1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 SONYA VALENZUELA, Case No. 3:22-cv-09042-JSC

8 Plaintiff, ORDER DISMISSING CASE FOR 9 v. LACK OF STANDING

10 KEURIG GREEN MOUNTAIN, INC., Defendant. 11

12 13 Sonya Valenzuela brings this putative class action against Keurig Green Mountain, Inc., 14 for violations of the California Invasion of Privacy Act (“CIPA”) § 631. Plaintiff alleges 15 Defendant “enables and allows a third party . . . to eavesdrop” on conversations between users of 16 Defendant’s chat feature, including Plaintiff, and Defendant. (Dkt. No. 42 ¶ 7-11.) 1 While 17 Plaintiff recites she “visited Defendant’s Website using a smart phone and conducted a brief 18 conversation with an agent of Defendant through the Website’s chat feature” (id. ¶ 4), Plaintiff has 19 not alleged the information she shared with Defendant was in any way private, or that third parties 20 eavesdropping on her conversation with Defendant caused her any harm whatsoever. So, Plaintiff 21 has failed to establish a concrete injury sufficient for Article III Standing, and as a result, the Court 22 DISMISSES Plaintiff’s complaint. 23 BACKGROUND 24 Sonya Valenzuela alleges she had “a brief conversation with an agent of Defendant 25 through the Website’s chat feature.” (Dkt. No. 42 ¶ 4.) Plaintiff did not consent to the 26

27 1 Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the 1 conversation being monitored, intercepted, or recorded. (Id.) Plaintiff does not specify the 2 contents of the chat with Defendant, though she indicates she asked “several questions to a 3 customer service representative” during the chat. (Dkt. No. 54-1 ¶ 2.) Plaintiff claims generally 4 “visitors may share personal and confidential data and personally identifying information with 5 Defendant via the Website chat feature” (Dkt. No. 42 ¶ 22), and these potentially personal chats 6 are “first routed through Oracle.” (Id. ¶ 12.) In addition, Plaintiff asserts “Oracle provide[s] data 7 from such transcripts to Meta (Id. ¶ 23), which allows Meta to “bombard the unsuspecting Website 8 visitors with targeted advertising based upon the user’s Website visits and interactions.” (Id. 9 ¶ 19.) 10 The Court previously granted Defendant’s motion to dismiss Plaintiff’s initial complaint. 11 (Dkt. No. 39.) After Plaintiff filed a second amended complaint, Defendant moved to dismiss it 12 under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 45.) After reviewing the second 13 amended complaint and the parties’ submissions, the Court issued an Order to Show Cause as to 14 whether Plaintiff had sufficiently alleged Article III Standing. (Dkt. No. 53.) Both parties briefed 15 responses to the Order. (Dkt. Nos. 54, 57.) 16 DISCUSSION 17 I. LEGAL STANDARD 18 Article III of the United States Constitution “confines the federal judicial power to the 19 resolution of ‘Cases’ and ‘Controversies.’” TransUnion LLC v. Ramirez,

(2021). “For there to be a case or controversy under Article III, the plaintiff must have a ‘personal 21 stake’ in the case—in other words, standing.”

(citations omitted). To establish standing 22 sufficient to satisfy constitutional requirements, “a plaintiff must show (i) that he suffered an 23 injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely 24 caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.”

25 (quoting Lujan v. Defenders of Wildlife,

, 560–561 (1992)). 26 A “concrete” injury can include “intangible harms,” such as “reputational harms, 27 disclosure of private information, and intrusion upon seclusion.” Id. at 2204 (emphasis added). 1 harm traditionally recognized as providing a basis for a lawsuit in American courts.” Id. at 2200 2 (quotations and citations omitted). Moreover, in a purported class action, the “named plaintiffs 3 who represent a class must allege and show that they personally have been injured, not that injury 4 has been suffered by other, unidentified members of the class to which they belong.” Spokeo, Inc. 5 v. Robins,

, 338 n.6 (2016), as revised (May 24, 2016) (cleaned up). Federal courts 6 are obligated to ensure standing exists and to raise it “sua sponte if need be.” San Francisco 7 Drydock, Inc. v. Dalton,

(9th Cir. 1997); see also Ctr. For Biological Diversity 8 v. Kempthorne,

(9th Cir. 2009) (“[T]he jurisdictional issue of standing can be 9 raised at any time.”). Since Plaintiff filed this case in federal court, Plaintiff “bears the burden of 10 establishing” the “elements” of Article III standing. Lujan v. Defs. of Wildlife,

