the receipt of the Google Plus web address “was

contingent upon plaintiff Joseph Jones Amazon eKindle

book volumes;” and

- defendant made representations with reason to know

that the web address would not have use after 2019;

- defendant represented to plaintiff that Google Plus

had been substantiated to have the benefit of a community

of users with the same interests (i.e., transhumanism,

futurism, etc.) and the defendant made such

representation to plaintiff with reason to know that

Google Plus could no longer connect other transhumanists

and futurists with the same interests.

Doc. No. 16, pp. 4-11.

II. Pro se standards

Pro se pleadings are entitled to a liberal construction. Hall

v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se

litigant, however, is not relieved from following the same rules

of procedure as any other litigant. See Green v. Dorrell, 969 F.2d

915, 917 (10th Cir. 1992). A district court should not have to

guess at what claim a pro se litigant is making (Wells v. Brown,

891 F.2d 591, 594 (6th Cir. 1989)), nor “assume the role of advocate

for the pro se litigant.” Hall, 935 F.2d at 1110.

III. Rule 12(b)(6) standards

Plaintiff’s complaint must allege sufficient facts to state

a legal claim which is plausible on its face. Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). Facial plausibility requires “factual

content that allows the court to draw the reasonable inference

that defendant is liable for the misconduct alleged.” Id. A

complaint will not “suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility standard is not akin to a “probability

requirement,” but it asks for more than a sheer

possibility that a defendant has acted unlawfully.

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. (quoting Twombly, 550 U.S. at 557). A plausibility analysis

is a context-specific task depending on a host of considerations,

including judicial experience, common sense and the strength of

competing explanations for the defendant's conduct. See id. at

679; Twombly, 550 U.S. at 567.

Here, plaintiff is making claims under the KCPA, K.S.A. 50-

626 & 627. The KCPA concerns “consumer transactions” which are

defined as “a sale, lease, assignment or other disposition for

value of property or services.” K.S.A. 50-624(c). Claims of false

representations or unconscionable acts violating the KCPA must be

stated with particularity. Jamieson v. Vatterott Educational

Center, Inc., 473 F.Supp.2d 1153, 1156-58 (D.Kan. 2007);

Nieberding v. Barrette Outdoor Living, Inc., 2012 WL 6024972 *2

(D.Kan. 12/4/2012)(applying requirement to allegations of

unconscionable acts under KCPA).

“[T]o survive a motion to dismiss, a complaint asserting

deceptive practices under the KCPA ‘must set forth the time, place,

and contents of the false representation, the identity of the party

making the false statements and the consequences thereof.’”

Cavolovic v. J.C.Penney Corp., Inc., 2018 WL 2926433 *2 (D.Kan.

6/7/2018)(quoting Weckhorst v. Kansas State Univ., 241 F.Supp.3d

1154, 1176 (D.Kan. 2017)); Jamieson, 473 F.Supp.2d at 1156. In

determining whether an act or practice is unconscionable under the

KCPA, a court may consider a large number of factors such as:

whether the supplier took advantage of the inability of the

consumer to protect his interests; whether the price grossly

exceeded the price available to similar consumers; whether the

consumer was unable to materially benefit from the subject of the

transaction; whether there was a reasonable probability of payment

in full by the consumer; whether the transaction was excessively

one-sided in favor of the supplier; whether the supplier made a

misleading statement of opinion relied upon by the consumer; and

whether the supplier excluded, modified or limited applicable

warranties. K.S.A. 50-627(b); see also State ex rel. Stovall v.

DVM Enterprises, Inc., 62 P.3d 653, 658 (Kan. 2003)(discussing

other factors).

IV. The allegations in the complaint and motion to amend fail to

state a claim.

The court concludes that plaintiff’s complaint, even if

supplemented with the allegations in the motion to amend, fails to

plausibly allege KCPA violations with the particularity required

by law. Plaintiff does not allege facts describing a consumer

transaction as defined in the statute. Further, plaintiff does

not allege the time, place and the particular contents of false

representations, or the identity of the person making the false

representation, or the consequences of a specific false

representation. Plaintiff generally alleges he has lost access to

a certain community of people with common interests and that people

have lost access to his works, but he does not plausibly describe

how this has caused him a material loss.

Plaintiff’s allegations also fail to set forth a

comprehensible and plausible claim for relief upon some grounds

other than the KCPA. The court notes that Fed.R.Civ.P. 9(b)

requires that a claim of fraud be stated with particularity.

V. Other motions

A. Motion for default judgment

Plaintiff has filed a motion for default judgment. Doc. No.

5. This motion shall be denied. The record shows that defendant

timely removed this action from state court and timely filed a

motion presenting defenses allowed under the federal rules after

removal. See Fed.R.Civ.P. 81(c)(2)(C). Therefore, defendant has

presented a defense and is not in default. Furthermore, default

judgments are disfavored by courts, particularly when any delay

has not caused plaintiff prejudice. See In re Rains, 946 F.2d

731, 732-33 (10th Cir. 1991).

B. Motion for appointment of counsel

Plaintiff has filed a motion for appointment of counsel. Doc.

No. 14. Upon review of the nature and merits of plaintiff’s claims

and the other factors listed in Rucks v. Boergermann, 57 F.3d 978,

979 (10th Cir. 1995), the court shall deny the motion for

appointment of counsel.

