Borings v Google

I. PANEL DECISION MISINTERPRETS AND MISAPPLIES THE TWOMBLY STANDARD.

The undersigned respectfully submit that the Panel[1] misinterprets Bell Atlantic v. Twombly and Ashcroft v. Iqbal.[2] Notwithstanding the partial reversal of the Order below,[3] error yet remains.

1. The Twombly Standard. Twombly and Iqbal rest upon complex federal questions without federalism issues and traditional common law state causes of action. A federal court ruling on a federal question may entwine procedure and substance differently than when a federal court must restrain from creating general federal common law for a state claim.[4]

Having said that for the purpose of categorical consideration, the general pleading standard is straight-forward:

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.[5]

The Twombly Standard was not intended to create a “convince”[6] or
an “I know it when I see it” standard of pleading, or to deny access to the courts on a prejudicial conclusory basis. Yet, the undersigned respectfully submit that both Opinions effectively do just that.[7]

Both Opinions ignore assessment of crucial averments, such as the “Private Road No Trespassing” sign, the pleaded seclusion and the pleaded intent or disregard of Google for property or privacy. [Complaint ¶5, 6, 10, 11, 27; A30-31, A35]

Formulaically, the pleading of all types of facts is not the same, because the inherent nature of all facts is not the same.[8] There are three types of facts for pleading: elemental, compound and abstract:

1. Elemental. The grass is green; the nose is broken. Without calling into the analysis existential philosophy or high-science (such as “is it really green?,” a spectra scope or a doctor), these facts are self-evidencing.

2. Compound. The man was drunk; there is an agreement. These facts are conclusory. They rest on elemental facts at some tier. The man had alcohol on his breath and was wobbling. On October 31st, the man told me to paint the door.

3. Abstract. Love and deep love; hate and despise; anger and outrage; offense and high offense. These are facts, but they do not necessarily have simply-reduced elemental components, since, by their nature, they have unlimited particular implementations, which themselves may be abstract. Abstract facts are doubly if not impossibly analytically capable of objective degree separation. That is, how many degrees of love and hate are there? When does “offense” become “high offense”? Ultimately, the fact requires subjective judgment by a trier of fact, possibly with an expert report. These facts, by their very nature, press themselves as trial questions because, unless the claim element is exacting for purposes of demurrer, they beg, such as it is, “I know it when I see it” confusion.

The Twombly Standard implicitly sets forth “common sense” factors:

1	Is the fact elemental, compound (conclusory) or abstract?	“High offense” and “mental suffering” are abstracts. In Twombly, the “agreement” is a compound.
2	Does the defendant need the benefit of more facts to frame a defense?	Will the required fact change the nature of the response by the defendant. In Iqbal, the pleading standard was pursuant to the federal statute using a statutory term of art. Not existing in this case: irrespective of additional facts for mental suffering or offensiveness, Google’s response is materially substantively unchanged.
3	Does the fact “possibly” flow from conduct aver-red; is it “plausible” (suggested); is it “contradicted”?	Mental suffering and high offense can occur for a trespass.[9] More so, trespass that infringes a pleaded seclusion interest and is wrapped into the context of worldwide publication derived from the trespass, is tantamount to a million eyes of invasion.
4	Does the fact relate to conduct (cause) or damage (effect)?	Notice of the averred conduct [Twombly, Iqbal] is distinct from notice of damages, often a function of post-discovery with the aid of experts.
5	Is there an equally plausible alternative that creates facial ambiguity?	Google was on the Borings land, took pictures and commercialized, as it intended.
6	Is there a claim to the scope of statutory intent or public policy?	Particularly with statutory causes of action, there may be a need to plead into or over a governmental interest.
7	Is the cause of action federal or state based?	Federalism issues require deference to general federal common law, such as, creating de facto state claim elements. Importantly, federal use of state case law with fact-pleading must separate the claim element standard from the pleading standard.
8	If the fact is abstract, is there objective legal clarity on satisfaction of the claim element, thereby making the fact elemental? Is the fact request tantamount to fact pleading or “magic words”?	Is the court’s requirement tantamount to creating an implicit element in violation of general federal common law. For example, does a plaintiff have a reasonable basis for satisfying or “convincing” the court, apart from notice to the defendant for the claimed conduct. What is the appropriate pre-evidentiary objective pleading standard, and where is that standard articulated: for example, does the federal standard to survive a 12(b)(6) demurrer require pleading of taking aspirins, more, different or less.
9	Is the quality of fact a matter of degree or a bursting bubble for satisfaction of the element?	Compare loss of consortium prior to legal recognition; the existence of the fact did not permit relief. Here, the facts are claimed by the court to be “not good enough” to “convince” the court.

