QUESTIONS
PRESENTED FOR REVIEW
1) WHETHER, federal judges may conduct ex parte “Googling” research to make final
determinations as to averment plausibility on a Fed.R.Civ.P. 12(b)(6) motion, and
more particularly:
a) when Google itself is the 12(b)(6) movant-defendant; and
b) the ex parte adverse facts used to
assess Petitioners’ claims occurred after the date of filing the pleading, and
AND, WHETHER, such type of conduct
so far departs from the accepted and usual course of judicial proceedings that
the Supreme Court’s supervisory power is required for determination under the intersected
authority of: Fed.R.Civ.P 12(b)(6); Fed.R.Evid. 201, and Code of Conduct for
United States Judges, Canon 3A(4) (ex
parte communications) and Canon 3C(1)(a) (recusal for independent knowledge).
2) WHETHER, the standards of pleading
set forth in Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955 (2007) and Ashcroft
v. Iqbal, 129 S. Ct. 1937 (2009): a) overrule federalism principles of Erie Railroad Co. v. Tompkins, 304 U.S.
64, 58 S. Ct. 817; 82 L. Ed. 1188 (1938) permitting a substitution of facts
required to state a claim; b) apply equally to prayers for relief under
Fed.R.Civ.P. 8(a)(3) as Fed.R.Civ.P. 8(a)(2) conduct averments; c) apply equally
to pleading common law conditions of
mind under Fed.R.Civ.P. 9(b) in the same manner as Fed.R.Civ.P. 8(a)(2) for the
ostensible conduct; and d) permit independent ex parte “Googling” regarding post-pleading actions to make
determinations of plausibility of the claims made in the pre-existing pleading.
RULE 14.1(B) STATEMENT
LIST OF PARTIES
A list of all parties to the proceeding in
the lower court whose judgment is the subject of this petition is as follows:
1) AARON
BORING, Petitioner and Petitioner,
2) CHRISTINE
BORING, Petitioner and Petitioner;
3) GOOGLE,
INC., Defendant and Respondent.
TABLE OF CONTENTS
QUESTIONS PRESENTED....................................................................................................... i
RULE 14.1(b) STATEMENT - LIST OF PARTIES.............................................................. iii
TABLE OF CONTENTS............................................................................................................ iv
TABLE OF AUTHORITIES........................................................................................................ v
OPINIONS BELOW.................................................................................................................... 1
JURISDICTION........................................................................................................................... 1
CONSTITUTIONAL
PROVISIONS, STATUTES
AND REGULATIONS
AT ISSUE............................................................................................. 2
STATEMENT OF THE
CASE................................................................................................... 4
A. Facts Giving Rise to this Case.................................................................................. ?
B. The Initial District Court Proceedings.................................................................... ?
C. The Appellate Court Proceedings............................................................................ ?
D. The Current District Court Proceedings................................................................ ?
REASONS WHY
CERTIORARI SHOULD BE GRANTED................................................... ?
I.
THE LEGAL PRINCIPLES AT ISSUE ARE FUNDAMENTALLY
IMPORTANT AND SYSTEMICALLY PERVASIVE.
a. The standards for pleading claims, as set
forth in Bell Atlantic Corp. v. Twomblyand
Ashcroft v. Iqbal,
are pervasive within federal administrative and judicial dispute resolution
processes, access to the courts is a highly important issue, and the issues are
accordingly recurring.
b. Both the U.S. Senate and U.S. House of
Representatives have introduced legislation for overruling the Twombly
Standard, demonstrating that the questions presented are special, timely,
important, socially pervasive, and worthy of attention and correction.
II.
THE FACTUAL CONTEXT IS PERFECTLY TIMED,
SUBJECT TO RECUR AND IS PERVASIVELY SOCIALLY RELEVANT.
a. Google, the first of its kind, and with the
goal to control the World’s information, is entering upon the private property while
scouring for visual and non-visual data under claim of “license” by “general custom.”
b. Within the last 20 days, multiple nations
throughout the World, including the United States of America, have initiated investigations
of Google’s Street View practices.
c. The errors of misinterpretation of the
Twombly Standard are exemplified by the errors in the lower courts in this
case. Google’s traverses the earth
claiming that the context of its
entry onto private property is the same context
as entry by a lost driver turning around.
The Third Circuit opined Google’s actions are arguably less than a “door
knock.”
III.
THE TWOMBLY
STANDARD IS CLEAR WHEN PROPERLY ANALYZED; YET, FOR LACK THEREOF, IT IS REDUCED
TO CONCLUSORY CITATIONS AND A “CONVINCE THE COURT,”
“I KNOW IT WHEN I SEE IT” STANDARD. THE
TWOMBLY STANDARD HAS EXPRESS AND IMPLIED FACTORS THAT MUST BE ANALYZED TO PRESERVE
THE INTEGRITY OF THE LEGAL PROCESS AND THE ADJUDICATION OF HIGHLY IMPORTANT
RIGHTS.
a.
This Court’s statement in Iqbal for the judiciary to draw upon its “common sense”
was not the standard, but it was the express summation of the “context-specific task”— that is, the presumed work — of properly analyzing multiple relevant factors from the pleading.
b.
The Twombly Standard incents logistical games that
should not be part of a fair notice pleading standard; to wit, pleading
defenses after the fact that change plausibility of the claim in the first
instance.
IV. EX
PARTE “GOOGLING” AND INDEPENDENT FACT-FINDING BY FEDERAL JUDGES ON THE MERITS
OF A CASE, PARTICULARLY PURSUANT TO FED.R.CIV.P. 12(b)(6), IS PREJUDICIAL AND CAUSE
FOR RECUSAL, PER SE; THE ACT UNDERMINES
THE INTEGRITY OF THE PROFESSION AND LEGAL PROCESS, PER SE.
CONCLUSION...............................................................................................................................
