1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 AELLIS O., Case No.: 22-CV-200 JLS (WVG)

11 Plaintiff, ORDER (1) GRANTING RENEWED 12 v. MOTION TO PROCEED IN FORMA PAUPERIS AND (2) DISMISSING 13 KELLI MARIE CONNOR; JILL LEUER; WITHOUT PREJUDICE and GOOGLE LLC, 14 PLAINTIFF’S COMPLAINT Defendants. 15 (ECF No. 4) 16 17 18

19 Presently before the Court is Plaintiff AEllis O.’s Renewed Motion to Proceed in 20 Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 4). Plaintiff, proceeding pro se, filed a 21 complaint against Kelli Marie Connor, Jill Leuer, and Google LLC on February 11, 2022 22 (“Compl.,” ECF No. 1). Having carefully considered Plaintiff’s Complaint, Renewed IFP 23 Motion, and the applicable law, the Court GRANTS Plaintiff’s Renewed IFP Motion and 24 DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint for the reasons that follow. 25 IN FORMA PAUPERIS MOTION 26 All parties instituting a civil action, suit, or proceeding in a district court of the 27 United States, other than a petition for writ of habeas corpus, must pay a filing fee. 28

(a). An action may proceed despite a party’s failure to pay the filing fee only 1 if the party is granted leave to proceed IFP pursuant to

(a)(1). Section 2 1915(a)(1) provides: 3 [A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or 4 proceeding . . . without prepayment of fees or security therefor, 5 by a person who submits an affidavit that includes a statement of all assets such [person] possesses that the person is unable to pay 6 such fees or give security therefor. 7

8 As section 1915(a)(1) does not itself define what constitutes insufficient assets to warrant 9 IFP status, the determination of indigency falls within the district court’s discretion. See 10 Cal. Men’s Colony v. Rowland,

(9th Cir. 1991) (“Section 1915 typically 11 requires the reviewing court to exercise its sound discretion in determining whether the 12 affiant has satisfied the statute’s requirement of indigency.”), reversed on other grounds 13 by

(1993). “An affidavit in support of an IFP application is sufficient where 14 it alleges that the affiant cannot pay the court costs and still afford the necessities of life.” 15 Escobedo v. Applebees,

(9th Cir. 2015) (citing Adkins v. E.I. Du Pont 16 de Nemours & Co.,

(1948)). “One need not be absolutely destitute to 17 obtain benefits of the [IFP] statute.” Jefferson v. United States,

(9th Cir. 18 1960). “Nevertheless, a plaintiff seeking IFP status must allege poverty ‘with some 19 particularity, definiteness[,] and certainty.’” Escobedo,

. 20 In his Renewed Motion, Plaintiff attests that he is transient and destitute with no 21 steady income or employment. See IFP Mot. at 2–3, 5. Plaintiff claims that he earns 22 “irregular and sporadic income from sunset beachside [photography] shoots for passing 23 tourists.” Id. at 4. He claims his only expenses are “daily subsistence” and a phone bill 24 that “exceeds eighty five dollars a month.” Id. at 2, 4. Plaintiff claims he has $83.70 in 25 cash or in a bank account, and his only asset of value is a camera valued between $400 and 26 $1,500. Id. Plaintiff also attests that he has no debts or financial obligations. Id. 27 /// 28 /// 1 The Court concludes that Plaintiff adequately has demonstrated that paying the $402 2 filing fee would result in his inability to afford the necessities of life. Accordingly, the 3 Court GRANTS Plaintiff’s Renewed IFP Motion. 4 SCREENING PURSUANT TO

(e)(2) 5 I. Standard of Review 6 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening 7 pursuant to

(e)(2). See, e.g., Calhoun v. Stahl,

(9th 8 Cir. 2002) (per curiam) (holding

(e)(2) screening applies to non-prisoners 9 proceeding IFP); see also Lopez v. Smith,

, 1126–27 (9th Cir. 2000) (en banc) 10 (discussing

(e)(2)). Under this statute, the Court must sua sponte dismiss 11 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks 12 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The 13 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 14 bear the expense of responding.’” Nordstrom v. Ryan,

, 920 n.1 (9th Cir. 15 2014) (citations omitted). 16 “The standard for determining whether a plaintiff has failed to state a claim upon 17 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 18 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual 20 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. 21 Iqbal,

(2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 22 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the 23 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 24 Iqbal,

. “Determining whether a complaint states a plausible claim for relief 25 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 26 experience and common sense.”

