Petition for Writ of Certiorari — Glen Morgan, Petitioner v. X Corp., fka Twitter, Inc.

Supreme Court briefDec 5, 2025

Ask Donna

What actually matters in this document.

Text

No. 25-____

IN THE

Supreme Court of the United States

————

GLEN MORGAN,

Petitioner,

X, CORP.,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

JOEL ARD

Counsel of Record

ARD LAW GROUP PLLC

P.O. Box 281

Kingston, WA 98346

(206) 701-9243

joel@ard.law

Counsel for Petitioner

December 5, 2025

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

This petition arises out of a removed state law

statutory damages class action, alleging that Defendant

Twitter violated RCW 9.26A.140 by deceptively procuring

and then selling users’ cell phone numbers. In the

district court, Plaintiff Morgan sought remand for lack

of Article III harm. When the court denied that motion,

he sought leave to amend to remove allegations

concerning sales. Although that was denied, he affirmatively abandoned the sales claim. The court denied a

renewed motion to remand, then ruled against him on

the merits of both claims. The Ninth Circuit affirmed,

finding Article III harm for the procurement claim

because the statute proscribes procuring call logs even

though Morgan never alleged that Twitter procured his

or any person’s call logs. It found standing as to the

abandoned sales claim because the fact allegations

remained in the last-filed Complaint.

The questions presented are:

1. Whether Article III permits a federal court to

entertain a state law cause of action for deceptively

procuring non-private information, specifically, a

telephone number, simply because the statute also

proscribes taking different private information, not at

issue in the lawsuit.

2. Whether Article III permits a federal court to

rule on the merits of a claim that a plaintiff has

voluntarily, affirmatively abandoned.

(i)

PARTIES TO THE PROCEEDINGS

AND RELATED PROCEEDINGS

The parties to the proceeding below are as follows:

Petitioner, and plaintiff-appellant below, is Glen

Morgan, for himself and a proposed class comprising

Washington resident Twitter users.

Respondent, and defendant-appellee below, is X Corp.,

formerly known as Twitter, Inc.1

Petitioner is unaware of any “directly related”

proceedings as defined in Rule 14.1(b)(iii)

Twitter, Inc. was renamed X, Corp. during the pendency of

proceedings below but is referred to herein as “Twitter” for

convenience and consistency with prior briefing.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDINGS AND

RELATED PROCEEDINGS ............................

TABLE OF AUTHORITIES ................................

INTRODUCTION ................................................

OPINIONS BELOW ............................................

JURISDICTION ..................................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..............................

STATEMENT OF THE CASE ............................

A. RCW 9.26A.140 .........................................

B. Trial Court Proceedings And Decision .....

REASONS FOR GRANTING THE PETITION..

I. The Court Below Fundamentally Overstepped The Constitutional Limits On Its

Power .........................................................

A. Article III Jurisdiction Must Arise

From The Parties’ Dispute Based On

The Facts Pled, Not On Alternative

Theories That Could Arise Under The

Same Statute .......................................

B. The Actual Dispute Does Not Allege

An Article III Harm .............................

C. An Abandoned Claim Is Moot And

Cannot Create Article III Standing ....

(iii)

TABLE OF CONTENTS—Continued

Page

II. This Case Is An Ideal Vehicle For

Summarily Reversing Or Resolving The

Question Presented On The Merits .........

CONCLUSION ....................................................

APPENDIX

TABLE OF AUTHORITIES

CASES

Page(s)

Allen v. Wright,

468 U.S. 737 (1984) ...................................

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) .................................... 1-2, 13

Associated Builders & Contractors of

Michigan v. Cowen,

No. 23-1803, 2025 WL 488556

(6th Cir. Feb. 13, 2025) .............................

Capron v. Van Noorden,

6 U.S. 126 (1804) .......................................

Coubaly v. Cargill Inc.,

144 F.4th 343 (D.C. Cir. 2025) .................

Cowles Publ’g Co. v. State Patrol,

109 Wash. 2d 712 (1988)........................... 20, 21

Fla. Dep’t of Health & Rehab. Servs. v.

Fla. Nursing Home Ass’n,

450 U.S. 147 (1981) ...................................

Food & Drug Admin. v. All. for

Hippocratic Med.,

602 U.S. 367 (2024) ...................................

Hangman Ridge Training Stables, Inc. v.

Safeco Title Ins. Co.,

105 Wash.2d 778 (1986)............................

5, 6

Hells Canyon Pres. Council v. U.S. Forest Serv.,

403 F.3d 683 (9th Cir. 2005) .....................

Hollingsworth v. Perry,

570 U.S. 693 (2013) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Kellman v. Spokeo, Inc.,

599 F. Supp. 3d 877 (N.D. Cal. 2022) .......

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994) ...................................

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) ...................................... 26, 27

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ................................... 7, 15

Morgan v. Twitter,

No. 23-3764, 2025 WL 1248821

(9th Cir. 2025) ............... 3, 10, 14, 15, 19, 23, 24

New York, by James v. Niagara-Wheatfield

Cent. Sch. Dist.,

119 F.4th 270 (2d Cir. 2024) ........................

New York State Rifle & Pistol Ass’n, Inc. v.

City of New York, New York,

590 U.S. 336 (2020) ................................... 26, 27

Ondrusek v. United States Army Corps

of Eng’rs,

123 F.4th 720 (5th Cir. 2024) ...................

Phillips v. U.S. Customs & Border Prot.,

74 F.4th 986 (9th Cir. 2023) .....................

Reid v. Pierce Cnty.,

136 Wash. 2d 195 (1998)...........................

Royal Canin U.S.A., Inc. v. Wullschleger,

604 U.S. 22 (2025) ..................................... 27, 28

Simon v. E. Kentucky Welfare Rts. Org.,

426 U.S. 26 (1976) .....................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Skaff v. Meridien N. Am. Beverly Hills, LLC,

506 F.3d 832 (9th Cir. 2007) .....................

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ................. 11, 12, 14, 19, 30

Steel Co. v. Citizens for Better

Environment,

523 U.S. 83 (1998) .....................................

Tolan v. Cotton,

572 U.S. 650 (2014) ...................................

TransUnion LLC v. Ramirez,

594 U.S. 413

(2021) ..........1, 7, 8, 11, 12, 14, 15, 19, 23, 24, 30

United States v. Corrick,

298 U.S. 435 (1936) ...................................

U.S. Dep’t of Just. v. Reps. Comm. For

Freedom of Press,

489 U.S. 749 (1989) ...................................

U.S. Parole Comm’n v. Geraghty,

445 U.S. 388 (1980) .............................. 13, 25-26

Walker v. State,

No. 24-1806, 2025 WL 2970598 (9th Cir.

Oct. 22, 2025) ............................................

Warth v. Seldin,

422 U.S. 490 (1975) ................................... 15, 16

CONSTITUTION

U.S. Const. art. III .................. 2, 3, 8-16, 18-27, 29

U.S. Const. art. III, § 1 .................................

1, 4

viii

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. art. III, § 2 .................................

1, 4

STATUTES AND REGULATIONS

28 U.S.C. § 1254(l) ........................................

Fair Credit Reporting Act of 1970, Pub. L.

91-508, 84 Stat. 1127 ................................

Telephone Records and Privacy Protection

Act, Pub. L. 109-476, 120 Stat. 3568 ........ 8, 10

RCW 4.24.790 ...............................................

RCW 9.26A.140..................... 4, 6-10, 18, 22, 30-32

RCW 9.26A.140(1)(a) ...................... 4, 8, 23, 26, 27

RCW 9.26A.140(1)(b) .... 4, 9, 10, 13, 14, 19, 23, 27

RCW 9.26A.140(4) ........................................

RCW 19.86.020 .............................................

RCW 19.250.010 ...........................................

RULES

Fed. R. Civ. P. 12 ........................................ 7, 9, 17

Fed. R. Civ. P. 15 .......................................... 3, 28

Fed. R. Civ. P. 15(a)(1) .................................

Fed. R. Civ. P. 41 ..........................................

Fed. R. Civ. P. 41(a)........................................ 2, 28

Sup. Ct. R. 10 ................................................ 30-32

Wash. Civ. R. 4 .............................................

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Restatement (Second) of Torts (Am. Law

Inst. 1977) ................................................. 19-21

INTRODUCTION

The Constitution vests “the judicial Power of the

United States … in one supreme Court, and in

such inferior Courts as the Congress may from time to

time ordain and establish.” U.S. Const. Art. III § 1.

That blanket grant of power, though broad, is nonetheless constrained. It extends only to “Cases” and

“Controversies.” U.S. Const. Art. III § 2. This Court has

had many occasions to emphasize the jurisdictional

limits imposed by Art. III § 2. “Federal courts are

courts of limited jurisdiction. They possess only that

power authorized by Constitution and statute, which

is not to be expanded by judicial decree. It is to be

presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary

rests upon the party asserting jurisdiction.” Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994) (cleaned up).

Before a removing defendant can ask a federal court

to proceed to the merits of a plaintiff ’s claim, it must

demonstrate that the plaintiff ’s allegations show that

the harm he claims to have suffered “has a close

relationship to a harm traditionally recognized as

providing a basis for a lawsuit in American courts—

such as physical harm, monetary harm, or various

intangible harms ….” TransUnion LLC v. Ramirez, 594

U.S. 413, 417 (2021) (cleaned up). Should the removing

defendant fail to provide such a demonstration, no

federal court can rule on the case: “No concrete harm,

no standing.” Id. The removing defendant’s success in

showing standing at the outset does not end the

question. “The standing Article III requires must be

met by persons seeking appellate review, just as it

must be met by persons appearing in courts of first

instance.” Arizonans for Off. Eng. v. Arizona, 520 U.S.

43, 64 (1997). It does not matter whether the plaintiff

believes a removing defendant has demonstrated the

plaintiffs’ standing. “The lack of jurisdiction of a

federal court touching the subject-matter of the

litigation cannot be waived by the parties ….” United

States v. Corrick, 298 U.S. 435, 440 (1936); accord

Capron v. Van Noorden, 6 U.S. 126, 127 (1804)

(vacating a defense judgment for lack of jurisdiction,

raised by the plaintiff for the first time on appeal).

Only one aspect of jurisdiction remains where the

dispute between the parties on appeal presents no

Article III cognizable harm. An appellate court,

including this Court, has “jurisdiction on appeal, not of

the merits, but merely for the purpose of correcting the

error of the lower court in entertaining the suit.”

Corrick, 298 U.S. at 440.

In this case, Twitter could not carry its burden to

show a case or controversy, so the Ninth Circuit

manufactured one on its behalf. Quite literally: the

decision below found that Morgan failed to allege that

Twitter had taken from him anything that touched on

his legitimate privacy interests, but asserted authority

over the lawsuit because a different plaintiff could

have alleged different facts under the same state

statute that could have alleged an Article III

cognizable harm.

The courts below also took it upon themselves to

attempt to maintain jurisdiction over fact allegations

that Morgan utterly disclaimed. They did so

by combining a circuit interpretation of Fed. R. Civ.

P. 41(a), that excludes that Rule as a vehicle for

dismissing claims rather than actions or parties, with

the Fed R. Civ. P. 15 discretion of a court to deny

amendment. Thus, both courts found Article III

jurisdiction based on the existence of fact allegations

in a First Amended Complaint, even though Morgan

had taken every available means to exclude them from

the record, and repeatedly disclaimed any reliance on

them.

The Constitution’s grant of the judicial power of the

United States did not extend to adjudication of this

lawsuit. It should have been remanded to Spokane

County Superior Court where Morgan initiated the

suit on April 1, 2022. This Court should grant

certiorari to correct that error.

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 2025 WL

1248821 and reproduced in the Appendix at 1a-7a. The

district court’s order of dismissal is available at 2023

WL 8115775 and reproduced at App. 9a-49a. The

district court’s denial of the motion for leave to amend

is reproduced at App. 50a-60a. The district court’s

denial of the first motion to remand is available at

2023 WL 3271147 and reproduced at App. 61a-89a.

JURISDICTION

The Ninth Circuit issued its opinion on April 29,

2025, and issued its order denying rehearing en banc

on July 9, 2025. 8a. On September 26, 2025, this Court

granted a petition “extending the time to file [this

petition] until December 6, 2025.” This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

RCW 9.26A.140 is reproduced at App. 90a-92a.

Article III, §§ 1-2 of the United States Constitution is

reproduced at App. 93a.

STATEMENT OF THE CASE

A. RCW 9.26A.140.

Enacted in 2006, RCW 9.26A.140 creates a private

right of action for statutory damages and attorneys’

fees. An aggrieved plaintiff can recover from any

person who “[b]y fraudulent, deceptive, or false means

obtains the telephone record of any resident of this state

to whom the record pertains …” RCW 9.26A.140(1)(b).

A resident can also recover from a person who “[i]ntentionally sells the telephone record of any resident of

this state without the authorization of the customer to

whom the record pertains …” RCW 9.26A.140(1)(a).

The remedy created by RCW 9.26A.140(4)—statutory

damages—reflects the Legislature’s purpose in deterring

deceptive business practices, independent of whether the

practices invade any individual’s privacy.

Morgan alleged that Twitter violated the statute

when it procured his cell phone number from him

using deceptive means. He concluded that the statute’s

proscription on procuring telephone records included

protection for cell phone numbers based on the plain

text of the statute’s definition of “telephone record,” as

informed by Washington state canons of construction.

For example, the definition of “telephone record”

expressly excludes information gleaned from Caller

ID, demonstrating (a) that phone numbers, the core

Caller ID data, are otherwise included in the

definition, and (b) that records held by consumers, the

users of Caller ID, are also otherwise included. This

conclusion also accords with the extensive legislative

history of the bill titled “An act relating to prohibiting

the unauthorized sale of cell phone numbers.” App. 96a.

The act protected “customer’s proprietary network

information (CPNI).” App. 94a. That Final Bill Report

expressly stated that the defined term “‘telephone

record’ … includes telephone numbers.” Id. The

legislative history also clarified that “CPNI [includes]

the customer’s unlisted telephone number.” App. 96a.

Cell phone numbers are unlisted by statutory default,

pursuant to an earlier enacted statute, RCW 19.250.010.

Morgan also concluded that where the legislature

proscribed “deceptive means” in 9.26A.140(1)(b), it

incorporated the existing judicial construction of

“deceptive acts” of the state Consumer Protection Act,

RCW 19.86.020. At the time the legislature proscribed

“deceptive means” in procuring phone numbers, under

the CPA, “to show a “deceptive act or practice … [a]

plaintiff need not show that the act in question was

intended to deceive, but that the alleged act had the

capacity to deceive a substantial portion of the public.”

Hangman Ridge Training Stables, Inc. v. Safeco Title

Ins. Co., 105 Wash.2d 778, 785 (1986).

In the Complaint, Morgan identified extensive acts

by Twitter that had the capacity to deceive a

substantial portion of the public. Relying on Twitter’s

public statements, its SEC filings, Federal Trade

Commission complaints, and earlier consent decrees

overseen by the United States District Court for the

Northern District of California, Morgan showed that

Twitter had spent years giving false assurances to

potential users regarding its privacy practices and the

care with which it would safeguard user information,

including cell phone numbers that users disclosed to

it.

Morgan’s FAC expanded on all this. Morgan based

the amendments in the FAC on testimony to the

United States Senate by Pieter “Mudge” Zatko,

Twitter’s fired former senior executive responsible for

Information Security. Supported by scores of exhibits,

the FAC demonstrated through Mudge’s testimony

that Twitter’s deceptions concerning its privacy

protections for user data had been far more extensive

than previously known. It alleged that Twitter had

entered into a consent decree with the FTC, overseen

by the Northern District of California, while internally

acknowledging that it had no ability to comply with

the court’s orders or its agreement. Mudge testified

that over the course of a decade, Twitter had:

misled its Board of Directors, regulators, and

the public. Twitter’s security failures threaten

national security, compromise the privacy and

security of users, and at times threaten the

very continued existence of the Company. I

also detail that despite these grave threats,

Twitter leadership has refused to make the

tough but necessary changes to create a

secure platform. Instead, Twitter leadership

has repeatedly covered up its security failures

by duping regulators and lying to users and

investors.

App. 102a. Morgan concluded that this decade-plus

pattern of deception towards not only prospective

users, but also to investors and federal regulators,

constituted “deceptive means,” inasmuch as it comprised

acts with “the capacity to deceive a substantial portion

of the public.” Hangman Ridge, 105 Wash.2d at 785.

Morgan’s suit marked the first enforcement action

under RCW 9.26A.140.

B. Trial Court Proceedings And Decision.

Morgan initiated his claim in Spokane County

Superior Court on April 1, 2022 by serving the

Complaint on Twitter pursuant to Wash. Civ. R. 4.

Twitter removed on May 19, 2022, 49 days later.

According to Twitter, the Class Action Fairness Act

eliminated any deadline to remove a complaint that did

not explicitly demonstrate $5,000,000 in controversy on

the face of the pleading, such that it could remove at

any time of its choosing.

Morgan moved to remand. He detailed the standing

issues raised in a statutory damages claim identified

by this Court’s then-recent decision in TransUnion, 594

U.S. 413. He also emphasized Twitter’s ongoing

obligation to demonstrate the propriety of a federal

court’s exercise of jurisdiction, as the party invoking

that jurisdiction. He argued that Twitter could not

meet its removal burden to show that Morgan had met

“the irreducible constitutional minimum of standing …

an invasion of a legally protected interest,” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992), when Twitter

invoked the jurisdiction of a federal court while at the

same time arguing that Morgan’s proposed statutory

construction was completely wrong, and that RCW

9.26A.140 did not protect any legal interest Morgan had

in his cell phone number.1

While this Court has repeatedly cautioned against conflating

merits and standing because “the absence of a valid (as opposed

to arguable) cause of action does not implicate subject-matter

jurisdiction, i.e., the courts’ statutory or constitutional power to

adjudicate the case,” Steel Co. v. Citizens for Better Environment,

523 U.S. 83, 89 (1998), none of the cases affirming that caution

address the burden shift that removal imposes on a defendant

who voluntarily seeks federal jurisdiction. Both courts below allowed

Twitter to argue diametrically opposed positions at the Rule 12

On May 5, 2023, the district court denied Morgan’s

Motion to Remand. It concluded that “Defendant’s

argument that a violation of RCW 9.26.140 is closely

analogous to the common law tort of intrusion upon

seclusion is without merit.” However, it found Article

III harm sufficient for standing in Morgan’s

fact allegations that Twitter had subsequently sold

the phone number: “Plaintiff alleges that Defendant

disseminated the private information associated

with his and other Twitter users’ cell phone numbers,

which include the numbers themselves and metadata

contained within to third-party advertisers.” App. 70a

(emphasis added). After looking to the later-passed

federal Telephone Records and Privacy Protection Act,

Pub. L. 109-476, 120 Stat. 3568 (“TRPPA”), to determine

the meaning of this earlier state law, the court found

that “Both the TRPPA and RCW 9.26A.140 codify the

substantive privacy interests in context-specific situations

regarding the unauthorized dissemination or sale of

telephone records.” App. 72a (emphasis added). As a

result, “the Court finds that the cause of action

available under RCW 9.26A.140 is analogous to the

federally recognized injury of disclosure of private

information and it has a close relationship to harms

traditionally recognized as providing a basis for lawsuits

in American courts as required by TransUnion.” App. 72a.