, 561 11 (1992). 12 II. PLAINTIFF HAS NOT ALLEGED AN INJURY-IN-FACT 13 While Plaintiff alleges Defendant violated CIPA, Plaintiff fails to allege any facts to 14 support an inference Defendant engaged in any kind of privacy violation. Indeed, Plaintiff fails to 15 allege any information at all about the contents of the chat with Defendant. Without any 16 information as to what Plaintiff told Defendant during the brief chat, Plaintiff has only alleged “a 17 bare procedural violation, divorced from any concrete harm.” Spokeo, Inc. v. Robins,

330, 341 (2016), as revised (May 24, 2016). Such a procedural violation, on its own, does not 19 satisfy Article III’s requirements. See Lightoller v. Jetblue Airways Corp., No. 23-cv-361-H, 2023

, at *4 (S.D. Cal. June 12, 2023) (finding no injury-in-fact because “Plaintiff's 21 complaint does not allege that she disclosed any personal information to Defendant” so plaintiff 22 “failed to adequately allege that she suffered any concrete harm that bears a close relationship to 23 the right to control personal information”); Mikulsky v. Noom, Inc., No. 3:23-CV-00285-H-MSB, 24

, at *5 (S.D. Cal. July 17, 2023) (finding no injury-in-fact because Plaintiff did 25 not “identify the specific personal information she disclosed that implicates a protectable privacy 26 interest”) (quotations and citations omitted); see also I.C. v. Zynga, Inc.,

, 27 1049 (N.D. Cal. 2022) (“[T]he Court is hard pressed to conclude that basic contact information, 1 Customs & Border Prot.,

(9th Cir. 2023) (explaining “the government's 2 unlawful collection and retention of records” only “gives rise to a concrete injury for purposes of 3 standing” when “the collection or retention caused a concrete harm”). 4 Plaintiff’s insistence she may state a claim for a Section 631(a) violation regardless of 5 whether she communicated any sensitive or confidential information in the chat misses the point. 6 The question the Court asked is not whether she states a claim under CIPA, but whether she has 7 sufficiently alleged Article III standing. “Article III standing requires a concrete injury even in the 8 context of a statutory violation.” Spokeo, Inc. v. Robins,

(2016), as revised 9 (May 24, 2016). “Put differently, for Article III purposes, it is not enough for a plaintiff to allege 10 that a defendant has violated a right created by a statute; we must still ascertain whether the 11 plaintiff suffered a concrete injury-in-fact due to the violation.” Phillips,

12 (quotations and citations omitted). Plaintiff may have suffered a technical violation of CIPA. 13 However, Plaintiff has not alleged any facts—in her complaint or declaration—that support an 14 inference this violation injured her. So, Plaintiff has not met Article III’s injury-in-fact 15 requirement. 16 Plaintiff’s mantra that a violation of a right to privacy can constitute an injury-in-fact 17 improperly assumes she has alleged a violation of a right to privacy. “A right to privacy 18 “encompass[es] the individual’s control of information concerning his or her person.’” In re 19 Facebook, Inc. Internet Tracking Litig.,

(9th Cir. 2020) (quoting Eichenberger 20 v. ESPN, Inc.,

(9th Cir. 2017)); see also U.S. Dep't of Just. v. Reps. Comm. For 21 Freedom of Press,

, 763–64 (1989) (explaining “information may be classified as 22 ‘private’ if it is ‘intended for or restricted to the use of a particular person or group or class of 23 persons: not freely available to the public.’” (quoting Webster’s Third New International 24 Dictionary 1804 (1976)). Because Plaintiff has failed to allege any information about the contents 25 of her chat with Defendant, Plaintiff has not alleged what she wrote to Defendant—and therefore 26 to any third-party eavesdroppers—had to do with “her person” or was “not freely available to the 27 public.” So, Plaintiff has failed to establish any sort of privacy injury. 1 ‘unannounced second auditor’ intercept her chat communication,” which is “closely analogous to 2 an ‘intrusion upon seclusion’ common law claim.” (Dkt. No. 54 at 7 (citing Ribas, 38 Cal.3d at 3 360-61.) However, “[t]o state a claim for intrusion upon seclusion under California common law, 4 a plaintiff must plead that (1) a defendant ‘intentionally intrude[d] into a place, conversation, or 5 matter as to which the plaintiff has a reasonable expectation of privacy[,]’ and (2) the intrusion 6 ‘occur[red] in a manner highly offensive to a reasonable person.’” In re Facebook, Inc. Internet 7 Tracking Litig.,