APPENDIX TABLE OF
CONTENTS
Opinion of the United States Court of
Appeals for the Third Circuit, dated January 28, 2010, affirming in part and reversing
in part the orders below, App. A, 1a – 18a
Judgment of the United States Court of
Appeals for the Third Circuit, dated January 28, 2010, affirming in part and
reversing in part the orders below, App. B, 19a – 20a
Denial
of Reconsideration Opinion of Amy Reynolds Hay, United States District Court
for the Western District of Pennsylvania, dated April 6, 2009, reproduced at
App. C, 21a - 26a.
Opinion
of Amy Reynolds Hay, United States District Court for the Western District of
Pennsylvania, Dismissing All Counts, dated February 17, 2009, App. D, 27a - 41a.
Denial of Petition for Rehearing En Banc, United States Court of
Appeals for the Third Circuit, dated March 3, 2010, App. E, 42a – 43a.
Appellants’ Petition For Rehearing En Banc,
dated February 11, 2010, App. F, 44a – 73a.
TABLE OF
AUTHORITIES
Cases
Ashcroft v. Iqbal,
... __ U.S. __, 129
S. Ct. 1937, 173 L.Ed 2d 868 (2009). .........................................................
Bell Atlantic Corp. v. Twombly,
... 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)....................................................
Borse v. Piece Goods Shop,
963 F.2d 611 (3d Cir. 1992)......................................................................................................
Conley v. Gibson,
355 U.S. 41, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957).........................................................................
Phillips v.
Cricket Lighters,
883 A.2d 439, 445 447 (Pa. 2005)..............................................................................................
Erie R. Co. v. Tompkins,
304 U.S. 64, 58 S. Ct. 817; 82 L. Ed. 1188
(1938).................................................................
Feld v. Merriam,
485 A.2d 742, 747-48 (Pa. 1984) (emphasis
added)..........................................................
Plessy v. Ferguson,
163
U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896)................................................................
Constitution
Treaties and International Subscriptions
The Universal Declaration of Human Rights,
Article 12..........................................................
Statutes and Statutes Under Consideration
Open Access to the Courts Act of 2009, House
Bill 4115.........................................................
The Notice Pleading Restoration Act of
2009, Senate Bill 1504.............................................
Rules
Code of Conduct for United
States Judges, Canon 3A(4)........................................................
Code of Conduct for United
States Judges, Canon 3C(1)(a) ..................................................
Fed.R.Civ.P. 8(a)(2)........................................................................................................................
Fed.R.Civ.P. 8(a)(3)........................................................................................................................
Fed.R.Civ.P. 9(b).............................................................................................................................
Fed.R.Civ.P. 11................................................................................................................................
Fed.R.Civ.P. 12(b)(6).....................................................................................................................
Fed.R.Civ.P. 54(c)...........................................................................................................................
Fed.R.Evid. 201...............................................................................................................................
Supreme Court Rule 10(a) ...........................................................................................................
Treatises
and Restatements
Restatement (Second) of Torts,....................................................................................................
Supreme Court Practice 9th Ed., Eugene
Gressman, et. al. (BNA 2007), §4.15. ...............
Other Authorities
ABA Model Code of Judicial
Conduct .........................................................................................
Ind. Code of Judicial
Conduct Rule 2.9(C) ................................................................................
Judicial Ethics and the
Internet: May Judges Search the Internet in Evaluating and Deciding a Case? 16
NO. 2 Prof. Law. 2 (2005).........................................................................................................
James Madison “Memorial and Remonstrance,” Rives and
Fendall,
Letters and
Other Writings of James Madison, 1:163...........................................................
James Madison.
Jonathan Elliot, ed. The Debates in the
Several
State Conventions on the Adoption of the
Federal
Constitution, 5 vols. 3:87. Philadelphia:
J.B.
Lippincott
Company, 1901..........................................................................................................
New York Advisory Opinion
08-176 ............................................................................................
The Temptations of
Technology, Cynthia Gray,
... The American Judicature Society, 2009.................................................................................
PETITION
FOR A WRIT OF CERTIOARI
Petitioners respectfully petition
for a Writ of Certiorari to review the opinion and the judgment of the United
States Court of Appeals for the Third Circuit.
OPINIONS BELOW
The
unpublished opinion of the United States Court of Appeals for the Third
Circuit, dated January 28, 2010, affirming in part and reversing in part the
orders below, are reproduced at App. A, 1a – 18a [“Jordan-Rendell-Padova
Op.”]. The unpublished
opinion is reproduced at Borings v.
Google, 2010 U.S. App. LEXIS 1891; 38 Media L. Rep. 1306 (3rd Cir. 2010). Rehearing en
banc was denied by order, dated March 3, 2010, and is reproduced at App. A,
19a – 20a.
The opinion of the United States
District Court for the Western District of Pennsylvania, summarily dismissing
all claims for lack of plausibility, dated February 17, 2009, is reproduced at
App. C, 27a - 42a. [“Hay Op.”]. It is reported at Borings v. Google, 598 F.Supp. 2d 695 (W.D. Pa. 2009). Reconsideration was denied by order, dated April
6, 2009, reproduced at App. B, 21a - 26a. [“Hay Recon. Op.”].
JURISDICTION
The judgment of the panel for the United
States Court of Appeals for the Third Circuit sought to be reviewed was entered
on January 28, 2010. A petition for
rehearing en banc was filed by
Petitioners, which was denied on March 3, 2010.
This petition is timely under 28 U.S.C. §2101(c) and Supreme Court Rule 13.1 and Rule 13.3 because it is
filed within 90 days of the entry of the denial for rehearing en banc.
This Court has jurisdiction to review the judgment of the United States
Court of Appeals for the Third Circuit pursuant to 28 U.S.C. §1254(1).
For purpose of Supreme Court Rule 14.1(g)(ii), the Court of first
instance had diversity jurisdiction under 28 U.S.C. 1332.
CONSTITUTIONAL
AND STATUTORY
PROVISIONS
INVOLVED
Federal
Rules of Civil Procedure
Rule 8.