Twitter then moved to dismiss on the merits. Under

its proposed statutory construction, Morgan had failed

to allege any violation of the statute, which Twitter

argued, i.a., did not protect phone numbers. In

response, Morgan promptly sought leave to file a

Second Amended Complaint, abandoning his claim

that Twitter had violated RCW 9.26A.140(1)(a), the

stage: that Morgan had pled the invasion of a legally protected

interest (standing) and that he had not (failure to state a claim).

sales ban, and preserving only his claim under RCW

9.26A.140(1)(b), the procurement ban.

Despite the fact that the only activity in the case

over the preceding thirteen months was the Motion to

Remand, the District Court denied the Motion to

Amend on grounds that the FAC had been filed late,2

and that Twitter would be prejudiced by having to refile its pending Motion to Dismiss after deleting those

portions addressing the sales claim. App. 57a-58a.

Morgan filed a second Motion to Remand, arguing that

whether or not the SAC was entered as the operative

pleading, he had abandoned the only claim that gave

rise to Art. III jurisdiction under the Court’s Order on

the first Motion to Remand. He also moved the court

to certify the novel questions of the construction of the

statute to the Washington Supreme Court.

The District Court denied Morgan’s motions and

granted Twitter’s motions in full on November 22,

2023. It found that Morgan’s sales claim was not

moot because it remained in the FAC, the operative

pleading due to the Court’s denial of the Motion to

Amend. It also reasoned that the claim was not moot

because Twitter retained an interest in the outcome

of the court’s decision to dismiss on the merits.

The court found a “substantive privacy right codified

by RCW 9.26A.140.” App. 31a. It proceeded to adopt

Twitter’s proposed construction that the statute did

not protect telephone numbers, and therefore that

Twitter had carried its burden to show that

Because Twitter had not filed either a responsive pleading or

a motion under Fed R. Civ. P. 12, this finding was not correct, as

clarified by the 2023 Advisory Committee notes on a modest

amendment to Fed. R. Civ. P. 15(a)(1).

Morgan had failed to identify any violation by Twitter

of his legally protected interests.

Morgan appealed. The Ninth Circuit affirmed in all

respects on April 30, 2025, in an unpublished, nonprecedential memorandum opinion. Even though

Morgan had alleged only that Twitter procured his

telephone number, the Ninth Circuit found Article III

authority to rule on the merits because the statute

also proscribed procuring call logs. To find standing

for this other, theoretical, but unpled violation of RCW

9.26A.140, the Ninth Circuit reviewed the Congressional findings from the later enacted TRPPA to

conclude that call logs could contain various kinds of

private information. It concluded that because a

different plaintiff could have alleged that a defendant

wrongfully procured his call logs in violation of

the Washington statute, therefore “alleging a violation

of RCW 9.26A.140(1)(b) gives rise to an Article III

harm.” App. 5a.

Although Morgan had repeatedly stated that he had

abandoned and would not pursue the sales claims, the

Ninth Circuit found Article III jurisdiction to rule on

that issue, because “those allegations remained in the

operative complaint. Even if Morgan can be said to

have abandoned the sale allegations, that did not

divest the district court of jurisdiction over them.”

App. 5a. It then proceeded to adopt every proposed

construction of the statute offered by Twitter and

affirmed dismissal. After agreeing that the statute

only protected “difficult-to-obtain, nonpublic information about a customer’s calling behavior,” App. 6a,

but not phone numbers, it concurred in the District

Court’s dismissal specifically because Morgan had not

alleged that Twitter took difficult-to-obtain and nonpublic information.

In short, the Ninth Circuit found Article III jurisdiction because it construed the statute as proscribing

wrongful procurement of call logs, which could create

Article III harm, despite the fact that Morgan had

never alleged that Twitter had taken his or anyone’s

call logs. It then dismissed because Morgan had not

alleged that Twitter had taken call logs and therefore

failed to state a claim. It also ruled on a claim that

Morgan had abandoned because the District Court

had refused to allow entry of a pleading excluding that

claim.

REASONS FOR GRANTING THE PETITION

I. The Court Below Fundamentally Overstepped The Constitutional Limits On Its

Power.

“No principle is more fundamental to the judiciary’s

proper role in our system of government than the

constitutional limitation of federal-court jurisdiction

to actual cases or controversies.” Simon v. E. Kentucky

Welfare Rts. Org., 426 U.S. 26, 37 (1976). The Ninth

Circuit is no stranger to exceeding the fundamental

principle of constitutional limitations on judicial power, in

order to impose its preferred legal rule in class actions.

It is also no stranger to having this Court reverse its

overreach, as in Spokeo, Inc. v. Robins, 578 U.S. 330

(2016) and TransUnion, 594 U.S. 413.

In Spokeo, the Ninth Circuit affirmed Article III

jurisdiction over a putative class when the lead plaintiff

alleged violations of the Fair Credit Reporting Act of

1970, Pub. L. 91-508, 84 Stat. 1127. This Court reversed

because, in reviewing the specific fact allegations of

the named plaintiff, the Ninth Circuit had only found

a particularized injury, but had elided the

“independent requirement” that the injury be concrete.

Spokeo, 578 U.S. at 339.

In TransUnion, the Ninth Circuit approved the final

judgment in favor of a class where the named plaintiff

and “the 1,853 class members whose reports were

disseminated to third parties suffered a concrete

injury in fact under Article III.” TransUnion, 594 U.S.

at 433. This Court reversed because “the remaining

6,332 class members are a different story.” Id. Indeed,

because “the 6,332 class members whose internal

TransUnion credit files were not disseminated to

third-party businesses did not suffer a concrete harm,”

id. at 439, no Article III harm had been pled or proven.

The Ninth Circuit erred in Spokeo when it found

Article III authority to proceed after examining only

whether the named plaintiff’s fact allegations showed

particularized injury, eliding concreteness. It erred in

TransUnion by examining the only particularized and

concrete injury of the named plaintiff and a subset of

the class, joining members with no such concrete

injury. Here, the Ninth Circuit found yet a new way to

exceed its Article III authority. It claimed authority

under Article III by examining theoretical, alternative

facts that are found nowhere in Morgan’s lawsuit,

neither on his own behalf or on behalf of any

prospective class member. While novel, this approach

to determining federal jurisdiction is squarely

foreclosed by Spokeo, TransUnion, and the preceding

century of this Court’s Article III standing jurisprudence.

The Ninth Circuit also discerned authority to rule

on an abandoned claim merely because it still could

be found in the most recently filed complaint. This

was doubly erroneous. It could not find any concrete

Article III harm over the actual abandoned claim, but

discovered one after its own theoretical re-write. It

also ignored the courts’ routine refusal to offer advisory

opinions on moot claims, regardless of the status of the

trial court pleadings. Its conclusion to the contrary has

no support in mootness jurisprudence, which this

Court has defined as “the doctrine of standing set in a

time frame: The requisite personal interest that must

exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).”

U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397

(1980). Courts, including this Court, routinely dismiss

claims that have become moot, and no plaintiff can

avoid a mootness dismissal merely by pointing to the

fact allegations of the last complaint. See, e.g.,

Arizonans for Off. Eng., 520 U.S. 43 (reversing the

Ninth Circuit and remanding for dismissal of a lawsuit

that became moot when the initial plaintiff left state

employment, without regard to years-old pleadings

alleging that she was a state employee).

A. Article III Jurisdiction Must Arise

From The Parties’ Dispute Based On

The Facts Pled, Not On Alternative

Theories That Could Arise Under The

Same Statute.

The Ninth Circuit asserted Article III jurisdiction

over Morgan’s claim after concluding that a different

case, alleging different facts, over which it could have

asserted jurisdiction, would have pled a violation of

the same state statute. This lawsuit questioned

whether Twitter violated RCW 9.26A.140(1)(b) by

procuring Morgan’s phone number. The Ninth Circuit

found Article III harm in the unpled, theoretical

violation resulting from procuring someone’s call logs,

comprising records containing the dates, times and

duration of every call placed or received by a phone.

App. 5a. Because that hypothetical claim, based on

unpled facts, would have implicated common law

privacy harms, the Ninth Circuit asserted jurisdiction

over the suit. But Morgan did not allege that Twitter

procured his call logs. He only alleged that Twitter

procured his cell phone number. The Ninth Circuit

asserted Article III jurisdiction after asking and

answering a question that had nothing at all to do with

the dispute raised in the FAC. Whether a party

violates RCW 9.26A.140(1)(b) by procuring call logs

forms no part of any dispute between Morgan and

Twitter.

Both TransUnion and Spokeo foreclose a court

exercising Article III jurisdiction on this basis. In

Spokeo, this Court reminded the Ninth Circuit that “to

establish injury in fact, a plaintiff must show that he

or she suffered an invasion of a legally protected

interest … For an injury to be ‘particularized,’ it must

affect the plaintiff in a personal and individual way.”

Spokeo, 578 U.S. at 339. No removing defendant can

show that a plaintiff ’s complaint alleges an injury that

affects him in a personal and individual way, when the

basis for standing rests on completely different facts

that the plaintiff never alleged. Certainly Morgan

never alleged that he was affected in any way by

Twitter procuring his call logs, the sole basis for Article

III standing identified by the Ninth Circuit. He never

attempted to show an invasion of a legally protected

interest in his call logs, but that was the sole interest

on which the Ninth Circuit found its constitutional

authority to entertain the lawsuit.

Just a few years after Spokeo, this Court in

TransUnion again reversed the Ninth Circuit, reemphasizing that where “the plaintiff does not claim

to have suffered an injury that the defendant caused

and the court can remedy, there is no case or contro-

versy for the federal court to resolve.” TransUnion, 594

U.S. at 423 (cleaned up). A federal court determines

whether it can exercise its Article III powers to adjudicate a dispute between parties based on the actual

dispute presented by the plaintiff: does the plaintiff

claim to have suffered an injury that meets Article III’s

standards of particularity and concreteness? The

Ninth Circuit never found that Morgan alleged that he

suffered an Article III cognizable injury. Instead, it

found that the state statute, in the abstract, might

protect someone else’s privacy interests which, if

infringed, might give that other person a sufficiently

concrete injury to allow a different federal court to

entertain a lawsuit. It did not find a case or

controversy in the lawsuit before it, Morgan v. Twitter.

The decision below also violated Article III’s further

requirement that to exercise federal jurisdiction a

court must conclude that the injury is “actual or

imminent, not conjectural or hypothetical …” Lujan,

504 U.S. at 560. The plaintiffs in Lujan forfeited Article

III standing because they only alleged conjectural or

hypothetical injuries. Here, the Ninth Circuit made up

its own conjectural and hypothetical injury on

Morgan’s behalf, and then relied on that hypothesis as

the source of its authority to rule on the merits. It had

no authority to look beyond the pleadings to solicit an

injury on Morgan’s behalf. Before reaching the merits,

it had to find a concrete injury—if one exists—in his

allegations.

As the Court stated in Warth v. Seldin, 422 U.S. 490,

498 (1975), “In essence the question of standing is

whether the litigant is entitled to have the court decide

the merits of the dispute or of particular issues.” This

question does not consider the merits of any possible

dispute, or the merits of a different but similar dispute,

but only the merits of the specific, as-pled dispute

concerning the particular issues brought forward by

the plaintiff. Thus, the Warth court held, the court

must determine “whether the plaintiff has made out a

‘case or controversy’ between himself and the

defendant within the meaning of Art. III.” Id. In Warth,

the Court emphasized the mandatory focus on the

actual fact allegations of the complaint:

For purposes of ruling on a motion to dismiss

for want of standing, both the trial and

reviewing courts must accept as true all

material allegations of the complaint, and

must construe the complaint in favor of the

complaining party. … At the same time, it is

within the trial court’s power to allow or to

require the plaintiff to supply, by amendment

to the complaint or by affidavits, further

particularized allegations of fact deemed

supportive of plaintiff ’s standing. If, after this

opportunity, the plaintiff ’s standing does not

adequately appear from all materials of

record, the complaint must be dismissed.

Warth, 422 U.S. at 501–02. Here, Morgan’s standing

did not adequately appear from all the materials of

record, according to the Ninth Circuit, so it

manufactured new materials of its own accord in order

to create a basis for its exercise of jurisdiction.

The Ninth Circuit itself has articulated the same

rule that it ignored here: “We must follow the rule that

if a plaintiff does not allege standing in its complaint,

we have no jurisdiction to hear the case.” Skaff v.

Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 837

(9th Cir. 2007). Although the Ninth Circuit ignored the

requirement in this case, it and its sister circuits

routinely cite and apply it. Four examples from just

the past 24 months confirm how far afield the Ninth

Circuit roamed in its decision:



The D.C. Circuit recently dismissed a Trafficking

Victims Protection Reauthorization Act claim

where “Plaintiffs lack standing because they

have not clearly alleged facts demonstrating the

causal connection between the Importers’ alleged

supply chain venture and the Plaintiffs’ forced

labor.” Coubaly v. Cargill Inc., 144 F.4th 343, 348

(D.C. Cir. 2025) (cleaned up).



The Second Circuit reversed a standing dismissal,

noting that when “standing is challenged on the

basis of the pleadings, we accept as true all

material allegations of the complaint … the

plaintiff must clearly allege facts demonstrating each element of standing.” New York, by

James v. Niagara-Wheatfield Cent. Sch. Dist.,

119 F.4th 270, 278–79 (2d Cir. 2024) (cleaned up).



The Fifth Circuit reversed a standing and justiciability dismissal after reviewing to determine

whether “there are sufficient allegations of

fact—not proof—in the complaint or supporting

affidavits.” Ondrusek v. United States Army Corps

of Eng’rs, 123 F.4th 720, 728 (5th Cir. 2024).



The Sixth Circuit, dismissing a lawsuit for lack

of standing at the Rule 12 stage earlier this

year, reiterated that the “court must “take the

allegations in the complaint as true. … [and]

construe the complaint in favor of the

complaining party.” Associated Builders &

Contractors of Michigan v. Cowen, No. 23-1803,

2025 WL 488556, at *3 (6th Cir. Feb. 13, 2025)

(cleaned up).

By purporting to ground its Article III power in

something other than the dispute that Morgan

presented, the Ninth Circuit voluntarily elected to act

as a “vehicle for the vindication of the value interests

of concerned bystanders.” Allen v. Wright, 468 U.S. 737,

756 (1984). In so doing, it failed to ask the basic

question of standing. “As Justice Scalia memorably

said, Article III requires a plaintiff to first answer a

basic question: ‘What’s it to you?’ … For a plaintiff to

get in the federal courthouse door and obtain a judicial

determination of what the governing law is, the

plaintiff cannot be a mere bystander, but instead must

have a ‘personal stake’ in the dispute.” Food & Drug

Admin. v. All. for Hippocratic Med., 602 U.S. 367, 379

(2024). No plaintiff has a personal stake in a dispute

invented out of whole cloth by the reviewing court,

found nowhere in the pleadings, and lacking the

required “what’s it to you.”

B. The Actual Dispute Does Not Allege An

Article III Harm.

In its zeal to rule on the merits, the Ninth Circuit

relied on the potential that a different claim under

RCW 9.26A.140 might allege a privacy harm sufficient

for Article III jurisdiction. It did so because the actual

claim Morgan raised does not—a point Twitter

actually conceded in its Opposition on appeal. Morgan

alleged that Twitter used deceptive means to procure

his cell phone number, but he did not allege any

invasion of his privacy. Although the Washington state

legislature plainly created a private cause of action for

this conduct, allowing Morgan to seek judicial redress

in the form of statutory damages, the remedy provided

by the statute was not dependent upon a showing that

the defendant’s conduct caused “injuries with a close

relationship to harms traditionally recognized as

providing a basis for lawsuits in American courts.”

TransUnion, 594 U.S. at 425. TransUnion identified,

as examples of claims qualifying for Article III

jurisdiction, “reputational harms, disclosure of private

information, and intrusion upon seclusion.” Id. Taking

a cell phone number is unlike any of these, as the

Ninth Circuit recognized when it sought out a

different violation to support standing. One of the

harms that RCW 9.26A.140(1)(b) seeks to remedy—

and the only one for which Morgan sought a remedy—

is the use of deceptive means to procure cell phone

numbers, for which the statute provides statutory

damages, without regard to whether any privacy

interests of the consumer have been invaded.

In Spokeo and TransUnion, this Court recognized

that federal courts can hear claims concerning types of

privacy harms akin to those known to the common

law and therefore “providing a basis for lawsuits in

American courts.” TransUnion, 594 U.S. at 425. The

Ninth Circuit, in the decision below, accurately

described the kinds of concrete harms that could give

rise to Article III standing. As its silence on the point

demonstrates, none of the harms it identified could

possibly result from taking a cell phone number. Citing

the Restatement (Second) of Torts (Am. Law Inst. 1977) §

652B, cmt. b and the federal TRRPA, Ninth Circuit

noted that the tort of intrusion upon seclusion “can

occur when there is an investigation or examination

into the plaintiff ’s private concerns, as by opening his

private and personal mail, searching his safe or his

wallet, or examining his private bank account. Given

the extent of information someone can glean about

another from their telephone records, it could be just

as intrusive to view the records as it would be to open

someone’s mail.” App. 5a (cleaned up). The Ninth Circuit

then focused on the unpled question of taking call logs

for the very reason that none of the privacy-related

concrete harms it identified as creating Article III

standing could result from taking a cell phone number.

The Ninth Circuit’s reliance on the Second Restatement

follows Washington law, which recognizes a common

law right to privacy. However, that common law right

only protects the privacy of a person’s information

concerning those “phases of his life and his activities

and some facts about himself that he does not expose

to the public eye, but keeps entirely to himself or at

most reveals only to his family or to close personal

friends.” Cowles Publ’g Co. v. State Patrol, 109 Wash.

