Colceriu v. Barbary

574 F.Supp.3d 1120

Ligia COLCERIU, Plaintiff,

v.Jamie BARBARY and Engelhart & Co., LLC, Defendants.

Case No. 8:20-cv-1425-MSS-AAS

United States District Court, M.D. Florida, Tampa Division.

Signed November 29, 2021

Bogdan Enica, Practus, LLP, Miami, FL, for Plaintiff.

Ian M. Ross, Stumphauzer Foslid Sloman Kolaya & Ross, PLLC, Miami, FL, for Defendants.

ORDER

MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court for consideration of Defendants’ Motion to Dismiss Amended Complaint, (Dkt. 47), and Plaintiff's response in opposition thereto, (Dkt. 51); and Plaintiff's Motion for Leave to File Second Amended Complaint, (Dkt. 60), and Defendants’ response in opposition thereto. (Dkt. 62) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court GRANTS Defendants’ Motion to Dismiss and DENIES Plaintiff's Motion for Leave to File Second Amended Complaint.

The Court previously dismissed the Complaint in this action with leave to amend, holding that Plaintiff failed to allege an injury in fact sufficient to support Article III standing. (Dkt. 43 at 6) The Court advised Plaintiff that to sustain this action she had to allege a legitimate basis for the exercise of this Court's subject-matter jurisdiction. (Id. at 5) She was specifically advised that mere waste of time, particularly voluntary waste of time, was insufficient to establish constitutional standing. (Id. ) The Court cited prevailing and precedential case authority concerning the requirements for establishing an injury in fact. (Id. )

With that clear directive, Plaintiff amended her Complaint, presumably, in an attempt to cure this fatal defect. (Dkt. 44) She has failed. Gleaning as much as it can from the allegations in the Amended Complaint, the Court recites the following as the "facts" that Plaintiff has pleaded to try to allege Article III standing:

On or about April 2020, Colceriu saw that [a] few of the influencers she follows organized a "giveaway" with total cash prizes of US $9,000.

In order to check if the lottery is legitimate, Colceriu visited Defendant's Instagram page and, from there, reviewed what she believed to be the honest opinion of various influencers promoting the lotteries.

The named Plaintiff researched the profiles of all these influencers in order to decide and participate in the giveaway.

All of the influencers Colceriu saw promoting these lotteries were stating that the "giveaways" are an easy way of getting some money, some of them even mentioning that it takes 30 seconds to enter. None of the influencers that Colceriu researched mentioned that they were paid to advertise the lottery.

To participate in said game of chance, Colceriu was required to, and indeed did, follow all the profiles on the Defendants’ list. All 62 of them. It took much longer than 30 seconds to follow all the accounts[.] Colceriu did it only to participate in defendant's lotteries, not because she found anything particularly of interest in those accounts.

By following the 62 unrelated accounts, Colceriu provided the Defendants and the accounts she followed access to her data, and data is considered now one of the most important commodities.

Right after following them, each of those accounts started to send unsolicited updates and advertising in Colceriu's Instagram feed. Since the rules of the lottery required that she follow of these accounts until the prize is awarded, Colceriu had no choice but see how her Instagram feed is taken over by strangers that she had no interest in.

Colceriu was never contacted back with the results of the lottery and she never received any prize. Not only did Colceriu spend time following 62 unrelated accounts, she had to continue to parse through her feed and these accounts to determine who had won the lotter[y] [and] how and when the prize was awarded. To date, she has been unable to find out who won these lotteries.

As a result of participation in the Defendants' "giveaways," the Plaintiffs' "personalized space" was invaded by advertisers providing persistent and unwanted content as an intentional interference with the Plaintiff's interest in solitude.

The Plaintiffs are getting their personal Instagram accounts "invaded" by hundreds of advertisers, some of which [are] even providing pornographic or quasi-pornographic, highly offensive, and unwanted content. The Plaintiffs’ information is shared by these advertisers without their knowledge or consent. The persistence and frequency of some advertisers amounts to hounding.

(Id. at ¶¶ 27, 29, 48 61-66, 70)

In sum, Plaintiff voluntarily spent time researching influencers she wished to follow in hopes of winning a cash prize through what she claims is a bogus lottery. She then spent "much longer than 30 seconds" to "follow" each of the 62 influencers she decided to follow. (Id. at ¶ 64) She then voluntarily continued to follow them in order to remain eligible to win the lottery and to find out who did win the lottery. She did not win, and she did not discover who did win, and she surmises it was all a ruse to allow the influencers to beef up their followers to earn money for themselves.

None of Plaintiff's time spent deciding whether to enter a lottery and none of her time voluntarily clicking on an influencer's page to "fo...