General Rules of Pleading
(a) Claim for Relief. A
pleading that states a claim for relief must contain:
(1)
a short and plain statement of the grounds for the court's jurisdiction, unless
the court already has jurisdiction and the claim needs no new jurisdictional support;
(2)
a short and plain statement of the claim showing that the pleader is entitled
to relief; and
(3)
a demand for the relief sought, which may include relief in the alternative or
different types of relief.
...
(d)
Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
(1) In General. Each allegation must be simple, concise, and direct. No
technical form is required.
(2) Alternative Statements of a Claim or Defense. A party may set out
two or more statements of a claim or defense alternatively or hypothetically,
either in a single count or defense or in separate ones. If a party makes
alternative statements, the pleading is sufficient if any one of them is
sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many separate
claims or defenses as it has, regardless of consistency.
...
(e)
Construing Pleadings. Pleadings must be construed so as to do
justice.
Rule
9. Pleading Special Matters
...
(b)
Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must
state with particularity the circumstances constituting fraud or mistake. Malice,
intent, knowledge, and other conditions of a person's mind may be alleged
generally.
Rule
12. Defenses and Objections: When and
How Presented; Motion for Judgment on the Pleadings; Consolidating Motions;
Waiving Defenses; Pretrial Hearing
(b)
How to Present Defenses. Every defense to a claim for relief in any
pleading must be asserted in the responsive pleading if one is required. But a
party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses
must be made before pleading if a responsive pleading is allowed. If a pleading
sets out a claim for relief that does not require a responsive pleading, an
opposing party may assert at trial any defense to that claim. No defense or
objection is waived by joining it with one or more other defenses or objections
in a responsive pleading or in a motion.
(c)
Motion for Judgment on the Pleadings. After the pleadings are closed--but early
enough not to delay trial--a party may move for judgment on the pleadings.
STATEMENT OF THE CASE
PREAMBLE
“No one shall be subjected to arbitrary
interference with his
privacy, family, home or correspondence....”
United Nations Declaration of Human Rights, Article
12, December 10, 1948
“There isn’t any privacy, get over it.”
Google’s Vint Cerf, May 9, 2008, Seattle Post
Intelligencer
Freedom begins with the right to be
left alone. Privacy is not an incidental
right, it is a fundamental right — if not the seminal principle upon which the
United States of America was founded.
Google intentionally entered onto Petitioners’
land, without permission, surveilling and collecting data for its profit purpose.
If Google can do it, everyone can do
it. That is the entire issue in this
case. Petitioners and their counsel hold
the point tightly, will not lose sight of it, and will not let it go. Google claims its acts are trivial. That is false. Google’s acts are seminal. There is a difference.
Google is a technological, economic
and social phenomenon. We are vigilant
to recognize Google’s control over the American infrastructure of technology,
economy and social interaction, and our growing dependencies. If Google also controls our private property
— the embodiment and reward of our time — there is nothing left, and we become Google’s
slaves. That is how seeds grow. The intrusions of technology must yield to
privacy, or privacy must yield to the intrusions of technology. With potential fully realized, both seeds cannot stand, as equals, in
the same place at the same time. One
must be first. We cannot serve two
masters.
Petitioners did not accept
Google’s offer merely to remove the surveilled information from Google’s
mitigation website. Petitioners’ time and
personal pursuits are not trivial, and Petitioners are highly offended that
Google should presume to be master over them.
History teaches that a policy of appeasement is not a final solution.
It
is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first
duty of citizens and one of the noblest characteristics of the late Revolution. The freemen of America did not wait till
usurped power had strengthened itself by exercise and entangled the question in
precedents. ... We revere this lesson
too much ... to forget it.”
I believe there are more instances of the
abridgement of the freedom of the people by gradual and silent encroachments of
those in power, than by violent and sudden usurpations....This danger ought to
be wisely guarded against.
We Americans are deeply charitable,
and, yet, not so much so to forgive the King for quartering soldiers in our homes
— even for a fleeting and trivial single night.
On principle alone, it is highly offensive. Even with a spare bedroom. On principle alone, it is highly offensive. The greater the principle, the more jealous. The more jealous, the more offended. Privacy is the first cause of war.
Henry Ford, a great American
entrepreneur, said: “The older I get, the less I listen to what people say, and
the more I watch what they do.” A wise
saying. The law may be thought old, but
it has evolved well-beyond a brash child’s clever arguments that the wallet was
not buttoned in the person’s pocket, so it is okay to take it.
Google argues that it is okay to
enter Petitioners’ private property, to pass by clearly marked “Private Road No Trespassing” signage,
to surveil and to collect data. Google,
the first of its kind, claims an easement on the World’s property from “license”
by “general custom.” Even the common sense of seeing a swimming
pool, where children customarily swim, is not enough to stop Google’s continued
spying, recording and publication. Google
is a corporation — indeed, Google is a technology. It does not eat, it does not sleep, and it
does not feel pain.
This is a nation of People. Freedom begins with the right to be left
alone. Privacy is not an incidental
right, it is a fundamental right — if not the seminal principle upon which the
United States of America was founded. Now
we test how this Nation, so conceived, will endure.
We pray
that this Supreme Court accept this case, deeds caught at the first experiment and
arguments untangled. The rulings below
cannot stand, the only question is when they will fall. We pray now.
And, yet, but for the full errors of the courts below, this case could
not have so timely ascended to the final power and authority of this United
States Supreme Court, so Providence must see some goodness in it. Amen.
A. FACTS
GIVING RISE TO THIS CASE
1. Petitioners
own private property which includes their home.
They purchased the private property for seclusion. Their home is set back on a graveled private
road approximately 1,000 feet from the paved public road junction. Petitioners’ home has an adjacent outdoor
swimming pool. Consistent with common
and judicial experience, Petitioners and their guests, including children, customarily
swim with such bodily nakedness as is customary without the expectation of
being surveilled or recorded without consent and/or advance notice.
2. Petitioners
had an overt statement of their expectation of privacy, “Private Road No Trespassing.” The residence and swimming pool stand clearly and
can be seen from a far distance with sufficient notice that there is no
throughway by continuing forward.