2d 712, 721 (1988) (quoting Restatement (Second) of

Torts § 652D cmt. b, at 386). The state supreme court,

like the Ninth Circuit and this Court, looks to the

Second Restatement to determine whether a particular

act does or does not violate the common law right to

privacy. In Cowles, the Washington Supreme Court

reiterated that it had “adopt[ed] the Restatement

standard as the controlling one.” Id. at 721. The types

of information protected by the common law right to

privacy are nothing at all like a cell phone number:

Sexual relations, for example, are normally

entirely private matters, as are family

quarrels, many unpleasant or disgraceful or

humiliating illnesses, most intimate personal

letters, most details of a man’s life in his

home, and some of his past history that he

would rather forget. When these intimate

details of his life are spread before the public

gaze in a manner highly offensive to the

ordinary reasonable man, there is an

actionable invasion of his privacy, unless the

matter is one of legitimate public interest.

Cowles, 109 Wash. 2d at 721 (quoting Restatement

(Second) of Torts § 652D, at 383 cmt. b.).

The Ninth Circuit has previously recognized the

application of the Second Restatement standard as

determining the metes and bounds of standing under

Article III’s concrete injury requirement. In Phillips v.

U.S. Customs & Border Prot., 74 F.4th 986 (9th Cir.

2023), the Ninth Circuit affirmed a dismissal for lack

of Article III cognizable harm where plaintiffs alleged

that the CBP had created and retained records in

violation of their constitutional rights. It held:

Plaintiffs do not show that the type of

information contained in the records—names,

birthdays, social security numbers, occupations,

addresses, social media profiles, and political

views and associations—is so sensitive that

another’s access to that information “would be

highly offensive to a reasonable person,”

Restatement (Second) of Torts § 652B, or

otherwise gives rise to reputational harm or

injury to privacy interests. A person’s name,

address, date and place of birth, place of

employment, and social security number are

not generally considered private.

Phillips, 74 F.4th 995-996. A cell phone number is like

a social security number, address, or place of employment. All of these comprise data that people generally

do not consider private. Nor would its disclosure be

highly offensive to the ordinary reasonable person.

Under the very standard cited by the Ninth Circuit

below, the actual violation alleged by Morgan does not

allege a concrete harm sufficient to confer standing on

a federal court. The Ninth Circuit could only find its

way past the constitutional limits on its authority to

reach the merits by ignoring the actual claim pled in

the Complaint and FAC.

Indeed, the complete silence on this point in the

decisions below highlights the defect in federal

jurisdiction. Both the district court and Ninth Circuit

based their decisions on both concrete Article III

eligible harm, as well as merits statutory construction, on the contents of a different, later-passed

federal statute, using its different definitions and

Congressional findings to conclude that RCW 9.26A.140

only protected call logs held by telephone companies.

Because Congress had made specific findings as to the

nature of private, personal data that could be gleaned

from call logs, therefore procuring those call logs would

create an Article III harm. But neither court ever found

that procuring a cell phone number would cause concrete,

Article III cognizable harm. Moreover, both the district

court and the Ninth Circuit ignored the provision in

the statute of a remedy—statutory damages—that did

not require any showing that the plaintiff had suffered

an invasion of privacy or quantifiable harm.

The Ninth Circuit’s decision on the merits of the

statute clearly states that Morgan failed to allege

that Twitter had caused him a privacy harm. It

concluded that the statute:

prohibits the fraudulent collection of telephone

records, not numbers. The definition of a

“telephone record” includes difficult-to-obtain,

nonpublic information about a customer’s

calling behavior—such as who, when, and

how long they are calling—revealing that

protection of an individual customer’s phone

number is not the purpose of this statute. …

This understanding aligns with the legislature’s intent to protect highly sensitive

information from pretexting. … Morgan

alleged that Twitter obtained only his phone

number, so he failed to state a claim under

RCW 9.26A.140(1)(b).

App. 6a.3 Under this analysis, Morgan failed to state a

claim because he failed to allege the invasion of a

privacy interest that caused him concrete harm. But if

he failed to allege the invasion of a privacy interest

that caused Article III cognizable harm, then the

Ninth Circuit lacked constitutional authority to

proceed so far as to construe the statute at all.

The Ninth Circuit could not find any basis in the

actual dispute between Morgan and Twitter on which

to base its exercise of jurisdiction, so it manufactured

a different dispute for the purpose of reaching the

statutory construction merits. When it arrived there,

its own analysis demonstrated that the dispute found

in the pleadings fails to allege any of those “injuries

with a close relationship to harms traditionally

recognized as providing a basis for lawsuits in American

courts.” TransUnion, 594 U.S. at 425.

For this reason as well, the Ninth Circuit’s decision

to rule on the abandoned claim under RCW 9.26A.140(1)(a)

exceeded its constitutional authority. Even if that

claim were not moot—and therefore insufficient to

maintain standing—the Ninth Circuit did not, and

could not, conclude that the sales claim alleged a concrete

harm. Again, it expressly found that Morgan did not

allege procurement of, nor sales of, “difficult-to-obtain,

nonpublic information.” App. 6a. Nor could it find that

This extraordinarily narrow construction runs counter to all

Washington state canons of construction and the explicit affirmation

of every iteration of the bill reports which assert that the

Legislature intended to protect consumers’ cell phone numbers.

a cell phone number is akin to a person’s name or

likeness, such that a person incurs a harm from

someone else capitalizing on it. As to likenesses, “both

the common law and the literal understandings of

privacy encompass the individual’s control of

information concerning his or her person.” U.S. Dep’t

of Just. v. Reps. Comm. For Freedom of Press, 489 U.S.

749, 763 (1989). But the common law limits could not

extend to phone numbers. “In an organized society,

there are few facts that are not at one time or another

divulged to another. Thus the extent of the protection

accorded a privacy right at common law rested in part

on the degree of dissemination of the allegedly private

fact and the extent to which the passage of time

rendered it private.” Id. No privacy, no harm.

The Ninth Circuit made no attempt to show that

taking and selling someone’s non-private cell phone

number would cause an “injur[y] with a close relationship to harms traditionally recognized as providing a

basis for lawsuits in American courts.” TransUnion,

594 U.S. at 425. Many courts have agreed that taking

and selling a picture of a person’s face does. See, e.g.,

Kellman v. Spokeo, Inc., 599 F. Supp. 3d 877 (N.D. Cal.

2022) (Article III standing for a claim that another

party gained commercial value from plaintiff ’s image

and likeness; collecting cases pro and con). But collecting and selling a cell phone number is more akin to

taking a picture of a person’s flashy Ferrari parked on

the street, and then selling it. True, not everyone is in

a position to photograph the car; it may not be

universally known and recognized. But the owner still

has no cognizable privacy interest sufficient to create

an Article III harm in the taking of the photograph,

and that lack of harm does not generate Article III

standing when it is subsequently published or sold.

This conclusion accords with Washington state

statutes and judicial application of the common law of

privacy. RCW 4.24.790 creates a cause of action for

harming another person by impersonating him on a

social network, where impersonating means “using an

actual person’s name or likeness to create an impersonation that another person would reasonably believe

or did reasonably believe was or is the actual person

being impersonated.” And the state supreme court has

confirmed that the common law right of privacy

extends to, e.g., a family’s interest in non-publication

of autopsy photographs of a deceased relative. See Reid

v. Pierce Cnty., 136 Wash. 2d 195, 211 (1998). But the

Ninth Circuit found no basis in common law, statute,

or this Court’s Article III jurisprudence to extend that

protection to cell phone numbers.

Because the Ninth Circuit could not identify any

Article III cognizable protection for Morgan’s cell

phone number, it also failed to find any basis for its

authority to decide the merits of the question of

whether he stated a claim for Twitter selling it,

irrespective of whether that claim was mooted by his

decision to abandon it.

C. An Abandoned Claim Is Moot And

Cannot Create Article III Standing.

Compounding its error, the Ninth Circuit proceeded

to rule on a moot claim (one that Morgan had

abandoned), merely because the allegations remained

in the most recently permitted pleading. This basis for

asserting Article III jurisdiction finds support neither

in this Court’s jurisprudence, nor in prior Ninth

Circuit cases, nor in cases from any other court. As this

Court has stated, mootness is “the doctrine of standing

set in a time frame: The requisite personal interest

that must exist at the commencement of the litigation

(standing) must continue throughout its existence

(mootness).” Geraghty, 445 U.S. at 397. After Morgan

disclaimed any personal interest, on his own behalf or

on behalf of the putative class, in the RCW

9.26A.140(1)(a) claim, that claim became moot. The

Ninth Circuit disregarded this, asserting that as long

as the claim could be found in the operative pleading

at the trial court, it was not moot.

However, it cited no case in support, because none

exist. This very Court dismisses claims on appeal

without regard for the specific contents of caseinitiating pleadings, because “Article III demands that

an ‘actual controversy’ persist throughout all stages of

litigation. … That means that standing must be met

by persons seeking appellate review, just as it must be

met by persons appearing in courts of first instance.”

Hollingsworth v. Perry, 570 U.S. 693, 705 (2013)

(vacating a decision of the Ninth Circuit for lack of

standing on appeal). Even where the case-initiating

pleadings satisfied Article III, and standing existed at

the intermediate appellate court, this Court will

dismiss a moot claim. See, e.g., New York State Rifle &

Pistol Ass’n, Inc. v. City of New York, New York, 590

U.S. 336 (2020). This is because “federal courts

may adjudicate only actual, ongoing cases or controversies. … A litigant must have suffered, or be

threatened with, an actual injury traceable to the

defendant and likely to be redressed by a favorable

judicial decision” so that the plaintiff “continues to

have a personal stake in the outcome of the lawsuit …”

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-478 (1990)

(cleaned up, emphasis added). Morgan repeatedly

averred that as to any claim under RCW 9.26A.140(1)(a),

nether he nor any member of the putative class claimed

to have suffered any injury traceable to Twitter, and

therefore had no personal stake in the outcome. In

Lewis, just as in New York State Rifle & Pistol Ass’n,

the Court’s mootness inquiry did not address the

contents of the last-filed complaint at trial court.

The alternative mode of inquiry, applied here by the

Ninth Circuit, simply disregards the mootness inquiry

entirely, replacing it with mere review of the trial court

documents present in the appellate record. This is not

the required inquiry into whether the dispute actually

continues to present a case or controversy.

The decision to preserve jurisdiction also has no

support in this Court’s more recent decision in Royal

Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025).

There, this Court held: “When a plaintiff amends her

complaint following her suit’s removal, a federal court’s

jurisdiction depends on what the new complaint says.

If (as here) the plaintiff eliminates the federal-law

claims that enabled removal, leaving only state-law

claims behind, the court’s power to decide the dispute

dissolves.” Id. at 30. Here, of course, Morgan made

every effort to amend, to eliminate the fact basis on

which the District Court had initially found Article III

harm—the facts supporting a violation of RCW

9.26A.140(1)(a), the sales claim. Where the District

Court indicated that the constitutional hook for the

exercise of jurisdiction was found in its resemblance to

the common law privacy tort of disclosure of private

information, Morgan immediately sought to amend to

eliminate any allegation of disclosure. Importantly,

under existing Ninth Circuit precedent, Morgan

could not use Fed. R. Civ. P. 41 to dismiss a claim

under RCW 9.26A.140(1)(a) while retaining a claim

under RCW 9.26A.140(1)(b). The Ninth Circuit has

held that Rule 41 “does not allow for piecemeal

dismissals. Instead, withdrawals of individual claims

against a given defendant are governed by Fed. R. Civ.

P. 15, which addresses amendments to pleadings.”

Hells Canyon Pres. Council v. U.S. Forest Serv., 403

F.3d 683, 687 (9th Cir. 2005); accord Walker v. State,

No. 24-1806, 2025 WL 2970598, at *8 (9th Cir. Oct. 22,

2025) (applying both Hells Canyon and Royal Canin,

noting that “we have taken a functional approach

when analyzing the effect of a plaintiff ’s attempt to

dismiss individual claims. ‘The fact that a voluntary

dismissal of a claim under Rule 41(a) is properly

labeled an amendment under Rule 15 is a technical,

not a substantive, distinction.’”).

Ignoring the principle that “the court should freely

give leave [to amend] when justice so requires,” Fed. R.

Civ. P. 15, as well as the fact that the only activity in

the case when Morgan sought leave to file his SAC

had been a Motion to Remand, the district court

denied Morgan’s Motion to Amend. Its denial cited

purported prejudice to Twitter should it not receive the

benefit of the district court’s forthcoming favorable

decision on the merits.4 But its continued assertion of

federal jurisdiction, and the Ninth Circuit’s affirmation,

cannot be squared with this Court’s mootness jurisprudence, in light of Morgan taking every

available step to formalize what he repeatedly stated:

there no longer existed between him (or any class

member) and Twitter any form of dispute as to

whether Twitter had sold phone numbers. Here, circuit

precedent barred any activity under Rule 41(a)

that would have preserved the sole remaining claim

in dispute, procurement. The district court denied

amendment and the Ninth Circuit affirmed, but the

In its decision denying amendment, the district court

predicted its eventual decision on the merits would be favorable

to Twitter. After all, how would Twitter have been prejudiced by

being spared an unfavorable decision?

“prejudice” to Twitter was no different from that of any

defendant who seeks a favorable advisory opinion as

to the merits of an issue no longer in dispute with the

named plaintiff. In short, the courts below disregarded

the substance of whether or not a dispute existed by

pointing to the form of pleadings—pleadings they

refused to allow Morgan to alter—in order to fabricate

the appearance of an Article III case or controversy

without any actual substantive dispute.

II. This Case Is An Ideal Vehicle For

Summarily Reversing Or Resolving The

Question Presented On The Merits.

This case is an ideal vehicle for clarifying standing

in state law statutory damages cases. The issues are

purely legal, sufficiently presented, and sufficiently

vetted. Indeed, the conflict with this Court’s cases is so

clear that this Court may wish to consider summary

reversal without the need for full briefing and argument.

See, e.g., Tolan v. Cotton, 572 U.S. 650, 659 (2014) (per

curiam) (summarily reversing “because the opinion below

reflects a clear misapprehension of [the applicable]

standards in light of our precedents”); Fla. Dep’t of

Health & Rehab. Servs. v. Fla. Nursing Home Ass’n,

450 U.S. 147, 150 (1981) (per curiam) (summarily

reversing an opinion that could not “be reconciled with

the principles set out” in this Court’s jurisprudence).

Review is warranted; further percolation is unnecessary;

and delay will only further erode Article III limits on

federal courts.

The Ninth Circuit’s decision represents a novel and

completely unsupported departure from this Court’s

jurisprudence defining the limits of the constitutional

authority of federal courts to decide only cases and

controversies. The Ninth Circuit did not merely

engage in the “misapplication of a properly stated rule

of law,” U.S. Sup. Ct. R. 10, but manufactured an

entirely new rule. Under that new rule, standing

depends on the whether a statute can be construed to

protect against constitutionally cognizable harms,

rather than whether a plaintiff actually alleges such a

harm. The decision runs so far afield from this Court’s

repeated directions to the Ninth Circuit concerning

limits on its authority to decide class actions that it is

unlikely ever to be taken up as persuasive authority

by another circuit court. This Court would wait in vain

for a circuit split. Instead, it shows that the Ninth

Circuit “has so far departed from the accepted and

usual course of judicial proceedings, or sanctioned

such a departure by a lower court, as to call for an

exercise of this Court’s supervisory power …” Id.

This Court’s attention and summary reversal is

therefore warranted. The Ninth Circuit prefers to

apply its own standards to class actions, regardless of

whether it has the constitutional authority to do so. In

Spokeo and TransUnion, it did so in well-reasoned and

published opinions—which this Court nonetheless

reversed. Here, it did so in an unpublished per curiam

opinion, but the terseness of the opinion does not

minimize the Ninth Circuit’s fundamental constitutional

overreach. It engaged in that overreach, tucked away

in a brief and unpublished opinion, to construe RCW

9.26A.140 in a way that ensures the statute could

never protect Washington residents from any known

form of corporate misconduct.

While this Court takes no interest in the merits or

demerits of a regional circuit’s construction of a single

section of a state’s code, it must take interest in the

fact that the Ninth’s Circuit has elected to disregard

the constitutional limits on federal court authority in

order to reach those merits. Its merits decision

affirmed the refusal of the district court to certify the

question of the meaning of the statute to the

Washington Supreme Court. On the merits, taking on

the role of the Washington Supreme Court, it once

again “departed from the accepted and usual course of

judicial proceedings …” U.S. Sup. Ct. R. 10. With no

plausible basis for opting to exercise the judicial power

of the United States, the Ninth Circuit construed

the statute using methods no Washington court has

ever employed, in order to impose a construction no

Washington court would ever agree with. It disregarded most of the statutory text, cherry-picking

partial phrases. It imported definitions from a laterpassed federal statute that could not have informed

the earlier work of the Washington Legislature, a mode

of construction with no support in any state or federal

case. It ignored decades-old, routinely applied state

law canons of statutory construction. It ignored the

bill reports that flatly contradict its conclusion as to

the “intent” of the Legislature that enacted RCW

9.26A.140. Indeed, as Morgan repeatedly argued to the

trial court and Ninth Circuit, Washington courts

routinely cross-check their statutory construction

against the bill description in the Final Bill Report

delivered to every member before the vote on a

Washington law. It appears that no Washington state

court has ever construed a state statute to mean the

opposite of what is found in the Final Bill Report,

making this unpublished opinion absolutely unique in

both its method of statutory construction and final

result. That final result constrained the judicially

interpreted meaning of RCW 9.26A.140 so severely

that the law is unlikely ever to be employed as its

drafters intended. At Twitter’s request, the Ninth

Circuit construed the statute to protect Twitter and

other tech companies from the state-law repercussions

of their misconduct, holding instead that it only

proscribes hackers stealing data from phone companies.5

The only vehicle available to allow state courts to

correct this error of state law is “an exercise of this

Court’s supervisory power …” U.S. Sup. Ct. R. 10. The

Ninth Circuit’s novel approach to standing lacks

constitutional support, and neither it nor the district

court had authority to act in the first instance.

Granting the petition, vacating the decisions below,

and remanding with instructions to return the matter

to Spokane County Superior Court will allow the

Washington state courts, in the first instance, to

construe this state statute in accordance with established Washington jurisprudence.

The record before the courts below, comprising the extensive

disclosures of Peter “Mudge” Zatko, showed that Twitter has also

avoided the federal law repercussions of its misconduct by simply

not bothering to comply with the two FTC consent decrees it

entered into, both overseen by the Northern District of California.

