Morgan v. Twitter Inc, No. 2:2022cv00122 - Document 39 (E.D. Wash. 2023)

Court Description: ORDER DENYING 8 PLAINTIFF'S MOTION TO REMAND. Signed by Judge Mary K. Dimke. (LAS, Case Administrator)

Download PDF

Morgan v. Twitter Inc Doc. 39 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 May 05, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 GLEN MORGAN, individually and on behalf of all others similarly situated, 8 Plaintiff, No. 2:22-cv-00122-MKD ORDER DENYING PLAINTIFF’S MOTION TO REMAND 9 v. ECF No. 8 10 TWITTER, INC., 11 Defendant. Before the Court is Plaintiff’s Motion to Remand, ECF No. 8. Plaintiff is 12 13 represented by Joel B. Ard and David K. DeWolf. Defendant is represented by 14 Aravind Swaminathan and Thomas K. Fu. The Court has reviewed the motion and 15 related filings, considered the parties’ arguments, and is fully informed. For the 16 reasons discussed below, the Court denies Plaintiff’s Motion to Remand, ECF 17 No. 8. 18 19 20 ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 1 Dockets.Justia.com 1 BACKGROUND 2 A. Procedural Posture 3 Plaintiff filed suit on May 3, 2022, in Spokane County Superior Court. ECF 4 No. 1 at 38-51. Defendant removed the action to federal court on May 19, 2022. 5 ECF No. 1. On May 26, 2022, Plaintiff moved the Court to remand the matter 6 back to state court. ECF No. 8. Plaintiff made a single argument: Defendant’s 7 Notice of Removal was untimely. See ECF No. 8. Defendant opposed Plaintiff’s 8 Motion to Remand and responded to the untimeliness argument. See ECF No. 18. 9 In reply, Plaintiff asserted for the first time that this Court is unable to exercise its 10 limited jurisdiction because he “seek[s] a statutory damages remedy.” ECF No. 20 11 at 5. Plaintiff asserts that the Complaint does not confer Article III standing and 12 thereby requires remand to state court. ECF No. 20 at 5-8. In the Motion to Remand, Plaintiff advised why he filed this action, which is 13 14 nearly identical to Gray v. Twitter, Inc., No. 20-cv-01389 (W.D. Wash.),1 in the 15 Plaintiff’s counsel filed the Gray case in the Western District of Washington on 16 1 17 September 21, 2020. On August 30, 2022, Plaintiff provided notice that Darlin 18 Gray, the plaintiff in Gray v. Twitter, Inc., voluntarily dismissed that action. ECF 19 No. 27; Gray v. Twitter, Inc., No. 20-cv-01389, ECF No. 36. The matter was 20 dismissed without prejudice. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 2 1 wake of the Supreme Court’s decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2 2190 (2021). ECF No. 8 at 5-7. While Plaintiff explained the Supreme Court’s 3 holding in TransUnion in this section of the original motion explained, Plaintiff did 4 not argue that Article III standing’s requirements were lacking in this matter. See 5 ECF No. 8 at 5-7. However, in reply and at the August 24 hearing, Plaintiff 6 primarily argued remand is appropriate because Article III standing is not satisfied. 7 See ECF No. 20. Defendant requested leave to respond to Plaintiff’s new 8 argument. On September 9, 2022, the Court directed the parties to provide 9 10 supplemental briefing on whether Article III standing exists. ECF No. 29. 11 Defendant filed a supplemental brief on September 23, 2022. ECF No. 30. 12 Plaintiff responded on September 30, 2022. ECF No. 31. The Court granted 13 Defendant leave to file a surreply, which was filed on October 14, 2022. ECF Nos. 14 32, 33. On January 25, 2023, Plaintiff filed Notice of Supplemental Authority. 15 ECF No. 34. On February 21, 2023, Plaintiff filed a first amended complaint.2 16 17 2 18 facts and numerous newly attached exhibits. These include pleadings in multiple 19 cases like Twitter, Inc. v. Elon R. Musk, X Holdings I, Inc., and X Holdings II, Inc., 20 No. 2022-0613-KSJM (Del. Ct. Ch) and United States v. Twitter, Inc., No. 3:22- The First Amended Complaint expands upon the original by providing additional ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 3 1 ECF No. 35. On May 2, 2023, the Court held a status hearing in the above- 2 captioned matter. See ECF Nos. 36, 38. At that hearing, Defendant did not object 3 to Plaintiff’s filing of an amended complaint. 4 B. Summary of Allegations Plaintiff alleges Defendant violated his right to privacy. See, e.g., ECF No. 5 6 1 at 38, 39 (“Privacy is a 21st century civil rights issue;” “powerful companies 7 disregard their promises to users about privacy;” “same companies . . . profit from 8 refusing to honor the privacy choices exercised by users;” “as with other civil 9 rights violations, [Washington has] established statutory violations . . . to protect 10 the civil right in privacy of users’ phone numbers and other records”). Plaintiff 11 brings this civil action pursuant to the Criminal Profiteering Act,3 RCW 12 13 14 CV-3070 TSH, 2022 WL 1768852 (N.D. Cal. May 26, 2022); newly reviewed 15 SEC filings; and disclosures made and testimony given by a whistle blower. Of 16 import, the First Amended Complaint does not substitute or assert an additional 17 legal basis upon which Plaintiff believes relief is warranted. See ECF No. 35. 18 3 19 Profiteering Act, RCW 9A.82.100, are civil actions. Winchester v. Stein, 959 P.2d 20 1077, 1085 (Wash. 1998). The Washington Supreme Court has held that suits brought under the Criminal ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 4 1 9A.82.010, 9A.82.100.4 ECF No. 1 at 39. Specifically, Plaintiff alleges that 2 Defendant unlawfully obtained his and other users’ cell phone numbers which he 3 and other users register with a Twitter account and then sold that information to 4 third-party advertisers from which Defendant illegally profited. See ECF No. 1 at 5 43-44. 6 ARTICLE III STANDING Defendant argues that Plaintiff has alleged sufficient facts that, when 7 8 accepted as true, satisfy the elements of Article III standing. Specifically, 9 Defendant asserts Plaintiff has pled that (1) he has suffered an intangible concrete 10 “A person who sustains injury to his or her person, business, or property by an act 11 4 12 of criminal profiteering that is part of a pattern of criminal profiteering activity . . . 13 may file an action in superior court for the recovery of damages[.]” RCW 14 9A.82.100(1)(a). “Criminal profiteering” is defined as “any act, including any 15 anticipatory or completed offense, committed for financial gain, that is chargeable 16 or indictable under the laws of the state in which the act occurred and . . . 17 punishable as a felony and by imprisonment for more than one year, regardless of 18 whether the act is charged or indicted.” RCW 9A.82.010(4). This includes the 19 unauthorized sale or procurement of telephone records in violation of RCW 20 9.26A.140. RCW 9A.82.010(4)(nn). ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 5 1 harm, which is an injury in fact, even following the Supreme Court’s decision in 2 TransUnion, (2) the alleged injury was caused by Defendant, and (3) the alleged 3 harm is redressable under RCW 9.26A.140. ECF No. 30 at 10-14. 4 5 A. Legal Standard “Article III [of the Constitution] confines the federal judicial power to the 6 resolution of ‘Cases’ and ‘Controversies.’” TransUnion, 141 S. Ct. at 2203. A 7 case or controversy under Article III requires a plaintiff to “have a ‘personal stake’ 8 in the case—in other words, standing.” Id. (quoting Raines v. Byrd, 521 U.S. 811, 9 819 (1997)). Article III standing requires a showing “(i) that [the plaintiff] 10 suffered an injury in fact that is concrete, particularized, and actual or imminent; 11 (ii) that the injury was likely caused by the defendant; and (iii) that the injury 12 would likely be redressed by judicial relief.” Id. 13 1. TransUnion LLC v. Ramirez 14 In TransUnion, the Supreme Court reiterated its holding in Spokeo, Inc. v. 15 Robins, 578 U.S. 330 (2016) (“Spokeo II”): a plaintiff’s injury in fact must be 16 concrete. 141 S. Ct. at 2204. A plaintiff’s injury must be “real, and not abstract.” 17 Spokeo II, 578 U.S. at 340. “[C]ertain harms readily qualify as concrete injuries 18 under Article III.” TransUnion, 141 S.Ct. at 2204. These include “traditional 19 tangible harms, such as physical harms and monetary harms.” Id. Intangible 20 harms may also be concrete. Id. However, to be concrete, intangible injuries must ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 6 1 be shown to have “a close relationship to harms traditionally recognized as 2 providing a basis for lawsuits in American courts.” Id. The Supreme Court 3 outlined examples of federally recognized intangible concrete harms. Id. They 4 include reputational harms, disclosure of private information, and intrusion upon 5 seclusion. Id. (citing Meese v. Keene, 481 U.S. 465, 473 (1987) (reputational 6 harms); Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008) (disclosure of 7 private information); Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 462 (7th Cir. 8 2020) (intrusion upon seclusion)). Importantly, an intangible harm must have 9 caused a plaintiff an injury in fact, not solely an injury in law. Id. at 2205-06. 10 Justice Kavanaugh posed the following hypothetical to demonstrate the difference 11 between an injury in fact and an injury in law: 12 13 14 Suppose first that a Maine citizen’s land is polluted by a nearby factory. She sues the company, alleging that it violated a federal environmental law and damaged her property. Suppose also that a second plaintiff in Hawaii files a federal lawsuit alleging that the same company in Maine violated that same environmental law by polluting land in Maine. The violation did not personally harm the plaintiff in Hawaii. 15 Id. at 2205. The hypothetical statute provides a cause of action for both plaintiffs, 16 yet only the Maine citizen has Article III standing because she suffered an injury in 17 fact, i.e., her polluted land. Id. at 2206. 18 2. Burden of Proof 19 20 “‘The party invoking federal jurisdiction bears the burden of establishing’ the elements of standing.” Meland v. Weber, 2 F.4th 838, 843 (9th Cir. 2021) ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 7 1 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). All three elements 2 of standing “must be supported . . . with the manner and degree of evidence 3 required at the successive stages of the litigation.” Defs. of Wildlife, 504 U.S. at 4 561. “At the pleading stage, [the party asserting federal jurisdiction] is not 5 required to prove the[] elements [of standing].” Pinkert v. Schwab Charitable 6 Fund, 48 F.4th 1051, 1054 (9th Cir. 2022). The proponent of Article III standing 7 must only establish that the plaintiff has “allege[d] facts that, when accepted as 8 true, show that [the elements] are satisfied. Id. 9 When analyzing a plaintiff’s argument for remand to state court, the Court 10 “must accept as true all material allegations of the complaint and must construe the 11 complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501 12 (1975). Thus, “[a]t the pleading stage, general factual allegations of injury 13 resulting from the defendant’s conduct may suffice” as the Court must “‘presum[e] 14 that general allegations embrace those specific facts that are necessary to support 15 the claim.’” Defs. of Wildlife, 504 U.S. at 561 (alteration in original) (quoting 16 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)); cf. Lucas v. S.C. Coastal 17 Council, 505 U.S. 1003, 1014 n.3 (1992) (cautioning that although the court 18 “require[s] specific facts to be adduced by sworn testimony” at the summary 19 judgment stage, a “challenge to a generalized allegation of injury in fact made at 20 the pleading state . . . would have been unsuccessful”). However, the proponent of ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 8 1 Article III standing cannot “rely on a bare legal conclusion to assert injury-in-fact.” 2 Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011); see Chapman v. Pier 3 1 Imps. (U.S.) Inc., 631 F.3d 939, 954-55 (9th Cir. 2011) (en banc) (holding 4 plaintiff who did not allege which barriers existed at a store and how they impacted 5 his disability could not establish injury in fact simply by claiming that the store 6 deprived him of “full and equal enjoyment” in violation of the ADA). 7 Here, as the removing party, it is Defendant’s burden to establish Article III 8 standing. Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092, 1099 (9th Cir. 9 2022); Morgan v. Bank of Am., N.A., No. 20-CV-00157, 2020 WL 3979660, at *2 10 (E.D. Wash. July 14, 2020) (not reported) (finding Defendant did not establish 11 Article III standing given it conceded Plaintiff alleged no concrete injury). Thus, 12 Defendant is required to establish that Plaintiff has “allege[d] facts that, when 13 accepted as true, show that [the elements of standing] are satisfied.” Pinkert, 48 14 F.4th at 1054. 