# Michael Amalfitano v. Google, Inc.

> Court of Appeals for the Ninth Circuit · March 10, 2017 · 679 F. App'x 632

URL: https://www.frixlaw.com/law-library/cases/4151884

## Case

- **Full name:** Michael AMALFITANO, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. GOOGLE INC., Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 10, 2017
- **Citations:** 679 F. App'x 632
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Berzon, Clifton, Garbis
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
NOT FOR PUBLICATION
MAR 10 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL AMALFITANO, Individually No. 15-15288
and On Behalf of All Others Similarly
Situated, D.C. No. 5:14-cv-00673-BLF

Plaintiff - Appellant,

v.
MEMORANDUM*
GOOGLE INC.,

Defendant - Appellee.

Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding

Submitted February 15, 2017**
San Francisco California

Before: BERZON and CLIFTON, Circuit Judges, and GARBIS, Senior District
Judge.*** 1

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Michael Amalfitano (“Amalfitano”) appeals the district court’s order

dismissing without leave to amend his purported class action Complaint against

Google Inc. and seeks to appeal the transfer of this action from the Eastern District

of New York to the Northern District of California. With respect to dismissal, we

have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo the district court’s

dismissal under the doctrine of res judicata, Tritz v. United States Postal Serv.,

721 F.3d 1133, 1136 (9th Cir. 2013), we affirm.

“The doctrine of res judicata insures the finality of decisions, conserves

judicial resources, and protects litigants from multiple lawsuits.” McClain v.

Apodaca, 793 F.2d 1031, 1032-33 (9th Cir. 1986). “Res judicata applies when ‘the

earlier suit . . . (1) involved the same “claim” or cause of action as the later suit, (2)

reached a final judgment on the merits, and (3) involved identical parties or

privies.’” Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005)

(quoting Sidhu v. Flecto Co., 279 F.3d 896, 900 (9th Cir. 2002)).

Amalfitano presented claims on January 8, 2013 in the Eastern District of

New York under the Stored Communications Act, 18 U.S.C. §§ 2701-2712. The

identical claims had been resolved fully by the settlement of a 2010 class action

lawsuit, In re Google Buzz Privacy Litigation, No. 10-cv-00672-JW (N.D. Cal.

filed Feb. 17, 2010) (“Buzz Class Action”).
Amalfitano was a member of the Buzz Class Action settlement class, and his

name is not on the list of class members who the Buzz Class Action court

determined had timely opted out. Res judicata, therefore, applies, and Amalfitano

is bound by the Buzz Class Action settlement, which was court-approved and

constituted a final judgment on the merits. Amalfitano might have contested his

inclusion in the settlement class by filing a motion before the Buzz Class Action

court pursuant to Federal Rule of Civil Procedure 60(b), but he has not

demonstrated the “grave miscarriage of justice” that would permit him to file an

independent action challenging the final judgment. See United States v. Beggerly,

524 U.S. 38, 47 (1998).

With respect to the appeal of the transfer, Amalfitano’s action was

transferred to the Northern District of California under 28 U.S.C. § 1404(a). We

lack jurisdiction to review the decision of the Eastern District of New York to

transfer this action to the Northern District of California. Posnanski v. Gibney, 421

F.3d 977, 980 (9th Cir. 2005) (“[W]e may not review a transfer under 28 U.S.C. §

1404 by a district court outside of our circuit to a district court within our circuit.”).

AFFIRMED.

3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4151884. Public record. Not legal advice.