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

JOEL ARD

Counsel of Record

ARD LAW GROUP PLLC

P.O. Box 281

Kingston, WA 98346

(206) 701-9243

joel@ard.law

Counsel for Petitioner

December 5, 2025

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: MEMORANDUM OPINION,

U.S. Court of Appeals for the Ninth Circuit

(April 30, 2025) ....................................................

APPENDIX B: ORDER, U.S. Court of Appeals

for the Ninth Circuit (July 9, 2025) ....................

APPENDIX C: ORDER DENYING PLAINTIFF’S

MOTION FOR REMAND AND MOTION TO

CERTIFY, AND GRANTING DEFENDANT’S

MOTION TO DISMISS, U.S. District Court for

the Eastern District of Washington (November

22, 2023) ...............................................................

APPENDIX D: ORDER DENYING PLAINTIFF’S

MOTION FOR LEAVE TO FILE SECOND

AMENDED COMPLAINT, U.S. District Court

for the Eastern District of Washington (August

31, 2023) ...............................................................

50a

APPENDIX E: ORDER DENYING PLAINTIFF’S

MOTION TO REMAND, U.S. District Court for

the Eastern District of Washington (May 5, 2023)

61a

APPENDIX F: RCW 9.26A.140 ...........................

90a

APPENDIX G: U.S. Const. art. III .....................

93a

APPENDIX H: FINAL BILL REPORT ESSB

6776, C 193 L 06, Synopsis as Enacted ..............

94a

APPENDIX I: SENATE BILL REPORT SB 6776,

As Reported By Senate Committee On: Water,

Energy & Environment (February 2, 2006) .......

96a

APPENDIX J: Written Statement of Peiter

(“Mudge”) Zatko, United States Senate Judiciary

Committee (September 13, 2022)........................

99a

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[FILED: APR 30 2025]

————

No. 23-3764

D.C. No. 2:22-cv-00122-MKD

————

GLEN MORGAN, individually and on behalf of all

others similarly situated,

Plaintiff - Appellant,

TWITTER, INC.,

Defendant - Appellee.

————

Appeal from the United States District Court

for the Eastern District of Washington

Mary K. Dimke, District Judge, Presiding

Argued and Submitted February 11, 2025

Seattle, Washington

————

MEMORANDUM*

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Before: GOULD and NGUYEN, Circuit Judges, and

BENNETT, District Judge.**

Glen Morgan brought a putative class action against

Twitter,1 alleging that Twitter violated Washington’s

statute, RCW 9.26A.140, prohibiting the deceptive

procurement and sale of telephone records. Morgan

appeals the district court’s denial of his motions for

remand, motion for leave to amend the complaint, and

dismissal of the complaint. We review de novo a denial

of a motion for remand, see Harris v. Bankers Life &

Cas. Co., 425 F.3d 689, 692 (9th Cir. 2005); questions of

Article III standing, see Tingley v. Ferguson, 47 F.4th

1055, 1066 (9th Cir. 2022); and dismissal for failure to

state a claim, see id. We assess for abuse of discretion

denial of leave to amend. Hoang v. Bank of Am., N.A.,

910 F.3d 1096, 1102 (9th Cir. 2018). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. The district court properly denied Morgan’s first

motion for remand based on untimeliness. A defendant

must file a notice of removal either (1) within thirty

days after the defendant receives the initial pleading

or (2) “if the case stated by the initial pleading is not

removable,” within thirty days after the defendant

receives “a copy of an amended pleading, motion, order

or other paper from which it may first be ascertained

that the case is one which is or has become removable.”

28 U.S.C. § 1446(b); Harris, 425 F.3d at 692–93.

The Honorable Richard D. Bennett, United States District

Judge for the District of Maryland, sitting by designation.

Twitter, Inc. merged into X Corp. and no longer exists. The

Twitter platform was renamed “X.” Given the timing of the events

at issue, X Corp. refers to itself and X as “Twitter” for purposes of

this appeal.

Morgan’s initial pleading and subsequent “other

papers” did not provide an estimated class size, such

that Twitter could have determined whether the Class

Action Fairness Act’s $5,000,000 amount-in-controversy

requirement would have been met. See 28 U.S.C.

§ 1332(d)(2). The thirty-day time limit did not begin

even though Twitter could have estimated the class

size using its own customer data or information from

an identical lawsuit. See Kuxhausen v. BMW Fin.

Servs. NA LLC, 707 F.3d 1136, 1141 (9th Cir. 2013)

(“[W]e declined to hold that materials outside the

complaint start the thirty-day clock.”).

2. The district court did not abuse its discretion in

denying leave to file a second amended complaint. The

district court identified the proper legal rule, citing to

United States v. Corinthian Colleges, 655 F.3d 984, 995

(9th Cir. 2011), which directs the district court to

consider five factors: “bad faith, undue delay, prejudice

to the opposing party, futility of amendment, and

whether the plaintiff has previously amended the

complaint.”

The district court properly evaluated and made

findings on each factor. First, Morgan had already filed

an amended complaint. Second, amendment would

have been futile because Morgan did not “state what

additional facts [he] would plead if given leave to

amend,” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042,

1052 (9th Cir. 2008) (emphasis added); he only sought

to delete allegations, see DCD Programs, Ltd. v.

Leighton, 833 F.2d 183, 188 (9th Cir. 1987). Third,

Twitter would have been prejudiced as the amendment

would have further delayed the case, required another

round of unnecessary briefing, forced Twitter to refile

a substantially similar motion to dismiss, and denied

Twitter a chance to have the deleted claim addressed

on the merits. See e.g., AmerisourceBergen Corp. v.

Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006).

Fourth, undue delay resulted from the extra motion

practice of Morgan’s overriding filings, and Morgan

could have made the requested amendments much

earlier. See id.

3. Even if the district court had granted Morgan

leave to file a second amended complaint, the

remaining allegations provided Article III standing, so

the district court correctly rejected Morgan’s second

remand motion. See TransUnion LLC v. Ramirez, 594

U.S. 413, 423 (2021). An intangible harm can qualify

as an injury in fact where the legislature “elevate[d] to

the status of legally cognizable injuries concrete, de

facto injuries that were previously inadequate in law.”

Id. at 425 (internal quotation marks omitted). A

violation of a statute “codify[ing] a substantive right to

privacy . . . gives rise to a concrete injury sufficient to

confer standing.” In re Facebook, Inc. Internet Tracking

Litig., 956 F.3d 589, 598 (9th Cir. 2020); see, e.g.,

Eichenberger v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir.

2017). Here, RCW 9.26A.140(1)(b)—which proscribes

the procurement of a “telephone record” of another

“[b]y fraudulent, deceptive, or false means”— codifies

a substantive privacy right in one’s telephone record.

A telephone record can contain highly sensitive

information, such as “the telephone number dialed by

the customer or the incoming number or call directed

to a customer, . . . the time the call started and ended,

the duration of the call, [and] the time of day the call

was made . . . .” RCW 9.26A.140(3)(b). The Washington

legislature intended this statute to prevent disclosure

of this information due to pretexting, which is when

someone impersonates a customer to access their

information. As a result, this statute is an example of

a legislature “ensuring that consumers retain control

over their personal information.” Eichenberger, 876

F.3d at 983.

Additionally, common intangible harms that result

in an injury in fact “are injuries with a close relationship to harms traditionally recognized as providing a

basis for lawsuits in American courts.” TransUnion,

594 U.S. at 425. RCW 9.26A.140(1)(b) is closely analogous to the historically-recognized intrusion upon

seclusion tort. See id. This tort can occur when there is

an “investigation or examination into [the plaintiff ’s]

private concerns, as by opening his private and personal

mail, searching his safe or his wallet, [or] examining

his private bank account.” Restatement (Second) of

Torts § 652B, cmt. b. Given the extent of information

someone can glean about another from their telephone

records, it could be just as intrusive to view the records

as it would be to open someone’s mail. See Telephone

Records and Privacy Protection Act of 2006, PL 109476, Jan. 12, 2007, 120 Stat 3568 (recognizing that

“call logs may reveal the names of telephone users’

doctors, public and private relationships, business associates, and more”). Accordingly, alleging a violation of

RCW 9.26A.140(1)(b) gives rise to an Article III harm.

Further, Morgan conceded that the allegations

regarding Twitter’s wrongful sale of the telephone

numbers, see RCW 9.26A.140(1)(a), created an injury

in fact, and those allegations remained in the operative

complaint. Even if Morgan can be said to have abandoned

the sale allegations, that did not divest the district

court of jurisdiction over them. See BankAmerica

Pension Plan v. McMath, 206 F.3d 821, 826 (9th Cir.

2000) (affirming summary judgment of an abandoned

claim); Ramirez v. City of Buena Park, 560 F.3d 1012,

1026 (9th Cir. 2009) (same). Nor were the sale

allegations moot because they lacked merit. See, e.g.,

Ariz. State Legislature v. Ariz. Indep. Redist. Comm’n,

576 U.S. 787, 800 (2015) .

4. The district court provided four independent

reasons for dismissing Morgan’s complaint for failure

to state a claim, see Fed. R. Civ. P. 12(b)(6), each of

which was sufficient to support the dismissal. First,

RCW 9.26A.140(1)(b) prohibits the fraudulent collection

of telephone records, not numbers. The definition of a

“telephone record” includes difficult-to-obtain, nonpublic

information about a customer’s calling behavior—such

as who, when, and how long they are calling—

revealing that protection of an individual customer’s

phone number is not the purpose of this statute. RCW

9.26A.140(5)(b); see Yates v. United States, 574 U.S.

528, 543–44 (2015); accord State v. Roggenkamp, 106

P.3d 196, 200 (Wash. 2005). This understanding aligns

with the legislature’s intent to protect highly sensitive

information from pretexting. Rest. Dev., Inc., 150 Wash.

2d at 682. Morgan alleged that Twitter obtained only

his phone number, so he failed to state a claim under

RCW 9.26A.140(1)(b).

Second, the statute only covers a telephone record

that is falsely obtained from a telecommunications

company, not an individual. The definition of “telephone

record” is limited to “information retained by a

telecommunications company.” RCW 9.26A.140(5)(b).

Morgan insufficiently alleged that Twitter obtained

his telephone number directly from him.

Third, Morgan’s claim sounded in fraud, yet he did

not meet the higher pleading standards required.2 See

RCW 9.26A.140 need not require a showing of fraud for the

higher pleading standard to apply. See Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1103 (9th Cir. 2003). Under Washington law,

there are nine elements constituting fraud in the inducement, see

Fed. R. Civ. P. 9(b). “To properly plead fraud with

particularity under Rule 9(b), a pleading must identify

the who, what, when, where, and how of the misconduct charged, as well as what is false or misleading

about the purportedly fraudulent statement, and why

it is false.” Davidson v. Kimberly-Clark Corp., 889 F.3d

956, 964 (9th Cir. 2018) (cleaned up). Morgan did not

identify a specific statement by Twitter he believed to

be false.

Fourth, Morgan’s failure to identify a specific misleading statement additionally failed the basic pleading

requirements of Federal Rule of Civil Procedure

8(a)(2). Morgan’s complaint was properly dismissed.

AFFIRMED.

Elcon Const., Inc. v. E. Wash. Univ., 174 Wash. 2d 157, 166 (2012),

and Morgan’s operative complaint alleged facts meeting all nine

elements.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[FILED: JUL 9 2025]

————

No. 23-3764

D.C. No. 2:22-cv-00122-MKD

————

GLEN MORGAN, individually and on behalf of all

others similarly situated,

Plaintiff - Appellant,

TWITTER, INC.,

Defendant - Appellee.

————

Eastern District of Washington, Spokane

————

ORDER

Before: GOULD and NGUYEN, Circuit Judges, and

BENNETT, District Judge.*

Judge Gould and Judge Nguyen have voted to deny

the petition for rehearing en banc, and Judge Bennett

has so recommended. The full court has been advised

of the petition for rehearing en banc, and no judge of

the court has requested a vote on whether to rehear

the matter en banc. Fed. R. App. P. 40. The petition for

rehearing en banc (Dkt. # 51), filed May 13, 2025, is

DENIED.

The Honorable Richard D. Bennett, United States District

Judge for the District of Maryland, sitting by designation.

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

[FILED: Nov 22, 2023]

————

No. 2:22-cv-00122-MKD

————

GLEN MORGAN, individually and on behalf of all

others similarly situated,

Plaintiff,

TWITTER INC,

Defendant

————

ORDER DENYING PLAINTIFF’S MOTION FOR

REMAND AND MOTION TO CERTIFY, AND

GRANTING DEFENDANT’S MOTION TO DISMISS

ECF Nos. 43, 64, 67

Before the Court is Defendant’s Motion to Dismiss,

ECF No. 43; Plaintiff ’s Motion for Remand, ECF

No. 64; and Plaintiff ’s Motion to Certify Questions to

the Washington Supreme Court, ECF No. 67. On

November 15, 2023, the Court head argument on the

motions. Plaintiff was represented by Joel Ard and

David DeWolf. Defendant was represented by Thomas

Fu and Aravind Swaminathan. The Court has

reviewed the record, heard from counsel, and is fully

informed. The Court denies Plaintiff ’s Motion to

Remand, denies Plaintiff ’s Motion to Certify, and

grants Defendant’s Motion to Dismiss.

10a

BACKGROUND

Relevant to the instant matter is Gray v. Twitter,

Inc., a separate and earlier-filed—but otherwise

identical—suit brought under RCW 9.26A.140 in the

Western District of Washington. See No. 20-CV-1389

(W.D. Wash. filed Sept. 21, 2020). The plaintiff in that

matter was represented by the same attorney of record

and sought to certify a class of plaintiffs that would

have included Plaintiff Morgan. See Complaint at 8

¶ 71, Motion to Stay at 1, Gray, No. 20-CV-1389 (W.D.

Wash. 2020-22), ECF Nos. 1, 31. The intertwined

procedural histories of Gray and the instant case are

set forth below.

On September 21, 2020, Plaintiff Gray filed a Class

Action Complaint against Defendant Twitter, Inc., in

the U.S. District Court for the Western District of

Washington, asserting one cause of action under RCW

9.26A.140 and RCW 9A.82.100. Complaint at 10 ¶ 83,

Gray, No. 20-CV-1389 (W.D. Wash. Sept. 21, 2020), ECF

No. 1. Plaintiff Gray sought certification of a class of

plaintiffs including “[a]ll Washington persons who

provided a telephone number to Twitter prior to

October 8, 2019.” Id. at 8 ¶ 71.

On December 7, 2020, Defendant moved to dismiss

Plaintiff Gray’s Complaint under Fed. R. Civ. P. 12(b)(6).

Motion to Dismiss, Gray, No. 20-CV-1389 (W.D. Wash.

Dec. 7, 2020), ECF No. 17. The motion was referred to

a magistrate judge, who recommended dismissal on

March 17, 2021. Report & Recommendation, Gray, No.

20-CV-1389 (W.D. Wash. Mar. 17, 2021), ECF No. 22.

On April 1, 2021, Plaintiff Gray filed a Motion to

Certify Questions to the Washington Supreme Court.

Motion to Certify, Gray, No. 20-CV-1389 (W.D. Wash.

Apr. 1, 2021), ECF No. 24. Plaintiff Gray also filed

11a

objections to the magistrate judge’s Report and

Recommendation. Objections, Gray, No. 20-CV-1389

(W.D. Wash. Apr. 9, 2021), ECF No. 25. The matter was

thereafter reassigned to a new presiding district judge.

See generally Gray, No. 20-CV-1389 (W.D. Wash. 202122), ECF Nos. 29-31.

Plaintiff Morgan, represented by the same counsel

as the plaintiff in Gray, filed the instant case in

Spokane Superior Court on May 3, 2022. ECF No. 1 at

38-49.1 Two days later, Plaintiff Gray moved to stay the

case in the Western District of Washington, in light of

Plaintiff Morgan’s case, which she described as “[a]

related lawsuit raising class claims under the same

legal theory.” Motion to Stay at 1, Gray, No. 20-CV1389 (W.D. Wash. May 5, 2022), ECF No. 31. Plaintiff

Gray stated that a stay was appropriate because her

claims “appear[ed] likely to be fully and finally

adjudicated in state court.” Id.

On May 19, 2022, Defendant removed Plaintiff

Morgan’s case to this Court, invoking federal jurisdiction under the Class Action Fairness Act. ECF No. 1.2

Plaintiff Morgan moved to remand on May 26, 2022,

alleging that the Notice of Removal was untimely. ECF

No. 8. This motion underwent two rounds of briefing,

after Plaintiff Morgan challenged Article III standing

for the first time in his Reply brief. See ECF Nos. 2931, 33.

Plaintiff’s counsel has stated that Morgan is a resident of

Thurston County. ECF No. 40 at 8. The basis for venue in this

District (and, for that matter, in Spokane County) is unclear but

has yet to be litigated.

Defendant also moved to stay this case pending the

proceedings in Gray, but this motion was mooted by the voluntary

dismissal in Gray. ECF Nos. 5, 28.

12a

On July 21, 2022, the court in the Western District

of Washington denied Plaintiff Gray’s Motion to Stay,

citing the first-to-file rule, the significant resources

that had already been expended in the litigation, and

the lack of authority supporting Plaintiff Gray’s

“contention that it would be preferable for a state court

instead of a federal court to adjudicate her claims.”

Order, Gray, No. 20-CV-1389 (W.D. Wash. July 21,

2022), ECF No. 35.3

On August 24, 2022, the Court conducted a hearing

on Plaintiff Morgan’s Motion to Remand. ECF No. 26.

At that hearing, the Court noted the “inconsistency” of

Plaintiff ’s counsel’s argument that the district court

for the Eastern District of Washington lacked Article

III standing, when counsel had previously filed the

Gray case, containing the exact same claims, in the

district court for the Western District of Washington

and did not dismiss it after the Supreme Court decided

TransUnion, the decision which they cited for the

proposition that the Court in the Eastern District of

Washington lacked standing to consider the claim.

ECF No. 39 at 32 n.11; ECF No. 20 at 4-5. Six days

later, Plaintiff Gray filed a Notice of Voluntary Dismissal

under Fed. R. Civ. P. 41(a)(1)(A)(i). Notice, Gray, No. 20CV-1389 (W.D. Wash. Aug. 30, 2022), ECF No. 36.

In September and October 2022, Plaintiff Morgan

and Defendant submitted supplemental briefing on

the Article III issues. ECF Nos. 30-31, 33. In Plaintiff

Morgan’s sur-response, he contended Defendant was

“ask[ing] the Court to accept [Plaintiff] Morgan’s legal

theory as correct for purposes of evaluating Art. III

standing at remand, thereby allowing [Defendant]

The Court notes that Plaintiff Gray originally filed her case

in federal court and therefore chose the federal forum.