15 B. Discussion 16 1. Injury in Fact 17 Plaintiff does not allege physical or monetary harm, so Plaintiff has not 18 suffered a readily qualified concrete injury in fact. See TransUnion, 141 S.Ct. at 19 2204. Instead, Plaintiff alleges Defendant violated his right to privacy, see, e.g., 20 ECF No. 1 at 38-39, which is an intangible harm. Defendant asserts that Plaintiff’s ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 9 1 alleged intangible harm is concrete because it is analogous to the common law torts 2 of disclosure of private information and intrusion upon seclusion. ECF No. 30 at 3 11-14. Thus, Defendant argues that Plaintiff’s allegation has “a close relationship 4 to harms traditionally recognized as providing a basis for lawsuits in American 5 courts.” TransUnion, 141 S.Ct. at 2204 (citing Davis, 554 U.S. at 733). “This 6 inquiry asks whether plaintiffs have identified a close historical or common-law 7 analogue for their asserted injury. Spokeo [II] does not require an exact duplicate 8 in American history and tradition.” Id. a. Analysis of RCW 9.26A.140 9 Plaintiff’s allegation that Defendant procured or sold his telephone records 10 11 without authorization falls under RCW 9.26A.140. RCW 9.26A.140 does not 12 provide a cause of action for a tort; it is an anti-pretexting5 law. House Bill Report, 13 S.B. 6776, 2006 Leg., 59th Sess. (Wash. 2006); Francoise Gilbert, How Does 14 TRPPA Affect Businesses?, Prac. Law at 49, 52 (December 2007). The 15 Washington statute is similar to the Telephone Records and Privacy Protection Act 16 17 18 5 19 webster.com/dictionary/pretexting (last visited May 5, 2023) (“the practice of 20 presenting oneself as someone else in order to obtain private information”). Pretexting, MERRIAM-WEBSTER.COM, https://www.merriam- ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 10 1 of 2006 (“TRPPA”).6 Gilbert, Prac. Law at 49; compare 120 Stat 3568 with RCW 2 9.26A.140. Defendant argues that the cause of action Plaintiff has brought under 3 Congress enacted TRPPA based on its findings that “(1) telephone records can be 4 6 5 of great use to criminals because the information contained in call logs may 6 include a wealth of personal data; (2) call logs may reveal the names of telephone 7 users’ doctors, public and private relationships, business associates, and more; (3) 8 call logs are typically maintained for the exclusive use of phone companies, their 9 authorized agents, and authorized consumers.” PL 109-476, Jan. 12, 2007, 120 10 Stat 3568. Congress found that there was a privacy interest in telephone records of 11 consumers, and it wished to protect that interest. See id. Washington’s legislature 12 found the same, which was its reason for passing RCW 9.26A.140. See House Bill 13 Report, S.B. 6776, 2006 Leg., 59th Sess. (Wash. 2006) (reporting the purpose of 14 enacting RCW 9.26A.140 was to protect Customer Proprietary Network 15 Information from being disclosed due to pretexting). Both the Washington statute 16 and the federal statute were both enacted shortly after the Hewlett-Packard 17 pretexting scandal, which involved the unauthorized utilization of telephone 18 records. See Hewlett-Packard Pretexting Scandal: Hearing Before the Subcomm. 19 on Oversight and Investigations of the H. Comm. on Energy and Com., 109th 20 Cong. (2006). ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 11 1 RCW 9.26A.140 by virtue of the Criminal Profiteering Act is “closely analogous” 2 to the common law torts of disclosure of private information and intrusion upon 3 seclusion. ECF No. 20 at 12-13. 4 As an initial matter, the Court does not find RCW 9.26.140 is closely 5 analogous to the common-law tort of intrusion upon seclusion. “The common law 6 has long recognized actions at law against defendants who invaded the private 7 solitude of another by committing the tort of ‘intrusion upon seclusion.’” 8 Gadelhak, 950 F.3d at 462 (citing RESTATEMENT (SECOND) OF TORTS § 9 652B (AM. LAW INST. 1977)). The Ninth Circuit discussed the tort of intrusion 10 upon seclusion in Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th 11 Cir. 2017). The question before the appellate court was whether a violation of the 12 Telephone Consumer Protection Act of 1991’s prohibition of unrestricted 13 telemarketing was sufficient to establish Article III standing. Id. at 1043. It held 14 that such an alleged violation was a “concrete injury in fact sufficient to confer 15 Article III standing.” Id. There are no facts plead that would demonstrate an 16 alleged invasion of Plaintiff’s private solitude. Plaintiff does not allege that 17 Twitter made unsolicited contact with him which could be analogous to 18 telemarketing. Thus, the Court finds Defendant’s argument that a violation of 19 RCW 9.26.140 is closely analogous to the common law tort of intrusion upon 20 seclusion is without merit. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 12 1 The Court turns next to Defendant’s argument that a violation of RCW 2 9.26.140 is closely analogous to the common law tort of disclosure of private 3 information. As discussed above, Plaintiff alleges that Defendant disseminated the 4 private information associated with his and other Twitter users’ cell phone 5 numbers, which include the numbers themselves and metadata contained within to 6 third-party advertisers. 7 Plaintiff’s allegation is similar to the plaintiff’s allegation in Tailford. 8 There, the plaintiff alleged Experian violated certain provisions of the Fair Credit 9 Reporting Act (“FCRA”), which had been “established to protect concrete interests 10 of privacy and accuracy in the reporting of consumer credit information[.]” 11 Tailford, 26 F.4th 1099. The Ninth Circuit held that the plaintiff had alleged a 12 sufficient injury in fact because the provisions alleged to have been violated were 13 substantive and “not merely procedural rights.” Id.; cf. Robins v. Spokeo, Inc., 867 14 F.3d 1108, 1114 (9th Cir. 2017) (“Spokeo III”) (holding plaintiff’s alleged 15 procedural violations were sufficient to establish standing because of a sufficient 16 risk of losing employment). The Court explained that “[t]he interest in consumer 17 privacy ‘resemble[s] other reputational and privacy interests that have long been 18 protected in the law.’” Tailford, 26 F.4th at 1100 (quoting Spokeo III, 867 F.3d at 19 1114). Thus, the court found the plaintiff had alleged a sufficient injury in fact to 20 establish the first prong of Article III standing. Id. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 13 1 Plaintiff’s claim is also similar to the claim presented in Eichenberger v. 2 ESPN, Inc., 876 F.3d 979 (9th Cir. 2017). There, the plaintiff alleged ESPN 3 violated 18 U.S.C. § 2710(b)(1), a section of the Video Privacy Protection Act 4 (“VPPA”), for knowingly disclosing personally identifiable information 5 concerning the plaintiff. Id. at 983. This provision of the VPPA “codifies a 6 context-specific extension of the substantive right to privacy.” Id. Accordingly, 7 the Ninth Circuit noted “every disclosure of an individual’s personally identifiable 8 information and video-viewing history offends the interests that [Section 9 2710(b)(1)] protects.” Id. Given the plaintiff alleged ESPN had violated a 10 “substantive provision protecting consumers’ concrete interest in their privacy,” 11 the Ninth Circuit again held that the plaintiff had established a sufficient injury in 12 fact to establish the first prong of Article III standing. Id. at 984. 