(9th Cir. 2020) (quoting Hernandez v. Hillsides, Inc.,

4th 272, 286 (2009)). Plaintiff has failed to allege she had any “reasonable expectation of 9 privacy” over the contents of her chats with Defendant because she has not alleged the contents of 10 those chats contained any private information. So, Plaintiff has failed to demonstrate any injury 11 analogous to the common law tort of intrusion upon seclusion. 12 Garcia v. Build.com, Inc., No. 22-CV-01985-DMS-KSC,

(S.D. Cal. 13 July 13, 2023) and Licea v. Am. Eagle Outfitters, Inc., No. ED-CV-22-1702-MWF-JPR,

2469630 (C.D. Cal. Mar. 7, 2023), fail to persuade the Court Plaintiff has met its standing burden. 15 Garcia relied on the Ninth Circuit’s decision in Wakefield v. ViSalus, Inc., for the conclusion 16 eavesdropping had a “close historical or common-law analog” because “traditional claims for 17 invasions of privacy, intrusion upon seclusion, and nuisance are evidence of a common-law analog 18 to privacy violations.”

(quoting Wakefield v. ViSalus, Inc.,

, 1118 (9th Cir. 19 2022), cert. denied,

,

(2023) (cleaned up) (emphasis added)). 20 But the Plaintiff in Wakefield identified a concrete injury—the receipt of unsolicited phone calls 21 which “invade the privacy and disturb the solitude of their recipients.” Van Patten v. Vertical 22 Fitness Grp., LLC,

(9th Cir. 2017). In comparison, Plaintiff has not 23 articulated any connection between the alleged eavesdropping that occurred here and any privacy 24 interest. And Licea failed to analyze or explain why every CIPA violation necessarily “involves . . 25 . a violation of privacy rights.” Licea,

at *3 (quotations and citations omitted). 26 Plaintiff’s argument is, at bottom, that every violation of CIPA—no matter how small or 27 inoffensive—entails a privacy violation. Because Plaintiff has failed to allege any facts that 1 violations is unavailing. 2 LEAVE TO AMEND 3 Plaintiff requested leave to amend her complaint. (Dkt. No. 54 at 11.) Plaintiff has twice 4 || previously amended her complaint, and each time failed to allege the contents of her 5 || communication with Defendant. (Dkt. Nos. 17, 42.) Moreover, after this Court’s Order to Show 6 Cause, Plaintiff submitted a declaration that referenced her chat with Defendant yet still failed to 7 || provide any information about the contents of that chat. (Dkt. No. 54-1.) 8 However, in the Ninth Circuit “[t]he standard for granting leave to amend is generous.” 9 United States v. Corinthian Colleges,

(9th Cir. 2011) (quoting Balistreri v. 10 Pacifica Police Dep't,

(9th Cir. 1988)). Because it is possible additional 11 information about the contents of Plaintiffs chat with Defendant would establish Plaintiff's 12 || injury-in-fact, the Court GRANTS Plaintiffs request for leave to amend. See Contreras v. Toyota 5 13 || Motor Sales U.S.A. Inc.,

(9th Cir. 2012) (“Given that an amendment might 14 || not be futile, the district court should have allowed the plaintiffs the opportunity to submit an 3 15 amended complaint.”); Lopez v. Smith,

(9th Cir. 2000)(describing the a 16 || “longstanding rule that [l]Jeave to amend should be granted if it appears at all possible that the 3 17 || plaintiff can correct the defect.”)(cleaned up). 18 CONCLUSION 19 For the reasons above, the Court DISMISSES Plaintiff's complaint for lack of subject 20 || matter jurisdiction with leave to amend. Plaintiff is granted leave to amend to allege facts relevant 21 to standing, and for no other purpose. Any amended complaint must be filed by October 30, 2023. 22 || Upon review of the Amended Complaint, the Court will advise the parties how to proceed. 23 This Order disposes of Docket Number: 45. 24 IT IS SO ORDERED. 25 Dated: October 10, 2023 26

28 cquéyine Scott Corley nited States District Judge