The “mere possibility of misconduct” or “unadorned, 27 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 28 standard. Id.; see also Moss v. U.S. Secret Serv.,

(9th Cir. 2009). 1 “When a court does not have jurisdiction to hear an action, the claim is considered 2 frivolous.” Johnson v. E. Band Cherokee Nation,

(N.D.N.Y. 1989). 3 Moreover, “[t]he Court has an independent obligation to determine whether it has subject- 4 matter jurisdiction.” Cox v. Lee, No. CV-20-0275-PHX-DMF,

, at *2 5 (D. Ariz. Apr. 17, 2020) (citing Ruhrgas AG v. Marathon Oil Co.,

, 583 6 (1999)); see also Henderson ex rel. Henderson v. Shinseki,

(2011) 7 (“[F]ederal courts have an independent obligation to ensure that they do not exceed the 8 scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions 9 that the parties either overlook or elect not to press.”) (citation omitted). Pursuant to 10 Federal Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks 11 subject-matter jurisdiction, the court must dismiss the action” (emphasis added). As the 12 plain language of Rule 12(h)(3) suggests, this requirement is mandatory. See Arbaugh v. 13 Y&H Corp.,

(2006) (noting that “‘subject-matter jurisdiction, because it 14 involves a court’s power to hear a case, can never be forfeited or waived”; therefore, “when 15 a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss 16 the complaint in its entirety” (citation omitted)). 17 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim- 18 Panahi v. L.A. Police Dep’t,

(9th Cir. 1988). The district court should 19 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,” 20 unless the court determines that “the pleading could not possibly be cured by the allegation 21 of other facts.” Lopez, 203 F.3d at 1130–31 (citing Doe v. United States,

, 497 22 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990)). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 II. Plaintiff’s Allegations 2 In his Complaint, Plaintiff alleges he is a professional photographer operating out of 3 southern California.1 Compl. ¶ 1. Plaintiff specializes in boudoir photoshoots and operates 4 under the brand name “Seaside Boudoir.”

Plaintiff alleges that Defendant Kelli Marie 5 Connor (“Connor”) operates a boudoir photography and photographer education business 6 in New Hampshire. See id. ¶ 9. Plaintiff contacted Connor regarding her photographer 7 education business and received “a number of materials, documents, and information” from 8 Connor, but Plaintiff did not pay to enroll in any of Connor’s courses or receive coaching. 9 Id. ¶ 10. Plaintiff claims that the materials Connor provided “are for use or adaptation as 10 desired by the student or prospect.” Id. 11 Plaintiff is a member of “online peer Facebook groups,” and in June or July 2021 he 12 “shared . . . a tip to another photographer who seemed to take unintended offense.” Id. 13

14 1 In the caption of his Complaint, Plaintiff provided his name as “AEllis O. DBA Seaside Boudoir.” 15 Compl. at 1. It is not clear to the Court whether the Party “AEllis O.” refers to Plaintiff as an individual, 16 or a business called AEllis O. The Court notes that, pursuant to this District’s Local Rules:

17 Only natural persons representing their individual interests in propia persona may appear in court without representation by an attorney permitted 18 to practice pursuant to Civil Local Rule 83.3. All other parties, including corporations, partnerships and other legal entities, may appear in court only 19 through an attorney permitted to practice pursuant to Civil Local Rule 83.3. 20 S.D. Cal. Civ L.R. 83.3(j). The Ninth Circuit has held that “[c]orporations and other unincorporated 21 associations must appear in court through an attorney.’” D-Beam Ltd. P’ship v. Roller Derby Skates, Inc.,

, 973–74 (9th Cir. 2004) (quoting In re Am. W. Airlines,

(9th Cir. 1994)). 22 Therefore, Plaintiff cannot proceed pro se on behalf of a corporation, partnership, or other legal entity. To the extent Plaintiff seeks to assert claims on behalf of an entity pro se, those claims are DISMISSED. If 23 Plaintiff elects to file an amended complaint asserting claims on behalf of an entity, Plaintiff must secure 24 counsel or risk dismissal of this action.

25 The Court further notes that “[t]he normal presumption in litigation is that parties must use their real names.” Doe v. Kamehameha Sch./Bernice Pauahi Bishop Est.,

(9th Cir. 2010); see 26 also Fed. R. Civ. P. 10(a) (requiring the title of every complaint to “name all the parties”). “This presumption is loosely related to the public’s right to open courts, and the right of private individuals to 27 confront their accusers.”