13 The TRPPA is similar to the FRCA and the VPPA in that it was enacted to 14 protect consumers’ privacy. See generally 120 Stat 3568. The TRPPA was 15 specifically enacted to protect consumers’ telephone records. See id. The 16 TRPPA’s state-law equivalents, like RCW 9.26A.140, were enacted for similar 17 reasons. See House Bill Report, S.B. 6776, 2006 Leg, 59th Sess. (Wash. 2006). 18 Both the TRPPA and RCW 9.26A.140 codify the substantive privacy interests in 19 context-specific situations regarding the unauthorized dissemination or sale of 20 telephone records. Because RCW 9.26A.140 codifies a substantive right involving ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 14 1 privacy in certain telephone records, the Court finds that the cause of action 2 available under RCW 9.26A.140 is analogous to the federally recognized injury of 3 disclosure of private information and it has a close relationship to harms 4 traditionally recognized as providing a basis for lawsuits in American courts as 5 required by TransUnion. See Nayab v. Capital One Bank, 942 F.3d 480, 492 (9th 6 Cir. 2019) (holding that being “deprived of the right to keep private the sensitive 7 information about [one’s] person” is historically considered a harm protected by 8 common law); see also Sanchez v. Los Angeles Dep’t of Transportation, 39 F.4th 9 548, 553 (9th Cir. 2022) (holding city's collection of real-time location data on 10 11 12 scooters amounted to injury-in-fact sufficient to confer Article III standing). b. Plaintiff’s Alleged Harm The next question is whether Defendant has shown that Plaintiff has plead 13 sufficient facts to show that Plaintiff suffered an injury in fact. This inquiry can be 14 reduced to the question, “What’s it to you?” TransUnion, 141 S.Ct. at 2203 15 (quoting Scalia, The Doctrine of Standing as an Essential Element of the 16 Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983)). With this principle 17 in mind, the Court considers whether Plaintiff has alleged that he suffered an injury 18 in fact rather than solely an injury in law. 19 20 Plaintiff alleges that Defendant unlawfully obtained the cell phone number that he registered with a Twitter account and then sold that phone number and ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 15 1 other related information to third-party advertisers from which Defendant illegally 2 profited. See ECF No. 1 at 39, 41-44. Plaintiff alleges he was harmed by 3 Defendant’s alleged unlawful procurement or sale of his cell phone number and 4 related information to third-party advertisers who “target users based on telephone 5 numbers.” See ECF No. 1 at 39, 41-44. Plaintiff’s alleged injury is “real, and not 6 abstract.” Spokeo II, 578 U.S. at 340. These allegations, which must be accepted 7 as true at this stage, are sufficient to establish an injury in fact.7 Because 8 Defendant has successfully demonstrated that Plaintiff has alleged an injury in 9 fact—an intangible concrete harm that is closely analogous to the common law tort 10 of disclosure of private information, the Court finds that the first prong of Article 11 III standing is satisfied. 12 2. Cause of Injury 13 Plaintiff alleges that Defendant violated his right to privacy. ECF No. 1 at 14 38-39, 41-44. Thus, Plaintiff alleges Defendant is the cause of his injury. 15 Defendant’s acknowledgment of Plaintiff’s allegation, ECF No. 30 at 8, n. 1, is 16 sufficient to establish causation for standing purposes. Defs. of Wildlife, 504 U.S. 17 at 651 (“At the pleading stage, general factual allegations of injury resulting from 18 The Court’s finding is not a determinative of whether Plaintiff’s allegations are 19 7 20 sufficient to survive the subsequent stages of litigation. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 16 1 the defendant’s conduct may suffice . . .”); Pinkert, 48 F.4th at 1054. 2 3. Redressability 3 RCW 9.26A.140 provides for at least $5,000 liquidated damages for each 4 successfully proven violation. The Complaint contains this remedy. ECF No. 1 at 5 44; ECF No. 35 at 23; see also ECF No. 8 at 4 n.1, 5 n.2, 11. Defendant 6 acknowledges that a successfully proven violation of this statute provides such a 7 remedy, and that Plaintiff has accurately plead this fact. ECF No. 30 at 8 n.1 8 (quoting ECF No. 1 at 65) (“And [Plaintiff] seeks redress from Twitter for that 9 injury—in the form of ‘statutory damages of $5,000 for each violation.’”). Yet, 10 Plaintiff asserts that Defendant “declined to even attempt to” demonstrate whether 11 Plaintiff’s harm is redressable. See ECF No. 31 at 13. 12 Defendant has the burden in establishing Article III standing. However, 13 Defendant is not required to independently plead that Plaintiff’s complaint 14 provides the possibility of redress. Rather Defendant must only establish that 15 Plaintiff has “allege[d] facts that, when accepted as true, show” redressability is 16 satisfied. Pinkert, 48 F.4th at 1054. Defendant has done so. Thus, Defendant has 17 established Plaintiff’s claim is redressable. 18 4. Conclusion 19 Defendant has demonstrated that Plaintiff alleged an intangible concrete 20 harm that is closely analogous to the common law tort of disclosure of private ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 17 1 information. Defendant has also demonstrated that Plaintiff alleged he suffered an 2 injury in fact, not solely an injury in law. Finally, Defendant has acknowledged 3 that Plaintiff asserts Defendant is the cause of Plaintiff’s harm and Plaintiff has 4 correctly identified that RCW 9.26A.140 provides redress for a successfully 5 proven violation. For these reasons, the Court finds the elements of Article III 6 standing are satisfied. 7 8 9 FEDERAL JURISDICTION A. Legal Standard “Federal courts are courts of limited jurisdiction. They possess only that 10 power authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. 