Moreover, pleading demands for abstract facts is inherently a slippery slope, as demonstrated by the Magistrate Judge’s own admission:

[I]t is easy to imagine that many whose property appears on Google’s virtual maps resent the privacy implications...”[10]

“Resent” means “to have a feeling of pain or distress...” “Suffering” means “the bearing of pain or distress.” [11] The Supreme Court did not intend to deny access on such pre-evidentiary hair-splitting distinctions.

2. Error in Dismissing Privacy Count.

The Panel Opinion states, at pg. 8:

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.

i. Error by Misapplication of Borse.[12] A plain reading of the Panel Opinion states that “publication is not an element of the claim” apparently for the proposition to ignore and to dissect publication from the claim. The conclusion does not follow the premise, it inverts it. This is clear error and confuses the interpretation of Borse.

The concept to remove the “expanse of view”[13] from an invasion of privacy claim is not comprehensible. The expanse of view is the counterweight of the expectation of privacy. It is seclusion from the expanse of the view. Privacy seclusion is relative to a view or intrusion. It does not follow that, because I live on a cul-de-sac with an occasional drive-by, means that I expect the million eyes of a televised daily New York parade. [Borings’ Reply Br., at 11; n. 21, supra]

ii. Error by “Door Knock” Immunity. The Panel Opinion concludes that a claim for trespass and worldwide publication of data is less than a door knock and, therefore, Google is immune. The Panel changes the facts and rules on an entirely different context argumentatively, in clear error to the Twombly Standard. Although it may be subtle, the Panel discloses prejudice on the merits apart from the Borings’ filed pleading.

iii. Error by the “Fleeting Presence” Immunity. The amount of time necessary to do the averred injury is immaterial; it is clear error to assert otherwise. There is no basis to assert that the time of presence is insufficient intrusion when the result of that presence is recorded with worldwide publication. Injury can be done in a nanosecond. Google profited until its conduct was discovered.[14] The Panel describes the presence as “fleeting,” but that term is not supported in the pleading at issue.

iv. The Conclusion Begs the Trial Question. All that remains in the Panel Opinion is exactly the draconian conclusory determination that begs the ultimate trial question, as a matter of law, without evidence:

The Panel clearly admits its error, ignoring pleaded seclusion, trespass and a “Private Road No Trespassing” expectation of privacy:

It is plausible that a reasonable person could be highly offended and incur mental suffering, shame or humiliation, having discovered that someone recently entered onto secluded private property, took 360° pictures within and while close-up on the driveway close to the home and swimming pool, while trespassing, after also trespassing and driving far down a privately maintained road and past “Private Road No Trespassing” signage, having commercialized the pictures, as intended by the trespass, with publication throughout the world via the trespasser’s pervasive proprietary index system.

The Panel’s use of fact that it is “ungated” may be Google’s argumentative defense, but it is certainly not plaintiffs’ averment. The Twombly Standard is not a carte blanche for dismissal for what a court may believe is a better argument or better facts. Dissection of the context, and ignoring pleaded facts, is clear error. The undersigned is respectfully trying to assess the claim element: as a matter of law, would a
blinking “Private Road No Trespassing” sign satisfy the element? Should the required gate be locked? Is a guard dog an equivalent to a gate? What exactly is the objective federal law claim element for reference to survive the “so what” of a demurrer and allow the claim to pass?[16] The Panel creates the new general federal element of a required “gate.”