(citations omitted). If Plaintiff wants to proceed in this action under a 28 pseudonym, he must seek leave of the Court to do so. Otherwise, any amended complaint must include 1 ¶ 11. Connor, who Plaintiff alleges has some relation to this photographer, then “began a 2 personal ‘cancel culture’ campaign against plaintiff across a number of platforms.”

3 Plaintiff alleges that Connor “publish[ed] . . . known false statements alleging theft of Kelli 4 Marie Connor’s photographs by plaintiff to induce business from underage females.”

5 ¶ 12. Plaintiff claims that Connor offered other people $50 to “repeat [Connor’s] false 6 narrative against plaintiff in a public review.” Id. ¶ 15. As a result, Plaintiff alleges his 7 advertising platforms “were flooded with false and hateful declarations which included 8 widespread threats of violence, harm, and even threats against plaintiff’s life, with 9 repetitions of Connor’s original false claims related to theft and pedophilia.” Id. Plaintiff 10 claims that Defendant Jill Leuer (“Leuer”), “who has idolized Connor,” posted “statements 11 she knew or had good reason to know were false” in photographer Facebook groups. Id. 12 ¶ 23. 13 Plaintiff alleges that Connor’s “malicious harassment, slander, and defamation” 14 violates Defendant Google LLC’s (“Google”) published policies and procedures, but 15 Google has “refused to enforce its own policies or remove the content [Connor and those 16 she induced] have published.” Id. ¶ 13. In response, Plaintiff “personally posted a negative 17 review against Connor and her trade name, citing her misconduct, harassment, unlawful 18 conduct, unlawful employment and discrimination policies and activities, and Google 19 promptly removed the negative review.” Id. ¶ 19. Plaintiff cites this incident as evidence 20 of Google’s “deliberate intent to further Connor’s personal goals and agenda.” Id. Plaintiff 21 also claims that Google “ceased to display to consumer [sic] any related photos of 22 plaintiff’s business or products on the related Google business profile listing(s) for 23 plaintiff.” Id. ¶ 20. 24 Plaintiff “added restrictions on who could comment or contact him on his various 25 platforms,” but he claims that Connor’s “harassment of plaintiff continued unabated.” Id. 26 ¶ 21. As a result, Plaintiff alleges he suffered “loss of economic and business opportunities, 27 as well as actual lost revenue.” Id. Plaintiff claims that Connor “was the influence who 28 placed extreme pressure on a number of niche photography peer groups to expel, sever all 1 ties with, and otherwise ostracize plaintiff, depriving him of creative resources, 2 networking, education, and referral opportunities.” Id. ¶ 24. 3 Plaintiff initiated the present action on February 11, 2022, against Connor, Leuer, 4 and Google. Plaintiff asserts claims for libel, conspiracy, breach of contract, federal false 5 advertising and unfair competition, unlawful and unfair business practices in violation of 6 California Business and Professions Code §§ 17200 et seq. (“UCL”), and unjust 7 enrichment. See generally Compl. 8 III. Analysis 9 A. Sufficiency of the Complaint 10 1. Libel 11 In his first cause of action for libel, Plaintiff alleges “defendants’ direct and indirect 12 acts of libel, harassment, and commercial damages therefrom . . . have deprived [Plaintiff] 13 of revenue and prospects.” Compl. ¶ 6(A). Under California law, defamation occurs either 14 through libel or slander.

. Libel is a false and unprivileged publication 15 in writing or other fixed, visible representation “which exposes any person to hatred, 16 contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which 17 has a tendency to injure him in his occupation.”