11 Co. of Am., 511 U.S. 375, 377 (1994). A cause of action is presumed to lie outside 12 the federal court’s limited jurisdiction. Id. The party asserting jurisdiction has 13 “the burden of establishing the contrary.” Id. 14 1. Removal Generally 15 “A defendant may remove to federal district court an action first brought in 16 state court when the district court would have original jurisdiction.” Rodriguez v. 17 AT & T Mobility Servs. LLC, 728 F.3d 975, 977 (9th Cir. 2013); 28 U.S.C. § 18 1441(a). The Class Action Fairness Act (“CAFA”) provides federal district courts 19 with “original subject matter jurisdiction over class actions in which a member of 20 the plaintiff class is a citizen of a state different from any defendant and the ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 18 1 aggregate amount of the class members’ claims exceeds $5 million.” Rodriguez, 2 728 F.3d at 978; 28 U.S.C. § 1332(d)(2). A defendant seeking removal “bears the 3 burden of establishing that the statutory requirements of federal jurisdiction have 4 been met.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 399 (9th Cir. 2010). 5 2. Timeliness of Removal 6 “Procedures for removal are set forth in 28 U.S.C. § 1446.” Roth v. CHA 7 Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1124 (9th Cir. 2013). A defendant 8 seeking to remove an action to federal must file a notice in the district court 9 “within thirty days of receipt from the plaintiff of an initial pleading or other 10 document from which it is ascertainable that the case is removable.” Id. (citing 28 11 U.S.C. § 1446(a), (b)(1), (b)(3)). Section 1446 reads in pertinent part: 12 13 14 15 16 17 18 19 b) Requirements; generally.—(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. ... (3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of 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. 20 ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 19 1 28 U.S.C. § 1446(b)(1)-(3). “To summarize, [the statute] identifies two thirty-day 2 periods for removing a case.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 3 876, 885 (9th Cir. 2010). If the initial pleading is removable on its face, the first 4 thirty-day removal period is triggered when the defendant receives that pleading. 5 Id. “[I]f the initial pleading does not indicate that the case is removable,” the 6 second thirty-day removal period is only triggered when “the defendant receives ‘a 7 copy of an amended pleading, motion, order or other paper’ from which 8 removability may first be ascertained.” Id. (quoting § 1446(b)). 9 The Ninth Circuit has stated, “every complaint is either capable of being 10 removed or not[.]” Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 1139 11 (9th Cir. 2013). However, the Ninth Circuit has also recognized that “removable” 12 is not defined in § 1446, see Durham v. Lockheed Martin Corp., 445 F.3d 1247, 13 1252 (9th Cir. 2006), so “some pleadings are ‘indeterminate’ in the sense that the 14 face of the complaint does not make clear whether the required jurisdictional 15 elements are present.” Kuxhausen, 707 F.3d at 1139 (quoting Harris v. Bankers 16 Life & Cas. Co., 425 F.3d 689, 693 (9th Cir. 2005)). Accordingly, the Ninth 17 Circuit does “not treat [assessing timeliness] as a strict dichotomy.” Id. Rather, 18 the first thirty-day clock under § 1446(b) begins only if “the ground for removal 19 [is] revealed affirmatively in the initial pleading[.]” Harris, 425 F.3d at 695. This 20 prevents a defendant from being “saddl[ed] . . . with the burden of investigating ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 20 1 jurisdictional facts.” Kuxhausen, 707 F.3d at 1139. “Removals invoking CAFA 2 jurisdiction are equally subject to [the timeliness] rule[s].” Id. (citing Carvalho, 3 629 F.3d at 886). 4 a. Interplay between Wash. Super. Ct. Civ. R. 3 (“CR 3”) and 5 28 U.S.C. § 1446 6 A case cannot be removed to federal court until an action has commenced in 7 state court. Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005). To 8 determine whether a cognizable action has commenced in state court, the Court 9 must defer to state law and rules. Id. (citing Herb v. Pitcaim, 324 U.S. 117, 120 10 (1945)). This District has acknowledged that a cognizable civil action commences 11 in Washington state court prior to a plaintiff’s filing so long as CR 3 is complied 12 with. Rose v. ReconTrust Co., No. 10-cv-394, 2013 WL 1703335, at *2 (E.D. 13 Wash. Apr. 18, 2013). 14 CR 3 states in pertinent part that a state action commences “by service of a 15 copy of a summons together with a copy of a complaint, as provided in rule 4 or by 16 filing a complaint.” Wash. Super. Ct. Civ. R. 3 (emphasis added). However, the 17 commencement of an action only remains nonvoid so long as a defendant does not 18 provide a plaintiff with a written demand that “the plaintiff instituting the action 19 shall pay the filing fee and file the summons and complaint within 14 days after 20 service of the demand,” CR 3, and the plaintiff then fails to do so. Ass’n of Ethical ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 21 1 Matchmakers v. Together Racketeering Enter., No. 97-35228, 1997 WL 702987, at 2 *1 n.2 (9th Cir. 1997). If a plaintiff fails to file the action after a defendant 3 provides a written demand, service of the summons and complaint is void, 4 rendering removal improper. Id.; Wash. Super. Ct. Civ. R. 3. This interpretation 5 of the interplay between CR 3 and 28 U.S.C. § 1446 has been followed in the 6 Western District. See Alderson v. Delta Air Lines, Inc., 2018 WL 5240811, at *2 7 (W.D. Wash. Oct. 22, 2018) (listing cases). Thus, the 30-day period to file a notice 8 of removal can be triggered by service upon a defendant a copy of the summons 9 and complaint. See id.; Bush, 425 F.3d at 686; Rose, 2013 WL 1703335, at *2. 10 B. Discussion 11 1. Statutory Requirements 12 The parties do not dispute this Court’s removal jurisdiction under CAFA.8 13 ECF No. 8 at 7-9, 11-14; ECF No. 1 at 3-6. To establish removal jurisdiction 14 under CAFA, the removing party is required to demonstrate: 15 16 8 17 as well. ECF No. 8 at 15-16. It was not. The Supreme Court has repeatedly held 18 that § 1332(a) requires complete diversity. Abrego v. The Dow Chem. Co., 443 19 F.3d 676, 679 (9th Cir. 2006) (citing Exxon Mobil Corp. v. Allapattah Servs., Inc., 20 545 U.S. 546 (2005); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 375 Plaintiff alleges this action was removable on its face under 28 U.S.C. § 1332(a) ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 22 1 2 3 (1) any member of the plaintiff class is a citizen of a state different from any defendant (a.k.a. minimal diversity); (2) the aggregate amount in controversy exceeds $5 million; (3) the defendant is not a State, State official or other governmental entity; and (4) and the class will be comprised of more than 100 members. 