The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 DONALD FRIEND, Case No. 24-cv-03571-SVK
8 Plaintiff,
ORDER DENYING MOTION TO
9 v. ALTER OR AMEND JUDGMENT
10 GOOGLE LLC, Re: Dkt. No. 41
11 Defendant.
12 Self-represented Plaintiff Donald Friend commenced this action to recover from Defendant
13 Google LLC (“Google”) for allegedly permitting fraudulent business listings to persist on its
14 platform, thereby stifling a contractual arrangement between Plaintiff and non-party Dumpsters
15 Direct LLC (“DD”). See Third Amended Complaint (the “TAC”) at Dkt. 24-1. The Court
16 dismissed the TAC without leave to amend and entered judgment because Plaintiff lacked
17 prudential standing and Article III standing, and he could not correct those deficiencies in an
18 amended pleading without fundamentally changing his allegations. See Dkts. 39 (the “Prior
19 Order”), 40.1 Plaintiff now moves to alter or amend judgment on the basis that the Court erred in
20 dismissing his claims without leave to amend. See Dkt. 41 (the “Motion”). The Court disagrees
21 with Plaintiff and DENIES the Motion.2
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25 1 The Court assumes familiarity with the allegations of the TAC and the Court’s reasoning in the
Prior Order.
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2 Plaintiff and Google have consented to the jurisdiction of a magistrate judge, and the Court has
27 determined that the Motion is suitable for resolution without oral argument. See Dkts. 6, 9; Civil
I. LEGAL STANDARD
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Under Federal Rule of Civil Procedure 59(e), a party may request that a court “alter or
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amend a judgment.” In general, the Court may grant a Rule 59(e) motion under four
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circumstances:
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(1) if such motion is necessary to correct manifest errors of law or fact upon which
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the judgment rests; (2) if such motion is necessary to present newly discovered or
6 previously unavailable evidence; (3) if such motion is necessary to prevent
manifest injustice; or (4) if the amendment is justified by an intervening change in
7 controlling law.
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See Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citation omitted). The
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motion does not serve as an excuse for a party “to raise arguments or present evidence for the first
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time when they could reasonably have been raised earlier in the litigation.” See Kona Enters., Inc.
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v. Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). Ultimately, granting the
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motion “is an extraordinary remedy which should be used sparingly,” and “the district court
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enjoys considerable discretion in granting or denying the motion.” See McDowell v. Calderon,
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197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (citation omitted).
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II. DISCUSSION
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Broadly speaking, Plaintiff asserts four justifications for granting the Motion, all of which
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the Court rejects.
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A. Justification One: Procedural Posture, Novelty And Stakes
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Plaintiff’s first justification concerns three general reasons for granting the Motion: (1) the
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Court dismissed the action “at the pleading stage before discovery”; (2) it did so based on “novel
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standing issues”; and (3) this case present “significant” stakes because “[d]ismissal without leave
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to amend effectively immunizes [Google] from accountability for fraudulent listings that harm
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contractors like Plaintiff.” See Motion at 2-3. None of these reasons compels granting the
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Motion.
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First, courts routinely dismiss cases at the pleading stage.
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Second, there is nothing novel about dismissing a case where a plaintiff lacks: (1)
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prudential standing as one who suffered an indirect injury; or (2) Article III standing as one whose
1 injury was not caused by the defendant. Plaintiff also does not explain why he believes the
2 standing issues here are novel.
3 Third, the Prior Order does not insulate Google from liability for allegedly fraudulent
4 listings. Rather, the Court merely held that Plaintiff is not the right plaintiff to pursue that
5 potential liability. Nothing in the Prior Order would prevent an appropriately situated plaintiff
6 from bringing claims against Google for the same alleged conduct.
7 B. Justification Two: Clear Errors Of Law And Fact
8 Plaintiff next argues that four errors of law and fact infect the prudential-standing analysis
9 in the Prior Order, but the Court again disagrees.
