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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 This matter comes before the Court on Defendants motion to dismiss Plaintiffs fraud v. AMAZON.COM, INC., a Delaware corporation, and IMDB.COM, INC., a Delaware corporation, Defendants. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE HUONG HOANG, an individual, Plaintiff, CASE NO. C11-1709MJP ORDER GRANTING DEFENDANTS MOTION TO DISMISS FRAUD CLAIM

18 claim pursuant to Federal Rule 9(b) and Federal Rule 12(b)(6). (Dkt. No. 46.) Having reviewed 19 the motion, Plaintiffs opposition (Dkt. No. 48), Defendants reply (Dkt. No. 49), and all related 20 filings, the Court GRANTS Defendants motion and DISMISSES Plaintiffs fraud claim with 21 prejudice. 22 23 Background On March 30, 2012, the Court dismissed two of Plaintiffs original four causes of action,

24 but allowed Plaintiffs breach of contract and consumer protection claims to survive. (Dkt. No.
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1 42.) The Court dismissed Plaintiffs claim for violation of the Washington Privacy Act with 2 prejudice because it held the Act was inapplicable to this case. (Id. at 10.) The Court granted 3 Plaintiff leave to amend her claim for fraud in order to satisfy both the particularity requirement 4 of Federal Rule 9(b) and the requirements of Washington law. (Id. at 9.) 5 Plaintiff filed a second amended complaint on April 25, 2012, which included a number

6 of changes and additions. (Dkt. No. 45.) Most significantly, the second amended complaint 7 attached privacy policies from Defendants Amazon.com and IMDb.com that Plaintiff claims 8 were in effect at the time Plaintiff used Defendants services. (Dkt. No. 45-1.) Plaintiff also 9 amended her complaint to include a number of specific statements from these privacy policies, 10 and added more detailed statements about her reliance on these allegedly false statements. (Dkt. 11 No. 45 at 8-12.) 12 Defendants argue that Plaintiff still fails to meet Federal Rule 9(b)s requirement that

13 allegations of fraud be pled with particularity and to allege conduct that constitutes fraud under 14 Washington law. (Dkt. No. 46 at 8-15.) Defendants also assert that Plaintiff fails to distinguish 15 between Defendants Amazon.com and IMDb.com as required by Rule 9(b). (Id.) 16 17 18 A. Legal Standard In considering a motion to dismiss under Federal Rule 12(b)(6), a court must accept all Discussion

19 plaintiffs well-pled factual allegations as true and must draw all reasonable inferences in 20 plaintiffs favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, Rule 21 12(b)(6) requires a court to dismiss a claim when there is no cognizable legal theory or an 22 absence of sufficient facts alleged to support a cognizable legal theory. Navarro v. Block, 250 23 F.3d 729, 732 (9th Cir. 2001). A plaintiff must plead more than a sheer possibility that a 24 defendant has acted unlawfully. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a
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1 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a 2 claim to relief that is plausible on its face. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 3 44, 570 (2007)). 4 Rule 9(b) requires that, when fraud is alleged, a party must state with particularity the

5 circumstances constituting fraud. Fed. R. Civ. P. 9(b). The circumstances constituting the 6 alleged fraud must be specific enough to give defendants notice of the particular misconduct . . . 7 so that they can defend against the charge and not just deny that they have done anything 8 wrong. Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2004). Rule 9(b) serves three 9 purposes: (1) to provide defendants with adequate notice to allow them to defend the charge and 10 deter plaintiffs from the filing of complaints as a pretext for the discovery of unknown wrongs; 11 (2) to protect those whose reputation would be harmed as a result of being subject to fraud 12 charges; and (3) to prohibit plaintiffs from unilaterally imposing upon the court, the parties and 13 society enormous social and economic costs absent some factual basis. Id. at 1125. 14 15 B. Fraud Claim Against Amazon.com Plaintiffs fraud claim still fails to meet the requirements of Rule 9(b) and Rule 12(b)

16 with regard to Defendant Amazon.com. Plaintiff only points to one alleged misstatement by 17 Amazon.coma sentence in Amazon.coms privacy notice stating that Amazon.com will only 18 share customer information with subsidiaries that follow practices at least as protective as those 19 described in this privacy notice. (Dkt. No. 45 at 8.) 20 This misstatement is not alleged with the required degree of particularity. Rule 9(b)

21 requires that a plaintiff include the who, what, when, where and how of the misconduct 22 charged. Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010). There is no 23 when. Plaintiff simply alleges that she purchased products from Amazon.com prior to 24 subscribing to IMDbPro, and that she came across this statement during one of those
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1 transactions. (Dkt. No. 45 at 8.) Although plaintiffs are not absolutely required to plead the 2 specific date, place, or time of the fraudulent acts, they must still use some means of injecting 3 precision and some measure of substantiation into their allegations of fraud. See Segemen v. 4 Weidner, 780 F.2d 727, 731 (9th Cir. 1986); 2 James W m. Moore, Moores Federal Practice 5 9.03[1][b], at 9-18 (3d ed. 2010). Plaintiffs fraud claim against Defendant Amazon.com consists 6 of no more than a conclusory allegation. (Dkt. No. 45 at 8.) 7 Plaintiff also cannot meet the requirements of Rule 9(b) by simply alleging that

8 Amazon.com engaged in the same conduct as IMDb.com. Rule 9(b) does not allow a complaint 9 to merely lump multiple defendants together but requires plaintiffs to differentiate their 10 allegations when suing more than one defendant. Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th 11 Cir. 2007) (citations omitted). [A] plaintiff must, at a minimum, identify the role of each 12 defendant in the alleged fraudulent scheme. Id. at 765. Plaintiffs statement that her fraud claim 13 involves the Defendants doing essentially the same act is insufficient to meet the requirements 14 of Rule 9(b). (Dkt. No. 48 at 5.) 15 Plaintiff also fails to state a claim for fraud under Washington law against Amazon.com.