v. Other Examples of Case Law. The Panel issued a non-precedential opinion, then cites to lower courts.[17] The lower courts are presumably acting in accordance with the precedent that should be established by this Court as a case of first impression, causing an endless loop of non-authority. E.g., the Panel citing to Diaz[18] for the proposition that the district courts sustain cases for “highly offensive”[19] is non-responsive as a pleading standard in this case: courts uphold and dismiss cases in their own contexts.[20] As set forth in the Distinction Table,[21] no case is comparable to this: there is no case that has both two key elements that are here intertwined and unseparable: trespass and worldwide publication.[22] Controlling case law is not cited because it is not known to exist. Offense and outrage in the privacy count are serviced and supported by the trespass. The Panel Opinion merely identifies other cases which have their own particular facts, and doing so is not a proper analysis of legal principles applied to plaintiffs’ pleading. For example, in neither of the Opinions does the court analyze and articulate the obvious meaning of the “Private Road No Trespassing” sign, which would make the claim more plausible. The fact is ignored in clear error.

3. Error in Dismissing Punitive Damages.

The Panel states:

The Borrings’ [sic] complaint fails to allege conduct that is outrageous or malicious. There is no allegation that Google intentionally sent its driver onto their property or that Google was even aware that its driver had entered onto the property. Moreover, there are no facts suggesting that Google acted maliciously or recklessly or that Google intentionally disregarded the Borings’ rights.

The undersigned most respectfully asserts that the above is legally incomprehensible pursuant to Fed. R. Civ. P. 8. It demonstrates how far the Twombly Standard is misinterpreted: Twombly is now the unintended standard for conclusory opinions, prejudice and the creation of unintended elements and burdens of proof at the pleading stage. [See Complaint ¶¶6, 11, 27 A30-31, A35.]

The Borings have secured a valid claim for intentional trespass. Google is the driver, and its driver was trespassing onto secluded property, taking the pictures it intended to take for the benefit of its commercial enterprise, not requesting opt-ins, and publishing the illegal fruits of the trespass for its enrichment. Google drove past the clearly marked “Private Road No Trespassing” sign, and, with nowhere to go but to drive into the pool, turned around in the driveway, drove back and published the pictures anyway, worldwide.

Under the Twombly Standard, it is clearly error to determine that Google is immune from trespassing with intentional disregard or recklessly when expressly pleaded. [See, Complaint ¶¶6, 11, 27; A30-31, A35] If the Panel Opinion element is to be facially understood, it appears that would-be tortfeasors are immune from liability for being generally reckless, such as being immune to the particular person hit for intentionally or recklessly shooting a gun into a crowd. Moreover, the Panel denies the legal right to acquire or to present evidence of intention. A plaintiff should not have to plead workproduct or evidence to plead its general claim of the defendant’s intention and/or reckless disregard. Requiring it is clearly error.

Regarding the use of Jacques,[23] undersigned understand the point of the stated Barnard Rule. As expressly stated, “the Supreme Court of Wisconsin also eloquently stated the socio-philosophical policy behind punitive damages in a trespass count.”[24] It speaks well for itself and the importance of punitive damages in a trespass action.

Finally, damage claims can be dismissed in state court “in advance of trial.”[25] But, it is clearly error for the Panel to immunize Google for its profit activities by attributing intention against the inference to which the Borings are entitled. For purposes of pleading, the plausibility regarding intention speaks for itself: Google is not supposed to be on the Borings’ land or pass the “Private Road No Trespassing Sign.”

4. Error in Dismissing Unjust Enrichment.

Data is the new oil. If an oilman trespassed onto my land, took my oil and commercialized it for a profit, I would have a claim not only for the trespass but also a claim for the commercialized value of the oil. The obligation to pay is implied because the use is for a commercial profit by the taker. If an oilman can take oil from a public domain source, that is not at issue in this case. But if the oilman trespasses onto my land to take my oil, he is liable for its value. That is simply fair. Each property owner is entitled to extract any and all value from their own private investment in their land.

The value of the oil remains to be determined. But, we know that each generation has its clever buyer who knows the ultimate value, but would never, of course, admit the value. Land for beads.

