Case Information
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA VICENTE PENA, individually and on Case No.: 22-CV-1635 JLS (MDD) behalf of others similarly situated, ORDER GRANTING DEFENDANT’S Plaintiff, MOTION TO DISMISS v. (ECF No. 8) GAMESTOP, INC., Defendant.
Presently before the Court is Defendant GameStop, Inc.’s (“Defendant” or “GameStop”) Motion to Stay, Dismiss, or Transfer or in the Alternative Dismiss (“Mot.,” ECF No. 8). Plaintiff Vicente Pena filed an Opposition to the Motion (“Opp’n,” ECF No. 11), and Defendant filed a Reply in support of the Motion (“Reply,” ECF No. 12), as well as three Notices of Supplemental Authority, see ECF No. 13 (“1st Supp.”); ECF No. 16 (“2d Supp.”); ECF No. 18 (“3d Supp.”). Having carefully reviewed Plaintiff’s Complaint (“Compl.,” ECF No. 1), the Parties’ arguments, and the law, the Court GRANTS the Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and DISMISSES Plaintiff’s Complaint WITHOUT PREJUDICE .
/ / /
/ / / BACKGROUND [1]
Defendant owns and operates the website www.GameStop.com. Compl. ¶ 24. A web chat feature on Defendant’s website allows customers to communicate with Defendant concerning, for example, “questions about products, order issues, help with the site, etc.” Id. ¶ 26. Plaintiff has used this feature on Defendant’s website “[o]ver the last few years.” Id. ¶ 25.
Defendant “covertly monitors, records, and creates secret transcripts of all communications through the chat feature on its website,” without the knowledge of its customers. Id. ¶ 27. Defendant further “shares the secret transcripts with Zendesk, a third party that publicly boasts about its ability to harvest highly personal data from chat transcripts for sales and marketing purposes.” Id . ¶ 28. Plaintiff asserts that this conduct injured him and other customers by invading their privacy. ¶¶ 37–38.
Plaintiff initiated this putative class action on October 21, 2022, when he filed his Complaint. See generally id. He asserts claims for violations of the Federal Wiretap Act (“FWA”), 18 U.S.C. § 2510 et seq ., and the California Invasion of Privacy Act (“CIPA”), Cal. Pen. Code § 631, on behalf of both a nationwide class as well as a California subclass comprising “persons . . . whose communications were intercepted by Defendant or its agents.” See Compl. ¶¶ 1, 40–41.
On December 6, 2022, Defendant filed the instant Motion, asking the Court to either (i) stay, dismiss, or transfer these proceedings to the District Court for the Central District of California pursuant to the “first-to-file” rule of federal comity, or (ii) transfer the case pursuant to 28 U.S.C. § 1404(a), because another action “mak[ing] nearly identical allegations”— Licea v. GameStop, Inc. , Case No. 5:22-cv-01562 (JGB-KK) (C.D. Cal.) (the “ Licea action”)—had been filed and pending in the Central District since September [2] 6, 2022. ECF No. 8-1 (“Mot. Mem.”) at 1. However, on February 9, 2023, the plaintiff in the Licea action voluntarily dismissed that case. 1st Supp. at 1. As such, the “first-to- file” issue is moot and will not be addressed in this Order; likewise, Defendant’s § 1404(a) argument that the interests of justice strongly favor transfer on the basis of the pending Licea action is moot.
Alternatively, Defendant’s Motion requests that the Court dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mot. Mem. at 1. The Court addresses this request below.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the
defense that the complaint “fail[s] to state a claim upon which relief can be granted,”
generally referred to as a motion to dismiss. The Court evaluates whether a complaint
states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil
Procedure 8(a), which requires a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual
allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.”
Ashcroft v. Iqbal
,
To survive a motion to dismiss, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id.
(quoting
Twombly
,
“In reviewing a Rule 12(b)(6) motion to dismiss, a district court must accept as true
all facts alleged in the complaint, and draw all reasonable inferences in favor of the
plaintiff.”
Wi-LAN Inc. v. LG Elecs., Inc.
,
ANALYSIS
Defendant asserts that Plaintiff fails to state a claim under either the FWA or CIPA because (i) as a matter of law, Defendant is exempt from liability pursuant to the “party exception” that applies to each statute; and (ii) Plaintiff fails to adequately plead that the / / /
1 alleged acts constitute “interception” under the relevant statutes and case law. See Mot. Mem. at 16–21.
“The Wiretap Act prohibits the unauthorized ‘interception’ of an ‘electronic
communication,’” as well as the intentional disclosure or use of such intercepted
communications.
In re Facebook
,
Moreover, under both the FWA and CIPA, “[i]t shall not be unlawful . . . for a
person . . . to intercept a[n] electronic communication where such person is a party to the
communication,” so long as such interception is not “for the purpose of committing any
criminal or tortious act[.]” 18. U.S.C. § 2511(2)(d);
see In re Facebook, Inc. Internet
Tracking Litig.