10 First, Plaintiff argues that the Court improperly characterized him as an investor in DD
11 even though he was actually a creditor. See id. at 3-4. Setting aside that Plaintiff expressly refers
12 to himself as an “investor” in the TAC and not as a creditor (see TAC ¶ 5), its decision to dismiss
13 the case stands regardless of whether Plaintiff is properly characterized as an investor or a creditor.
14 Under Plaintiff’s allegations, “his injury occurs as a result of the injury to DD, and therefore
15 necessarily depends on the commission of a prior injury to DD,” thereby rendering his claims
16 derivative and depriving him of prudential standing. See Prior Order at 6. That conclusion
17 follows even if Plaintiff was a creditor of DD. Confusingly, Plaintiff also describes himself as an
18 independent contractor of DD in the same section of the Motion in which he asserts that he is a
19 creditor. See Motion at 4. In his view, this contractor relationship demonstrates that any harms to
20 him allegedly caused by Google “are not dependent on DD’s overall profitability or financial
21 health.” See id. The Court already rejected this argument in the Prior Order, and its reasoning
22 applies even if Plaintiff is properly characterized as an independent contractor. See Prior Order at
23 6.
24 Second, Plaintiff argues that the Court misapplied Delaware law regarding whether a claim
25 is direct or derivative:
26 In NAF Holdings, LLC v. Li & Fung (Trading) Ltd., 118 A.3d 175, 179-80 (Del. 15
2015), the Delaware Supreme Court held that “Delaware courts have long
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recognized that a plaintiff may properly bring a direct claim if the Plaintiff has a
principle applies squarely to Plaintiff’s situation. His right to payment under the
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Customer Acquisition Agreement is independent of any right held by DD.
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See Motion at 4. As an initial matter, Plaintiff’s purported quote does not appear in NAF. See
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Section III, infra. Plaintiff also misunderstands NAF. There, the Supreme Court of Delaware held
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“that a suit by a party to a commercial contract to enforce its own contractual rights is not a
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derivative action under Delaware law.” See NAF, 118 A.3d at 182. Here, however, Plaintiff does
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not sue to enforce his rights under any contract. He does sue Google for breach of contract but in
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connection with a contract between DD and Google and not one to which he is a party. See TAC
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¶¶ 69-74. And while Plaintiff is a party to a contract with DD, he does not sue for breach of that
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contract. Thus, NAF does not assist Plaintiff here.
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Third, Plaintiff argues that the Court improperly “introduce[d] a temporal element” to the
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derivative analysis and that the correct inquiry “is whether the plaintiff can prevail without
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showing an injury to the corporation.” See Motion at 4-5 (quotation marks and citation omitted).
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The Court’s analysis in the Prior Order satisfies that standard, as the Court concluded that, based
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on Plaintiff’s allegations, his injury “depends on the commission of an injury to DD.” See Prior
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Order at 6. Yes, there is a “temporal element” in that Plaintiff’s injury occurs only after DD
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suffers an injury, but the fact that DD’s injury occurs first does not change the determination that
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Plaintiff’s injury does not exist without a corresponding injury to DD.
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Fourth, Plaintiff argues that, under Ninth Circuit law, “a party to a contract has standing to
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sue for its breach, even if a company with which the plaintiff has a relationship is also harmed.”
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See Motion at 4-5; see also Section III, infra (questioning veracity of Plaintiff’s citations to Ninth
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Circuit authority). Again, however, Plaintiff does not sue Google for breach of any contract to
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which he is a party.
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C. Justification Three: Inconsistencies Between
1 The Prior Order And Google’s Allegations Elsewhere
2 In his third justification, Plaintiff argues that the Court must reverse its Article III standing
3 analysis, which it based on Plaintiff’s speculative allegations of causation, because its conclusion
4 “is fundamentally undermined by [Google’s] own allegations in a nearly identical case.” See id. at
5 6-10. The Court need not resolve this argument because even if it agreed with Plaintiff, it would
6 not amend or alter the judgment—the Court dismissed this action without leave to amend because
7 Plaintiff lacked prudential standing, and a determination that the Court erred in its Article III
8 standing analysis would not change that result. See Prior Order at 8 (“While Plaintiff could
9 provide more allegations in an amended pleading to plausibly tie his injury to Google’s fraudulent
10 business listings, no allegations could change the conclusion that the injury is impermissibly
11 derivative.”).
