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Biltz v. Google, Inc.

United States District Court, D. Hawaii

February 27, 2018

GOOGLE, INC., et al., Defendants.


          Derrick K. Watson, Judge


         On February 22, 2018, Plaintiff Mark Andrew Biltz, proceeding pro se, filed a First Amended Complaint against Alphabet Inc., Google Inc., Google AdWords, and Sundar Pichai, alleging claims for breach of contract and fraud.[1] Dkt. No. 7. Biltz asserts that Defendants fraudulently created a false “ad campaign, ” evidenced by altered invoices, in order to conceal the terms of a verbal agreement to distribute a music video that he produced on Google's wholly-owned YouTube subsidiary. For purposes of 28 U.S.C. § 1915, and liberally construed, the First Amended Complaint sufficiently alleges claims for breach of contract and fraud to proceed beyond the Court's initial screening. Accordingly, the Court directs service of the First Amended Complaint and summons, with instructions below.


         Because Biltz is appearing pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)). The Court recognizes that “[u]nless it is absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967, 977-78 (9th Cir. 2013).

         I. The FAC States Claims for Breach of Contract and Fraud

         At this preliminary stage and construed liberally, the Court determines, solely for purposes of this initial screening, that the First Amended Complaint (“FAC”) alleges plausible state-law claims for breach of contract and fraud.[2]

         A. Standard of Review

         The Court subjects each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and can order the dismissal of any claims it finds “frivolous, malicious, failing to state a claim upon which relief may be granted, or seeking monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         Dismissal is proper when there is either a “‘lack of a cognizable legal theory or the absence of sufficient facts alleged.'” UMG Recordings, Inc. v. Shelter Capital Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). A plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). This tenet-that the court must accept as true all of the allegations contained in the complaint-“is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Accordingly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”).

         “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the Court to infer “the mere possibility of misconduct” do not show that the pleader is entitled to relief as required by Rule 8. Id. at 679.

         B. Count II Sufficiently Alleges Claims Sounding in Fraud

         Biltz seeks $12, 000, 000.00 in damages from several Google entities based upon a distribution and marketing agreement with Defendants relating to a Brian Evans' music video entitled “At Fenway.” The Court previously determined that Biltz's Count I claim for breach of contract survives initial screening. See 2/20/18 Order at 6-8 (granting IFP Application and screening Biltz's original Complaint). As detailed below, his amended Count II fraud claim alleges sufficient factual content, accepted as true, to state a claim to relief that is plausible on its face, and further satisfies the heightened pleading requirements of Federal Rule of Civil Procedure 9(b), for purposes of the Court's Section 1915 screening.

         Under Hawai‘i law-

Fraud and fraudulent misrepresentation share the same elements. Compare Fisher v. Grove Farm Co., 123 Haw. 82, 103, 230 P.3d 382, 403 (Haw. Ct. App. 2009) (stating the elements of a fraud claim) with Ass'n of Apartment Owners, 115 Haw. at 263, 167 P.3d at 256 (stating the elements of a fraudulent misrepresentation claim). Like fraudulent misrepresentation, the elements of fraud are “1) false representations made by the defendant, 2) with knowledge of their falsity (or without knowledge of their truth or falsity), 3) in contemplation ...

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