,
I. The “Party Exception”
The Court agrees with Defendant that Plaintiff’s claims under both the FWA and CIPA fail as a matter of law because Defendant was the known and intended recipient of the communications sent by Plaintiff through the chat feature on Defendant’s website such that each statute’s “party exception” bars Defendant’s liability.
Here, Plaintiff pleads that he and the putative class members visited Defendant’s website, accessed the chat feature within, and “ communicate[d] with Defendant for various reasons such as questions about products, order issues, [and] help with the site.” Compl. ¶¶ 24–26 (emphasis added). These allegations essentially plead that Defendant was a party to the communications in question. Plaintiff then alleges that Defendant “secretly deployed wiretapping software on its website . . . [to] create[] secret transcripts of all communications sent through the chat feature.” Compl. ¶¶ 27–28. However, because Defendant was the party that was meant to, and did, receive Plaintiff’s communications, under the party exception, any alleged interception of the communications is not actionable.
Plaintiff nonetheless challenges the applicability of the party exception in this case on two grounds. First, Plaintiff asserts that, under In re Facebook , Defendant was an “unseen auditor” to whom the party exception is inapplicable. Opp’n at 13 (citing 956 F.3d at 608). Alternatively, Plaintiff argues that the party exception does not apply to its FWA claim because Defendant intercepted the communications “for the purpose of committing any criminal or tortious act”—namely, Defendant’s alleged violation of CIPA. at 14. The Court addresses each of these arguments in turn.
A. “Unseen Auditor” Liability
Plaintiff, relying on
In re Facebook
, argues that Defendant is an “unseen auditor”
ineligible for the party exception because the intended recipients of Plaintiff’s at-issue
communications were “Gamestop customer service representatives” rather than GameStop
itself.
Id.
at 13–14 (citing
However,
In re Facebook
is factually distinguishable from the instant case. There,
the communications in question were “GET requests” sent from the plaintiff social media
users’ web browsers to the third-party websites they sought to access; meanwhile,
Facebook, the defendant, had utilized “plug-in” software to simultaneously duplicate the
GET requests and transmit them to Facebook’s servers without the users’ knowledge, in
order to compile the users’ browsing histories to sell to advertisers.
In his Opposition, Plaintiff attempts to analogize to In re Facebook by alleging a distinction between Defendant’s customer service representatives, whom he suggests are the other “party” to the communications in question, and the supposed “engineers who installed the wiretapping code on the website,” who he claims were the “unseen auditors” excluded from the party exemption. Opp’n at 13. This attempt to fracture Defendant into different sub-entities, however, fails. First, the Complaint repeatedly claims that the communications in question were “with Defendant.” See, e.g. , Compl. ¶ 26 (“While on the site, Plaintiff and Class Members used the web chat feature to communicate with Defendant[.]”); id . ¶ 31 (alleging Plaintiff “reasonably believed[his] interactions with Defendant by chat were private”); id . ¶ 34 (stating that the at-issue communications “were content generated through Plaintiff’s use, interaction, and communication with Defendant through the chat feature on its web site”); id . ¶ 57 (noting that “Plaintiff and Class Members chatted with Defendant on its website”); id . ¶ 62 (same). The Complaint contains no allegations regarding “customer service representatives” or “engineers.” See generally id. Rather, the Complaint specifies that, “[u]nless otherwise indicated, the use of Defendant’s name in this Complaint includes all agents, employees, . . . [and] representatives . . . of the named Defendant.” ¶ 14. Accordingly, per the Complaint’s plain terms, customer service representatives and engineers acting on behalf of Defendant are, for purposes of Defendant’s liability, “Defendant.”
/ / /
/ / / As such, Plaintiff has failed to plead anything other than that Defendant intercepted communications to which it was itself a party, placing Defendant squarely within the party exception and barring Defendant’s liability under the FWA and CIPA. [3]
B. The “Criminal or Tortious Act” Exception
Plaintiff additionally contends that Defendant’s alleged violation of CIPA constitutes a “criminal or tortious act” that renders the party exception inapplicable to his FWA claim. Opp’n at 14. As noted above, the party exception bars liability under the FWA only so long as the interception was not undertaken “for the purpose of committing any criminal or tortious act[.]” 18 U.S.C. § 2511(2)(d).
Plaintiff does not allege that Defendant intercepted the communications at issue for
the purpose of violating CIPA, but even if he did, “[P]laintiff[] point[s] to no legal authority
providing that the exception to § 2551(2)(d) is triggered when, as here, the tortious conduct
is the alleged wiretapping itself.”