3. Petitioners
are not celebrities. Petitioners are
common people. Petitioners do not have a
locked gate, a guard dog standing watch, or a fence surrounding the perimeter their
property. At some point of altitude,
Petitioners’ yard can be seen by satellite and low-flying aircraft. At times, Petitioners invite guests to their home.
4. Petitioners
discovered that someone, Google in particular, had entered their private property,
disregarding and contrary to the clearly the marked “Private Road No Trespassing” sign, and, continuing forward with
tires crunching, drove up to their home and next to the swimming pool,
conducting surveillance with advanced 360° camera
technology, which was published worldwide.
5. Google
did not turn around when first seeing Petitioners’ swimming pool or learning that
the road was not a throughway, nor did Google stop surveilling. Google did not even stop surveilling while turning
around directly in front of Petitioners’ home and swimming pool. Google did not redact the information from
the Google surveillance cameras. Google
published anyway.
6. Correction
and removal of the pictures by electronic facility requires the devotion of
personal time, training, electronic connectivity services and equipment for
removal.
7. Petitioners
were highly offended by Google’s acts. The
context is a trespass, disregarding and contrary to express “Private Road No Trespassing” signage, with
data collection, including in the form surveillance,
with recording, indexing and worldwide publication, and the requirement of
removal at Petitioners’ cost. Moreover, the wonderment of what else and what
other surveillance Google possesses.
8. Petitioners
do not yet know exactly what data and pictures were taken. Google records, indexes, and publishes worldwide
pictures of persons in immodest conditions as part of its Street View program.
9. Google’s
technological, economic and social power permits it, for the first time in
history, to send “Street View” drivers out to traverse the country, packed with
data collection, recording and surveillance technology. Among other data collection,
Google “automatically record[s] the view that anyone would see while driving on
the streets,”
and commercially uses the data, including by indexing and automatically publishing
the data on the Internet worldwide.
10. The
data collected by Google could not have been acquired but for trespassing or
otherwise entering onto Petitioners’ private property.
11. Google
does not seek advance information about private roads, because, according to
Google’s Larry Yu, it “would have slowed
down deployment of Street View.” It is “common sense” that persons who film
and upload video could take steps to protect privacy and obtain consent, as
stated by least Google’s Vice President, when it suits Google’s position:
Common sense dictates that only the person
who films and uploads a video to a hosting platform could take the steps
necessary to protect the privacy and obtain the consent of the people they are
filming.
12. Apparently
not to be slowed down, and to achieve deployment of a critical mass of researchable
data for its self-interested profit motive,
Google does not make Street Maps an opt-in program. There are no call-in lines for senior
citizens, no advance community notices, no free public computers, no training programs for the less-sophisticated. Data is acquired and commercially used for
Google’s self-profit until discovered, at which point, Google points to its
available post-injury mitigation website.
13. Google’s
claims it is not wrong to enter onto private property to collect data,
including by surveillance, and to record, index and publish the data
collected. Google entered the expressly-stated
defense of “license”
— stating in the record:
[Google’s] defense is based on the implied
consent given by general custom, that absent a locked gate
or other express notice not to enter, the public may drive up the
driveway or otherwise approach a private home without liability for trespass.
B. The Initial District Court Proceedings
On
April 2, 2008, this action was commenced in the Court of Common Pleas of Allegheny
County, Pennsylvania, and removed by Google pursuant to 28 U.S.C. §1441. On February 17, 2009, the District Court granted
Google’s Motion to Dismiss,
dismissing all counts with prejudice, and on April 6, 2009, denying the Borings’
Motion for Reconsideration.
In ruling on the privacy count, the District
Court concluded, as a matter of law, that it is “hard to believe” that the
Petitioners were highly offended by Google’s surveillance, recording, indexing
and worldwide publication. Judge Hay admitted
ex parte “Googling.” The District Court required to be
“convinced.” Moreover, Judge Hay performed unreferenced ex parte research to draw a serious incorrect
statistical inference against Petitioners, to wit: that the lack of claims made
against Google tends to prove that the Petitioners’ privacy claim was not
minimally pleaded pursuant to 12(b)(6). Simultaneously, the District Court concluded
that “any attempted amendment would be futile.”
C. The Appellate Court Proceedings
The Third Circuit affirmed in part
and reversed in part. The Third Circuit affirmed the dismissal of
all Petitioners’ claims and requested relief, with one precise exception not
based upon the Twombly Standard. Petitioners’ Petition for Rehearing En Banc outlines the primary claims of
error, also addressed below.
D. The Current District Court Proceedings
There
are two pending motions in the District Court of which the undersigned requests
this Court to take notice: 1) the Borings’ Motion to Stay;
and 2) the Borings Opp. to Google’s Protection Motion. The request is not for this Court to adjudicate
that fray; the request is because the existence of the disputes, and the arguments
made therein, bear upon the reasons why certiorari should be granted. Google is unique.
1) On the deadline date for Petitioners to file
their Motion to Stay, April 6, 2010, the undersigned received a Fed.R.Civ.P. 68
Offer of Judgment from Google in the amount of $10. So this Court understands the impact as the
undersigned interpreted that act, as stated in its Reply Brief
to the District Court:
Google seeks forgiveness, rather than
permission. And, now it discloses more
of its intention that, if you do not forgive it, it will destroy you in Rule 68
costs. That is the truth. Google’s factual argument: Google can drive
on your private property, past signage, take pictures and publish them
worldwide for a profit. Google’s legal
argument: You cannot sue for punitive damages, you cannot sue for compensatory
damages, you can sue for nominal damages of $1, but, if you get $1, being less
than $10, it will claim all of the bully costs that a $34B company can generate
against a mom and a pop vindicating their legal rights in America. [fn. 2.
A dog that bites after the fact is relevant to prove its latent vicious
propensity before the fact. Google’s
intention is relevant to the judiciability of the question presented.] This is the truth.
