1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 THOMAS MODDEN, 10 Case No. 18-cv-06450-RS Plaintiff, 11 v. ORDER GRANTING MOTION TO 12 DISMISS THIRD AMENDED TICKETFLY LLC, COMPLAINT 13 Defendant. 14

15 I. INTRODUCTION 16 Pro se plaintiff Thomas Modden bought a ticket from defendant Ticketfly to attend a 17 concert in New York City in 2017. Ticketfly cancelled his ticket before the show, issued a full 18 refund, and terminated Modden’s Ticketfly account. He sued them in New York state court. The 19 case was removed to federal court, transferred to California, and dismissed, with leave to amend, 20 twice. Ticketfly now moves to dismiss the Third Amended Complaint (“TAC”), which alleges 21 invasion of privacy and breach of contract. Pursuant to Civil Local Rule 7-1(b), the motion is 22 suitable for disposition without oral argument, and the hearing set for October 10, 2019 is vacated. 23 Ticketfly’s motion is granted, and Modden’s complaint is dismissed with prejudice. 24 II. BACKGROUND 25 The factual and procedural backgrounds of this case were set forth in Orders on January 3 26 and July 29, 2019, respectively. When Modden’s Second Amended Complaint (“SAC”) was 27 dismissed, he was given leave to amend his invasion of privacy and breach of contract claims. 1 non-economic damages, and that his Ticketfly account be restored. 2 III. LEGAL STANDARD 3 Under the Federal Rules of Civil Procedure, a complaint must contain a short and plain 4 statement of the claim showing the pleader is entitled to relief. Fed. R. Civ. P. 8(a). While 5 “detailed factual allegations” are not required, a complaint must have sufficient factual allegations 6 to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) 7 (quoting Bell Atlantic v. Twombly,

(2007)). A motion to dismiss under Rule 8 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., 9 Inc. v. Symington,

(9th Cir. 1995). Dismissal under Rule 12(b)(6) may be 10 based on either the “lack of a cognizable legal theory” or on “the absence of sufficient facts 11 alleged” under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 12

(9th Cir. 2013). When evaluating such a motion, courts generally “accept all 13 factual allegations in the complaint as true and construe the pleadings in the light most favorable 14 to the nonmoving party.” Knievel v. ESPN,

(9th Cir. 2005). Courts, however, 15 need not accept legal conclusions as true. Iqbal,

. “Threadbare recitals of the 16 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

17 IV. DISCUSSION 18 A. Invasion of Privacy 19 To establish a claim for invasion of privacy under California law, a plaintiff must establish: 20 (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the 21 circumstances, and (3) an egregious invasion of the privacy interest. Hill v. Nat’l Collegiate 22 Athletic Ass’n,

, 35–37, 39–40 (Cal. 1994). Legally protected privacy interests are 23 those (a) “precluding the dissemination or misuse of sensitive and confidential information” or (b) 24 “making intimate personal decisions or conducting personal activities without observation, 25 intrusion, or interference.”

. A reasonable expectation of privacy is “founded on broadly 26 and widely accepted community norms.”

. The invasion must be truly egregious to 27 implicate a constitutional privacy right.

1 The TAC alleges essentially the same facts that the SAC did. It states that Ticketfly 2 invaded Modden’s privacy by “inserting itself into private matters” between him and one of the 3 band members, TAC at 7, with whom he had a “long distance ‘situation,’”

. Modden also 4 alleges that Ticketfly violated its own privacy policy by sharing his identifying information with 5 its parent companies Pandora and Eventbrite. TAC at 11. The factual basis for Modden’s belief 6 that Ticketfly shared his information with Pandora appears to be that his music is no longer on 7 Pandora’s website. This inference is tenuous at best. Even taking it as true, however, Modden’s 8 statements do not support the invasion of privacy elements. 9 Modden has not provided sufficient facts about the type of private information shared or 10 the circumstances under which such sharing allegedly occurred. Without this context, it is difficult 11 to tell whether Modden had any legally protected privacy interest or whether he has plausibly 12 alleged a reasonable expectation of privacy. His conclusory statements do not suffice. The TAC 13 also does not plausibly establish an “egregious” invasion of Modden’s privacy. Hill,

