Wescott v. Google, LLC

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6 SAN FRANCISCO DIVISION

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8 CARL A. WESCOTT,

Case No. 24-cv-01513-PHK

9 Plaintiff,

ORDER DISMISSING COMPLAINT

10 v. WITHOUT PREJUDICE PURSUANT

TO 28 U.S.C. § 1915(e)(2)(B) AND

11 GOOGLE, LLC, DENYING MOTION FOR SERVICE

12 Defendant. Re: Dkts. 1, 5

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14 Pro se Plaintiff Carl A. Westcott (“Plaintiff”) brings this action against Defendant Google

15 LLC (“Google”). The Court previously granted Plaintiff’s application to proceed in forma

16 pauperis (“IFP”), in accordance with 28 U.S.C. § 1915(a). [Dkt. 9]. The Court now analyzes

17 whether Plaintiff’s Complaint satisfies the mandatory screening requirements of 28 U.S.C.

18 § 1915(e)(2)(B).

19 LEGAL STANDARD

20 Any complaint filed pursuant to the IFP provisions of § 1915(a) is subject to mandatory

21 review by the Court and sua sponte dismissal if the Court determines the complaint is “frivolous

22 or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief

23 against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii); see

24 Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of 28 U.S.C.

25 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

26 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a district court to dismiss an

27 [IFP] complaint that fails to state a claim.”) (emphasis added); see also Chavez v. Robinson, 817

1 dismissal comes before the defendants are served”). Congress enacted this safeguard because “a

2 litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks

3 an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton

4 v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).

5 If the Court dismisses a complaint pursuant to § 1915(e)(2)(B), the plaintiff may still file

6 the same complaint by paying the filing fee because such dismissal is not on the merits; rather, the

7 dismissal is an exercise of the Court’s discretion under the IFP statute. Biesenbach v. Does 1-3,

8 No. 21-cv-08091-DMR, 2022 WL 204358, at *2 (N.D. Cal. Jan. 24, 2022) (citing Denton, 504

9 U.S. at 32).

10 Plaintiff proceeds in this matter pro se. Accordingly, in undertaking the mandatory

11 screening of Plaintiff’s Complaint, the Court construes Plaintiff’s allegations liberally and affords

12 him the “benefit of any doubt.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (citation

13 omitted).

14 ANALYSIS

15 I. Whether the Complaint is Frivolous or Malicious

16 The Court first considers whether Plaintiff’s Complaint is “frivolous or malicious.” 28

17 U.S.C. § 1915(e)(2)(B)(i). A complaint is frivolous if “it lacks an arguable basis either in law or

18 in fact.” Denton, 504 U.S. at 31 (quoting Neitzke, 490 U.S. at 325). A complaint is legally

19 frivolous if it fails to establish standing and subject matter jurisdiction. Castillo v. Marshall, 107

20 F.3d 15 (9th Cir. 1997) (mem.) (quoting Pratt v. Sumner, 807 F.2d 817, 819 (9th Cir. 1987)). A

21 complaint is malicious “if it was filed with the ‘intention or desire to harm another.’” Andrews v.

22 King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citations omitted).

23 The Court finds that Plaintiff’s Complaint is sufficiently rooted in law and fact such that it

24 should not be dismissed as frivolous. In his Complaint, Plaintiff invokes federal diversity

25 jurisdiction, pursuant to 28 U.S.C. § 1332, which requires that there be complete diversity of

26 citizenship between the Parties and that the amount in controversy exceeds $75,000 exclusive of

27 interest and costs. With regard to diversity of citizenship, Plaintiff alleges that he is a citizen of

1 controversy, Plaintiff alleges that he has suffered hundreds of thousands of dollars in damages due

2 to “los[t] emails, including gmail accounts, that were ‘hijacked.’” Id. at ¶¶ 30, 34-45. Plaintiff

3 asserts a single cause of action for negligence against Google for “not helping the Plaintiff get his

4 gmail accounts back.” Id. at ¶¶ 110-17.

5 The Court finds no indication that Plaintiff’s Complaint was “filed with the intention or

6 desire to harm another.” King, 398 F.3d at 1121. Accordingly, the Complaint as drafted does not

7 appear to be malicious.

8 Accordingly, the Court determines that Plaintiff’s Complaint is neither frivolous nor

9 malicious for purposes of 28 U.S.C. § 1915(e)(2)(B)(i). Therefore, Plaintiff’s Complaint satisfies

10 the first requirement of the mandatory screening statute.

11 II. Whether the Complaint Fails to State a Claim for Relief

12 The Court next considers whether the Complaint should be dismissed for failure to state a

13 claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii). “The standard for determining whether a plaintiff

14 has failed to state a claim upon which relief may be granted under § 1915(e)(2)(B)(ii) is the same

15 as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison, 668

16 F.3d at 1112 (citing Lopez, 203 F.3d at 1127). “The Rule 12(b)(6) standard requires a complaint

17 to contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

18 face.” Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (Ashcroft v. Iqbal, 556 U.S. 662,

19 678 (2009)). Detailed factual allegations are not required but “[t]hreadbare recitals of the

20 elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal,

21 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A pleading must

22 “contain either direct or inferential allegations respecting all the material elements necessary to

23 sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562 (citation omitted)

24 (emphasis in original).