Every
defendant subject to a nominal damage claim merely sends a routine Fed.R.Civ.P.
68 $10 offer, or better, $1.01. How many moms and pops can endure the risk of
winning their claim against Google to vindicate legal rights, and still have to
pay all Google’s costs? This is simply
not fair.
2)
Google did not enter a defense until after remand. In its answer, it claims the affirmative defense
of “license.”
a.
Google asserted to the courts below that there was no quasi-contractual basis,
and now pleads a commercial license defense from the same transaction or occurrence
that proves quasi-contractual plausibility.
b.
Even if Google offers the unqualified opinion of its legal counsel upon
whose advice it relied at the time in question, Google’s affirmative defense now
proves the plausibility of the intentional disregard claim in the first
instance. Google admits that it went
onto Petitioners’ property, because it asserts it has a right to be there, past
signage, to surveil, record, index and publish, with “license” by “general
custom.” Google admits plausibility of punitive damages
by its own defense. Moreover, Petitioners
assert that it is “common sense” that Google’s mitigation website supports
plausibility of intentional disregard in the first instance, and the lower
courts reverse the inference in error.
IV.
THE LEGAL PRINCIPLES AT ISSUE ARE
FUNDAMENTALLY IMPORTANT AND SYSTEMICALLY PERVASIVE.
a.
The standards for pleading claims, as set
forth in Bell Atlantic Corp. v. Twomblyand
Ashcroft v. Iqbal,
are pervasive within federal administrative and judicial dispute resolution
processes, access to the courts is a highly important issue, and the issues are
accordingly recurring.
The
standards for pleading claims, as set forth in the Twombly Standard, are
pervasive within federal administrative and judicial dispute resolution processes. Twombly
is a 2007 case, and Iqbal is a 2009
case. As of the date of this filing,
there are more than 10,000 cases throughout the federal judiciary citing to Twombly and/or Iqbal, with more than 2,000 citations within the Third Circuit. There are more than 1,000 references to the
Federal Rules of Civil Procedure throughout the United States Code. In short, the principles espoused by the
Twombly Standard are pervasive throughout the judiciary and federal administrative
processes. Similarly, access to the
federal courts is a highly important right.
Any rule of law that permits error in access to federal dispute
resolution processes is catastrophic.
b.
Both the U.S. Senate and U.S. House of
Representatives have introduced legislation for overruling the Twombly
Standard, demonstrating that the questions presented are special, timely,
important, socially pervasive, and worthy of attention and correction.
Both the U.S. Senate and the U.S. House
of Representatives introduced legislation for overruling the Twombly
Standard. The Open Access to the Courts
Act of 2009 (House Bill 4115) uses a “beyond doubt” standard. The Notice Pleading Restoration Act of 2009
(Senate Bill 1504) reinstates the well-established principles of Conley v. Gibson, 355 U.S. 41, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957).
The point is not that Congress will,
would or could pass such legislation,
but that elected officials of both the U.S. Senate and the U.S. House of
Representatives have determined that the same questions at issue here are special,
timely, important, socially pervasive, and worthy of attention to redress an injury
perceived.
V.
THE FACTUAL CONTEXT IS PERFECTLY TIMED,
SUBJECT TO RECUR AND IS PERVASIVELY SOCIALLY RELEVANT.
a.
Google, the first of its kind, and with the
goal to control the World’s information, is entering upon the private property
while scouring for visual and non-visual data under claim of “license” by
“general custom.”
Google’s
mission is to control the “world’s information.”
Google maintains the world’s largest and
most comprehensive index of online content. In or about May 2007, Google launched “Street
View.” Street View drivers drive with panoramic
digital cameras on the roofs of passenger cars drive “around automatically
filming continuous footage of the view from the streets.”
Google
entered a claim of “license” by “general custom”
to enter private property, to acquire data, surveil, record, index and publish
the results. Accordingly, Google is reasonably calculated
to continue with a claim of license to enter private property throughout these
United States. Because Google is a technological,
economic and social phenomenon, it is imperative that this Supreme Court set
forth the final legal standards applicable in this context. The impact of the judicial errors below are socially
and jurisprudentially catastrophic.
b.
Within the last 20 days, multiple nations
throughout the World, including the United States of America, have initiated
investigations of Google’s Street View practices.
Within the last 20 days from this date, Google has come under
investigation by the United States and multiple countries for data collection
of Wi-Fi data by Street View on an invasion of privacy basis. The issues regarding Street View data
collection is the essence of this case.
Google’s asserted license to enter land and collect data makes no
distinctions for visual and non-visual data.
The nature of the judicial determinations below give special importance for
review by this Court.
c.
The errors of misinterpretation of the
Twombly Standard are exemplified by the errors in the lower courts in this
case. Google’s traverses the earth
claiming that the context of its entry onto private property is the same
context as entry by a lost driver turning around. The Third Circuit opined Google’s actions are
arguably less than a “door knock.”
Justice Kennedy and the majority in Iqbal were clear that the review is a “context-specific task....” Yet, directly contrary, Google argues multiple
contexts, none of which are this context, and the Third Circuit began ruling on
different hypothetical scenarios. Google
argues that it is the same context of an invited “guest,” a “police officer”,
a “lost driver,”
that an aerial view from 5,000 feet or so,
that Petitioners are coastline mansion celebrities,
and that Google is the same as tax collectors, repairmen, deliverymen,
neighbors, friends of neighbors.
In fact, to defeat the barrage of inapplicable
cases that Google raised in its Appellate Brief, Petitioners even offered the
pure elementary simplicity of a bright
line context test:
Google
cites cases and makes arguments that move us away from considering exactly the
elements of the context that are the cause for this dispute. We merely add this bright-line to Google’s
examples and the cited case law: “and was the example or defendant, as the case
may be: a) on an uninvited
private-interest profit mission; and b) recording, indexing and publishing the
results throughout the world?”
The
Third Circuit ignored the pure elementary simplicity and clarity of that bright
line and started inventing facts.