4 28 U.S.C. § 1332(d)(2), (5). Defendant has done so. 5 Defendant has established minimal diversity. Defendant pleads that it is 6 incorporated in Delaware, and its principal place of business is in California. ECF 7 8 9 No. 1 at 4, ECF No. 2 at 1. Defendant relies on Plaintiff’s statement that Glen Morgan, the class representative, “was at all times relevant to this Complaint a resident of Washington state.” ECF No. 1 at 4. Accordingly, the minimal 10 diversity requirement is met. Defendant establishes in its notice that Twitter is not 11 a government entity. ECF No. 1 at 4, ECF No. 2 at 1. Defendant acknowledges 12 13 (1978)). A district court does not have original diversity jurisdiction “[i]n a case 14 with multiple plaintiffs and multiple defendants, [and] the presence in the action of 15 a single plaintiff from the same State as a single defendant.” Id. Plaintiff provides 16 only the class representative’s domicile. Plaintiff did not provide the domiciles of 17 each proposed class member, or inversely, plead that no proposed class member 18 does not now reside in California or Delaware. Without such information, 19 Defendant could not be on notice that complete diversity could have existed. Thus, 20 the Complaint was not removable under § 1332(a) on its face. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 23 1 that the class represented by Morgan encompasses at least 10,000 members. ECF 2 No. 1 at 5, ECF No. 2 at 2. Finally, Defendant acknowledges that Plaintiff alleges 3 the aggregate amount in controversy exceeds $5 million as each successful 4 violation of the state statute is redressed by $5,000 in liquidated damages under 5 RCW 9.21A.140. ECF No. 1 at 5. Because Defendant has established that § 6 1332(d)’s requirements are met, it has met its burden in demonstrating the statutory 7 requirements under CAFA. 8 2. Timeliness 9 Plaintiff argues that Defendant’s Notice of Removal, ECF No. 1, was 10 untimely. ECF No. 8 at 9-10. Plaintiff asserts that the thirty-day window provided 11 under 28 U.S.C. § 1446(a) began on April 1, 2022, the day Defendant was served 12 the Summons and Complaint pursuant to CR 3. ECF No. 8 at 4-5, 9; ECF No. 18 13 at 7. Defendant challenges Plaintiff’s assertion that being served pursuant to CR 3 14 would have started the removability clock because Plaintiff did not file his 15 complaint in state court until May 3, 2022. ECF No. at 18 at 7; see ECF 9-1 at 11. 16 Defendant’s position regarding interplay between CR 3 and 28 U.S.C. § 1446 has 17 been rejected by the federal district courts in Washington. See, e.g., Rose, 2013 18 WL 1703335, at *2, Alderson, 2018 WL 5240811, at *2. 19 20 A cognizable civil action commences in Washington state court prior to a Plaintiff’s filing so long as CR 3 is complied with. Rose, 2013 WL 1703335, at *2. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 24 1 Accordingly, the 30-day period to file a notice of removal is triggered by proper 2 service under CR 3. Id. Defendant’s registered agent was served in California on 3 April 1, 2022. ECF No. 18 at 7. Defendant has not alleged that it made the 4 requisite written demand to Plaintiff. Thus, Plaintiff’s service of his Summons and 5 Complaint commenced a cognizable state court action in Washington under CR 3 6 on April 1, 2022. Generally, the first 30-day clock for removal would have begun 7 on that day. However, the first 30-day clock begins only if the facts plead in the 8 Complaint were such that Defendant could ascertain the case’s removability.9 9 9 10 11 12 13 14 15 In 2005, the Ninth Circuit joined the Second, Eighth, Tenth, Fifth, and Third Circuits in holding “the ground for removal must be revealed affirmatively in the initial pleading in order for the first thirty-day clock under § 1446(b) to begin.” Id. at 695. The defendant has no duty to investigate an “indeterminate” pleading: [T]he first thirty-day requirement is triggered by defendant's receipt of an “initial pleading” that reveals a basis for removal. If no ground for removal is evident in that pleading, the case is “not removable” at that stage. 16 Id. at 694. The question of whether the ground for removal was revealed 17 affirmatively in the pleading in Harris was straightforward. There, the plaintiff 18 plead to the state citizenship of most of the other parties. Id. at 691-92, 695-96. 19 However, the plaintiff only stated what state one particular party resided in 1972 20 and did not include that party’s state citizenship at the time of filing in 2003. Id. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 25 1 Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694-95 (9th Cir. 2005). 2 3. Removability Upon Service 3 Defendant disputes that the Complaint provided facts sufficient to determine 4 removability on April 1, 2022. ECF No. at 18 at 11-16. Specifically, Twitter 5 asserts that the Complaint was “silent” as to the number of proposed class 6 members and the amount in controversy. ECF No. 18 at 9. The Complaint states 7 that Plaintiff is bringing this class action on behalf of “[a]ll Washington persons 8 who provided a telephone number to Twitter associated with a Twitter account 9 prior to September 17, 2019.” ECF No. 1 at 44-45. There is no estimated number 10 of class members included in the Complaint, nor is there an estimated total amount 11 in controversy. 12 “[D]efendants need not make extrapolations or engage in guesswork” to 13 14 Later, the plaintiff abandoned his claim against that particular party (rendering 15 each of the other parties’ state citizenship known). Id. at 691, 695-96. 16 Presumably, the plaintiff had already plead the $75,000 statutory amount in 17 controversy, so the action became removable on its face when the claim against 18 that particular party was abandoned, putting that defendant on notice of complete 19 diversity. Id. at 696. When the defendant was put on notice of complete diversity, 20 the 30-day window began. Id. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 26 1 determine if an action is removable. Kuxhausen v. BMW Fin. Servs. NA LLC, 707 2 F.3d 1136, 1140 (9th Cir. 2013) (quoting Whitaker v. Am. Telecasting, Inc., 261 3 F.3d 196, 206 (2d Cir. 2001)). However, 28 U.S.C. § 1332(d) “requires a 4 defendant to apply a reasonable amount of intelligence in ascertaining 5 removability.” Id. Here, determining whether there are 100 members does not 6 conclude the jurisdictional inquiry in this case as the amount in controversy 7 requirement in this matter is dependent on the specific number of proposed class 8 members. The statute that Plaintiff alleges Defendant violated provides for at least 9 $5,000 in liquidated damages for each successfully proven violation. RCW 10 9.26A.140(4). Given that each successfully adjudicated violation of this statute 11 would result in at least $5,000 in damages, there needs to be at least 1,001 class 12 members to meet the $5 million threshold under 28 U.S.C. § 1332(d). The 13 question then becomes whether Defendant could ascertain whether there would be 14 1,001 class members from the face of the Complaint. Plaintiff alleges that Defendant should have known there would be at least 15 16 1,001 class members.10 ECF No. 8 at 12-14. However, the Ninth Circuit has 17 18 10 19 standard from the Seventh Circuit in Railey v. Sunset Food Mart, Inc., 16 F.4th 234 20 (7th Cir. 2021). ECF No. at 8 at 12. There, the appellate court said, “If Plaintiff contends that Defendant should be held to the recently rendered ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 27 1 “conclude[d] that notice of removability under § 1446(b) is determined through 2 examination of the four corners of the applicable pleadings, not through subjective 3 knowledge or a duty to make further inquiry.” Harris, 425 F.3d at 694 (emphasis 4 added). Plaintiff provides no argument as to how he provided Defendant notice 5 that the class was at least 1,001 members within the Complaint. The Complaint 6 solely defines the proposed class as, “[a]ll Washington persons who provided a 7 telephone number to Twitter associated with a Twitter account prior to September 8 17, 2019.” ECF No. 1 at 44-45. There is no estimate as to the number of 9 individuals that class would encompass. This broad description of a proposed class 10 11 removability turns on information about the defendant that the defendant itself 12 knows or can readily ascertain, the 30-day clock in § 1446(b)(1) begins to run. 13 This is so because ‘[w]hen the defendant has vital knowledge that the plaintiff may 14 lack, a burden that induces the removing party to come forward with the 15 information—so that the choice between state and federal court may be made 16 accurately—is much to be desired.’” Railey, 16 F.4th at 241 (alteration in original) 17 (quoting Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 18 2005)). However, this non-binding authority directly contradicts the Ninth 19 Circuit’s decision in Harris prohibiting courts to require a defendant to use 20 subjective knowledge, and the Court declines to apply such a requirement here. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 28 1 does not render the Complaint’s removability readily apparent. Thus, the 30-day 2 clock set forth in 28 U.S.C. § 1446(b)(1) was not triggered on April 1, 2022 and it 3 did not expire on May 2, 2022. 4 4. The Second 30-day Window Under 28 U.S.C. § 1446(b)(3) 5 Because the Complaint was indeterminate—not readily removable on its 6 face—a second 30-day window of removability would begin if Plaintiff served 7 Defendant with an amended pleading or provided some other information from 8 which Defendant could first ascertain that the case was removable. 28 U.S.C. § 9 1446(b)(3). The second 30-day window was not triggered prior to the filing of 10 Plaintiff’s motion to remand or Defendant’s notice of removal. Defendant 11 contends that Plaintiff did not provide Defendant with any additional information 12 prior to filing its Motion to Remand. ECF No. 18 at 15-16. It was Defendant that 13 supplemented the Complaint by conducting an analysis of certain business 14 records—despite not being required to do so under Harris—and concluded that the 15 class likely encompassed more than 10,000 individuals, more than sufficient to 16 satisfy the CAFA requirements. ECF No. 2 at 2. Because Defendant 17 supplemented the Complaint to determine how many individuals may be in the 18 proposed class and Plaintiff did not amend the complaint or provide any other 19 information to Defendant, the 30-day window under 28 U.S.C. § 1446(b)(3) was 20 not triggered. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 29 1 5. Defendant Properly Removed 2 A case may be removed under 28 U.S.C. § 1332(d) “‘at any time, provided 3 that neither of the two thirty-day periods under [28 U.S.C.] § 1446(b)(1) and (b)(3) 4 has been triggered.’” Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 791 (9th Cir. 5 2018) (quoting Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1123 (9th 6 Cir. 2013)). Because neither of the 30-day windows had been triggered before 7 May 19, 2022, Defendant was free to remove at any time before then. 8 Accordingly, Defendant’s Notice of Removal was timely on May 19, 2022, and the 9 Court has jurisdiction over this matter. 10 11 12 JUDICIAL ESTOPPEL A. Legal Standard “[J]udicial estoppel[] ‘generally prevents a party from prevailing in one 13 phase of a case on an argument and then relying on a contradictory argument to 14 prevail in another phase.’” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) 15 (quoting Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)). “It is an equitable 16 doctrine invoked not only to prevent a party from gaining an advantage by taking 17 inconsistent positions, but also because of general considerations of the orderly 18 administration of justice and regard for the dignity of judicial proceedings, and to 19 protect against a litigant playing fast and loose with the courts.” Milton H. Greene 20 Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 993 (9th Cir. 2012) (internal ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 30 1 quotation marks omitted). The Supreme Court has identified three factors the 2 Court should assess to determine whether judicial estoppel is applicable in a case: 3 First, a party’s later position must be clearly inconsistent with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled . . . . A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. 4 5 6 7 New Hampshire, 532 U.S. at 750-51 (citations and quotations omitted). 