The complaint does not allege, however, that the Borings gave or that Google took anything that would enrich Google at the Borings’ expense.[26]

This is a conclusion not supported in the pleadings. The Panel cannot, at the pleading stage, without the aid of the information provided by discovery rule as a matter of law, make value determinations regarding the value of the extracted data in Google’s hands.[27] The Borings properly satisfy the elements of the state-law claim, and the same have been pleaded: (1) benefits conferred on Google; (2) appreciation of such benefits by Google; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Lackner v. Glosser, 892 A. 2d 21, 34 (Pa. Super 2006). If Google extracted data acquired from the Borings’ land, the Borings are entitled to the fair value, and have clearly pleaded a plausible claim.

5. Error in Dismissing Equitable Relief.

In denying the right to claim equitable relief, the Panel stated:

The complaint claims nothing more than a single, brief entry by Google onto the Borings’ property. Importantly, the Borings do not allege any facts to suggest injury resulting from Google’s retention of the photographs at issue, which is unsurprising since we are told that the allegedly offending im- ages have long since been removed from the Street View program. [Panel Opinion, at 15-16, emphasis added.]

As the Panel reviewed de novo,[28] the undersigned has been unable to reference in the record the circumstances under which the Panel was “told” anything about particular “offending images” or that the entry was “single” or “brief.” The Panel Opinion does not provide references, nor are those facts in the Amended Complaint. The offending images, as claimed in the Amended Complaint, are all images taken while trespassing on the Borings’ property. [Amended Complaint, 21-22; A33] Exactly for the reasons stated in this appeal, plaintiffs have not had the opportunity to discover, adduce evidence and/or reference exactly what images are in Google’s possession, irrespective of publication; therefore, plaintiffs themselves do not yet completely know of the scope of the offending images. There is no proper record indicating Google only appeared one-time, for how long, and whether any other pictures exist containing the Borings and/or their swimming pool guests of various ages.

That said, a “single, brief entry” is all it takes to injure, and, in a digital world, to continue to injure or risk injury. As stated in Borings’ Br. at 31 and Reply Br., at 18, the original digital picture remains available on Google’s worldwide computers, and the claim for a destruction order is appropriate under the Twombly Standard. There is a distinction between the publicized data and the unredacted retained data that is expressly disregarded as a matter of law by the Panel. Formulaically, let us take a hypothetical situation, testing the metes and bounds of the Panel rationale:

The streets of a low-rent neighborhood. It is a 90° day in August. Children are playing in a rarely travelled dead-end street. The proverbial fire hydrant is uncapped and the children are running past it. Children are in their underwear instead of more modest swimwear.

In a "single, brief" drive-by, a “Street Watch” car drives by. The Street Watch car records the children in their wet underwear because, "it records what anyone would see on the street." This recording is stored on the Street Watch disks. The original source images of the children are replicated and distributed on computers distributed throughout the world.

Technicians necessarily have access to these pictures. There are thousand of technicians working on the project. As a matter of statistical probability, some technicians may have predatory inclinations and the original source pictures are subject to mischief. Later, one of the children becomes President of the United States, which creates interest for a specific archived picture, which could yield a lot of money in certain markets.[29]

The point is that the pictures are subject to continued misuse and mischief, and there should be a right to claim an equitable injunction order for destruction under penalty of law. Removal from public view is not a solution. Google must endure the destruction of the poison fruit of the tree. The greater the destruction burden, the more the admission of wide-spread distribution. Google could eliminate the risk and cost of a destruction order by electing an “opt-in” program, but it purposefully does not do so. [Borings’ Br., at 7]

If removal from public view is the formula for relief, then the injured party whose picture exists has no further remedy. How does removing from public view solve the risk: the pictures are replicated and archived. It might be that the Panel holds, through the creation of a new implied element for claiming equity, that the picture must be human being as a matter of law, but what if the pictures look like a winter-wonderland scene with a holiday card scene? What exactly must be pleaded to have a pre-evidentiary hearing injunction claim survive when the conduct of trespass and publication virtually admitted?

II. PANEL FAILS TO ADDRESS PROPRIETY OF EX PARTE “GOOGLING”

BY THE MAGISTRATE JUDGE

1. Error in Failure to Properly Address Googling.

The Magistrate Judge was ex parte “googling.”[30] The undersigned respectfully submit that the action prejudiced the Magistrate Judge’s determination on the merits, and that prejudice appears to have ascended to the Panel, notwithstanding a de novo review.