13a

promptly to ask this Court to find Morgan’s legal

theory incorrect for purposes of Rule 12(b)(6) moments

later, on a motion to dismiss.” ECF No. 31 at 6.4

On February 21, 2023, and while the Motion to

Remand was still pending, Plaintiff Morgan filed the

First Amended Complaint.5 ECF No. 35. More than 21

days had elapsed since Plaintiff Morgan served Defendant

with the original Complaint, so he was not permitted

to amend as a matter of course under Fed. R. Civ. P.

15(a)(1)(B). See ECF No. 1. Plaintiff Morgan did not

seek leave from the Court to amend, nor did he indicate

that he had obtained Defendant’s written consent, as

required by Fed. R. Civ. P. 15(a)(2). As the Court later

noted, the First Amended Complaint “appears to have

run afoul of Fed. R. Civ. P. 15,” but because Defendant

did not object to the amendment, “the Court took no

action” at that time. ECF No. 63 at 5-6.

The First Amended Complaint did not alter the

“Cause of Action” statement in the original Complaint.

Compare ECF No. 1 at 46 ¶¶ 81-84 with ECF No. 35 at

There was no Rule 12(b)(6) motion pending at this time—

Morgan appeared to be predicting that Defendant would file a

Rule 12(b)(6) motion in the future based on Defendant’s Rule

12(b)(6) motion in Gray.

Plaintiff’s counsel reportedly served the First Amended

Complaint upon Defendant “two and a half months before” filing

it and “had discussions with [Defendant] about it beginning

December 12, 2022.” ECF No. 40 at 5. This would have been

shortly after the close of supplemental briefing on Plaintiff

Morgan’s Motion to Remand, in which he claimed that Defendant

would be filing a Rule 12(b)(6) motion to dismiss “moments later.”

See ECF No. 31 at 6. In other words, it seems that Plaintiff

Morgan drafted the First Amended Complaint in anticipation of

an unfavorable ruling on the Motion to Remand and in

preparation for the Rule 12(b)(6) motion that Defendant would

likely file thereafter.

14a

26 ¶¶ 156-159. Rather, the amendments primarily

supplemented or revised the factual allegations underlying that cause of action. Compare ECF No. 1 at 3847 with ECF No. 35. In particular, the First Amended

Complaint added sections describing Defendant’s 2011

and 2020-21 settlements with the Federal Trade

Commission; Defendant’s public statement to users on

October 8, 2019; and a whistleblower’s allegations

against Defendant in 2022 disclosures to Congress.

See ECF No. 35 at 6-19. The First Amended Complaint

also supplemented the allegations relating to RCW

9.26A.140 and moved the Subsection (1)(a) allegations

into a separate heading, apart from the Subsection

(1)(b) allegations, although continuing to assert a “sole

Count.” See ECF No. 35 at 20-21, 26.

On May 5, 2023, the Court ruled that Plaintiff

Morgan had Article III standing. ECF No. 39. In

particular, the Court found that Plaintiff Morgan’s

alleged harm from “Defendant’s alleged unlawful

procurement or sale of his cell phone number” was

“closely analogous to the common law tort of disclosure

of private information” and “therefore “sufficient to

establish an injury in fact” under Article III. ECF No.

39 at 16. The Court further found that Defendant’s

removal was timely, denied remand, and ordered

Defendant to file an Answer or Motion to Dismiss

within 30 days. ECF No. 39.6

Defendant filed the instant Motion to Dismiss on

June 2, 2023. ECF No. 43. Ten days later, Plaintiff

Morgan filed a Motion for Leave to File Second

Amended Complaint. ECF No. 47. The proposed

During that 30-day period, Plaintiff Morgan moved for

issuance of a scheduling order, which the Court denied given the

pending motions. ECF Nos. 41, 52.

15a

amendments would have deleted various allegations

from the First Amended Complaint, including the

allegations that Defendant sold Plaintiff Morgan’s

telephone record and the Criminal Profiteering Act

grounds for a private cause of action, which the Court

had cited in finding Article III standing.7 See ECF No.

47-1; ECF No. 54 at 4. The Court stayed the briefing

on the Motion to Dismiss pending resolution of

Plaintiff Morgan’s motion. ECF No. 51.

On August 31, 2023, the Court denied Plaintiff

Morgan leave to file a second amended complaint, in

light of (1) his previous amendment; (2) the futility of

amendment, where he only intended to remove, not

add, substantive allegations; (3) the prejudice Defendant

would suffer if litigation was reset again; and (4) the

undue delay that had already resulted from Plaintiff

Morgan’s counsel’s failure to investigate the factual

basis for the claim at an earlier time. ECF No. 63. At

that time, the Court declined to find that Morgan had

intentionally acted to deceive, harass, mislead, delay,

or disrupt the proceedings, while noting “the seemingly

inconsistent positions” taken during the litigation

thus far and the “unusual timing” of Plaintiff Morgan’s

motion to amend “after an inexplicable delay of

investigation and just days after Defendant sought

dismissal as a matter of law.” ECF No. 63 at 12. The

Court also reset the stayed briefing deadlines relating

to Defendant’s Motion to Dismiss. Id.

Thereafter, Plaintiff Morgan filed the instant Motion

to Remand on September 5, 2023, and the instant

Only one section of the proposed amendments added, rather

than deleted, substantive allegations from the First Amended

Complaint, and these additions explained that Plaintiff Morgan’s

private cause of action stemmed from RCW 9.26A.140(4), not the

Criminal Profiteering Act sections. See ECF No. 47-1 at 5.

16a

Motion to Certify on September 26, 2023. ECF Nos. 64,

67.

PLAINTIFF’S MOTION TO REMAND

Plaintiff Morgan argues that the Court must

remand this case to state court because there is “no

longer a case or controversy with respect to the claim

giving rise to federal jurisdiction.” ECF No. 64 at 2.

Because these arguments raise Article III jurisdictional issues, the Court addresses this motion first.

A. Legal Standard

“Federal courts are courts of limited jurisdiction.

They possess only that power authorized by Constitution

and statute, which is not to be expanded by judicial

decree.” Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994) (citations omitted). “If at any time

before final judgment it appears that the district court

lacks subject matter jurisdiction, the case shall be

remanded.” 28 U.S.C. § 1447(c).

B. Discussion

Plaintiff Morgan argues that he has two separate

claims, that one claim should be dismissed as moot

because he has abandoned it, and that the Court has

previously found that the remaining claim does not

present an Article III injury-infact. ECF No. 64 at 3-4.

Defendant responds that Plaintiff Morgan has only

asserted one claim and that Article III standing is

unaffected by Plaintiff Morgan’s abandonment of part

of that claim. ECF No. 68 at 4-5.

These arguments present the following questions:

whether Plaintiff Morgan has raised two separate

claims under RCW 9.26A.140(1)(a) and (1)(b); if so,

what the proper disposition is for his “abandoned”

Subsection (1)(a) claim; and finally, whether Plaintiff

17a

Morgan has Article III standing for his Subsection

(1)(b) claim.

1. Number of Claims in the First Amended

Complaint

Defendant argues that, until now, Plaintiff Morgan

has maintained that he has only one claim under RCW

9.26A.140. ECF No. 68 at 6-7. Defendant is largely

correct, although Plaintiff Morgan has been inconsistent.

See ECF No. 1 at 46 ¶ 82 (“This sole Count is brought

pursuant to RCW 9.26A.140 . . .”); ECF No. 8 at 11, 15

(“This Washington state law claim . . . Twitter

acknowledges that the Complaint alleges a cause of

action . . .”); ECF No. 20 at 13 (“this Court’s subject

matter jurisdiction over Plaintiff ’s claims”); ECF No.

31 at 9 (“whether the nature and source of the claim

asserted create a statutory injury”); ECF No. 35 at 26

¶ 156 (“This sole Count is brought pursuant to RCW

9.26A.140 . . .”); ECF No. 41 at 3 (“[Gray v. Twitter]

rais[ed] essentially identical claims as the initial

Complaint here”); ECF No. 47 at 1-2, 3 (“The proposed

SAC further clarifies that Morgan’s single cause of

action arises exclusively under RCW 9.26A.140 . . .

Morgan’s claims”); ECF No. 47-2 at 23 ¶ 128 (“This sole

Count is brought pursuant to RCW 9.26A.140 . . .”);

ECF No. 50 at 4-5 (“the claims of the Complaint . . .

these meritorious claims”); ECF No. 56 at 5 (“Morgan’s

goal of removing the claim under RCW 9.26A.140(1)(a)”)

(emphases added).

At the hearing, the Court inquired how the “sole

Count” language in the original and First Amended

Complaints indicated that Plaintiff Morgan had two

separate claims—Plaintiff ’s counsel responded that

there were “two alleged bases for the count.” ECF No.

75 at 7. That explanation sheds little light on how to

reconcile Plaintiff Morgan’s varying assertions of one

18a

“Count,” one “cause of action,”9 one “claim,”10 and

multiple “claims,” which he now asserts for the

purposes of this motion as quoted above.

Plaintiff Morgan’s change of position raises potential

issues related to judicial estoppel and deficient notice

pleading. However, for the purposes of these motions,

the Court will construe the First Amended Complaint

as stating two separate claims, not one, in the interest

of efficiently resolving the pending motions.

2. Status

Plaintiff

9.26A.140(1)(a) Claim

Morgan’s

RCW

Plaintiff Morgan claims to have “abandoned” his

Subsection (1)(a) claim, such that it is now “moot.” ECF

No. 64 at 4-6; see also ECF No. 65 at 4 n.2. Defendant

responds that Plaintiff Morgan’s concession that his

Subsection (1)(a) argument is meritless does not affect

his Article III standing and should be resolved by a

decision on the merits. ECF No. 68 at 5-6.

Count, Black’s Law Dictionary (11th ed. 2019) (“2. Civil

procedure. In a complaint or similar pleading, the statement of a

distinct claim.”)

Cause of Action, Black’s Law Dictionary (11th ed. 2019) (“1. A

group of operative facts giving rise to one or more bases for suing;

a factual situation that entitles one person to obtain a remedy in

court from another person; CLAIM (4) . . . 2. A legal theory of a

lawsuit . . .”).

Claim, Black’s Law Dictionary (11th ed. 2019) (“1. A

statement that something yet to be proved is true . . . 2. The

assertion of an existing right . . . A demand for money, property,

or a legal remedy to which one asserts a right; esp. the part of a

complaint in a civil action specifying what relief the plaintiff asks

for . . . 4. An interest or remedy recognized at law; the means by

which a person can obtain a privilege, possession, or enjoyment of

a right or thing; CAUSE OF ACTION (1) . . .”)

19a

a. Implicit Motion to Reconsider

This is not the first time that Plaintiff ’s counsel has

sought to “abandon” the Subsection (1)(a) allegations.

In his Motion for Leave to File Second Amended

Complaint, he sought to strike the Subsection (1)(a)

basis from the “single cause of action.” ECF No. 47 at

1-2; ECF No. 47-1 at 22-24. To explain this request,

Plaintiff ’s counsel submitted a declaration stating he

had conducted further investigation in late May and

early June 2023 and concluded that the Subsection

140(1)(a) allegations “were not likely to have evidentiary support.” ECF No. 57. The only investigative act

that Plaintiff ’s counsel specifies is that, in “late May

2023,” he “described the general outlines of the factual

allegations in [this case] to a group of friends and

acquaintances.” ECF No. 57 at 1 ¶ 1. A person in this

group “who was familiar with online advertising

advised [counsel] that in his experience, no advertiser”

ever acted in the way that was “alleged in the

Complaint and [First Amended Complaint].” Id. at 1

¶ 2. He reportedly concluded his unspecified follow-up

investigation within a few weeks, by June 6, 2023. Id.

at 2 ¶ 6. This strongly suggests that Plaintiff ’s counsel

had not consulted with anyone “familiar with online

advertising” before alleging Defendant had violated

RCW 9.26A.140(1)(a) in April 2022, nor in the prior

years of pending litigation in Gray.11 See Complaint at

7-8, Gray, No. 20-CV-1389 (W.D. Wash. Sept. 21, 2020),

ECF No. 1.

The Court previously noted that this delayed investigation

was not consistent with Plaintiff’s counsel’s obligations under

Washington Superior Court Rule 11 and Fed. R. Civ. P. 11. ECF

No. 63 at 10.

20a

Moreover, the timing and circumstances of that

“investigation” are illustrative. The Court had recently

denied Plaintiff Morgan’s first Motion to Remand on

May 5, 2023. ECF No. 39. According to an email filed

by Plaintiff ’s counsel, he was made aware on May 22,

2023, that Defendant intended to file a Rule 12(b)

motion. ECF No. 42-2 at 2. The next day, Plaintiff ’s

counsel moved for issuance of a scheduling order,

arguing that discovery should not be delayed by the

anticipated Rule 12(b) litigation.12 ECF No. 41 at 4-5.

The discussion with “friends and acquaintances” in

“late May 2023” would have occurred around this same

time. See ECF No. 57 at 1 ¶ 1. In other words,

Plaintiff ’s counsel was apparently on notice that his

Subsection (1)(a) allegations might have been meritless,

but he did not bring that to the Court’s attention while

urging the Court to order early discovery. And despite

his professed concern about this delay, Plaintiff

Morgan moved for leave to file the Second Amended

Complaint a few weeks later, adding to the list of

issues that needed to be addressed before discovery

could commence. ECF No. 47.

Ultimately, the Court denied Plaintiff Morgan leave

to amend—thereby denying Plaintiff Morgan’s request

to strike his Subsection (1)(a) claim. ECF No. 63.

Among many other reasons, the Court found that

In the motion, Plaintiff Morgan stated that “[t]hirty-two

months of unintended, unanticipated, and as-yet unended delays

have prevented Plaintiff from serving a single discovery request.”

ECF No. 41 at 4-5, 7. The Court notes that the majority of the

delay of which Plaintiff Morgan complained is the result of

Plaintiff’s counsel’s litigation tactics in Gray, and then the

litigation tactics in this matter—for example, the further briefing

necessitated on the Motion to Remand caused by Plaintiff

Morgan’s untimely Article III challenge and moving to amend

after a motion to dismiss is filed. See ECF No. 41 at 4-5, 7.

21a

Defendant would be prejudiced by the lost opportunity

to have the Subsection (1)(a) claim addressed on the

merits. ECF No. 63 at 8. The Court also found that

amendment would cause undue delay, given that

Plaintiff ’s counsel had “certified that the claims

advanced [in the Complaints] were grounded in fact”

at the time he filed them in 2020 (Gray), 2022 (ECF

No. 1 at 38-49), and 2023 (ECF No. 35), but was now

contending that the Subsection (1)(a) claim had been

“discredited within a few conversations undertaken

within a few weeks.” ECF No. 63 at 10. Additionally,

Plaintiff Morgan’s Motion to Amend had already

delayed resolution of Defendant’s earlier-filed Motion

to Dismiss, and if amendment were permitted,

Defendant would have been forced to file an amended

motion to dismiss. ECF No. 63 at 8.

As explained above, Plaintiff Morgan is currently

raising an argument the Court has already rejected—

that he should be allowed to strike the Subsection

(1)(a) allegations from the First Amended Complaint—

albeit under a different procedural label. The heart

of Plaintiff Morgan’s argument is that the Court

must reconsider—and indeed, must reverse—its prior

denial of leave to amend simply because he has

reframed his argument as abandonment resulting in

mootness, not amendment.

But he does not argue that the controlling law or

factual circumstances have changed since he requested

leave to amend in June, or that the Court’s Order

denying leave to amend contained any manifest legal

error. See Sch. Dist. No. 1J, Multnomah Cnty. v.

ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (listing

the situations where reconsideration may be appropriate).

Nor does he explain why he did not raise his mootness

22a

argument earlier. There is no intelligible reason why

reconsideration would be appropriate, let alone required.

Likely, Plaintiff Morgan did not allege mootness in

the earlier briefing because he was, at that time, still

contending that he had only a “single cause of action

aris[ing] exclusively under RCW 9.26A.140” as a

whole. See ECF No. 47 at 1-2. But a motion to

reconsider “may not be used to raise arguments . . . for

the first time when they could reasonably have been

raised earlier in the litigation.” Kona Enters., Inc. v.

Est. of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)

(emphasis in original). This includes arguments which

the party made the “strategic choice not to include” in

the original motion. See Berman v. Freedom Fin.

Network, LLC, No. 18-CV-1060, 2020 WL 6684838, at

*1 n.1 (N.D. Cal. Nov. 12, 2020).

The Court will nevertheless address the mootness

argument because it implicates Article III jurisdiction.

But the above demonstrates that Plaintiff ’s counsel

continues to take “inconsistent positions” on Article III

justiciability, casting further doubt on whether he is

acting in good faith. See ECF No. 63 at 12.

b. Mootness

A party abandons an issue when it has a full and fair

opportunity to ventilate its views with respect to an

issue and instead chooses a position that removes the

issue from the case.” Ramirez v. City of Buena Park,

560 F.3d 1012, 1026 (9th Cir. 2009) (citation and

quotation marks omitted). A claim that a plaintiff

abandons in its response to a dispositive motion may

be resolved by an adverse ruling on the merits. See id.

(affirming the district court’s grant of summary judgment against the plaintiff on claims he failed to address

in his summary judgment briefing); BankAmerica

23a

Pension Plan v. McMath, 206 F.3d 821, 825-27 (9th Cir.

2000) (affirming the district court’s grant of summary

judgments on potential disputes of material fact

“because Appellants either abandoned or failed to

dispute the possible factual issues”). A similar concept

is reflected in Fed. R. Civ. P. 41(b), which permits

dismissal of a claim with prejudice based on a

plaintiff ’s failure to prosecute or to comply with the

rules of procedure.

Conversely, a claim “becomes moot only when it is

impossible for a court to grant any effectual relief

whatever to the prevailing party.” Chafin v. Chafin, 568

U.S. 165, 172 (2013) (citations omitted) (emphasis

added). “An argument that an action is moot because

the plaintiff is not entitled to the requested relief, for

example, is no more than an argument on the merits

that should be decided on the merits.”13 Wright &

Miller, 13B Fed. Prac. & Proc. Juris. § 3533.1 (3d ed.

2023); see also Powell v. McCormack, 395 U.S. 486, 500

(1969); Ariz. State Legislature v. Ariz. Indep. Redist.