C. Motion for amicus brief

Plaintiff has asked the court to order an amicus brief from

the Attorney General of Kansas. Doc. No. 27. This motion shall

be denied because the complaint fails to state a claim and because

plaintiff does not cite authority which supports such an order.

D. Motion to correct caption

Plaintiff has filed a motion to name “XXVI Holdings, Inc.”

and “ALPHABET” as a defendant. Doc. No. 11. This motion is

apparently in reaction defendant’s disclosure of corporate

interests which shows that defendant is a wholly owned subsidiary

of XXVI Holdings Inc. and that XXVI Holdings Inc. is a wholly owned

subsidiary of Alphabet Inc. Doc. No. 4. The court shall deny the

motion because plaintiff does not provide grounds to show that

either XXVI Holdings Inc. or Alphabet Inc. is responsible for the

alleged wrongful acts listed in the complaint. See U.S. v.

Bestfoods, 524 U.S. 51, 61 (1998)(“It is a general principle of

corporate law . . . that a parent corporation . . . is not liable

for the acts of its subsidiaries.”).

E. Motions for joinder

Plaintiff has sought to join this case with Case No. 18-4032-

SAC. Doc. Nos. 31 and 39. But, Case No. 18-4032 is closed and

the court has refused to reopen it upon plaintiff’s motion to alter

or amend judgment. Also, this case shall be closed with this

order. Under these circumstances, the motions for joinder should

be denied.

F. Motion for discovery

Plaintiff has filed a motion to proceed to discovery. Doc.

No. 15. This motion shall be denied because the court shall grant

defendant’s motion to dismiss.

G. Motions for temporary restraining order and declaratory

judgment

Because plaintiff has not stated a plausible claim for relief

and has not demonstrated a reasonable or substantial probability

of success on the merits, his motions for a temporary restraining

order and declaratory judgment (Doc. Nos. 12 and 26) shall be

denied.

H. Motion for change of venue

Plaintiff’s motion for change of venue (Doc. No. 28) shall be

considered moot.

I. Motion to compel

In Doc. No. 18, docketed as a motion to compel, plaintiff

asks that defendant answer the allegations in the motion to amend

the petition filed in state court. The court has considered those

allegations in ruling upon the motion to dismiss and finds that it

would be futile to grant the motion to amend. Therefore, the

motion to compel shall be denied.

J. Motion for enhanced penalties

Plaintiff has filed what is titled a motion for enhanced

penalties. Doc. No. 34. The pleading appears to make arguments

against defendant’s motion to dismiss. The court has considered

these arguments as well plaintiff’s contentions in the various

responses, notices, and affidavits he has filed. See Doc. Nos.

16, 17, 19, 20, 21, 22, 23, 30, 32, and 35. The court is convinced

that plaintiff has failed to state a plausible claim for relief

and for this reason the motion for enhanced penalties shall be

denied.

K. Motion for summary judgment

Plaintiff has filed a motion for summary judgment. Doc. No.

36. The motion shall be denied because the court has determined

that plaintiff’s complaint fails to state a claim. Also, the

motion fails to follow the procedures for summary judgment motions

set forth in Fed.R.Civ.P. 56(c) and D.Kan.R. 56.1(a).

L. Motion for reconsideration supplement

Plaintiff has filed a motion for reconsideration “supplement”

which has this case number and Case No. 18-4032 listed on it. It

appears that the motion relates to the order denying plaintiff’s

motion to alter or amend judgment in Case No. 18-4032. The court

has reviewed the motion and finds that it does not warrant relief

in this case.

M. Motion in support of undisputed facts (Case No. 18-4032)

The court notes that plaintiff filed a motion docketed in

Case No. 18-4032 which also has this case number written on it.

The motion suggests that plaintiff’s cases may have merit because

opposing counsel has not opposed appointment of counsel. The

motion asks for appointment of counsel and denial of defendant’s

motion to dismiss in Case No. 18-4032. For the reasons explained

earlier in this order and in Doc. No. 20 of Case No. 18-4032, the

relief requested in this motion is denied.

N. Request for restrictions on filing

Defendant has asked that the court place restrictions against

plaintiff filing in state and federal court. Plaintiff is treated

as a “three-strikes” litigant in federal court, so he is already

under some restrictions. See Jones v. Douglas County Jail, 2020

WL 1492703 (D.Kan. 3/27/2020). The court is reluctant to place

limits upon state court filings. The state court is capable of

deciding if filing restrictions are appropriate there. Therefore,

at this time the court shall deny the request for filing

restrictions, although future filing restrictions in this case and

Case No. 18-4032 will not be ruled out.

VI. Conclusion

For the above-stated reasons, the motion to dismiss (Doc. No.

7) is granted and this action shall be dismissed with prejudice.

Consistent with this order, the motions at Doc. Nos. 5, 11, 12,

14, 15, 18, 26, 27, 29, 31, 34, 36, 39 and 40 are denied.

Defendant’s request for filing restrictions is also denied without

prejudice.

IT IS SO ORDERED.

Dated this 14th day of April 2020, at Topeka, Kansas.

s/Sam A. Crow_____________

U.S. District Senior Judge