Either: a) the act of ex parte googling is improper; b) ex parte googling is proper; or c) is immaterial and condoned by this Court when the ex parte googling is sequentially stated in an opinion after a purported conclusion.[31] The Panel stated:

The Borings also suggest that the Court erred in expressing skepticism about whether the Borings were actually offended by Google’s conduct in light of the Borings’ public filing of the present lawsuit. However, the District Court’s comments came after the Court had already concluded that Google’s conduct would not be highly offensive.... [Panel Opinion, at 10]

First, the use of the term “skepticism” is a minimizing characterization for a highly serious issue of ex parte research. Second, the Panel appears to purposefully avoid the clarity of situation: the Magistrate Judge was “googling.” The reference merely to the public filing statement is neither accurate nor complete as stated. It is “especially true” that the Magistrate Judge’s “googling” underpinned multiple errors.[32]

Third, we know the methodology of decision-making is not necessarily — if ever — sequential; it is circular, drawing forward, backward and around until a conclusion is derived on a rational basis of consideration, contemplation and reflection. Grammatical structure must necessarily put sentences into a sequence. In no way does it follow that the fact that sentences are necessarily in a sequence reflects the deliberative process underpinning the ex parte substantive conduct of a trial judge. Even so, the location of the “googling” language in the first privacy section sequentially preceded the second part of the same privacy count which addresses viability and other comments by the Magistrate Judge.

2. Ascension of Googling Prejudice.

The undersigned believes that the “googling” error ascended to the Panel. For example, on the trespass claim, for which serious error was determined, the Panel nevertheless frames the error in a coddle, to wit:

While the District Court’s evident skepticism about the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was erroneous. [Panel Op., at 12.]

Why understandable? What is the pre-evidentiary basis for the Panel statement? What is the purpose of a predicate that gives the appearance of a favor to an seriously errant lower court or a strictly liable defendant? The framing predicate is injurious, superfluous, unnecessary and prejudicial.

1) Liability and damage are the basis of a “claim.” 2) The “skepticism” means doubt on the claim, which is doubt to liability and/or damage. 3) For trespass, damage is not part of the prima facie claim, so it cannot be skepticism as to the pleading of damage. So, it must be, therefore, skepticism as to liability. But, strict liability is admitted by the Panel. So, it cannot be on that point either. 4) That leaves one thing: prejudice as to the final adjudication of the claim. If the Panel is asserting doubt on damages for the “claim” as would be ultimately determined after trial, then it is an admission of prejudice, as well as terribly wrong, since some damage is always presumed in trespass by operation of law. Accordingly, the Borings seek rehearing en banc.

Date: February 16, 2010 /s/Gregg R. Zegarelli/

Gregg R. Zegarelli

PA I.D. #52717

412.765.0401

/s/Dennis M. Moskal/

Dennis M. Moskal, Esq.

PA I.D. #80106

412.765.0405

Counsel for Appellants

Aaron and Christine Boring

Z E G A R E L L I

Technology & Entrepreneurial

Ventures Law Group, P.C.

Allegheny Building, 12th Floor

Pittsburgh, PA 15219-1616

412.765.0400

[1] M. Rendell, K. Jordan, Circuit Judges, and J. Padova (by designation) (the “Panel”); Opinion, dated January 28, 2010 (the “Panel Opinion”).

[2] Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007) (Alito, Breyer, Kennedy, Roberts, Scalia, Souter, Thomas; Ginsburg and Stevens dissenting); Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (Alito, Kennedy, Roberts, Scalia and Thomas; Breyer, Ginsburg, Souter and Stevens dissenting). Twombly and Iqbal referenced hereafter as, the “Twombly Standard.”

[3] A. Hay Opinion, February 17, 2009, A7, (the “Mag. Opinion”). The Panel Opinion and the Mag. Opinion, referred to as the “Opinions.”

[4] See, Erie R. Co. v. Tompkins, 58 S.Ct. 817 (1938).