Comm’n, 576 U.S. 787, 800 (2015) (“[O]ne must not

‘confuse weakness on the merits with absence of

Article III standing.’”) (quoting Davis v. United States,

564 U.S. 229, 249 n.10 (2011)) (alteration omitted);

Citizens for Quality Educ. San Diego v. Barrera, 333 F.

Supp. 3d 1003, 1025 (S.D. Cal. 2018) (“When assessing

mootness, a court should not conflate whether a

Ordinarily, it is the defendant who argues that a plaintiff’s

non-entitlement to relief renders the plaintiff’s claim moot. See,

e.g., Powell v. McCormack, 395 U.S. 486, 500 (1969). However, the

same principle applies when the plaintiff claims mootness for

strategic reasons. See Chafin, 568 U.S. at 175-76 (rejecting the

plaintiff’s argument that the defendant’s appeal of an adverse

child custody decision became moot when the plaintiff transported

the child outside the court’s territorial jurisdiction).

24a

plaintiff retains an interest in a case with the distinct

issue of whether the plaintiff’s claims are meritorious.”)

(citation omitted). “As long as the parties have a

concrete interest, however small, in the outcome of the

litigation, the case is not moot.” Chafin, 568 U.S. at 172.

Moreover, “[t]here is no need to manipulate” the

constitutional doctrine of mootness, particularly where

such manipulation could be used by parties for unfair

purposes. See id. at 178 (noting that “[a] mootness

holding here might also encourage . . . prevailing

parents to try to flee the jurisdiction to moot the case”

on appeal).

Plaintiff Morgan defines abandonment as ‘deliberately

declin[ing] to pursue an argument by taking a position

that conceded the argument or removed it from the

case.’” ECF No. 70 at 6 (quoting Walker v. Beard, 789

F.3d 1125, 1133 (9th Cir. 2015) (emphases added)).14

Plaintiff Morgan says he has “taken a position

that concedes” that Defendant did not violate

RCW 9.26A.140(1)(a). ECF No. 64 at 4. He further

repeats this claim of abandonment in his response to

Defendant’s Motion to Dismiss, to explain why he

“does not address those moot arguments.” ECF No. 65

at 4 n.2.

In Walker, the Ninth Circuit considered its “abandonment

jurisprudence” but declined to apply it there. 789 F.3d at 1133.

But the court cited three cases reflecting that jurisprudence, only

one of which concerned a claim that was abandoned in the

pretrial phase. In that case, Ramirez, 560 F.3d at 1026, the Ninth

Circuit affirmed summary judgment on a claim which the

plaintiff had “abandoned” by failing to address in his summary

judgment briefing. In other words, Plaintiff Morgan’s cited case

law on “abandonment” recognizes that such claims are properly

resolved by an adverse decision on a dispositive motion, not mooted.

25a

If Plaintiff ’s counsel now doubts whether Plaintiff

Morgan will prevail on the merits for that claim, that

is solely the result of counsel’s failure to make a

reasonable prefiling investigation. By his signature, he

repeatedly certified that his Subsection (1)(a) allegations were well grounded in fact. ECF No. 63 at 10

(citing Christian v. Mattel, 286 F.3d 1118, 1127 (9th

Cir. 2002); Fed. R. Civ. P. 11; Wash. Super. Ct. Civ. R.

11). Because of that certification, he has subjected

Defendant to more than three years of litigation across

two separate courts on that Subsection (1)(a) claim.

His sudden change of heart on that claim came less

than a month after the Court denied his first Motion

to Remand. See ECF Nos. 39, 47. Plaintiff ’s counsel

must choose between two paths: either admit he failed

to meet his Rule 11 obligations when he signed the

Gray complaint and the three complaints filed in this

case, or the case is not moot.

At any rate, the Subsection (1)(a) claim is not moot.

Both Plaintiff Morgan and Defendant retain a concrete

interest, however small, in the outcome of the Section

(1)(a) claim. See Chafin, 568 U.S. at 172. The argument

raised by Plaintiff ’s counsel “confuses mootness with

whether [Plaintiff Morgan] has established a right to

recover.” See id. at 174. “His prospects of success are . . .

not pertinent to the mootness inquiry.” See id.

Moreover, a mootness holding here might encourage

plaintiffs to claim “abandonment” and mootness as a

ploy to avoid an imminent, adverse ruling on the

merits. See id. at 179. That is arguably what is

occurring here.

Moreover, several of the cases Plaintiff Morgan cites

in relation to “abandonment” resulted in decisions on

the merits. In Mesecher v. Lowes Companies, Inc., No.

17-CV-299, 2018 WL 793613 (E.D. Wash. Feb. 8, 2018),

26a

the court found that the plaintiffs had effectively

abandoned certain claims by failing to defend them in

response to the defendants’ Rule 12(b)(6) motion to

dismiss, and the court ordered those claims dismissed

with prejudice after concluding that amendment

would be futile. In McMath, 206 F.3d at 825-27 and

Ramirez, 560 F.3d at 1026, the Ninth Circuit affirmed

summary judgment against the appellants on claims

the appellants were found to have abandoned. Plaintiff

Morgan fails to cite any cases supporting his argument

that a plaintiff’s pretrial abandonment of a claim requires

the district court to dismiss that claim as moot.

Because the Court finds that the Subsection (1)(a)

claim is not moot, Plaintiff Morgan’s affirmative

abandonment of that claim does not impact the Court’s

prior finding of Article III standing, per its prior Order,

ECF No. 39, to consider Defendant’s Motion to

Dismiss.

3. Article III Standing

Besides Plaintiff Morgan’s now-rejected mootness

argument, there is no other new circumstance that

might draw the Court’s previous finding of Article III

standing into doubt. However, Plaintiff Morgan argues

that he does not have standing for his Subsection (1)(b)

claim, contending that “[t]his Court has previously

ruled that [his Subsection (1)(b) claim] fails to allege

the type of injury that is required for subject matter

jurisdiction.” ECF No. 64 at 3 (citing ECF No. 39 at 12).

Defendant does not directly respond to this argument,

instead focusing on Plaintiff Morgan’s previous

representations that there is only one claim, not two.

ECF No. 68 at 6-7.

At the time of the Court’s previous Order, Plaintiff

Morgan was still contending that he had only one

27a

claim, not two. See ECF No. 1 at 46 ¶ 82; ECF No. 8 at

11, 15; ECF No. 35 at 26 ¶ 157.15 As a result, the Court

determined the Article III issue based on Plaintiff

Morgan’s representations that there was a single,

unified RCW 9.26A.140 claim of “unauthorized sale or

procurement of telephone records.” See ECF No. 39 at

5 n.4, 6, 10-15. Defendant did argue in its brief that

Plaintiff Morgan’s Subsection (1)(b) allegations were

analogous to the tort of intrusion upon seclusion, while

his Subsection (1)(a) allegations were analogous to the

tort of disclosure of private information. ECF No. 30 at

12-13. But the Court did not adopt this distinction.

Instead, the Court repeatedly referred to a single

claim or cause of action under RCW 9.26A.140, as

Plaintiff Morgan had done in the original Complaint

and First Amended Complaint. See ECF No. 39 at 5-6,

10, 11-12, 13, 14, 17, 34. The Court did not specifically

distinguish between Subsections (1)(a) or (1)(b), let

alone consider them as separate claims with different

Article III analyses.

Plaintiff Morgan selectively quotes from the Order

to argue that the Court did distinguish between the

Subsection (1)(a) and (1)(b) claims:

Instead, the Order found that Twitter carried

its burden to show a suitable Art. III concrete

harm in “Defendant’s argument that a viola15

Plaintiff Morgan did not file the First Amended Complaint

until after all briefing, both initial and supplemental, on the

Motion to Remand had concluded. However, the First Amended

Complaint contained a “Cause of Action” section that was

identical to the “Cause of Action” section in the original

Complaint, except for adjustments to the paragraph numbers. See

ECF No. 1 at 46 ¶¶ 81-84; ECF No. 35 at 26 ¶¶ 156-159. In other

words, the First Amended Complaint reaffirmed Plaintiff

Morgan’s assertion of a “sole” RCW 9.26A.140 claim.

28a

tion of RCW 9.26.140 is closely analogous to

the common law tort of disclosure of private

information. Id. at 13:1-3. The Court identified fact allegations in the Complaint related

to that harm as identified by Twitter: ‘Plaintiff

alleges that Defendant disseminated the

private information associated with his and

other Twitter users’ cell phone number, which

include the numbers themselves and metadata

contained within to third-party advertisers.”

Order at 13:3-6 (emphasis added). The Court

found that the fact allegations in the Complaint

(and [First Amended Complaint]) concerning

dissemination of phone number information

was “similar to the plaintiff ’s allegation in

Tailford;” id. at 13:7, and akin to the fact

allegations that sufficed for Art. III standing

in Eichenberger . . . The Order held that “RCW

9.26A.140 codif[ies] the substantive privacy

interests in context-specific situations regarding

the unauthorized dissemination or sale of

telephone records.” Id. at 14:18 20 (emphasis

added). “The Order found that “[b]ecause

RCW 9.26A.140 codifies a substantive right

involving privacy in certain telephone

records, the Court finds that the cause of

action available under RCW 9.26A.140 Is

analogous to the federally recognized injury

of disclosure of private information and it has

a close relationship to harms traditionally

recognized as providing a basis for lawsuits in

American courts as required by Transunion.”

Id. at 14:20-15:5.

ECF No. 64 at 8 (emphases in Plaintiff Morgan’s brief).

Plaintiff Morgan appears to be relying on those

instances in the Order where the Court referenced the

29a

“sale” allegations without expressly referencing the

“procurement” allegations. He overlooks those morefrequent instances where the Court did reference both

together in relation to RCW 9.26A.140.16 To the extent

the Order language did not always say “procure” or

“obtain” when it paraphrased Plaintiff Morgan’s

allegations, it nevertheless referred to RCW 9.26A.140

as a whole, based on his representations that he was

bringing a single claim under that statute as a whole.

Further, if the Court had, in fact, found (1) two

distinct claims and (2) a lack of Article III standing

over one of those claims, immediate dismissal or

remand of the non-justiciable claim would have been

required at that moment. See Davis v. Fed. Election

Comm’n, 554 U.S. 724, 734 (2008) (“Standing is not

dispensed in gross. Rather, a plaintiff must demonstrate standing for each claim he seeks to press . . .”)

(citations and quotation marks omitted).

Regardless, the Court finds Article III standing for

the Subsection (1)(b) claim under the same reasoning

in its previous Order. In that Order, the Court found

an injury-in-fact by comparing RCW 9.26A.140 to the

substantive right against disclosure of private information, traditionally recognized by the common law

ECF No. 39 at 5 (“Specifically, Plaintiff alleges that

Defendant unlawfully obtained his and other users’ cell phone

numbers . . . and then sold that information . . .”), 5 n.4 (“the

unauthorized sale or procurement of telephone records in

violation of RCW 9.26A.140”), 10 (“Plaintiff’s allegation that

Defendant procured or sold his telephone records without

authorization falls under RCW 9.26A.140.”); 15 (“Plaintiff alleges

that Defendant unlawfully obtained the cell phone number . . .

and then sold that phone number . . . “), 16 (“Plaintiff alleges he

was harmed by Defendant’s alleged unlawful procurement or sale

of his cell phone number . . .”).

30a

and statutorily recognized in the federal Telephone

Records and Privacy Protection Act of 2006 (“TRPPA”),

120 Stat. 3568. ECF No. 39 at 14-15. The TRPPA

created statutory offenses that are clear analogues to

RCW 9.26A.140(1)(a) and (1)(b). Where Subsection

(1)(b) prohibits the use of fraudulent, deceptive, or

false means to obtain telephone records, 18 U.S.C.

§ 1039(a)(1)-(2) prohibits the use of false or fraudulent

statements to obtain confidential phone records.

Similarly, where Subsection (1)(a) prohibits the unauthorized sale of telephone records, 18 U.S.C. § 1039(b)

prohibits the sale or transfer of confidential phone

records information.

Moreover, the Ninth Circuit has recently addressed

this issue, in relation to a claim brought under the

Washington Privacy Act:

With respect to constitutional injury-in-fact,

the relevant law is settled. A statute that

codifies a common law privacy right “gives

rise to a concrete injury sufficient to confer

standing.” And this court has consistently

found that “violations of the right to privacy

have long been actionable at common law.”

Jones v. Ford Motor Co., _ F.4th _, 2023 WL 7097365,

at *2 (9th Cir. Oct. 27, 2023) (citations and alteration

omitted).17 Specifically, the court found a sufficient

This case was decided after the briefing was complete. The

Court identified it in its independent research. The Court

observes that Plaintiff Morgan’s counsel was also the plaintiff’s

counsel of record in Jones. In the initial argument on the Motion

to Remand, Plaintiff’s counsel did not bring Jones to the Court’s

attention. Defendant’s counsel was the first to raise Jones in their

counterargument. In rebuttal argument, Plaintiff Morgan’s

counsel argued that Jones could be distinguished because it did

not involve a similar abandonment/mootness issue, and stated

31a

Article III injury where the complaint alleged that the

defendant’s vehicle systems “download[ed] all text

messages and call logs from [the p]laintiffs’ cellphones”

and “permanently store[d] the private communications without [the p]laintiffs’ knowledge or consent,”

which stated a plausible violation of the substantive

privacy right codified by the Washington Privacy Act.

Id. at *3. Similarly, Plaintiff Morgan alleges that

Defendant obtained his cell phone number without his

actual knowledge or consent by using deceptive, false,

or fraudulent assurances of privacy, which states a

plausible violation of the substantive privacy right

codified by RCW 9.26A.140. See Eichenberger v. ESPN,

Inc., 876 F.3d 979, 983 (9th Cir. 2017) (finding that the

Video Privacy Protection Act (VPPA) protected a

consumer’s substantive privacy right to “retain control

over their personal information”); Syed v. M-I, LLC,

853 F.3d 492, 499 (9th Cir. 2017) (finding the plaintiff

established Art. III standing by alleging a violation of

the Fair Credit Reporting Act’s authorization requirement, which constituted “a concrete injury when

applicants are deprived of their ability to meaningfully

authorize” a prospective employer to check their

credit); Sanchez v. Los Angeles Dep’t of Transp., 39

F.4th 548, 554 (9th Cir. 2022) (finding an Art. III injury

in the defendant city’s collection of location data from

e-scooters, “without more,” as an alleged violation of

the plaintiff ’s Fourth Amendment rights).

There is simply no basis to find that a violation of

RCW 9.26A.140(1)(b) does not present an Article III

they were still considering an appeal of the Ninth Circuit’s

opinion. Plaintiff’s counsel did not address how Jones can be

distinguished for the purposes of arguing that Subsection (1)(b)

does not present an Article III injury in fact.

32a

injury-in-fact. As such, there is no defect in the Court’s

Article III jurisdiction that would warrant remand.

C. Conclusion

For the above reasons, the Court denies the Motion

to Remand.

PLAINTIFF’S MOTION TO CERTIFY

Plaintiff Morgan seeks to certify two questions to

the Washington Supreme Court concerning the

interpretation of RCW 9.26A.140(1)(b):

1. Does a person violate RCW 9.26A.140(1)(b) if

the person obtains a cell phone number from

the customer by false or deceptive means?

2. Does a person use deceptive means to

obtain a phone number in violation of RCW

9.26A.140(1)(b) [under] the same standard for

“deceptive act or practice” that the Washington

Supreme Court has applied to claims arising

under the Washington Consumer Protection

Act, RCW 19.86.020?

ECF No. 67 at 5. Plaintiff Morgan argues that

certification is appropriate due to the lack of Washington

case law interpreting this statute, the parties’ dispute

over the proper approach to statutory interpretation,

the importance of the questions presented, the interests of

judicial efficiency, and the spirit of comity and

federalism. ECF No. 67 at 7-14.

In response, Defendant argues that the procedural

histories of this case and Gray v. Twitter—which

included a similar motion to certify—reflect a pattern

of “gamesmanship over the last three years” by

Plaintiff ’s counsel. ECF No. 71 at 2-6. Defendant

contends that this motion is “simply the latest in a long

line of maneuvers by Plaintiff ’s counsel” to avoid

33a

unfavorable outcomes, “result[ing] in a waste of

judicial and party resources.” ECF No. 71 at 7.

A. Legal Standard

Washington law permits a federal court to certify

questions of state law to the Washington Supreme

Court when, in the federal court’s opinion, “it is

necessary to ascertain the local law of [Washington] in

order to dispose of such proceeding and the local law

has not been clearly determined.” RCW 2.60.020. The

Ninth Circuit has explained that a court should

consider four factors in deciding whether to exercise

its discretion to certify:

(1) whether the question presents “important

public policy ramifications” yet unresolved by

the state court;

(2) whether the issue is new, substantial, and

of broad application;

(3) the state court’s caseload; and

(4) “the spirit of comity and federalism.”

Murray v. BEJ Mins., LLC, 924 F.3d 1070, 1072 (9th

Cir. 2019) (citing Kremen v. Cohen, 325 F.3d 1035, 1037

(9th Cir. 2003); Lehman Bros. v. Schein, 416 U.S. 386,

391 (1974)).

“Certification is by no means ‘obligatory’ merely

because state law is unsettled; the choice instead rests

‘in the sound discretion of the federal court.’” McKesson v.

Doe, 141 S. Ct. 48, 51 (2020) (citing Lehman Brothers,

416 U.S. at 391). “Our system of ‘cooperative federalism’

presumes federal and state courts alike are competent

to apply federal and state law.” Id. Moreover, certification “can prolong the dispute and increase the expenses

incurred by the parties.” Id. (citation omitted). The

“burden” of certification is also borne by the state

34a

courts. See Cruz v. City of Spokane, 66 F.4th 1193, 1198

(9th Cir. 2023). As such, “[c]ertification is not to be

ordered lightly.” Bliss Sequoia Ins. & Risk Advisors,

Inc. v. Allied Prop. & Cas. Ins. Co., 54 F.4th 417, 423 (9th

Cir. 2022). “When there is little reason to doubt the

answer to a state-law question,” a federal court “ought

not outsource [its] work to a state court simply because

[it] find[s] the burden of decision unwelcome.” Id.

B. Discussion

The Court is unpersuaded that certification of

Plaintiff Morgan’s questions would be an appropriate

burden to impose on the parties and the Washington

Supreme Court. See id.