§ 45; see Med. Marijuana, Inc. v. 18 ProjectCBD.com,

, 884 (2020). “The general rule is that the words 19 constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the 20 complaint.” Med. Marijuana, Inc., 46 Cal. App. 5th at 884 (quoting Kahn v. Bower, 232

, 1612 n.5 (1991)). “[A] person who repeats a defamatory statement is 22 generally as liable as the one who first utters it.” Flowers v. Carville,

, 1128 23 (9th Cir. 2002) (quoting 1 R. Smolla, Law of Defamation § 4:87, at 4–136.3 to –136.4 (2d 24 ed. 2001)). 25 Although Plaintiff has attached several exhibits to his Complaint that purport to be 26 screenshots of the statements at issue, several of these exhibits are illegible. See, e.g., Ex. 27 A-1 at 21; Ex. A-2 at 23. From what the Court can discern, only two statements in the 28 exhibits purport to be made by Connor and Leuer, and the rest of the statements appear to 1 be made by individuals who are not parties to this action. The Court will first examine the 2 sufficiency of Plaintiff’s allegations as to the third-party statements, then those statements 3 by Connor and Leuer, and finally Plaintiff’s allegation that Google is also liable for these 4 statements. 5 a. Third-Party Statements 6 Generally, a person who repeats a defamatory statement is liable for their own 7 statement. See Flowers,

(“[E]ach repetition of a defamatory statement 8 by a new person constitutes a new publication, rendering the repeater liable for that new 9 publication.” (quoting 1 R. Smolla, Law of Defamation § 4:87, at 4–136.3 to –136.4)). 10 Plaintiff seeks to attribute statements made by third parties to Connor. Plaintiff claims that 11 “a mob mentality began to take hold,” and “Connor encouraged this behavior with 12 repetition of her known false statements.” Compl. ¶ 14. Plaintiff claims that “some parties 13 who repeated Connor’s false statements and claims without a knowledge of or contact with 14 plaintiff apart from Connor’s incitement repeated to plaintiff that Connor had offered them 15 or their spouse $50 incentives or discounts in return for repeating her false narrative against 16 plaintiff in a public review . . . . Countless individuals accepted this reported incentive[.]” 17 Id. ¶ 15. Plaintiff has not alleged sufficient facts to attribute these third-party statements 18 to Connor. Plaintiff has not specifically identified the “some parties” who Connor 19 allegedly offered to pay to make statements regarding Plaintiff, or which statements those 20 individuals actually made. These allegations are too vague and conclusory to attribute any 21 of the statements made by third parties to Connor, and therefore the Court disregards those 22 statements not made by Parties to this action.2 23 b. Connor and Leuer’s Statements 24 The Court next examines the statements made by Connor and Leuer. In the 25 Complaint, Plaintiff generally claims that Connor “publish[ed] . . . known false statements 26

27 2 Notwithstanding the Court’s conclusion, Plaintiff does not address and the Court does not decide whether 28 an agency theory can impute liability on a defendant for paying others to make allegedly defamatory 1 alleging theft of Kelli Marie Connor’s photographs by plaintiff to induce business from 2 underage females,” Compl. ¶ 12, and Leuer published “statements she knew or had good 3 reason to know were false,” id. ¶ 23. The Court first turns to the statement by Connor 4 specifically identified in Plaintiffs exhibits, and then to the specifically identified statement 5 by Leuer. 6 Plaintiff has specifically identified one statement purportedly made by Connor in a 7 Google business review on his Seaside Boudoir business page. See Ex. A-1, ECF No. 1 at 8 21. Connor states that “‘Aellis’ aka ‘Seaside Boudoir’ aka ‘Art by Aellis’ has been 9 STEALING from me consistently, across all of his platforms...” Id. (emphasis and ellipsis 10 in original). There is a “More” option on this post seeming to signal that this is not the end 11 of this statement, but this is the entirety of the statement Plaintiff included in the exhibit. 12 See id. There is no specifically identified or verbatim statement by Connor that Plaintiff is 13 attempting to “induce business from underage females,” as he alleges in the Complaint. 14 Compl. ¶ 12. In this statement, Connor does accuse Plaintiff of stealing from her; however, 15 Plaintiff fails to state a claim for libel against Connor because Plaintiff has not adequately 16 alleged this statement is false. Plaintiff does not allege in his Complaint that he is the 17 photographer who took the photographs displayed on his website or social media sites to 18 promote his business. In fact, Plaintiff alleges that Connor “makes it clear throughout her 19 indoctrination efforts that all materials, methods, and practices she supplies to students and 20 prospective students are for use or adaptation as desired by the student or prospect.” Id. 21 ¶ 10. Therefore, it is not clear to the Court whether Plaintiff was in fact displaying 22 Connor’s materials and claiming them as his own either explicitly or by implication. 23 In addition, Plaintiff’s exhibits include other statements by individuals who are not 24 parties to this action who claim Plaintiff stole their photographs. One exhibit is a statement 25 by a different photographer who claims that Plaintiff “stole an image from my Instagram 26 and posted it on his website.” Ex. A-1 at 22. Nowhere in the statement does this individual 27 claim that Plaintiff stole from Connor, but this individual does state that “there are about 28 20 of us in the Boudoir industry who he is harassing due to us coming forward to him about 1 stealing our content. [H]e is not a nice person, and the threats he has sent these women are 2 scary.” Id. (emphasis added). In another post, a different individual states, “[i]t is such a 3 low and unprofessional act to steal my image and display it on your website. You did not 4 take these images, nor have you worked as hard as us professionals to build our portfolio 5 rather than take it.” Id. at 26 (emphasis added). These comments do not parrot claims 6 made by Connor, as Plaintiff alleges in his Complaint, but instead personally claim that 7 Plaintiff has stolen their photographs and used these materials to promote his business. 8 Plaintiff has not pleaded that he did not display the work of other photographers on his 9 website or social media, and therefore his Complaint does not sufficiently allege Connor’s 10 statement is false. 11 Turning next to the allegations against Leuer, Plaintiff has specifically identified one 12 statement purportedly made by Leuer in a Facebook post, but Plaintiff has not included any 13 information about where on Facebook this statement was published. See Ex. A-3, ECF 14 No. 1 at 30. Leuer’s statement includes links to Plaintiff’s websites and social media pages 15 and states “Go check.. See if he has stolen any of your work.” Id. In a reply to the post 16 Leuer further states, “Hes got a fansly page full of nudes you have to pay for. I really hope 17 he isnt in private groups stealing images of clients and selling them. That breaks my heart.” 18 Id. Once again, there is no specifically identified statement regarding underage women or 19 pedophilia. Plaintiff fails to state a claim for libel as to this statement for the same reasons 20 as above—namely, Plaintiff has not adequately alleged that the photos displayed are his 21 own work. 22 The Court is not required to accept as true allegations that contradict exhibits 23 attached to the Complaint or allegations that are merely conclusory, unwarranted 24 deductions of fact, or unreasonable inferences. Daniels-Hall v. Nat’l Educ. Ass’n,