In re Google Cookie Placement Consumer Priv. Litig
.,
In sum, the Court concludes that, as presently pleaded, the Complaint suggests that the party exception to both the FWA and CIPA exempts Defendant from liability; thus, Plaintiff fails to state a claim for violation of either statute. Accordingly, the Court GRANTS Defendant’s Motion on this basis.
II. Disclosure of “Intercepted” Communications
Defendant further asserts that Plaintiff fails to state a claim for violation of either the FWA or CIPA because, while Plaintiff alleges generally that Defendant shared chat transcripts with one or more third parties, he pleads no facts to support those conclusory allegations and render them plausible. Mot. Mem. at 16–17, 19–21. To the extent the Court finds otherwise, Defendant argues that the alleged sharing of the information here does not violate either statute. See id. at 17, 19–21. As to both claims, given that Defendant was a party to the communication, the alleged “interception” was not illegal, and accordingly any subsequent disclosure to a third party is likewise not actionable. Id. at 17, 20–21. As to the CIPA claim, Defendant additionally argues that the communications must be intercepted while in transit rather than after the fact; because GameStop was the “intended destination” for the web chat communications, they were not intercepted such that their subsequent sharing was actionable. at 20–21.
The Court agrees that, on its face, the Complaint fails to allege that any information shared with Zendesk was “intercepted” in a manner that would be actionable under either the FWA or CIPA. The FWA defines “intercept” as the “aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). The Ninth Circuit has held that for a communication to be considered “intercepted” under the FWA, it “must be acquired during transmission, not while it is in electronic storage.” Konop v. Hawaiian Airlines, Inc. , F.3d 868, 878 (9th Cir. 2002) (footnote omitted). CIPA’s “while the same is in transit” / / /
language has the same effect, and courts look to cases analyzing the FWA in applying
CIPA’s “in transit” requirement.
See Licea
,
“[Defendant] cannot intercept communications to which [Defendant] is already a
party”; accordingly, given that the Court has found that the Complaint alleges that
Defendant was a party to the communications at issue, Plaintiff fails to state a claim under
either the FWA or CIPA.
Brodsky
, 445 F. Supp. 3d at 127;
see supra
Section I.
Furthermore, Plaintiff fails to conclusorily allege, much less state facts to plausibly support,
that the communications in question were acquired “in transit” such that they were
“intercepted” under CIPA.
See generally
Compl. “Bare allegations of recording and
creating transcripts do not specifically allege that Plaintiffs’ messages were intercepted
while in transit.”
Licea
,
III. Conclusion
In sum, Plaintiff has failed to state a claim for which relief can be granted under
either the FWA or CIPA because: (i) Defendant is exempt from liability as a party to the
communications; and (ii) even if Defendant were not a party, Plaintiff fails to plead facts
sufficient to show that his communications were “intercepted.” Although Defendant seeks
dismissal of the Complaint without leave to amend,
see, e.g.
, Mot. Mem. at 21, “Plaintiff
may be able to amend the [Complaint] to allege additional facts that suggest that the party
exemption does not apply to Defendant and that Plaintiff’s communications were
intercepted in transit,”
Licea
,
CONCLUSION
In light of the foregoing, the Court GRANTS Defendant’s Motion to Dismiss (ECF No. 8) and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint (ECF No. 1).
Plaintiff
MAY FILE
an Amended Complaint curing the deficiencies of pleading
noted in this Order within thirty (30) days of the date of this Order. Plaintiff’s Amended
Complaint must be complete by itself without reference to his original Complaint; any
Defendant not named and any claims not realleged in the Amended Complaint will be
considered waived.
See
S.D. Cal. CivLR 15.1;
Hal Roach Studios, Inc. v. Richard Feiner
& Co., Inc.
,
IT IS SO ORDERED. Dated: April 27, 2023
Notes
[1] The facts alleged in Plaintiff’s Complaint are accepted as true for purposes of Defendant’s Motion.
See
Vasquez v. Los Angles Cnty.
,
[2]
[2] Throughout this Order, citations to the Parties’ briefing refer to the internal page numbers assigned by the Parties rather than the pagination assigned by the District’s Case Management/Electronic Case Filing system.
[3]
[3] To the extent Plaintiff contends that the party exception is inapplicable to Internet communications, see Opp’n at 14 (claiming “not a single case turning on the party exception to the Wiretap Act implicates electronic web communications”), the Court disagrees; indeed, other courts have applied the party exception in nearly identical circumstances. See, e.g. , See Licea v. Am. Eagle Outfitters, Inc. , Case No. EDCV 22-1702-MWF (JPR), 2023 WL 2469630, at *8 (C.D. Cal. Mar. 7, 2023) (finding the party exception insulated from liability a defendant website operator who allegedly violated CIPA by allowing a third party to intercept conversations communicated via the defendant’s website’s chat feature).
[8]
[10]