[5] Iqbal, at 1949; see, also, guidance of the four-justice dissent, at 1959 (“the [basis for dismissal] lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel...”)

[6] See Borings’ Br., at 20.

[7] See, Mag. Opinion, at pg. 4, A7; Borings Br., at 5; the Panel Opinion is addressed infra.

[8] See, Fed. R. Civ. P. 9.

[9] See Jacque v. Steenberg Homes, 209 Wis. 2d 605; 563 N.W.2d 154, 159-162 (1997) (emphasis added). (“Although dueling is rarely a modern form of self-help, one can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser, like [defendant], who refuses to heed no trespass warnings....”), emphasis added. It is reasonable, and easy to imagine, that resentment, mental suffering and high offense can exist per the Wisconsin Supreme Court framework of dueling and someone willing to injury or kill.

[10] Opinion, at 4, A7; see, infra. n. 9.

[11] Oxford English Dictionary (Online Subscr.), Second Ed. 1989.

[12] This Court will note that the Panel uses Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (Pa. 2002), quoting a statement of the required averment in a fact-pleading jurisdiction. The Panel does not analyze or distinguish the element for purposes of liability from the pleading difference under the Federal Rules.

[13] See Borings Reply Br., at 11.

[14] See, Borings Br., at 7.

[15] Panel Opinion, at 8, emphasis added.

[16] See also, Panel Opinion, at 9. The existence of “relevant factors,” such as viewing inside the home on the merits, does not defeat plaintiffs’ pleading. Once again, it does not follow that the failure to find a relevant factor means that the pleaded factors are finally adjudicated on the merits or may be ignored. Pacitti v. Durr, Civ. A. No. 05-317, 2008 WL 793875 (W.D. Pa. Mar. 24, 2008), aff'd, 310 F. App’x 526 (3d Cir. 2009), is another inapplicable example; dismissal was based upon truth as a defense.

[17] Panel Opinion, at 9.

[18] Diaz v. D.L. Recovery, 486 F.Supp. 2d 474, 475-480 (E.D. Pa. 2007).

[19] Panel Opinion, at n. 4, pg. 9: “ [W]e note Google’s assertion, which is not seriously contested by the Borings, that the Street View photograph is similar to a view of the Borings’ house that was once publicly available online through the County Assessor’s website.” That is incorrect. The Borings contest any reliance upon an unconstitutional entry on, and surveillance of, their property by a government agency as any basis for adjudication herein. Allegheny County’s removal of the picture tacitly admits it is not permitted to publish data that taken by illegal entry. It suggests extrinsic evidence that is not properly qualified is unreliable.

[20] See Wolfson v. Lewis, 924 F. Supp. 1413 (1996 E.D.Pa), Borings Reply Br., at 13 (“a court should consider all of the circumstances ..."), citing, Hill v. National Collegiate Athletic Assoc., 7 Cal. 4th 1, 865 P.2d 633, 648 (Ca. 1994) [following evidentiary hearing] (emphasis added). The Panel Opinion identifying examples of cases is not a replacement for proper analysis of the facts actually pleaded in this case.

[21] See Borings’ Reply Br., Addendum A.

[22] Id.

[23] Borings’ Br., at 29.

[24] Id.

[25] The Panel cites to Phillips v. Cricket Lighters, 883 A.2d 439, 445, 447 (Pa. 2005), a post-evidence summary judgment ruling.

[26] Panel Opinion, at 14.

[27] Google is enriched by use of the wrongfully acquired data. See Amended Complaint, ¶¶27-28, A35.

[28] Panel Opinion, at 5.

[29] See, e.g., http://googlesightseeing.com/2009/03/24/naked-people-on-googleeet-view.

[30] Mag. Opinion, at 4-5, A7-8.

[31] Panel Opinion, at 10 (compounded use of defendant’s own services not addressed). See, www.abanet.org/judicialethics/ABA_MCJC_approved.pdf (ABA Model Code of Judicial Conduct); Ind. Code of Judicial Conduct Rule 2.9(C) (no independent investigation in any medium, including electronic).

[32] See Borings Br., at 5; Hays Opinion, at 4, A5 (“This is especially true”).