First, the Court finds that the questions proposed do

not present important public policy ramifications or

issues that are new, substantial, and of broad application. See Murray, 924 F.3d at 1072. Plaintiff Morgan

argues that interpretation of RCW 9.26A.140 presents

important public policy ramifications of broad applicability, based on increasing concerns of cell phone users

about “[t]he abuse of telephone records and the civil

remedies available to address such abuses,” and the

statute’s impact on “the enforcement of other statutes

that contain both civil and criminal remedies, affecting

a wide swath[e] of activities subject to state regulation.” ECF No. 67 at 7. Plaintiff Morgan provides no

citation supporting these contentions. As he acknowledges, “[q]uestions as to the meaning of this statute are

by definition novel and unresolved,” as “no precedent

whatsoever exists under that statute.” Id. RCW

9.26A.140 was enacted in 2006. That the Washington

courts have yet to substantively interpret it in the

seventeen years since it was enacted is evidence that

the statute does not have important public policy

ramifications. The issue of interpretation has also gone

35a

unneeded for seventeen years—it

substantial, or of broad application.

not

new,

Second, the Court also finds that the state court’s

caseload, and the spirit of comity and federalism, do

not weigh in favor of certification.18 See Murray, 924

F.3d at 1072. The parties have already thoroughly

briefed the issue of statutory interpretation in relation

to Defendant’s Motion to Dismiss. See ECF Nos. 43, 65,

69. As explained below, that briefing provides “little

reason to doubt the answer” to Plaintiff Morgan’s

questions of statutory interpretation—Defendant’s

alleged conduct does not fall within the scope of RCW

9.26A.140(1)(b) under the plain text of the statute. See

Bliss Sequoia Ins., 54 F.4th at 423. The Court will not

“outsource” this work to the state courts simply to

avoid the burden of this issue of interpretation. See id.

Finally, the procedural histories of this case and

Gray v. Twitter support Defendant’s contention that

this motion is mere gamesmanship. In the August 31,

2023, Order, the Court noted Plaintiff ’s counsel’s

“seemingly inconsistent positions” throughout the

litigation to date and the “unusual timing” of his

request to further amend the complaint. ECF No. 63

at 12. These phenomena have only continued, with

Plaintiff Morgan filing the instant Motion to Remand

only five days thereafter and the instant Motion to

Plaintiff’s counsel contended at the hearing that the Court

“previously indicated” that the Washington Supreme Court’s

docket “compares favorably to an overloaded district court’s

docket.” ECF No. 75 at 19. It is unclear what counsel was referring

to by this statement. But to be clear, the Court does not believe

that this case would impose any less of a burden on the

Washington courts’ caseloads, particularly given the circuitous

manner in which Plaintiff’s counsel has chosen to litigate this

matter over the past few years.

36a

Certify on September 26, 2023. ECF Nos. 64, 67.

Moreover, Plaintiff ’s counsel filed a similar motion to

certify in Gray v. Twitter, which was fully briefed and

pending when Plaintiff’s counsel voluntarily dismissed

the entire case.19 See Gray, No. 20-CV-1389 (W.D.

Wash. 2021-22), ECF Nos. 24, 27, 29, 36. These patterns

(1) indicate that this case would be particularly

burdensome on the Washington courts and (2) cast

doubt on whether Plaintiff ’s counsel is seeking

certification in good faith.

C. Conclusion

For the above reasons, the Court denies Plaintiff ’s

Motion to Certify.

DEFENDANT’S MOTION TO DISMISS

Defendant seeks dismissal of the First Amended

Complaint under Fed. R. Civ. P. 12(b)(6), arguing that

Plaintiff Morgan has failed to state a plausible claim

under either of the RCW 9.26A.140(1)(a) or (1)(b)

“theories.” ECF No. 43 at 11-12. Plaintiff Morgan’s

abandonment of the Subsection (1)(a) claim suffices to

At the hearing, Plaintiff’s counsel claimed that this case was

filed because counsel “believed that our only course available was

to dismiss [Gray v. Twitter and] refile in state court, “so that if it

were ultimately determined that [the district court in the Eastern

District of Washington] lacks jurisdiction” following TransUnion

the case could be remanded to state court instead of dismissed

outright. ECF No. 75 at 20. Counsel further stated that “it turned

out the Eastern District was a more favorable venue for a variety

of reasons” and that counsel had “anticipated” that Defendant

would remove the state case. Id. at 20-21. The Court notes that it

was unusual for counsel to claim that it merely filed in state court

as a failsafe in case the federal courts were later deemed to lack

Article III jurisdiction, immediately after arguing (for the second

time) that the Court lacks Article III jurisdiction.

37a

dismiss that claim with prejudice. Only the Subsection

(1)(b) claim remains to be addressed.

A. Legal Standard

In considering a motion to dismiss under Fed. R. Civ.

P. 12(b)(6), a court must accept as true all of the factual

allegations in the complaint, but legal conclusions are

not entitled to the same “assumption of truth.”

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). To

survive dismissal, “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Id. at 678 (quoting

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

“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).

B. Summary of Factual Allegations20

Plaintiff Glen Morgan is a Washington resident and

a Twitter user. ECF No 35 at 4 ¶¶ 17-18. Defendant

Twitter is a for-profit company incorporated in

Delaware and with a principal place of business in

California. Id. at 4 ¶¶ 19-20.

On July 30, 2016, Plaintiff Morgan provided his cell

phone number to Defendant after Defendant promised

it would “protect the nonpublic information in his

account, including his cell phone number, from

unwanted disclosure.” Id. at 20 ¶¶ 115-18. Defendant

“did not use reasonable means to protect [Plaintiff

For the purposes of a Rule 12(b)(6) motion to dismiss, the

factual allegations in the complaint are accepted as true, but not

“legal conclusion[s] couched as a factual allegation.” Iqbal, 556

U.S. at 678 (quoting Twombly, 550 U.S. at 555-56).

38a

Morgan’s] private data, including his cell phone

number, from unwanted disclosure.” Id. at 20 ¶ 119.

Defendant knew that “the means it had been

employing to protect user data” against “unwanted

disclosure were inadequate.” Id. at 20 ¶ 120.

Defendant also “knew that it was not exercising

reasonable controls to limit the use of [Plaintiff

Morgan’s] cell phone number to the purposes he

selected and that [Defendant] had promised.” Id. at 20

¶ 121. Further, Defendant “knew that its assurances of

reasonable protection of cell phone [numbers] from

unwanted disclosure were false.” Id. at 20 ¶ 122. In

sum, Defendant obtained Plaintiff Morgan’s cell phone

number “through the use of deceptive and/or false

means,” including “assurances that [Plaintiff Morgan]

could choose the extent to which his user data,

including his cell phone number, could be exploited by

[Defendant] for commercial purposes.” Id. at 20

¶¶ 123-24.

Defendant also obtained the telephone records of

other Washington persons through the “same

deceptive and/or false means it employed to obtain

[Plaintiff Morgan’s] cell phone number.” Id. at 21

¶¶ 125-26.

C. Discussion

Plaintiff Morgan has failed to defend his Subsection

(1)(a) claim in his esponse to a pending dispositive

motion—the Motion to Dismiss. See Ramirez, 560 F.3d

at 1026. He had a “full and fair opportunity to ventilate

[his] views” on hat issue, and instead opted to “take[] a

position that concede[s] the argument” that Defendant

“violated RCW 9.26A.140(1)(a). See ECF No. 64 at 4.

Accordingly, the Court grants Defendant’s Motion to

Dismiss the Subsection (1)(a) claim as uncontested

39a

and dismisses Plaintiff Morgan’s Subsection (1)(a)

claim with prejudice.

Plaintiff Morgan does contest the dismissal of his

Subsection (1)(b) claim, so the Court proceeds with the

Rule 12(b)(6) analysis of that claim.

First, Defendant argues that Plaintiff Morgan’s

own telephone number is not (1) a “telephone record,”

(2) “retained by a telecommunications company,” nor

(3) “procure[d]” by Defendant, as defined by the statutory

text, the legislature’s purpose, and the constructive

rule of lenity. ECF No. 43 at 13-18. Plaintiff Morgan

responds that the statutory text and purpose lead to

the opposite conclusion. ECF No. 65 at 7-20.

Second, Defendant argues that Plaintiff Morgan has

failed to meet the heightened pleading standard of

Fed. R. Civ. P. 9(b) for a claim alleging fraud. ECF No.

43 at 19-20. Plaintiff Morgan denies that Rule 9(b)

applies. ECF No. 65 at 20-21.

Third, Defendant argues that Plaintiff Morgan has

failed to meet the pleading standard of Fed. R. Civ. P.

8(a) by failing to identify the content and context of the

assurances Defendant allegedly made, then breached.

ECF No. 43 at 20-21. Plaintiff Morgan responds that

he has alleged adequate facts surrounding the

assurances Defendant made in its settlement

agreements with the Federal Trade Commission and

in the “over 20,000 statements [it] made promising

users data security.” ECF No. 65 at 21-22.

1. Statutory Interpretation

The parties’ arguments as to the meaning of

“telephone record,” “telecommunications company,”

and “procure” present three considerations in

determining whether Plaintiff Morgan’s factual

40a

allegations describe conduct prohibited by RCW

9.26A.140(1)(b).

a. Applicable Law

Plaintiff Morgan argues that Defendant has strayed

from Washington’s rules of interpretation, which

govern the interpretation of a Washington statute.

ECF No. 65 at 5-6. “As a general matter, the task of a

federal court in a diversity action is to approximate

state law as closely as possible in order to make sure

that the vindication of the state right” is not adversely

affected by the federal forum. High Country Paving,

Inc. v. United Fire & Cas. Co., 14 F.4th 976, 978 (9th

Cir. 2021) (citations, quotation marks, and alterations

omitted). Accordingly, Washington’s rules of statutory

interpretation govern whether Plaintiff Morgan has

adequately stated a claim for relief under RCW

9.26A.140(1)(b).

b. Washington’s Rules of Interpretation

The Washington Supreme Court instructs that the

“primary obligation” of statutory interpretation “is to

give effect to the legislature’s intent.” Rest. Dev., Inc. v.

Cananwill, Inc., 80 P.3d 598, 601 (Wash. 2003) (en

banc). “[R]eview always begins with the plain language

of the statute” but may include “all that the Legislature

has said in the statute and related statutes which

disclose legislative intent about the provision in

question.” Id. (citation and quotation marks omitted).

“[A] court must not add words where the legislature

has chosen not to include them.” Id. “A court also must

construe statutes such that all of the language is given

effect, and no portion is rendered meaningless or

superfluous.” Id. at 601-02 (citations, quotation marks,

and alterations omitted). Then, if the statute remains

“subject to more than one reasonable interpretation,

41a

[the court] may look to the legislative history of the

statute and the circumstances surrounding its enactment

to determine legislative intent.” Id. at 602 (citation

omitted).

c. The Statutory Text

The relevant portions of that statute provide as follows:

(1) A person is guilty of the unauthorized

sale or procurement of telephone records

if the person: . . .

(b) By fraudulent, deceptive, or false means

obtains the telephone record of any

resident of this state to whom the record

pertains; . . .

(5) . . .

(a) “Telecommunications company” has

the meaning provided in RCW

9.26A.100 and includes “radio

communications service companies”

as defined in RCW 80.04.010.

(b) “Telephone record” means information

retained by a telecommunications

company that relates to the telephone

number dialed by the customer or

the incoming number or call directed

to a customer, or other data related

to such calls typically contained on a

customer telephone bill such as the

time the call started and ended, the

duration of the call, the time of day

the call was made, and any charges

applied. “Telephone record” does not

include any information collected

and retained by customers using

42a

caller identification or other similar

technologies.

“Procure” means to obtain by any

means, whether electronically, in

writing, or in oral form, with or

without consideration.

Defendant points to the phrases, “retained by a

telecommunications company” and the statutory

definition’s apparent focus on protecting incoming or

outgoing call records that are obtained from a

particular source—the telecommunications company,

not the customer. ECF No. 43 at 13-16. Plaintiff

Morgan counters that the definition expressly refers to

telephone numbers as a “type of data protected by the

statute” and does not exclude telephone numbers that

are obtained directly from the number owner. ECF No.

65 at 7-9, 11-13 (emphasis in original).

The Court finds that the statutory text is unambiguous on two key points. First, the statutory language

cannot reasonably be interpreted to include the phone

number of the customer alone. If the statute protected

phone numbers outright, the long clause following

“telephone number” would be rendered meaningless or

superfluous. See Rest. Dev., 80 P.3d at 602. Rather, the

statutory text is plainly focused on protecting the

consumer’s call history data—i.e., information about

who(m) the phone holder called or was called by; and

the call date, time, and duration. As Plaintiff Morgan

has only alleged that Defendant obtained his phone

number, he has failed to state a claim under RCW

9.26A.140(1)(b).

Second, the definition of “telephone record” expressly

distinguishes between call history that is “retained by

a telecommunications company” (protected) versus call

43a

history that is “collected and retained by customers” via

caller ID and similar tools (not protected). The logic

behind this distinction is plain—telephone customers

have more control and agency over the disclosure of

records within their own possession than records held

by their telecommunications companies, who may be

less interested in keeping those records private. As

Plaintiff Morgan has only alleged that Defendant

obtained his phone number from Plaintiff Morgan

himself, not Plaintiff Morgan’s telecommunications

company, he has failed to state a claim under RCW

9.26A.140(1)(b).

2. Rule 9(b)

Defendant next contends that Plaintiff Morgan’s

claim is “grounded” or “sound[s] in fraud,” such that

Rule 9(b) applies. ECF No. 43 at 19. Defendant then

argues that Plaintiff Morgan has failed to meet

Rule 9(b)’s requirements where he has failed to “allege

the specific contents of the ‘assurances’” Defendant

supposedly made. ECF No. 43 at 19-20. In response,

Plaintiff Morgan argues he is relying on the

“deceptive” and/or “false” prongs of the statute, not the

“fraudulent” prong, such that Rule 9(b) does not apply.

ECF No. 65 at 20-21.

a. Applicability of Rule 9(b)

Fed. R. Civ. P. 9(b) provides that, “[i]n alleging fraud

or mistake, a party must state with particularity the

circumstances constituting fraud or mistake. Malice,

intent, knowledge, and other conditions of a person’s

mind may be alleged generally.” “Rule 9(b)’s particularity requirement applies to state-law causes of action”

as well as federal-law causes of action.21 Vess v. Ciba21

Plaintiff disagrees with this, instead arguing that deceptiveconduct claims under Washington law “do not require a fraud

44a

Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003).

If “fraud is not an essential element of a claim, only

allegations (‘averments’) of fraudulent conduct must

satisfy” Rule 9(b)’s heightened pleading standard. Id.

at 1105. “Fraud can be averred by specifically alleging

fraud, or by alleging facts that necessarily constitute

fraud (even if the word ‘fraud’ is not used).” Id.

In Vess, the Ninth Circuit looked to the state-law

definition of “fraud” to determine whether any of the

plaintiff ’s allegations were “grounded in fraud” and

therefore averments of fraudulent conduct subject to

Rule 9(b). Id. at 1105-06. A fraud claim under Washington

law has nine essential elements: 1) a representation of

existing fact; (2) its materiality; (3) its falsity; (4) the

speaker’s knowledge of its falsity; (5) the speaker’s

intent that it be acted upon by the receiving party;

(6) the receiving party’s ignorance of its falsity; (7) the

receiving party’s reliance on the truth of the representation; (8) the receiving party’s right to rely on the

truth of the representation; (9) consequent damage.

Elcon Const., Inc. v. E. Wash. Univ., 273 P.3d 965, 970

(Wash. 2012) (en banc).

Although Plaintiff Morgan does not expressly allege

“fraud,” his allegations contain all nine elements:

(1) that Defendant assured Plaintiff Morgan that it

protected users’ phone numbers and complied with

users’ privacy choices; (2) that users like Plaintiff

Morgan consider such assurances material in deciding

pleading standard.” ECF No. 65 at 20. This misconstrues the

applicability of Rule 9(b) under the Erie doctrine. State law

defines the substantive requirements for an allegation of fraud,

but if those requirements are met, then Rule 9(b)’s procedural

requirements apply. See Kearns v. Ford Motor Co., 567 F.3d 1120,

1125 (9th Cir. 2009) (rejecting the plaintiff’s argument that Rule

9(b) does not apply to a California consumer protection statute).

45a

whether to disclose their phone number; (3) that the

assurances were false in light of Defendant’s practices;

(4) that Defendant knew the assurances were false;

(5) that Defendant intended users to rely on its false

assurances; (6) that this falsity was “unbeknownst to

any Twitter user”; (7) that Plaintiff Morgan and other

users relied on these assurances; (8) that Plaintiff

Morgan and other users were “entitled” to assume that

Defendant’s assurances were truthful; and (9) that

Plaintiff Morgan sustained injury as a result of these

false assurances. ECF No. 35 at 6 ¶¶ 35-38, 9 ¶¶ 5859, 10 ¶¶ 62-66, 20 ¶¶ 119-22, 23 ¶ 142. In short,

Plaintiff Morgan’s Subsection (1)(b) claim sounds in fraud.

b. Sufficiency of Pleading Under Rule 9(b)

“To properly plead fraud with particularity under

Rule 9(b), ‘a pleading must identify the who, what,

when, where, and how of the misconduct charged, as

well as what is false or misleading about the

purportedly fraudulent statement, and why it is false.’”

Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 964

(9th Cir. 2018) (quoting Cafasso, U.S. ex rel. v. Gen.

Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 (9th Cir.

2011)). “Rule 9(b) serves not only to give notice to

defendants of the specific fraudulent conduct against

which they must defend, but also to deter the filing of

complaints as a pretext for the discovery of unknown

wrongs,” to protect defendants from reputational

harm, and “to prohibit plaintiffs from unilaterally

imposing upon the court, the parties and society

enormous social and economic costs absent some

factual basis.” Bly-Magee v. California, 236 F.3d 1014,

1018 (9th Cir. 2001) (citation, quotation marks, and

alterations omitted).

The “what” of Defendant’s alleged false assurances,

and “how” those assurances were plausibly false at the

46a

time they were made, are not pleaded with specificity.

Plaintiff Morgan alleges only that Defendant promised

him it “would protect the nonpublic information in his

account, including his cell phone number, from unwanted

disclosure” and “that [he] could choose the extent to

which his user data, including his cell phone number,

could be exploited” by Defendant.” ECF No. 35 at 20

¶¶ 118, 123. As for the “how,” Plaintiff Morgan alleges

that Defendant “knew” that the “means” and “reasonable

controls” it was using to fulfill those promises were

inadequate, and it “knew that its assurances of

reasonable protection of cell phone [numbers] from

unwanted disclosure were false.” ECF No. 35 at 20 ¶¶

120-22. This fails to give Defendant notice of the

particular false statement it must defend, and it falls

short of demonstrating that the claim has a plausible

factual basis justifying its reputational, social, and

economic costs. See Bly-Magee, 236 F.3d at 1018.