37 (“No community could function if every intrusion into the realm of private action, no matter 15 how slight or trivial, gave rise to a cause of action for invasion of privacy.”). 16 Modden has not provided any factual allegations new to the TAC that support the three 17 invasion of privacy elements. He has had several opportunities and years to do so. This claim is 18 thus dismissed with prejudice. 19 B. Breach of Contract 20 To state a claim for breach of contract, a plaintiff must allege, the “(1) existence of the 21 contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) 22 damages to plaintiff as a result of the breach.” CDF Firefighters v. Maldonado,

(Cal. Ct. App. 2008). Because Modden received a refund for the cancelled ticket, the 24 only monetary damages he claims to have suffered are the economic consequences to his musical 25 career from not being able to use Ticketfly and its parent platforms, and the emotional distress of 26 having Ticketfly adjudicate a personal dispute. Modden’s SAC was dismissed because he failed to 27 plead these special and consequential damages with particularity. See Greenwich S.F., LLC v. 1 Wong,

(Cal. Ct. App. 2010) (“Special damages will not be presumed 2 from the mere breach but represent loss that occurred by reason of injuries following from the 3 breach. Special damages are among the losses that are foreseeable and proximately caused by the 4 breach of a contract.” (internal quotation and citation omitted)); see also Lewis Jorge Constr. 5 Mgmt., Inc. v. Pomona Unified Sch. Dist.,

, 968–69 (Cal. 2004) (“Special damages 6 are recoverable if the special or particular circumstances from which they arise were actually 7 communicated to or known by the breaching party…or were matters of which the breaching party 8 should have been aware at the time of contracting.” (emphasis added)). 9 Throughout the TAC, Modden alleges he has been emotionally damaged and his musical 10 career has been hampered by his inability to use Ticketfly, Pandora, or Eventbrite. The only 11 evidence he provides purporting to show Ticketfly’s knowledge of his special damages are the 12 customer service complaints that he sent after his ticket and account were revoked. These 13 statements are insufficient to put Ticketfly on notice for two reasons. First, Modden’s explanation 14 that cancellation of his ticket was driven by “some ordinary guy/girl problems and the various 15 recriminations that go with that,” and that cancellation of his Ticketfly account would “reflect[] 16 badly upon [him] in [his] professional musical endeavors,” Exhibits to TAC, at 4, cannot 17 reasonably support the influence that Modden would suffer $5,000,000 in damages from 18 Ticketfly’s action. These statements were too vague then to have put Ticketfly on notice, and they 19 are too vague now to save Modden’s claim. 20 Second, these statements were made on June 19, 2017, after Modden’s ticket and account 21 had already been cancelled—that is, after Modden purchased his ticket and agreed to Ticketfly’s 22 Purchase Terms and Conditions. Nowhere has Modden alleged that Ticketfly knew or should have 23 known about his special damages at the time of contracting. Regardless of whether he has shown 24 the other elements, Modden has not sufficiently pled his damages. The breach of contract claim 25 must therefore be dismissed. 26 V. CONCLUSION 27 Despite the liberal pleading standard applicable to pro se plaintiffs, Modden’s allegations 1 are not sufficient to survive a motion to dismiss. The facts alleged to support his invasion of 2 || privacy claim are essentially those that were alleged in the SAC and dismissed as insufficient. He 3 has also failed to allege with particularity facts that would support the $5,000,000 in special 4 || damages he requests for the breach of contract claim. For the reasons set forth above, the motion 5 to dismiss with prejudice is granted. 6 7 || ITISSO ORDERED. 8 9 Dated: September 27, 2019 10 RICHARD SEEBORG I United States District Judge 12

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Z 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO DISMISS CASE No. 18-cv-06450-RS