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Hoang v. Amazon & IMDB, 11-1709MJP (W.D. Wash.; July 2, 2012)

Hoang v. Amazon & IMDB, 11-1709MJP (W.D. Wash.; July 2, 2012)

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Court dismisses fraud claims against Amazon/IMDB.
Court dismisses fraud claims against Amazon/IMDB.

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Published by: Venkat Balasubramani on Jul 09, 2012
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07/09/2012

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ORDER GRANTING DEFENDANTS’ MOTIONTO DISMISS FRAUD CLAIM- 1
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLEHUONG HOANG, an individual,Plaintiff,v.AMAZON.COM, INC., a Delawarecorporation, and IMDB.COM, INC., aDelaware corporation,Defendants.CASE NO. C11-1709MJPORDER GRANTINGDEFENDANTS’ MOTION TODISMISS FRAUD CLAIMThis matter comes before the Court on Defendants’ motion to dismiss Plaintiff’s fraudclaim pursuant to Federal Rule 9(b) and Federal Rule 12(b)(6). (Dkt. No. 46.) Having reviewedthe motion, Plaintiff’s opposition (Dkt. No. 48), Defendants’ reply (Dkt. No. 49), and all relatedfilings, the Court GRANTS Defendants’ motion and DISMISSES Plaintiff’s fraud claim with prejudice.
Background
On March 30, 2012, the Court dismissed two of Plaintiff’s original four causes of action, but allowed Plaintiff’s breach of contract and consumer protection claims to survive. (Dkt. No.
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ORDER GRANTING DEFENDANTS’ MOTIONTO DISMISS FRAUD CLAIM- 2
42.) The Court dismissed Plaintiff’s claim for violation of the Washington Privacy Act with prejudice because it held the Act was inapplicable to this case. (Id. at 10.) The Court grantedPlaintiff leave to amend her claim for fraud in order to satisfy both the particularity requirementof Federal Rule 9(b) and the requirements of Washington law. (Id. at 9.)Plaintiff filed a second amended complaint on April 25, 2012, which included a number of changes and additions. (Dkt. No. 45.) Most significantly, the second amended complaintattached privacy policies from Defendants Amazon.com and IMDb.com that Plaintiff claimswere in effect at the time Plaintiff used Defendants’ services. (Dkt. No. 45-1.) Plaintiff alsoamended her complaint to include a number of specific statements from these privacy policies,and added more detailed statements about her reliance on these allegedly false statements. (Dkt. No. 45 at 8-12.)Defendants argue that Plaintiff still fails to meet Federal Rule 9(b)’s requirement thatallegations of fraud be pled with particularity and to allege conduct that constitutes fraud under Washington law. (Dkt. No. 46 at 8-15.) Defendants also assert that Plaintiff fails to distinguish between Defendants Amazon.com and IMDb.com as required by Rule 9(b). (Id.)
Discussion
A.
 
Legal StandardIn considering a motion to dismiss under Federal Rule 12(b)(6), a court must accept all plaintiff’s well-pled factual allegations as true and must draw all reasonable inferences in plaintiff’s favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). However, Rule12(b)(6) requires a court to dismiss a claim when “there is no cognizable legal theory or anabsence of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250F.3d 729, 732 (9th Cir. 2001). A plaintiff must plead “more than a sheer possibility that adefendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “To survive a
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ORDER GRANTING DEFENDANTS’ MOTIONTO DISMISS FRAUD CLAIM- 3
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state aclaim to relief that is plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S.44, 570 (2007)).Rule 9(b) requires that, when fraud is alleged, “a party must state with particularity thecircumstances constituting fraud.” Fed. R. Civ. P. 9(b). The circumstances constituting thealleged fraud must “be specific enough to give defendants notice of the particular misconduct . . .so that they can defend against the charge and not just deny that they have done anythingwrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2004). “Rule 9(b) serves three purposes: (1) to provide defendants with adequate notice to allow them to defend the charge anddeter plaintiffs from the filing of complaints as a pretext for the discovery of unknown wrongs;(2) to protect those whose reputation would be harmed as a result of being subject to fraudcharges; and (3) to prohibit plaintiffs from unilaterally imposing upon the court, the parties andsociety enormous social and economic costs absent some factual basis.” Id. at 1125.B.
 
Fraud Claim Against Amazon.comPlaintiff’s fraud claim still fails to meet the requirements of Rule 9(b) and Rule 12(b)with regard to Defendant Amazon.com. Plaintiff only points to one alleged misstatement byAmazon.com—a sentence in Amazon.com’s privacy notice stating that Amazon.com will onlyshare customer information with subsidiaries that “follow practices at least as protective as thosedescribed in this privacy notice.” (Dkt. No. 45 at 8.)This misstatement is not alleged with the required degree of particularity. Rule 9(b)requires that a plaintiff include the “who, what, when, where and how” of the misconductcharged. Ebeid ex rel. United States v. Lungwitz, 616 F.3d 993, 998 (9th Cir. 2010). There is no“when.” Plaintiff simply alleges that she “purchased products from Amazon.com prior tosubscribing to IMDbPro,” and that she came across this statement during one of those
Case 2:11-cv-01709-MJP Document 57 Filed 07/02/12 Page 3 of 6

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