Such vagueness is particularly confounding where

Plaintiff Morgan alleges that “[o]n average, Twitter

made at least 4,000 public statements per year assuring

users that it would protect their privacy.” ECF No. 35

at 14 ¶ 88. Plaintiff Morgan is best placed to identify

which, among the thousands of statements Defendant

allegedly made to users in 2016, was the false

statement he relied upon. But he failed to do so—in

the original Complaint, the First Amended Complaint,

and the proposed Second Amended Complaint he

submitted 10 days after Defendant filed the instant

Motion to Dismiss. See ECF No. 1 at 38-47; ECF No.

35; ECF No. 47-1.

Accordingly, Plaintiff Morgan has failed to state a

plausible claim for relief under Fed. R. Civ. P. 9(b).

47a

3. Rule 8(a)

Fed. R. Civ. P. 8(a)(2) “requires that the allegations

in the complaint ‘give the defendant fair notice of what

the plaintiff ’s claim is and the grounds upon which it

rests.’” Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d

963, 968 (9th Cir. 2006) (quoting Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 512 (2002)). “Providing a

list of hypothetical possible” grounds for a claim “is not

a substitute for investigating and alleging the grounds

for a claim.” Id. at 969.

As explained above, Plaintiff Morgan has failed to

identify the false statement that induced him to

provide his phone number to Defendant. The First

Amended Complaint references a few statements

Defendant made in a 2019 notice to users and in its

2011 and 2020 settlements with the Federal Trade

Commission. Plaintiff Morgan does not allege that

these are what he relied on in 2016. At best, these

amount to a “list of hypothetical possible” statements

and would still be insufficient under Pickern. See 457

F.3d at 969.

Therefore, even if Plaintiff Morgan’s claim did not

sound in fraud, the First Amended Complaint would

still fail to meet the notice pleading standard required

by Rule 8(a)(2). See id. at 968-69.

D. Whether Amendment Should Be Permitted

Plaintiff Morgan did not request leave to amend in

his opposition to Defendant’s Motion to Dismiss. See

ECF No. 65. At any rate, Plaintiff Morgan has already

amended the complaint once, without complying with

the requirements of Fed. R. Civ. P. 15, and requested a

second opportunity to amend, which the Court denied

on the basis of futility, prejudice to Defendant, and

undue delay. ECF No. 63 at 5-11. The textual

48a

inapplicability of RCW 9.26A.140 is not an issue that

can be feasibly corrected by amendment. As for the

deficiencies under Rules 8 and 9, Plaintiff ’s Counsel

has had notice of these issues since the magistrate

judge’s Report and Recommendation in Gray v.

Twitter, if not earlier, yet repeatedly failed to address

them. See Report & Recommendation at 18-22, Gray v.

Twitter, Inc., No. 20-cv-1389 (W.D. Wash. Mar. 17,

2021), ECF No. 22. It is clear that further amendment

would be futile, cause prejudice to Defendant, and

result in undue delay.

CONCLUSION

Plaintiff Morgan has abandoned his claim under

RCW 9.26A.140(1)(a) by failing to defend it in response

to Defendant’s Rule 12(b)(6) Motion to Dismiss.

Further, Plaintiff Morgan’s factual allegations, taken

as true, do not fall within the scope of RCW

9.26A.140(1)(b), and further, he has failed to meet the

pleading standards of Rule 9(b) and Rule 8(a)(2). For

these reasons, the Court grants Defendant’s Motion to

Dismiss and dismisses this case with prejudice.

Accordingly, IT IS ORDERED:

1. Plaintiff ’s Motion to Remand the First

Amended Complaint, ECF No. 64, is DENIED.

2. Plaintiff ’s Motion to Certify, ECF No. 67, is

DENIED.

3. Defendant’s Motion to Dismiss, ECF No. 43, is

GRANTED.

4. All claims in Plaintiff’s First Amended Complaint

are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED. The Clerk’s Office is directed

to file this order, provide copies to counsel, ENTER

49a

JUDGMENT in favor of Defendant, and CLOSE the

file.

DATED November 22, 2023.

s/Mary K. Dimke

MARY K. DIMKE

UNITED STATES DISTRICT JUDGE

50a

APPENDIX D

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

[FILED: Aug 31, 2023]

————

No. 2:22-cv-00122-MKD

————

GLEN MORGAN, individually and on behalf of all

others similarly situated,

Plaintiff,

TWITTER, INC.,

Defendant.

————

ORDER DENYING PLAINTIFF’S MOTION

FOR LEAVE TO FILE SECOND

AMENDED COMPLAINT

ECF No. 47

Before the Court is Plaintiff ’s Motion for Leave to

File Second Amended Complaint. ECF No. 47. The

Court has reviewed the record and is fully informed.

For the reasons set forth below, the Court denies

Plaintiff ’s motion.

BACKGROUND

A. Procedural Posture

51a

Plaintiff filed suit on May 3, 2022, in Spokane

County Superior Court. ECF No. 1 at 38-51.1

Defendant removed the action to federal court on May

19, 2022. ECF No. 1. On May 26, 2022, Plaintiff moved

to remand the matter back to state court. ECF No. 8.

In the Motion to Remand, Plaintiff advised why he

filed this action, when a nearly identical case—Gray v.

Twitter, Inc., No. 2:20-cv-01389-LK—was already pending

in the Western District of Washington as of September

21, 2020. ECF No. 8 at 5-7. On August 30, 2022,

Plaintiff filed a notice advising that the plaintiff in

Gray v. Twitter voluntarily dismissed that action. ECF

Nos. 27, 27-1; Gray v. Twitter, Inc., No. 2:20-cv-01389LK, ECF No. 36.

On February 21, 2023, without seeking leave,

Plaintiff filed a first amended complaint in this action.

ECF No. 35. On May 2, 2023, the Court held a status

hearing in the above-captioned matter. See ECF Nos.

36, 38. At that hearing, Defendant did not object to

Plaintiff ’s filing of an amended complaint.

On May 5, 2023, the Court denied Plaintiff ’s Motion

to Remand and ordered Defendant to answer or

otherwise respond to Plaintiff’s first amended complaint

no later than 30 days after the order’s issuance. ECF

No. 39 at 35. On June 2, 2023, Defendant filed a motion

to dismiss2 and a motion for a protective order. ECF

Nos. 43, 44. The Court granted Defendant’s Motion for

Protective Order. ECF No. 62.

Throughout this Order, the Court’s citations refer to the

filings’ page numbers which are included in the digital stamp

provided by CM/ECF.

Defendant’s Motion to Dismiss, ECF No. 43, will be addressed

by separate order.

52a

On June 12, 2023, Plaintiff filed a motion seeking

the Court’s leave to file a second amended complaint.

ECF No. 47. Defendant opposes the motion. ECF No. 53.

B. Plaintiff ’s Claims for Relief

Plaintiff brings this civil action pursuant to the

Criminal Profiteering Act, RCW 9A.82.010, 9A.82.100.

ECF No. 35 at 4 ¶ 14. A plaintiff may bring a civil suit

under the Criminal Profiteering Act if the plaintiff

“sustains injury to his or her person, business, or

property by an act of criminal profiteering that is part

of a pattern of criminal profiteering activity[.]” RCW

9A.82.100(1)(a). “Criminal profiteering” is defined as

“any act, including any anticipatory or completed

offense, committed for financial gain, that is chargeable

or indictable under the laws of the state in which the

act occurred and . . . punishable as a felony and by

imprisonment for more than one year, regardless of

whether the act is charged or indicted.” RCW

9A.82.010(4). This includes the unauthorized sale or

procurement of telephone records in violation of RCW

9.26A.140. RCW 9A.82.010(4)(nn).

In the First Amended Complaint (“FAC”), Plaintiff

asserts two theories under which Defendant has

violated RCW 9.26A.140. First, Plaintiff alleges that

Defendant unlawfully obtained his and other users’

cell phone numbers which they registered with a

Twitter account. See ECF No. 35 at 20-21 ¶¶ 115-126.

Second, he asserts that Defendant sold that information

to third-party advertisers from which Defendant

illegally profited. See ECF No. 35 at 21-23 ¶¶ 127-139.

C. Proposed Amendment

Plaintiff seeks to make substantial changes to the

FAC, proposing to remove:

53a

(1) “[h]ortatory allegations in the introductory

paragraphs of the FAC;”

(2) “[r]ferences to Washington’s Criminal

Profiteering Act as a basis for a claim for

relief;” and

(3) “[c]ertain fact allegations[.]”

ECF No. 47 at 2-3. Specifically, Plaintiff seeks to

remove the allegation that Defendant sold Twitter

users’ information to third-party advertisers from

which Defendant illegally profited (hereinafter “Claim

2”). See ECF No. 47.

LEGAL STANDARD

Pursuant to Fed. R. Civ. P. 15(a)(1)(A)-(B), a party

may file one amended pleading within 21 days after

serving it or, if it is a pleading to which a responsive

pleading is required, 21 days after receiving service of

a responsive pleading or motion. Fed. R. Civ. P. 15(a)(2).

In all other cases, parties must seek the opposing

parties’ written consent or the Court’s leave to file an

amended complaint. Id. “The court should freely give

leave when justice so requires.” Id.

“The standard for granting leave to amend is

generous. The court considers five factors in assessing

the propriety of leave to amend—bad faith, undue

delay, prejudice to the opposing party, futility of

amendment, and whether the plaintiff has previously

amended the complaint.” Armijo v. Yakima HMA, LLC,

868 F. Supp. 2d 1129, 1134 (E.D. Wash. 2012) (quoting

United States v. Corinthian Colleges, 655 F.3d 984, 995

(9th Cir. 2011) (internal citation omitted)).

DISCUSSION

Defendant opposes Plaintiff’s motion to amend because

the amendment is untimely, the amendment is futile,

54a

the amendment will prejudice Defendant, and the

amendment is made in bad faith. ECF No. 53 at 3-9.

Prior Amendment

Plaintiff has already amended the complaint once.

See ECF 35. Plaintiff did so in February 2023, nine

months after filing suit. ECF No. 35. Plaintiff did so

without leave and without Defendant’s written consent.

Because more than 21 days had passed since Plaintiff

served Defendant in April 2022, Fed. R. Civ. P. 15(a)(1)(A)

was inapplicable. Defendant had not yet filed an

answer in February 2023, because the Court had not

ruled on Plaintiff ’s motion to remand and due to the

parties’ stipulation to extend the deadlines under Fed.

R. Civ. P. 12. See ECF No. 12 at 2. Defendant had not

filed a motion under Fed. R. Civ. P. 12 (b), (e), or (f)

given those deadlines were also stayed. See ECF No.

12 at 2. Thus, Fed. R. Civ. P. 15(a)(1)(B) was also

inapplicable, and Fed. R. Civ. P. 15(a)(2) governed.

Plaintiff did not seek the Court’s leave prior to filing

his First Amended Complaint nor did he indicate he

obtained Defendant’s written consent. See ECF No. 35.

Plaintiff ’s FAC appears to have run afoul of Fed. R. Civ.

P. 15. However, Defendant did not object to the filing of

Plaintiff ’s FAC, so the Court took no action.

“A ‘district court’s discretion to deny leave to amend

is particularly broad where plaintiff has previously

amended the complaint.’” United Fed’n of Churches,

LLC v. Johnson, 598 F. Supp. 3d 1084, 1103 (W.D.

Wash. 2022) (quoting Cafasso v. General Dynamics C4

Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011)). In the

FAC, Plaintiff did not advance an additional theory or

claim. However, he added additional facts and attached

over 500 pages of exhibits, all purporting to support

his claims—including the second claim he now seeks

to dismiss. See ECF Nos. 35, 35-1 to 31-54. The Court

55a

finds that Plaintiff ’s prior amendment mere months

prior to his current request to amend again is

sufficient for the Court to deny his motion. However,

the Court will turn to the remaining factors, assessing

each in turn.

B. Futility

Plaintiff moves to dismiss Claim 2, asserting he

lacks the factual basis upon which Claim 2 can be

proven. See ECF No. 47. “[A] proposed amendment is

futile only if no set of facts can be proved under the

amendment to the pleadings that would constitute a

valid and sufficient claim or defense.” Miller v.

Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988),

overruled on other grounds by Ashcroft v. Iqbal, 556

U.S. 662 (2009). Since Plaintiff will provide no additional information by removing a claim, his amendment

would be futile. See Lum v. Bank of Am., 361 F.3d 217,

229 (3d Cir. 2004) (discussing the removal of an

antitrust claim is futile since it provides no additional

information).

C. Prejudice

“Prejudice is the paramount consideration in evaluating leave to amend and may alone provide a basis for

denying leave to amend.” A.T. v. Everett Sch. Dist., No.

C16-1536JLR, 2017 WL 4811361, at *4 (W.D. Wash.

Oct. 25, 2017) (citing Eminence Capital, LLC v. Aspeon,

Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). An amendment is prejudicial when it causes the opposing party

to change tactics or theories, or when it comes so late

that result in significant additional discovery. Id. (citing

Wizards of the Coast LLC v. Cryptozoic Entm’t LLC,

309 F.R.D. 645, 652 (W.D. Wash. 2015), AmerisourceBergen

Corp. v. Dialysist West, Inc., 465 F.3d 946, 953 n.10 (9th

Cir. 2006), Lockheed Martin Corp. v. Networth Sols.,

56a

Inc., 194 F.3d 980, 986 (9th Cir. 1999)). Defendant

bears the burden to demonstrate it will be prejudiced.

Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d

183, 187 (9th Cir. 1987)).

Defendant contends granting Plaintiff ’s Motion for

Leave to File Second Amended Complaint will “delay[]

this case and its resolution, require[] another round of

unnecessary briefing, and forc[e Defendant] to expend

resources to re-file a substantially similar [m]otion”

and thereby be prejudiced. ECF No. 53 at 7. The Court

agrees with Defendant’s assertions. The Court has

stayed the deadline for Plaintiff ’s response to

Defendant’s Motion to Dismiss due to the filing of the

instant motion. The filing of the instant motion has

also required Defendant to respond to it. Both actions

have delayed, at least in part, the resolution of

Defendant’s motion to dismiss. This has been

prejudicial to Defendant.

Moreover, if the Court granted Plaintiff ’s motion to

withdraw Claim 2 while the motion to dismiss is

pending, Defendant would have to file an amended

motion to dismiss. This would delay the proceedings

even further. Also, the granting of Plaintiff ’s instant

motion would eliminate Defendant’s ability to have

Claim 2 addressed on the merits. The Court finds

doing so would prejudice Defendant.

D. Undue Delay

“Undue delay is delay that prejudices the nonmoving

party or imposes unwarranted burdens on the court.”

Davis v. Powell, 901 F. Supp. 2d 1196, 1212 (S.D. Cal.

2012) (quoting BNSF Ry. Co. v. San Joaquin Valley R.

Co., No. 1:08-CV-01086-AWI, 2011 WL 3328398, at *2

(E.D. Cal. Aug. 2, 2011)). Defendant asserts that

Plaintiff’s timing of the proposed amendment is causing

57a

undue delay in the litigation given Defendant had just

filed a motion to dismiss. See ECF No. 53 at 3-4. The

Court concurs.

The Court issued its order denying Plaintiff’s motion

for remand on May 5, 2023. ECF No. 39. Defendant

was to answer or file a responsive pleading no later

than June 5, 2023. See ECF 39 at 35. Defendant filed

its Motion to Dismiss on June 2, 2023. ECF No. 43.

Plaintiff filed the instant motion on June 12, 2023 and

seeks to remove an entire claim and some introductory

statements. See ECF No. 47. Plaintiff’s Counsel supports

the motion to amend through a declaration. ECF

No. 57. He has declared that in late May, he “described

the general outlines of the factual allegations in [this

matter] to a group of friends and acquaintances.” ECF

No. 57 at 1. He explains that through that single

conversation, he learned from one of those individuals

“who was familiar with online advertising” that “no

advertiser ever asked for or received confirmation of

ad targeting from any online platform as alleged in the

. . . FAC.” ECF No. 57 at 1. Plaintiff ’s Counsel states

that he then began investigating that comment

further. ECF No. 57 at 2. He indicates that he “found

no person who had ever sought, much less received,

any kind of proof or confirmation that targets ads

were, in fact, targeted as sold.” ECF No. 57 at 2.

Plaintiff ’s Counsel goes on to say that his investigation

concluded on June 6, 2023. ECF No. 57 at 2.

Accordingly, within a few short weeks, Plaintiff ’s

Counsel discovered “it is not likely that a reasonable

opportunity for discovery will reveal that th[e] [second

claim’s] allegations will have factual support.” ECF

No. 47 at 3 (emphasis in original) (internal quotation

marks omitted).

58a

Washington Superior Court Rule 11 and Federal

Civil Rule of Procedure 11 both indicate that an

attorney’s signature serves as “a warranty that the

complaint is well grounded in fact and ‘existing law’

(or proposes a good faith extension of the existing law)

and that it is not filed for an improper purpose.”

Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir.

2002) (citing Fed. R. Civ. P. 11); Wash. Super. Ct. Civ. R.

11. When Plaintiff ’s Counsel submitted the original

complaint in state court and then filed the FAC in this

Court, Plaintiff ’s Counsel certified that the claims

advanced were grounded in fact. Yet, Plaintiff ’s

Counsel admits that the factual basis for the subject

claim was discredited within a few conversations

undertaken within a few weeks.3 The Court finds that

Plaintiff failure to adequately explore the factual basis

for the subject claim has caused undue delay by

requiring immediate attention by the opposing party

and the Court and delaying the briefing on

Defendant’s motion to dismiss.

E. Bad Faith

When assessing whether a party has acted in “bad

faith,” the Court must determine whether the acted

“act[ed] with intent to deceive, harass, mislead, delay,

or disrupt.” Wizards of the Coast, 309 F.R.D. at 651

(citations omitted). “[I]n other contexts, ‘bad faith’

means more than acting with bad judgment or

negligence, but ‘rather it implies the conscious doing of

a wrong because of dishonest purpose or moral

obliquity . . . [I]t contemplates a state of mind

The Court notes that Plaintiff’s Counsel represented the

plaintiff in Gray v. Twitter. Gray v. Twitter, Inc., No. 2:20-cv-01389LK, ECF Nos. 1, 14. In that matter, a substantially similar claim

to that of Claim 2 was pending. The plaintiff opposed dismissal.

See id., ECF No. 19.

59a

affirmatively operating with furt

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.