992, 998 (9th Cir. 2010) (citing Manzarek v. St. Paul Fire & Marine Ins. Co.,

1025, 1031 (9th Cir. 2008)). Although Plaintiff has alleged in conclusory fashion that the 27 reviews and comments by Connor and Leuer are “false statements,” see, e.g., Compl. ¶¶ 12, 28 15, he has not alleged that the photographs referenced in Connor and Leuer’s statements 1 were taken by Plaintiff and are not works by other photographers that he explicitly or 2 implicitly presented as his own to solicit business. Although Plaintiff claims Connor 3 induced others to repeat her statements, the comments appear to be different individuals 4 alleging theft of their own work by Plaintiff. Plaintiff has not adequately alleged these 5 statements are false. 6 Because Plaintiff does not adequately allege the statements by Connor and Leuer are 7 false, the Court DISMISSES this portion of Plaintiff’s claim for libel. 8 c. Google’s Statements 9 Finally, Plaintiff alleges that “Google, when informed in detail of the situation and 10 circumstances and the terms of service violations, refused to act to remove the public false 11 declaration of defendant Connor and thus violated its own published policies, procedures, 12 and terms of service.” Compl. ¶ 18. Plaintiff claims that Google then “transitioned to the 13 role of deliberate publisher of these acts of libel and waived any immunity claim(s) of an 14 independent third party platform with its knowing and willful continued publication of 15 these false declarations and libelous statements.”

16 This claim against Google suffers from the same issues as that Court noted supra 17 Section III.A.1.b because Plaintiff has not adequately alleged that the statements at issue 18 are false. Even if Plaintiff had adequately alleged falsity, however, his claim for libel 19 against Google still fails. Through the Communications Decency Act, “Congress granted 20 most Internet services immunity from liability for publishing false or defamatory material 21 so long as the information was provided by another party.” Carafano v. Metrosplash.com, 22 Inc.,

, 1122–23 (9th Cir. 2003). Here, the material was unequivocally 23 provided by another party. Immunity extends even when a website operator is on notice 24 that the posting is potentially defamatory. Universal Commc’n Sys., Inc. v. Lycos,

413, 420 (1st Cir. 2007). Accordingly, Plaintiff has not stated a claim for libel against 26 Google, and the Court DISMISSES that claim. 27 /// 28 /// 1 2. Conspiracy 2 Plaintiff’s second cause of action is titled “Conspiracy.” Plaintiff alleges that 3 “Defendants conspired to deprive plaintiff of his constitutionally guaranteed right to be 4 safe and secure in his person, property, and pursue lawful property interests by and thru 5 lawful commerce.” Compl. ¶ 6(B). Plaintiff claims that Defendants’ actions violated 42 6 U.S.C. 1985(2).