25 Here, Plaintiff alleges that he is the owner of multiple Google Gmail accounts, which he

26 uses for both “personal and business communications.” [Dkt. 1 at ¶¶ 36, 71]. Plaintiff alleges

27 that, since 2019, at least twenty-seven of his Gmail accounts have been “hijacked,” meaning that

1 able to access his email[s].” Id. at ¶¶ 38-40, 65. Plaintiff alleges that “Mr. Robert J. Block

2 (‘Block’) is the main person who has been doing this, with many people in his criminal gang

3 involved (‘the Bob Block Criminal Gang[,’] or the ‘Block Criminal Gang’).” Id. at ¶¶ 43-45.

4 Plaintiff alleges that because “Mr. Block and his criminal gang” have also “take[n] over his cell

5 phone service” and “shut [him] out of many of his laptops,” he has been “unable to recover his

6 gmail accounts using the online recovery process.” Id. at ¶¶ 57-63. Plaintiff alleges that he has

7 “contacted people in Google customer service and customer support in various ways to get help

8 getting his gmail accounts back.” Id. at ¶ 74. He complains that despite “many attempts” to

9 obtain Google’s assistance, he “still does not have the gmail accounts back.” Id. at ¶ 82.

10 Claiming that he has lost “hundreds of thousands of dollars” in business opportunities

11 resulting from the loss of his “hijacked” Gmail accounts, Plaintiff asserts a single claim against

12 Google for negligence. Id. at ¶¶ 94-102, 110-17. Specifically, Plaintiff alleges that “Google had

13 legal duties to the Plaintiff, as a customer of Google, LLC[;]” that “Google employees shirked

14 their duties and were negligent in not helping the Plaintiff get his gmail accounts back[;]” that

15 “Google is responsible for the negligent acts of its employees under respondeat superior and

16 vicarious liability[;]” and that Google’s negligence caused Plaintiff to suffer “financial harm in

17 multiple categories, among them the loss of revenue he otherwise would have earned.” Id. at ¶¶

18 111-16.

19 As relief, Plaintiff seeks: (1) a declaration that he is “the rightful owner of the Gmail

20 accounts listed in Exhibit A;” (2) a Court order requiring “Google, Inc. to return the Plaintiff’s

21 email accounts to the Plaintiff, the rightful owner;” (3) “all direct and consequential damages the

22 Plaintiff incurred as a proximate cause of [Google’s] negligence;” (4) “reasonable compensation

23 for the value of his time in representing himself while he cannot afford an attorney (quantum

24 meruit);” (5) “reasonable future attorney’s and paralegal fees and costs[;]” and (6) “such other and

25 further relief as this Court deems just and proper.” Id. at 15, 17.

26 To state a claim for negligence under California law, a plaintiff must plausibly allege: (1) a

27 legal duty to use due care, (2) a breach of that legal duty, and (3) proximate cause between the

1 “The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to

2 establishing a claim for negligence.” Nymark v. Heart Fed. Savings & Loan Ass’n, 231 Cal. App.

3 3d 1089, 1095 (1991). “Duty is not universal; not every defendant owes every plaintiff a duty of

4 care.” Brown, 483 P.3d at 164. Rather, “[a] duty exists only if the plaintiff’s interests are entitled

5 to legal protection against the defendant’s conduct.” Id. (internal quotation marks and citation

6 omitted).

7 Here, Plaintiff alleges that Google owed “legal duties” to him “as a customer,” and that

8 Google “shirked those duties” by failing to help him recover his stolen Gmail accounts. [Dkt. 1 at

9 ¶¶ 111, 113]. However, Plaintiff fails to plead the existence of any facts regarding the source of

10 and the nature of Google’s purported duty. Plaintiff cannot rely on conclusory allegations to state

11 a claim for relief. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of

12 action, supported by mere conclusory statements, due not suffice.”); see, e.g., Langan v. United

13 Servs. Auto Ass’n, 69 F. Supp. 3d 965, 987 (N.D. Cal. 2014) (dismissing a negligence claim with

14 leave to amend where the plaintiff failed to allege any facts to raise a reasonable inference that the

15 defendants owed him a duty of care). Simply stating that duties were owed because Plaintiff is a

16 customer does not identify sufficiently how those duties arose, what the scope and nature of those

17 duties are, or what kind of “care” is involved in those duties.

18 Further, Plaintiff has failed to allege specific facts showing how Google breached its duties

19 (i.e., what Google and/or its employees did or did not do in connection with Plaintiff’s request for

20 assistance with his Gmail accounts). Again, simply asserting that Google employees “shirked”

21 their duties does not identify sufficiently what those employees did that was allegedly insufficient,

22 or what they failed to do that was allegedly required, or how they performed actions in ways that

23 were allegedly insufficient.