The
Third Circuit directly compared a “door knock” intrusion to Google’s surveillance
and worldwide publication, and found that Google’s conduct was “arguably less
intrusive event than a door knock.” Respectfully, Petitioners sit writhing with
the desire to cross-examine the judiciary on the hypothetical: to wit, did this
hypothetical Restatement person who was knocking on the door intentionally pass
the plaintiffs’ “Private Road No
Trespassing Sign”; what time of day; did the hypothetical person have a surveillance
cameras taking 360° pictures; did the hypothetical person have Wi-Fi interception
technology?
The Third Circuit expressly dissected
Google’s publication from the intrusion, even though publication is a relevant
component of the context. In common sense and judicial experience, the
“eyes” cannot be removed from the context of a seclusion claim. And, Borse
v. Piece Goods Shop,
does not hold that point. Borse says publication is not an element;
it does not follow that lack of publication as an element means to dissect the
fact from the context. It is legally incomprehensible under Borse, or by the directive of the
Twombly Standard, to have done so.
The Third Circuit opined that
Google’s presence was “fleeting”
even though that fact is not pleaded, nor is part of any inference, and the
Third Circuit made ultimate summary judgment and trial determinations by adjudications
using trial evidentiary “factors” of example cases in different procedural
postures. With the limited exception of determining
facial ambiguity, as soon as a court begins identifying anything not pleaded,
it is on the path to error. The Third
Circuit opined:
Publication
is not an element of the claim, and thus we must examine the harm caused by the
intrusion itself.
No person of ordinary sensibilities would
be shamed, humiliated, or have suffered mentally as a result of a vehicle
entering into his or her ungated driveway and photographing the view from
there.
The Third Circuit: 1) removes the worldwide
publication that creates the effective “million eyes of intrusion,” and the very
spark of the offense; 2) removes the claim of trespass that supports the
offense on the privacy intrusion; 3) removes the “Private Road No Trespassing Sign”; 4) removes the offense of being surveilled
and the wonderment what was surveilled; 5) removes the offense for, and
“oppressiveness” of, the requirement to surrender time and training to cleanse
Google’s database; and 6) removes substantive
motive and profit-purpose for commercial advantage.
The Third Circuit stated the
standard for punitive damages in Pennsylvania is “intentional, reckless or
malicious” conduct
and then opined, as a matter of law, that
“there are no facts suggesting that Google...intentionally disregarded the
Borings rights.” Petitioners are completely baffled by the
Third Circuit, clearly erring, ignoring the “Private Road No Trespassing” sign. Signs are important for plausibility. Moreover, the Third Circuit cites to
negligence cases to negate punitive damages on an intentional trespass claim
for reasons that are not clear.
If one performs the exercise of
redacting the District Court’s ex parte
“googling” and other fact finding, there is, effectively, no analysis. If one performs the exercise of redacting
errors derived from apparent misinterpretation of the Twombly Standard by the
Third Circuit, there is, effectively, no analysis. Both opinions effectively state that someone
cannot be offended because they cannot be offended, and seem to work backwards:
the District Court “Googling” and the Third Circuit hypothesizing.
In their Petition for Rehearing En
Banc, Petitioners state the errors regarding Unjust Enrichment,
particularly in light of Google now having pleaded “license” by “consent by
general custom.” Regarding the Injunction
the Third Circuit identifies a “single, brief” entry, and “since we are
told...the offending images have been...removed....” Neither of these facts are anywhere in the
Amended Complaint. The Third Circuit
fails even to acknowledge that it is plausible that Petitioners have a
plausible claim for an equitable destruction order for the data acquired while
committing the tort.
VI.
THE TWOMBLY
STANDARD IS CLEAR WHEN PROPERLY ANALYZED; YET, FOR LACK THEREOF, IT IS REDUCED
TO CONCLUSORY CITATIONS AND A “CONVINCE THE COURT,” “I KNOW IT WHEN I SEE IT” STANDARD. THE TWOMBLY STANDARD HAS EXPRESS AND IMPLIED
FACTORS THAT MUST BE ANALYZED TO PRESERVE THE INTEGRITY OF THE LEGAL PROCESS
AND THE ADJUDICATION OF HIGHLY IMPORTANT RIGHTS.
a.
This Court’s
statement in Iqbal for the judiciary
to draw upon its “common sense” was not the standard, but it was the express summation
of the “context-specific task”— that is, the presumed work — of properly analyzing multiple relevant factors from the pleading.
If certiorari is granted, Petitioners
will set forth to the Third Circuit a number of factors in aid of the analyzing
different types of facts with specific factors.
i.
All facts are not
the same, and cannot be pleaded the same way.
There are elemental facts, compound facts and abstract facts.
Twombly
is a Fed.R.Civ.P. 8(a)(2) case. In Twombly, the essential issue was how to
plead a contract, which is a compound (conclusory) fact. For example, pleading a man was drunk is
conclusory. For a pleader to plead that
the man was drunk, the pleader must necessarily be able to plead the elemental
facts which underlie the conclusion: that he had alcohol on his breath and he could
not walk a straight line. This ensures,
in the context of a compound fact, that there is sufficient minimal legal and
factual basis for the conclusory claim asserted. The 7-2 decision reflects the more limited
contention regarding the nature of that assessment.
Iqbal
is more complicated than Twombly
because it is effectively made a Fed.R.Civ.P. 8(a)(2) case circuitously through
Fed.R.Civ.P. 9(b). In Iqbal, the essential issue was pleading
a condition of mind. State of mind is
part of the averred conduct. Naturally,
it is much more difficult to plead elemental facts for abstract conditions of
mind, and Fed.R.Civ.P. 9(b) generalizes the pleading requirement. The 5-4 decision reflects contention in this
Court regarding the difficulty of denying access to the federal courts for the
pleader’s inability to plead, at the institution of the case, anything more
than the intention that seems plausibly self-evident from the act itself.