7 Section 1985(2) contains two clauses that give rise to separate causes of action. The 8 first clause concerns access to federal courts, and the second clause concerns access to state 9 or territorial courts. See

(2). To state a claim under section 1985(2), a 10 plaintiff must allege that 11 two or more persons in any State or Territory conspire [A] to deter, by force, intimidation, or threat, any party or witness in 12 any court of the United States from attending such court, or from 13 testifying to any matter pending therein, freely, fully and truthfully, or [B] to injure such party or witness in his person or 14 property on account of his having so attended or testified . . . . 15 16

(2). 17 Plaintiff has not alleged that Defendants conspired to deny him access to either state, 18 federal, or territorial courts. See generally Compl. Therefore, Plaintiff’s allegations are 19 insufficient to state a claim under section 1985(2), and the Court DISMISSES Plaintiff’s 20 claim for conspiracy. 21 3. Breach of Contract 22 Plaintiff’s third cause of action alleges a breach of contract based on “Google’s 23 written and published policies and Terms of Service.” Compl. ¶ 6(C). Plaintiff claims that 24 “defendants refuse to comply with the terms of said contract(s), have themselves violated 25 the express terms of these contracts, said violation(s) are intentional and willful, and these 26 violations have caused plaintiff loss(es) as a result of these breaches.”

27 To establish breach of contract, the plaintiff must show that (1) a contract exists, (2) 28 the plaintiff performed or had an excuse for nonperformance, (3) the defendant breached, 1 and (4) the plaintiff suffered damages. See Reichert v. Gen. Ins. Co.,

, 830 2 (1968); Wall St. Network, Ltd. v. New York Times Co.,

, 1178 3 (2009); Nationwide Mut. Ins. Co. v. Ryan,

(N.D. Cal. 2014). 4 To the extent Plaintiff asserts a breach of contract claim against Connor or Leuer, 5 Plaintiff has not alleged he is a party to any contract with Connor or Leuer. See Ken Tu v. 6 Dongbu Ins. Co., No. 17-CV-03495-JSC,

, at *1 (N.D. Cal. July 24, 7 2017) (“A breach of contract claim necessarily begins with a contract.”). Therefore, the 8 breach of contract claim against Connor and Leuer must be dismissed. See, e.g., Barnhart 9 v. Points Dev. US Ltd., No. 216CV02516CASEX,

, at *3 (C.D. Cal. 10 May 25, 2016). 11 As to Plaintiff’s claim for breach of contract against Google, this claim also fails. 12 To properly plead breach of contract, “[t]he complaint must identify the specific provision 13 of the contract allegedly breached by the defendant.” Donohue v. Apple, Inc.,

2d 913, 930 (N.D. Cal. 2012) (citing Progressive West Ins. Co. v. Super. Ct.,

4th 263, 281 (2005)). Plaintiff generally references Google’s Terms of Service, but he fails 16 to identify what provision Google purportedly breached. Even if Plaintiff had identified a 17 specific provision of the Terms of Service that Google allegedly breached, however, the 18 Court would still find that Plaintiff failed to state a claim for breach of contract against 19 Google. Other courts examining websites’ terms of service have found that, “while these 20 provisions place restrictions on users’ behavior, they do not create affirmative obligations.” 21 Young v. Facebook, Inc., No. 5:10-CV-03579-JF/PVT,

, at *3 (N.D. Cal. 22 Oct. 25, 2010); see also Caraccioli v. Facebook, Inc.,

(N.D.

), aff’d,

(9th Cir. 2017) (dismissing breach of contract claim 24 against Facebook based on alleged violation of terms of service because the court found 25 provision does not create affirmative obligations for Facebook). Therefore, Plaintiff has 26 not sufficiently pleaded a breach of contract claim against Google based on the website’s 27 Terms of Service. 28 Accordingly, the Court DISMISSES Plaintiff’s claim for breach of contract. 1 4. Federal False Advertising and Unfair Competition 2 Plaintiff’s fourth cause of action alleges a violation of the Lanham Act. Compl. 3 ¶ 6(D). Plaintiff claims that “Defendants have published deliberate false and misleading 4 representations concerning plaintiff AEllis’ personal and professional activities in 5 commerce.”