12 D. Justification Four: Implicit Error In Denying Leave To Amend
13 Finally, Plaintiff argues that the Court erred in denying leave to amend because, as
14 illustrated by the arguments addressed above, it erred in its analysis of prudential standing and
15 Article III standing. See Motion at 10-13. The Court has already rejected the arguments
16 underlying this justification and accordingly rejects this justification. Plaintiff also argues that the
17 Court should allow him leave to amend because “denial of leave to amend works particular
18 hardship here,” but his arguments on this point merely rehash arguments rejected above in the
19 Court’s discussion of the first and third justifications. See id. at 13.
20 III. ADMONISHMENT ON PLAINTIFF’S TRUTHFULNESS
21 In at least five instances throughout the Motion, Plaintiff appears to have fabricated quotes
22 from his cited authorities (either on his own or with the assistance of technology):
23 On page 3 of the Motion, he cites to Broam v. Bogan, 320 F.3d 1023 (9th Cir. 2003), as an
24 example of a case where the Ninth Circuit reversed a district court’s denial of a Rule 59(e)
25 motion in light of “the importance of the issues at stake.” The cited language does not
26 appear in Broam.
27 On page 3 of the Motion, he cites to “United States v. NH, Inc., 124 F.3d 1198 (9th Cir.
1 dismissal of a case because the dismissal created “perverse incentives.” However, the
2 citation “124 F.3d 1198” leads to the middle of a different decision, United States v.
3 Rockwell International Corporation, 124 F.3d 1194 (10th Cir. 1997). Plaintiff’s cited
4 language does not appear in Rockwell, that decision was issued by the Tenth Circuit, not
5 the Ninth Circuit, and the defendant in that case was not “NH, Inc.”
6 On page 4 of the Motion, Plaintiff cites to NAF for the proposition that “Delaware courts
7 have long recognized that a plaintiff may properly bring a direct claim if the Plaintiff has a
8 contract right that exists independently of any right of the corporation.” The cited
9 language does not appear in NAF.
10 On page 5 of the Motion, Plaintiff cites to Shell Petroleum, N.V. v. Graves, 709 F.2d 593
11 (9th Cir. 1983), for the proposition that a plaintiff may pursue a direct action if their injury
12 does not “derive[] from harm to” a third party. The cited language does not appear in
13 Graves.
14 On page 5 of the Motion, Plaintiff cites to Pareto v. FDIC, 139 F.3d 696 (9th Cir. 1998),
15 as an example of a case where the Ninth Circuit held that a plaintiff had standing because
16 he experienced “an injury . . . distinct from any the corporation itself may have suffered.”
17 The cited language does not appear in Pareto.
18 In light of these apparent fabrications, the Court STRONGLY ADMONISHES Plaintiff,
19 reminding him of his obligation to provide truthful submissions to the Court. “[A]ll parties,
20 including those appearing pro se, must act truthfully before the Court, and the Court does not
21 tolerate fabrications of authority or dishonest behavior.” Greene v. Discover Bank, No. 23-cv-
22 04825-SVK, 2024WL 85872, at *2 n.1 (N.D. Cal. Jan. 8, 2024) (emphasis added). The Court also
23 directs Plaintiff to Civil Local Rules 3-9(a) and 11-4(a)(4), which together obligate Plaintiff to
24 “[p]ractice [before this Court] with the honesty, care, and decorum required for the fair and
25 efficient administration of justice.”
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IV. CONCLUSION
For the foregoing reasons, the Court DENIES the Motion.
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SO ORDERED.
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Dated: March 3, 2025
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— Sesser
6 SUSAN VAN KEULEN
7 United States Magistrate Judge
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