24 In addition, Plaintiff fails to allege sufficient facts from which to reasonably infer that the

25 alleged breach of duties proximately caused Plaintiff’s injury. See Day v. Google, Inc., No. 15-cv-

26 01224-NC, 2015 WL 1545051, at *2 (N.D. Cal. Apr. 6, 2015) (dismissing a negligence claim

27 arising from the plaintiff’s purchase of a Google Nexus 9 tablet where the plaintiff failed to

1 caused to him by such interaction). Because the pleading as to how Google allegedly breached its

2 alleged duties to Plaintiff is insufficient, the pleading is similarly deficient in identifying a

3 sufficient causal link between the alleged breaches of duties and the alleged harms.

4 Accordingly, the Court finds that Plaintiff has failed to plausibly allege the requisite

5 elements of a negligence claim. For that reason, Plaintiff’s Complaint is subject to dismissal for

6 failure to state a claim for relief. 28 U.S.C. § 1915(e)(2)(B)(ii).

7 III. Whether the Defendant has Immunity from Monetary Relief

8 While the Court finds that the Complaint must be dismissed for failure to state a claim for

9 relief as discussed above, for completeness the Court turns to the third factor under §

10 1915(e)(2)(B). Under the mandatory screening statute, the final inquiry is whether the Complaint

11 seeks monetary relief against defendants who are immune from such relief. 28 U.S.C.

12 § 1915(e)(2)(B)(iii). Here, Plaintiff seeks money damages from a corporate entity, Google, for

13 alleged negligence in connection with Plaintiff’s Gmail accounts as detailed above. There is

14 nothing to suggest that Google is immune from such relief. Accordingly, the Court determines

15 that Plaintiff’s Complaint satisfies the “immunity” prong for purposes of § 1915(e)(2)(B)(iii).

16 CONCLUSION

17 For the reasons set forth herein, IT IS ORDERED THAT:

18 1. Plaintiff’s Complaint [Dkt. 1] is DISMISSED WITHOUT PREJUDICE, pursuant to 28

19 U.S.C. § 1915(e)(2)(B), for failure to state a claim for relief.

20 2. Plaintiff is GRANTED LEAVE to file an amended complaint that addresses the issues

21 discussed herein by no later than September 16, 2024.

22 3. Plaintiff’s motion requesting service of process [Dkt. 5] is DENIED AS MOOT.

23 4. If Plaintiff does not file an amended complaint by the ordered deadline or if he cannot cure

24 the identified deficiencies, the Court will recommend the dismissal of this action in whole

25 or in part.

26 5. Plaintiff is ADVISED that there are several resources for pro se litigants. The Court

27 makes available a guide for pro se litigants called Representing Yourself in Federal Court:

1 stage of a case, including discovery, motions, and trial. This guide is available

2 electronically online at https://www.cand.uscourts.gov/wp-

3 content/uploads/2020/02/Pro_Se_Handbook_2020ed_links_12-2021_MBB.pdf or in hard

4 copy form free of charge from the Clerk of Court’s Office. The Court additionally has a

5 webpage with resources for pro se litigants: https://www.cand.uscourts.gov/pro-se-

6 litigants/. In addition, Plaintiff has the option to seek assistance from the Legal Help

7 Center by making an appointment by telephone at (415) 782-8982 or by email at

8 fedpro@sfbar.org. The Legal Help Center is a free service provided by the Justice &

9 Diversity Center of the Bar Association of San Francisco (“JDC”), and is not part of the

10 United States District Court. The Legal Help Center is staffed by attorneys employed by

11 the JDC to provide information and limited-scope legal assistance to pro se litigants in

12 civil cases. See https://cand.uscourts.gov/about/court-programs/legal-helpdesks/.

13 6. The Court further ADVISES that the amended complaint shall include the caption and civil

14 case number used in this Order (24-cv-01513-PHK) and the words FIRST AMENDED

15 COMPLAINT shall be written on the caption page. The Court recommends that Plaintiff

16 Wescott use this Court’s form complaint (available on the Court website) for drafting the

17 amended complaint.

18 7. Because an amended complaint completely replaces the previous complaint, Plaintiff

19 Wescott SHALL include in his first amended complaint all the claims he wishes to present

20 and all the defendants he wishes to sue. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th

21 Cir. 1992). The amended complaint SHALL NOT incorporate material from the prior

22 complaint by reference.

23 8. Plaintiff Wescott SHALL comply with all of this Court’s Orders (including all Standing

24 Orders, available on the Court’s website) and all deadlines required by the Federal Rules of

25 Civil Procedure and the Local Rules of this Court, in a timely fashion. When needed,

26 Plaintiff Wescott may file a motion (prior to a deadline) requesting an extension of time to

27 meet a Court-ordered deadline. In order to be granted, any such motion SHALL show good

] necessary tasks. Failure to file an amended complaint by the deadline herein and failure to

2 prosecute this action timely may result in negative consequences for Plaintiff Wescott’s case,

3 including recommendation for dismissal of this action with prejudice such as under Federal

4 Rule of Civil Procedure 41(b) for failure to prosecute.

5 || ITIS SO ORDERED.

6 || Dated: August 15, 2024

7 :

PETER H. KANG

8 United States Magistrate Judge

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