16 The elements of fraud in Washington are: (1) a representation of an existing fact, (2) its 17 materiality, (3) its falsity, (4) the speakers knowledge of its falsity or ignorance of its truth, (5) 18 the speakers intent that it should be acted on by the person to whom it is made, (6) ignorance of 19 its falsity on the part of the person to whom it is made, (7) the latters reliance on the truth of the 20 representation, (8) her right to rely on it, and (9) her consequent damage. Kirkham v. Smith, 106 21 Wn.App. 177, 183 (2001). Here, Plaintiff fails to describe how Amazon.coms statement was 22 false. Even if Amazon.com did share Plaintiffs information with IMDb.com, Plaintiff does not 23 explain how IMDb.com is either not subject to th[e] [Amazon.com] Privacy Notice or [does 24
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1 not] follow practices as protective as those described in [the] Privacy Notice. (Dkt. No. 45 at 8.) 2 Therefore, Plaintiff fails to state a claim for fraud against Amazon.com. 3 4 C. Fraud Claim Against IMDb.com Plaintiff also fails to meet the requirements of Rules 9(b) and Washington law with

5 regard to her fraud claim against Defendant IMDb.com. While Plaintiffs second amended 6 complaint includes some new informationmost notably the alleged date she accessed the 7 IMDbPro.com subscription page and some additional statements allegedly contained on that 8 pageher allegations are still far from particular. (Dkt. No. 45 at 8); Ebeid, 616 F.3d at 999. 9 Rule 9(b) requires a plaintiff both to plead the conduct constituting fraud with some level of 10 specificity and to supply reasonable indicia that fraud occurred. Id. Plaintiff here provides 11 neither. 12 While plaintiffs are not required to allege all facts supporting each and every instance

13 of fraud, a high degree of specificity is still required by Rule 9(b). Ebeid, 616 F.3d at 999. 14 Plaintiffs allegedly false statements fall into two categories: they either describe the security 15 features of Amazon.coms payment system or they describe how IMDb.com protects 16 subscribers personal information. (Dkt. No. 45 at 9-10.) In either case, Plaintiff provides no 17 details, beyond her own conclusory allegations, that support an inference that any of the 18 statements she cites are false. (Id.) Plaintiff also fails to describe with any degree of specificity 19 how IMDb.com knew the statements were false, or how the alleged fraud was perpetrated by 20 IMDb.com. (Id.) 21 Plaintiffs fraud claim against IMDb.com also fails because the allegedly fraudulent

22 statements she cites are not misrepresentations of existing facts. (Dkt .No. 49 at 8.) The 23 Washington Supreme Court has held that [a] promise of future performance is not a 24 representation of an existing fact, and will not support a fraud claim, W. Coast, Inc. v.
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1 Snohomish County, 112 Wn.App. 200, 206 (2002). Although promises may provide a basis for a 2 fraud action if they are made for the purpose of deceiving and with no intention to perform, 3 Plaintiffs bare allegations are insufficient to support an inference that Plaintiffs statements were 4 made solely to deceive. See Markov v. ABC Transfer & Storage Co., 76 Wn.2d 388, 396 (1969). 5 Plaintiffs fraud claim against IMDb.com also fails to adequately allege the other

6 elements of fraud. Plaintiff provides only a rote recitation of the elements of fraud. (Dkt. No. 45 7 at 11-12.) She alleges the statements in IMDbPros subscriber agreement were material, that 8 IMDb.com knew the statements were false, that IMDb.com intended to induce her to join 9 IMDbPro, that she did not know the statements were false, that she relied on the statements in 10 deciding to join, that she had a right to rely on the statements, and that she was damaged. (Id.) 11 Plaintiff offers few details supporting these statements. As the Supreme Court has emphasized, a 12 pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause 13 of action will not do. Twombly, 550 U.S. at 555. That is the case here. 14 15 Conclusion Having granted Plaintiff leave to amend her fraud claim once to meet the requirements of

16 Rules 9(b) and 12(b)(6), the Court need not grant leave again. Because Plaintiff fails to allege the 17 circumstances of fraud with particularity as required by Rule 9(b), and because Plaintiff does not 18 state the elements of a fraud claim under Washington law against either Defendant, the Court 19 DISMISSES Plaintiffs fraud claim with prejudice. 20 21 22 23 24
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The clerk is ordered to provide copies of this order to all counsel. Dated this 2nd day of July, 2012.

Marsha J. Pechman United States District Judge