986 F.Supp.2d 151 (E.D.N.Y 2013), 13 CV 120 (ILG)(RER), Rudgayzer v. Google, Inc.

Docket Nº13 CV 120 (ILG)(RER)
Citation986 F.Supp.2d 151
Opinion JudgeI. Leo Glasser, Senior United States District Judge.
Party NameRUDGAYZER, et al., Plaintiff, v. GOOGLE, INC., Defendant
AttorneyNo. 13 CV 120 (ILG)(RER) For Albert Rudgayzer, Michael Amalfitano, Lillian Ganci, Individually and on Behalf of All Others Similarly Situated, Plaintiffs: Todd C. Bank, LEAD ATTORNEY, Law Office of Todd C. Bank, Kew Gardens, NY. For Google Inc., Defendant: Dennis C. Hopkins, LEAD ATTORNEY, Perkin...
Case DateNovember 15, 2013
CourtUnited States District Courts, 2nd Circuit, Eastern District of New York

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986 F.Supp.2d 151 (E.D.N.Y 2013)

RUDGAYZER, et al., Plaintiff,

v.

GOOGLE, INC., Defendant

No. 13 CV 120 (ILG)(RER)

United States District Court, E.D. New York

November 15, 2013

Decided November 14, 2013

For Albert Rudgayzer, Michael Amalfitano, Lillian Ganci, Individually and on Behalf of All Others Similarly Situated, Plaintiffs: Todd C. Bank, LEAD ATTORNEY, Law Office of Todd C. Bank, Kew Gardens, NY.

For Google Inc., Defendant: Dennis C. Hopkins, LEAD ATTORNEY, Perkins Coie LLP, New York, NY; Rebecca S. Engrav, LEAD ATTORNEY, PRO HAC VICE, Perkins Coie LLP, Seattle, WA; Susan D. Fahringer, LEAD ATTORNEY, Perkins Coie LLP, Seattle, WA.

OPINION

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MEMORANDUM AND ORDER

I. Leo Glasser, Senior United States District Judge.

Plaintiffs Albert Rudgayzer, Michael Amalfitano, and Lillian Ganci (" Plaintiffs" ) bring this action against Google, Inc. (" Google" ), alleging violations of the Stored Communications Act (" SCA" ), 18 U.S.C. § § 2701-2712, for purportedly making public their private information without their consent.

Two motions are before the court. First, Google has moved to dismiss this action for improper venue, or in the alternative to transfer it to the Northern District of California for more convenient venue. Second, Google has moved to dismiss the complaint for lack of standing and failure to state a claim. Google's venue motion is GRANTED to the extent it requests dismissal and DENIED as moot to the extent it requests transfer. Google's motion to dismiss for lack of standing and failure to state a claim is DENIED as moot.

BACKGROUND

The following facts are taken from the Plaintiffs' complaint as well as from extrinsic documents that the Court may consider in ruling on these motions. See Serdarevic v. Centex Homes, LLC, 760 F.Supp.2d 322, 328 (S.D.N.Y. 2010). Google launched Buzz, a social networking tool, on February 9, 2010. Complaint dated January 8, 2013 [Dkt. No. 1] (" Compl." ) at ¶ 12. For those Gmail users who had previously created public Google profiles for themselves, Buzz automatically made public a list of people with whom the user had frequently emailed or chatted. Id. at ¶ ¶ 12, 16, 20. The plaintiffs had Gmail accounts when Buzz was launched, though they do not say

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whether they had public profiles at that time. Id. at ¶ 23.

On July 30, 2010, a group of named plaintiffs filed a consolidated and amended class-action complaint in the Northern District of California, for a class consisting of all Gmail users, alleging that Buzz violated federal and state privacy laws by making Gmail users' contact lists public without consent. Memorandum in Support of Google's Motion to Dismiss for Failure to State a Claim and Lack of Subject Matter Jurisdiction [Dkt. No. 11-1] (" Def.'s State a Claim Mem." ) at Ex. A. All three plaintiffs in this case were part of the putative class in the 2010 case. Compl. at ¶ 1. The parties agreed to settle on September 2, 2010; Google's primary concessions were to make Buzz opt-in rather than opt-out and to pay $8.5 million to nonprofit organizations promoting internet privacy. Def.'s State a Claim Mem. at Ex. B. The district court preliminarily approved the settlement on October 7, 2010, and gave putative class members 60 days to request exclusion. Id. at Ex. C. Rudgayzer successfully excluded himself from the class. Compl. at ¶ 32. Amalfitano's request for exclusion was deemed late, which he attributes to inconsistent deadlines in the settlement agreement and class notice. Id. at ¶ ¶ 25-29, 34. Ganci did not attempt to exclude herself from the class, but says she would have if she had been aware of inconsistencies between the class notice and settlement agreement regarding the deadline for exclusion, criteria for opting out, and the definition of the class. Id. at ¶ ¶ 30, 36. One class member challenged the settlement agreement on the basis of these inconsistencies. Def.'s State a Claim Mem. at Ex. F. The district court rejected the challenge and finally approved the class on June 2, 2011. Id. at Ex. E.

The Plaintiffs filed their complaint in this court on January 8, 2013. Dkt. No. 1. Google filed two motions on February 19, one to dismiss or transfer the action on the basis of improper or inconvenient venue and one to dismiss the complaint for lack of standing and failure to state a claim. Def.'s State a Claim Mem.; Memorandum in Support of Google's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 12] (" Def.'s Venue Mem." ). The Plaintiffs filed responses in opposition to both of Google's motions on June 10. Plaintiffs' Opposition to Defendant's Motion to Dismiss for Failure to State a Claim and Lack of Standing [Dkt. No. 27] (" Pls.' State a Claim Opp'n" ); Plaintiffs' Opposition to Defendant's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 22] (" Pls.' Venue Opp'n" ). Google filed replies in support of both of its motions on July 31. Reply in Support of Google's Motion to Dismiss for Failure to State a Claim and Lack of Standing [Dkt. No. 30] (" Def.'s State a Claim Reply" ); Reply in Support of Google's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 29] (" Def.'s Venue Reply" ).

DISCUSSION

I. Motion to Dismiss or Transfer for Improper or Inconvenient Venue

Google argues that this action should be dismissed under Federal Rule of Civil Procedure 12(b)(3) for contravening a forum-selection clause that sets venue in Santa Clara County, California. Def.'s Venue Mem. at 7-18. The forum-selection clause reads: " You and Google agree to submit to the exclusive jurisdiction of the courts located within the county of Santa Clara, California to resolve any legal matter arising from the Terms." Declaration of Marc S. Crandall in Support of Google's Motion to Dismiss or Transfer for Improper Venue [Dkt. No. 12-10] (" Crandall Decl." ) at

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Ex. B ¶ 20.7.1 The agreement also contains a separate choice-of-law clause, which provides that the agreement " shall be governed by the laws of the State of California." Id.

Google argues in the alternative that transfer to the Northern District of California is appropriate under 28 U.S.C. §...

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