MARK JONES; MICHAEL MCKEE v. FORD MOTOR COMPANY, a Delaware Corporation
No. 22-35447
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
October 27, 2023
D.C. No. 3:21-cv-05666-DGE
Michael Daly Hawkins, Susan P. Graber, and M. Margaret McKeown, Circuit Judges.
FOR PUBLICATION
OPINION
David G. Estudillo, District Judge, Presiding
Argued and Submitted August 22, 2023
Seattle, Washington
Filed October 27, 2023
Per Curiam Opinion
SUMMARY*
Article III Standing / Washington Privacy Act
The panel affirmed the district court‘s judgment dismissing for failure to state a claim a class action alleging that the Ford Motor Company made unlawful recordings of plaintiffs’ private communications in violation of the Washington Privacy Act (“WPA“).
The panel rejected plaintiffs’ request for remand to the Washington state court because it was based on the flawed argument that Ford “self-rebutted the assertion of Art. III jurisdiction” when it alleged that plaintiffs failed to plead a statutory injury under the WPA in its motion to dismiss. The injury-in-fact prong of Article III standing and the merits of a WPA claim are separate inquiries. With respect to constitutional injury-in-fact, the complaint‘s allegations plausibly articulated an Article III injury because they claimed violation of a substantive privacy right. Article III standing was thus satisfied, and the district court properly retained jurisdiction.
Turning to the merits of the WPA claim, the panel rejected plaintiffs’ claim that a violation of the WPA itself is an invasion of privacy that constitutes remediable injury. An invasion of privacy, without more, is insufficient to meet the statutory injury requirements of
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
business, his or her person, or his or her reputation.”
COUNSEL
Joel Ard (argued), Ard Law Group PLLC, Bainbridge Island, Washington; William R. Restis, Restis Law Firm PC, San Diego, California; for Plaintiffs-Appellants.
Peder K. Batalden (argued) and Emily V. Cuatto, Horvitz & Levy LLP, Burbank, California; Aaron D. Van Oort (argued), Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota; Eric B. Wolff (argued), Perkins Coie LLP, Seattle, Washington; Anthony Todaro and Jeffrey B. DeGroot, DLA Piper LLP (US), Seattle, Washington; for Defendants-Appellees.
OPINION
PER CURIAM:
Plaintiffs Mark Jones and Michael McKee appeal the dismissal of their class action alleging that the Ford Motor Company (“Ford“) made unlawful recordings of their private communications in violation of the Washington Privacy Act (“WPA“).
I. BACKGROUND
Ford manufactures and sells automobiles with integrated infotainment systems that allow drivers and passengers to use their cellphones hands-free while operating Ford
vehicles. According to the complaint, as part of this design, the infotainment system automatically downloads, copies, and indefinitely stores the call logs and text messages of any cellphone connected to it. If text messages or call logs are deleted from a cellphone, the vehicle nevertheless retains the communications on the vehicle‘s on-board memory, even after the cellphone is disconnected. Vehicle owners cannot access or delete their personal information once it has been stored.
Plaintiff Jones owns a Ford vehicle equipped with such a system. He exchanged private text messages with Plaintiff McKee before subsequently connecting his cellphone to the vehicle‘s on-board infotainment
Plaintiffs initially filed their complaint in Washington state court. Ford removed to federal court under the Class Action Fairness Act (“CAFA“), and Plaintiffs did not challenge removal. Ford then moved to dismiss the operative complaint under
court granted the motion to dismiss on two alternative grounds: (1) Plaintiffs failed to allege an injury to their “person,” “business,” or “reputation,” as the WPA requires, and (2) Ford did not violate the WPA merely by manufacturing and selling vehicles with infotainment systems. Plaintiffs timely appealed.
II. STANDARD OF REVIEW
We review de novo a district court‘s determination whether a party has standing. See Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092, 1098 (9th Cir. 2022). We also review de novo a district court‘s dismissal for failure to state a claim under
III. DISCUSSION
A. Jurisdiction.
Article III of the Constitution limits the “Judicial Power” of the federal courts to “Cases, in Law and Equity, arising under this Constitution [and] the Laws of the United States.”
89 (2014); Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th 989, 992-93 (9th Cir. 2022).
Plaintiffs seek remand based on the flawed argument that Ford “self-rebutted the assertion of Art. III jurisdiction” when it alleged that Plaintiffs failed to plead a statutory injury under the WPA in its motion to dismiss. This we decline to do. Plaintiffs’ challenge fails because the injury-in-fact prong of Article III standing and the merits of a WPA claim are separate inquiries. See Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011).
To establish the constitutional minimum for Article III jurisdiction, a plaintiff must plead an injury-in-fact; this creates a pleading floor. A particular cause of action may require more—for instance, a particular type of injury or a threshold magnitude
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.” In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 598 (9th Cir. 2020). And this court has consistently found that “[v]iolations of the right to privacy
have long been actionable at common law.” Eichenberger v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir. 2017); see also Patel v. Facebook, Inc., 932 F.3d 1264, 1272-73 (9th Cir. 2019). The WPA codifies such substantive privacy rights and “is one of the most restrictive electronic surveillance laws ever promulgated.” State v. Roden, 321 P.3d 1183, 1185 (Wash. 2014) (en banc); see also State v. Clark, 916 P.2d 384, 391-92 (Wash. 1996) (en banc).
Here, the complaint alleges that the vehicle‘s system downloads all text messages and call logs from Plaintiffs’ cellphones as soon as they are connected. The complaint also alleges that the infotainment system permanently stores the private communications without Plaintiffs’ knowledge or consent. At the pleading stage, those allegations plausibly articulate an Article III injury because they claim violation of a substantive privacy right. See Eichenberger, 876 F.3d at 983. Whether Plaintiffs “will be successful on the merits in [this] suit against [Ford] does not affect whether [they have] standing to pursue such a suit.” Iten v. Los Angeles, No. 22-55480, 2023 WL 5600292, at *8 (9th Cir. Aug. 30, 2023) (citation omitted). Article III standing is thus satisfied, and the district court properly retained jurisdiction to hear this case.
B. Injury.
To bring a claim under the WPA, a plaintiff must show that “a violation of [the WPA] has injured his or her business, his or her person, or his or her reputation. A person so injured shall be entitled to actual damages . . . or liquidated damages.”
It is well established that “[s]tatutes must be interpreted and construed so that all the language used is given effect, with no portion rendered meaningless or superfluous.” Whatcom Cnty. v. City of Bellingham, 909 P.2d 1303, 1308 (Wash. 1996) (en banc); see also Corley v. United States, 556 U.S. 303, 314 (2009). If Plaintiffs’ understanding of the statute were sufficient to establish a claim, WPA Section 9.73.060 would be surplusage because a violation of the statute alone, without more, would automatically satisfy an injury to the person. Yet, the statute expressly requires an injury to one‘s business, person, or reputation. We find it difficult to believe Washington intended such a redundant outcome.
This issue has been percolating through district courts in our circuit, and they have
We embrace this analysis and hold that an invasion of privacy, without more, is insufficient to meet the statutory injury requirements of Section 9.73.060. To succeed at the pleading stage of a WPA claim, Plaintiffs must allege an injury to “his or her business, his or her person, or his or her reputation.”
to do so here.1 We note that Plaintiffs were given an opportunity to amend their complaint but declined to do so.
AFFIRMED.