Plaintiff alleges that “defendants’ false claims have deceived and are very 6 likely to deceive consumers regarding plaintiff’s professional practices[.]”

7 Section 43(a) of the Lanham Act provides for civil liability against 8 (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, 9 term, name, symbol, or device, or any combination thereof, or 10 any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which— 11 . . . 12 (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or 13 geographic origin of his or her or another person’s goods, 14 services, or commercial activities[.]

15

(a). To bring a false advertising suit under the Lanham Act, a plaintiff 16 must show “that a statement made in a commercial advertisement or promotion is false or 17 misleading, that it actually deceives or has the tendency to deceive a substantial segment 18 of its audience, that it’s likely to influence purchasing decisions and that the plaintiff has 19 been or is likely to be injured by the false advertisement.” TrafficSchool.com, Inc. v. 20 Edriver Inc.,

(9th Cir. 2011) (citing Southland Sod Farms v. Stover Seed 21 Co.,

(9th Cir. 1997)). The Federal Rule of Civil Procedure 9(b) 22 heightened pleading standard applies to a false advertising claim under the Lanham Act 23 that is “grounded in” or “sounds in” fraud. See Vess v. Ciba-Geigy Corp., USA,

(9th Cir. 2003) (“Averments of fraud must be accompanied by ‘the who, what, 25 when, where, and how’ of the misconduct charged.”). 26 Even setting aside that Plaintiff does not adequately allege these statements are false, 27 see supra Section III.A.1.b, Plaintiff has failed to allege that the statements at issue were 28 used in a commercial advertisement or promotion. See generally Compl. Furthermore, 1 Plaintiff’s conclusory allegations do not meet the heightened pleading standard of Rule 2 9(b). Therefore, the Court DISMISSES Plaintiff’s fourth cause of action. 3 5. UCL 4 Plaintiff’s fifth cause of action alleges Defendants violated Cal. Bus. & Prof. Code 5 § 17200. Compl. ¶ 6(E). Plaintiff claims that “Defendants have published deliberate false 6 and misleading representations concerning plaintiff AEllis’ personal and professional 7 activities in commerce.” Id. Plaintiff’s UCL claim is tethered to the allegations in his other 8 claims. As those claims fail, so too does Plaintiff’s claim for violation of the UCL. Warner 9 v. Tinder Inc.,

(C.D. Cal. 2015) (“Where the predicate claims 10 on which a plaintiff’s UCL claim are based fail, the UCL claim fails as well.”) (citations 11 omitted). Therefore, the Court DISMISSES Plaintiff’s UCL claim. 12 6. Unjust Enrichment 13 Plaintiff’s final cause of action, which appears to be only against Google, alleges 14 that, “[t]o the extent that Google received advertising dollars and revenue from 15 defendant(s) Connor or Leuer for its deliberate bias in publications . . . Google did benefit 16 from its illegal conduct . . . and plaintiff is entitled to restitution.” Compl. ¶ 6(F). As an 17 initial matter, unjust enrichment is not a standalone cause of action under California law. 18 Astiana v. Hain Celestial Grp., Inc.,

(9th Cir. 2015) (citations omitted). 19 However, construing Plaintiff’s cause of action as a quasi-contract claim for restitution, 20 see

the Court has already found that Plaintiff has not pleaded sufficient facts to state 21 his other claims, and his unjust enrichment claim is derivative of those same facts. Namely, 22 Plaintiff has not pleaded any benefit unjustly received by Google as a result of, inter alia, 23 fraud or mistake. Accordingly, the Court DISMISSES Plaintiff’s unjust enrichment claim. 24 B. Subject-Matter Jurisdiction 25 Based on the foregoing, the Court is not satisfied that it has subject-matter 26 jurisdiction over the claims Plaintiff is asserting. “Federal district courts are courts of 27 limited jurisdiction that ‘may not grant relief absent a constitutional or valid statutory grant 28 of jurisdiction’ and are ‘presumed to lack jurisdiction in a particular case unless the 1 contrary affirmatively appears.’” Cooper v. Tokyo Elec. Power Co.,

, 2 1038 (S.D. Cal. 2013) (quoting A-Z Int’l v. Phillips,

(9th Cir. 2003)). 3 Generally, subject-matter jurisdiction is based on the presence of a federal question, see 28

, or on complete diversity of citizenship between the parties, see

§ 1332. 5 Plaintiff claims subject-matter jurisdiction on the basis of diversity jurisdiction, 6 pursuant to which “[t]he district courts shall have original jurisdiction of all civil actions 7 where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest 8 and costs, and is between . . . citizens of different States.”

