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