However, there are two critical
distinctions in Iqbal that are
expressly stated in the majority opinion that are overlooked: a) Iqbal was a statutory case; and b) the intent
standard required by the statute was clearly expressed by this Court to be
higher than regular intent, to wit, a “because of” standard. In a manner, Iqbal was special within Fed.R.Civ.P. 8(a)(2) only because the
statute and related precedent forced an otherwise abstract state of mind
averment into a compound fact state. That is, the statute requires that the
pleader be able to plead the elemental facts which underlie the conclusion of
the statutory term of art, “purposeful discrimination” with “because of” facts.
In this case, Petitioners’ case is
grounded in pleading two 9(b) “pure” abstract state of mind facts, and each
directed to a different party: 1) offense of the Petitioners; and 2) intention
of Google. Neither Twomby nor Iqbal address
the simplicity of pleading “pure” 9(b) conditions of mind under the Federal
Rules.
ii.
Claims made
pursuant to statutes must “raise up” specific legislative rights with deference
to a separate branch of government.
Since courts decide both common law
claims and statutory claims, courts must exercise different disciplines in
resolving claims with respect to the source of legal right. Determinations based upon statutory rights
require no more or less than the court determining that the pleader has “raised
up” and taken hold of the claim of the right granted by the legislature. For example, it may very well be that this
Court would have been again 7-2 or better in Iqbal, if the intent standard was not based upon the higher statutory
standard of purposeful discrimination.
On one hand, the majority in Iqbal was correct in particular
application of the law; this Court was clear that it was required by law to
apply the appropriate standard based upon the statute’s “extant precedent” for
claiming the legal right. On the other
hand, the minority in Iqbal was
correct in general applied consequence.
Creating an objective standard for dismissals of or through 9(b) condition
of mind cases is rife with applied difficulties in light of adversarial
dynamics, and procedural logistics.
Nevertheless, the harder and more
complicated cases are vacuuming up cases that should not be baited into motion
practice, and if so, should be more analytically stable. In this case, Petitioners’ case is grounded
in pleading straight common law causes of action. Neither
Twomby nor Iqbal address the pure
simplicity of pleading state common law claims of right under the Federal
Rules.
iii.
Under principles
of federalism and Erie Railroad Co. v.
Tompkins, federal courts may not change or implicitly add
elements to state law claims.
When a federal court reviews the law
regarding a state-based common law claim, the federal court must separate the
substantive claim element from the procedural pleading standard. For example, a federal court reviewing the
common law of the Commonwealth of Pennsylvania, which is a fact-pleading jurisdiction,
must take to the task of assessing
the existing opinions accordingly. For
example, whether the state court required pleading taking three aspirins
because: a) that is the element; or b) that is required to meet the standard
for fact pleading within the jurisdiction.
If a federal court requires the aspirins, and the aspirins are not an element
but are required for fact-pleading, the federal court creates federal general
common law.
In the context of the Twombly
Standard, the dismissal of a claim for want of a specific fact is tantamount,
by implication, to creating a factual element. The Third Circuit ignored Petitioners’ pleaded
“Private Road No Trespassing” sign,
and opined on facts that were not in the pleading. Clearly in error, the Third Circuit referenced
an “ungated” driveway as a material condition of dismissal. Legal counsel for the he next would-be
plaintiff reads that opinion and must advise, “No go, our smaller but blinking
signage is no good, the Third Circuit already ruled that an ‘ungated driveway’
won’t support a claim, as a matter of law.”
The Twombly Standard (improperly
interpreted) risks creating elements of state law claims in violation of Erie principles.
There is also a distinction between
failure to state a claim that is not recognized by law, and a failure to state
a claim that is recognized but the facts are not “good enough” to “convince”
the trial judge, who, at the
same time, is opining that “any attempted amendment would be futile.” For example, pleading demands for abstract
facts is inherently a slippery slope, as demonstrated by the District Court:
[I]t is easy to imagine that many
whose property appears on Google’s virtual maps resent the privacy
implications...”
“Resent”
means “to have a feeling of pain or distress...”
“Suffering”
means “the bearing of pain or distress.”
The
District Court dismissed as a matter of law, opining for lack of plausibility
of mental suffering, while subtlety admitting its plausibility.
iv.
Twombly and Iqbal
are both expressly “conduct” cases. Both
courts below extend the principles to prayers for relief and pleading
categories of damage claims.
Twombly and Iqbal are both “conduct”
cases. Plausibility regarding conduct and damage are
conceptually distinct. “Conduct” is the
cause of damage, necessarily known at some level to make a claim. “Damage” is the effect of conduct. Damages are not necessarily a historical fact
and can be analytically complicated, such as requiring an expert assessment
after discovery.
Both courts below extended the Twombly Standard to
punitive damages at the pleading stage, dismissing the damage claim, as a matter of law, without discovery. However, “punitive damages” is not an element
of a claim. Not all causes of action
have damages as an element to test within the pleadings; even if “damages” is
an element, “punitive damages” or other type of damage may not be an element.
The Third Circuit, without support
dismissed, as a matter of law, the
punitive damage count that would rest on the remaining trespass count. As a result, the Third Circuit immunized
Google from claims of disregarding property rights, even though Google was
claimed to have disregarded the “Private
Road No Trespassing” signage and, even though Petitioners are sitting on their
supportive evidence.
The
Third Circuit, again creating an element in violation of Erie, indicates that: a) a
generally reckless person is immune from the injured person for not being
specifically reckless to that injured person; and b) as a matter of law, Google could not be recklessly indifferent. The law is based upon intentionality. The Third Circuit denied Petitioners’ claim for
punitive damages per the Twombly Standard, and cites to Phillips v. Cricket Lighters, which
is not responsive, or actually supports Petitioners’ position.
Consistent with Feld,
Petitioners asserted that punitive damages should be reserved to the jury and
not dismissed on the pleadings; the
Third Circuit cited to a post-discovery summary judgment case; that is, Phillips survived the pleadings. Fed.R.Civ.P.
8(a)(3) requires only that the pleader plead relief requested.