(a)(1). 9 However, Plaintiff alleges that he is a California citizen, see Compl. ¶ 1, and Google is 10 “headquartered in Mountain View, California,”

. Accordingly, it does not appear 11 that Plaintiff and Defendants have “complete diversity” such that this Court can exercise 12 diversity jurisdiction over this matter. See Caterpillar Inc. v. Lewis,

(1996) 13 (explaining that

(a) requires “complete diversity,” and “thus applies only 14 to cases in which the citizenship of each plaintiff is diverse from the citizenship of each 15 defendant”). 16 Nor does it appear that this Court can properly exercise federal question jurisdiction 17 over this matter. Pursuant to

, courts have jurisdiction “of all civil actions 18 arising under the Constitution, laws, or treaties of the United States.” However, “[s]ection 19 1331 . . . does not independently create subject matter jurisdiction; the suit must ‘arise 20 under’ the Constitution or some other specific section of the United States Code.” Watson 21 v. Chessman,

(S.D. Cal. 2005). Here, Plaintiff asserts claims 22 for various violations of state law, including libel, breach of contract, UCL, and unjust 23 enrichment. See generally Compl. Plaintiff asserts claims for conspiracy and false 24 advertising under federal law, see generally

but the Court has found that Plaintiff failed 25 to state claims for conspiracy or false advertising, see supra Sections III.A.2 & III.A.4. 26 Because the Court has dismissed Plaintiff’s conspiracy and Lanham Act claims, 27 there is no longer a federal question basis for this Court’s jurisdiction. Accordingly, the 28 Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law 1 claims against Defendants. See Carnegie-Mellon Univ. v. Cohill,

(1988) 2 (“[W]hen the federal-law claims have dropped out of the lawsuit in its early stages and 3 only state-law claims remain, the federal court should decline the exercise of jurisdiction 4 by dismissing the case without prejudice.” (footnote omitted)); Ove v. Gwinn,

(9th Cir. 2001) (“A court may decline to exercise supplemental jurisdiction over 6 related state-law claims once it has ‘dismissed all claims over which it has original 7 jurisdiction.’” (citing

(c)(3))). 8 Accordingly, this Court additionally lacks subject-matter jurisdiction over Plaintiff’s 9 Complaint. Thus, dismissal is warranted pursuant to

(e)(2). 10 CONCLUSION 11 In light of the foregoing, the Court GRANTS Plaintiff’s Renewed IFP Motion (ECF 12 No. 4) and DISMISSES WITHOUT PREJUDICE Plaintiff’s Complaint pursuant to 28

(e)(2) for failure to state a claim and lack of subject-matter jurisdiction. 14 Plaintiff MAY FILE an amended complaint curing the deficiencies noted above 15 within thirty (30) days of the date of this order. Any amended filing must be complete in 16 itself, without reference to Plaintiff’s original Complaint. Any claim not re-alleged in 17 Plaintiff’s amended complaint will be considered waived. See S.D. Cal. Civ. L.R. 15.1; 18 Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,

(9th Cir. 1989) 19 (“[A]n amended pleading supersedes the original.”); see also Lacey v. Maricopa Cty., 693

, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are 21 not realleged in an amended pleading may be “considered waived”). 22 Should Plaintiff fail to file an amended complaint on or before July 21, 2022, the 23 Court will enter a final Order dismissing this civil action based both on Plaintiff’s failure 24 to state a claim upon which relief can be granted pursuant to

(e)(2) and 25 his failure to prosecute in compliance with a court order requiring amendment. See Lira 26 v. Herrera,

(9th Cir. 2005) (“If a plaintiff does not take advantage of 27 /// 28 /// 1 opportunity to fix his complaint, a district court may convert the dismissal of the 2 || complaint into dismissal of the entire action.’’). 3 IT IS SO ORDERED. 4 || Dated: June 21, 2022 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28