8 B. Discussion 9 Plaintiff argues Defendant has taken a contradictory stance in this case to 10 that it took in Gray v. Twitter, Inc., No. 20-cv-01389 (W.D. Wash. filed Sept. 21, 11 2020).11 ECF No. 31 at 4. Specifically, Plaintiff asserts, “[Defendant] attempts to 12 13 11 14 Western District of Washington in 2020. See Gray v. Twitter, No. 20-cv-01389, 15 ECF No. 1 (Complaint). In that matter, Defendant filed and the parties litigated a 16 Motion to Dismiss under Rule 12(b)(6). See Gray, ECF Nos. 17, 19, 21. A 17 magistrate judge issued a Report and Recommendation, recommending the matter 18 be dismissed with prejudice. See Gray, ECF No. 22. Gray objected to the Report 19 and Recommendation and filed a motion to certify questions to the Washington 20 Supreme Court. See Gray, ECF Nos. 24, 25. While that matter was pending, Plaintiff Morgan was a class member in Gray v. Twitter, which Gray filed in the ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 31 1 have its cake and eat it too by arguing that today, the Court must accept 2 [Plaintiff’s] legal theory, but tomorrow reject it in response to a Rule 12(b)(6) 3 Motion.” ECF No. 31 at 4, 6. Essentially, Plaintiff argues Defendant’s burden to 4 establish Article III standing is the same to successfully dismiss a claim under Rule 5 12(b)(6). ECF No. 31 at 6-7. Plaintiff has conflated two legal inquiries. Whether 6 a claim can survive under Rule 12(b)(6) is an entirely separate inquiry from the 7 standing inquiry. Indeed, “the threshold question of whether [a] plaintiff has 8 standing (and the court has jurisdiction) is distinct from the merits of his claim. 9 Rather, ‘[t]he jurisdictional question of standing precedes, and does not require, 10 analysis of the merits.’” Maya, 658 F.3d at 1068 (quoting Equity Lifestyle Props., 11 Inc. v. Cnty. of San Luis Obispo, 548 F.3d 1184, 1189 n.10 (9th Cir. 2008)); see 12 also Warth, 422 U.S. at 500 (standing “in no way depends on the merits of the . . . 13 contention that particular conduct is illegal.”); Catholic League for Religious and 14 15 Plaintiff filed this matter in Spokane County Superior Court. During the August 16 24 hearing, the Court asked Plaintiff’s counsel about a potential inconsistency of 17 arguing that the Court in the Eastern District of Washington lacks Article III 18 standing despite filing the Gray matter in district court in the Western District of 19 Washington given the substantial similarity of the actions. Following that hearing, 20 Gray voluntarily dismissed the case in the Western District. See Gray, ECF No. 36. ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 32 1 C.R. v. City & Cnty. of San Francisco, 624 F.3d 1043, 1049 (9th Cir. 2010) (en 2 banc) (“Nor can standing analysis, which prevents a claim from being adjudicated 3 for lack of jurisdiction, be used to disguise merits analysis, which determines 4 whether a claim is one for which relief can be granted if factually true.”). 5 Accordingly, a district court can conclude that the requirements of Article III 6 standing are satisfied prior to dismissing claims in the same case under Rule 7 12(b)(6). See generally In re Facebook, Inc. Internet Tracking Litig., 956 F.3d 589 8 (9th Cir. 2020); Eichenberger, 876 F.3d 979. 9 Plaintiff further argues Defendant should be judicially estopped from 10 making the alleged contradictory argument. ECF No. 31 at 12. Plaintiff argues 11 that judicial estoppel is appliable here because “(1) Twitter has previously argued 12 [in Gray v. Twitter] that there is no privacy interest in a cell phone number, while 13 here it says there is; (2) Twitter contends it succeeded in persuading the court in 14 Gray v. Twitter that its earlier position was correct; and (3) Twitter would gain an 15 unfair advantage by securing access to its preferred forum.” ECF No. 31 at 12. 16 First, Defendant did not argue that there is no privacy interest in a cell phone 17 number in Gray v. Twitter for the purposes of a standing analysis. There, 18 Defendant moved to dismiss on the basis that Plaintiff had inadequately plead facts 19 to support her allegations, and Defendant denied disclosing contact information of 20 users, and explained RCW 9.26A.140’s purpose. Gray, ECF No. 17 at 8-12. More ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 33 1 importantly, Defendant argued that a telephone number does not fall within the 2 statute’s definition of a telephone record and thereby causes Plaintiff’s claim to fail 3 as a matter of law. Id. at 14-26. Thus, Plaintiff’s first assertion is without merit. 4 Even if Defendant had asserted that there is not a privacy interest in a cell 5 phone number in Gray, Plaintiff’s argument for judicial estoppel fails, because 6 Defendant has not argued that there is a privacy interest in a cell phone number 7 here. Plaintiff’s argument mischaracterizes Defendant’s argument in its 8 Opposition to Plaintiff’s Motion to Remand. What Defendant argues is that the 9 cause of action Plaintiff has brought under RCW 9.26A.140 by virtue of the 10 Criminal Profiteering Act is closely analogous to the common law tort of 11 disclosure of private information such that Article III standing. Defendant 12 acknowledges that Plaintiff alleges sufficient facts to confer Article III standing. 13 This is permitted by Warth, Defendants of Wildlife, and National Wildlife 14 Federation. ECF No. 30 at 9. Indeed, Defendant expressly states its intention to 15 make the same argument—not a contradictory argument—that it had previously in 16 Gray. ECF No. 30 at 9, n.2 (“In fact, an individual’s own telephone number is not 17 a ‘telephone record’ within the meaning of the Washington statute, see Gray v. 18 Twitter, Inc., No. 22-cv-1389, ECF No. 22, at 13-18 (W.D. Wash. Mar. 17, 2021)). 19 Defendant’s adherence to the legal standard while establishing Article III standing 20 does not materially contradict its prior position in Gray. Thus, the first factor for ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 34 1 consideration in judicial estoppel is not present. 2 Judicial estoppel is also inappropriate in this matter because Gray 3 voluntarily dismissed the case before the Report and Recommendation of the 4 magistrate judge—which recommended dismissal with prejudice—was adopted or 5 rejected by the district judge. A final decision as to Defendant’s arguments was 6 not rendered. 7 CONCLUSION 8 The Court finds Defendant has established Plaintiff’s allegations are 9 sufficiently plead such that Article III standing has been satisfied. The Court also 10 finds that Defendant has demonstrated the action is removeable under 28 U.S.C. § 11 1332(d) and Defendant’s removal was timely. 12 13 14 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff’s Motion to Remand, ECF No. 8, is DENIED. a. Defendant shall answer or otherwise respond to Plaintiff’s First 15 Amended Complaint, ECF No. 35, no later than 30 days from the 16 date of this order. See ECF No. 12 at 2. 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 35 1 2 3 IT IS SO ORDERED. The District Court Executive is directed to file this order and provide copies to the parties. DATED May 5, 2023. 4 5 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION TO REMAND - 36

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.