Accordingly, irrespective of the
clear plausibility that Petitioners have in this case, testing plausibility is
limited to confirming the elements of the cause of action. To the extent that the movant seeks more than
that, on the pleadings, the question is
not ripe under the Twombly Standard.
This comports with the intent of Fed.R.Civ.P. 54.
b.
The Twombly
Standard incents logistical games that should not be part of a fair notice
pleading standard; to wit, pleading defenses after the fact that change
plausibility of the claim in the first instance.
The Twombly Standard appears to
teach defendants to sandbag plaintiffs by moving for dismissal prior to
entering defenses. Google entered a very
serious and complicated affirmative defense of “license” by “general custom,” and
then claims to the District Court, under Fed.R.Civ.P. 11, that it is simple trespass
case for discovery purposes. Google argued to dismiss Petitioners’ quasi-contract
count, and then enters a claimed commercial license as part of the same
transaction and occurrence.
VII.
EX PARTE
“GOOGLING” AND INDEPENDENT FACT-FINDING BY FEDERAL JUDGES ON THE MERITS OF A
CASE, PARTICULARLY PURSUANT TO FED.R.CIV.P. 12(b)(6), IS PREJUDICIAL AND CAUSE
FOR RECUSAL, PER SE; THE ACT
UNDERMINES THE INTEGRITY OF THE PROFESSION AND LEGAL PROCESS, PER SE.
The
United States Supreme Court has the prime responsibility for the proper functioning
of the federal judiciary. The grant of
certiorari in cases involving federal jurisdiction, practice, and procedure
reflects that responsibility. See, Supreme Court Practice 9th Ed.,
Eugene Gressman, et. al. (BNA 2007), §4.15.
Supreme Court Rule 10(a) expressly recognizes the grant of certiorari
when a federal decision, “has so far departed from the accepted and usual
course of judicial proceedings, or sanctioned such a departure by a lower
court, as to call for an exercise of this Court’s supervisory power.”
In the main body of the District
Court Opinion, the District Court admitted “Googling” (by name as such) the Petitioners
and their legal on the 12(b)(6) motion on the pleadings, and the District Court
expressly made and stated a finding of facts. The
finding of facts was within and between the text of the Court’s opining on two
separate aspects of Petitioners’ single privacy count. Moreover, the “googling” was admittedly using
the defendant, Google’s, index services, on a motion by the defendant, Google,
with a dismissal of all counts in favor of Google.
Petitioners assert that ex parte “googling,” independent
research and fact-finding, particularly on a 12(b)(6) motion, is judicial
conduct that is a far departure from the accepted and usual course of judicial
proceedings. The context is per se prejudicial and cause for recusal
from any determination remotely based thereon for the merit determinations.
More specifically, either: a) ex parte research is improper; b) ex parte research is proper; or c) ex parte research is immaterial and
condoned when, as suggested and sanctioned by the Third Circuit,
the ex parte research is arguably sequentially
placed in the body of the opinion after a purported conclusion.
In
addition to “Googling,” the Magistrate Judge also performed unreferenced,
uncategorized, independent research to draw a serious incorrect statistical inference
against the Borings, to wit: that the lack of claims made against Google (apparently leaving it viable as a
service) tends to prove that the Borings’ privacy claim was not minimally
pleaded pursuant to 12(b)(6). The act was improper, and the reasoning was
clearly invalid speculation. Moreover, the fact-finding basis, as of this
date, would yield a different factual result.
It
should be noted that there may be a reasonable distinction between information,
other than on the merits, acquired by “googling” for information that might be otherwise
socially acquired, such as at a cocktail
party. That is not this case.
A plain reading of the Magistrate
Judge’s opinion, at 29a, is that the standard of review is a 12(b)(6) motion on
the pleadings. “Googling” and ex parte research is also a violation of
Fed.R.Evid. 201, as well as a violation of the Code of Conduct for United
States Judges, Canon 3A(4) (ex parte communications) and 3C(1)(a) (recusal for
independent knowledge of disputed facts).
The authority to date is supportive.
And
yet, pursuant to the mandate, and with due notice of Petitioners’ position on the “googling,” the Magistrate Judge has not
voluntarily recused herself. Petitioners
must assume that the Magistrate Judge assumes that the legal standard has been
“cleansed” by the Third Circuit, and/or the Magistrate Judge otherwise finds no
cause for recusal under the Code of Conduct, it being proper to conduct ex parte research. Accordingly, the posture of both courts below
place the factual, legal and ethical standards at issue for reliance by other
federal judges and the Circuits to conduct themselves similarly.
VIII.
CONCLUSION.
This
case has virtually every component that merits review: an important question of
law; recurring question of law; wide applicability throughout the judiciary and
federal dispute resolution process, common misunderstanding on application of
standards; grave error in the courts below that contradict the standards set
forth by this Court; factual pattern subject to repetition; factual pattern
widely socially applicable; a pervasive social question; reconciliation of conflict
within the court; reconciliation of potential conflict with Congress by the
proposed legislation; new plausibility issues for common law conditions of mind
and damages; and resetting or otherwise restating the standard for judicial
conduct in the new world of easy information.
That
said, there are two primary reasons, both of which are reasonably calculated to
settle law and procedure: 1) The Twombly Standard, as it now exists in applicable
explanation, is grounded in two complex federal statutes. This case permits “rounding out” the rule with
the antithesis of state common law, while, at the same time, filling in
explanatory details and providing a regimented set of factors to constrain
proper assessment. 2) The ease of access to information is bait for curiosity
and error. There needs to be a clear directive as to permissible conduct for
the judiciary in light of natural curiosity and a plethora of available ex parte information.
Petitioners
pray that certiorari be granted.
s/Gregg
R. Zegarelli, Esq./*
Dennis M. Moskal, Esq.
Z
E G A R E L L I
Technology & Entrepreneurial
Ventures Law Group PC
429
Forbes Avenue, 7th Floor
Pittsburgh, PA
15219
mailroom.grz@zegarelli.com
v.
412.765.0401
f. 412.765.0531
*Counsel of Record
