McKee v. Gen. Motors Co.

601 F.Supp.3d 901

Michael MCKEE and Evgeniy Goussev, individually and on behalf of all others similarly situated, Plaintiffs,

v.GENERAL MOTORS COMPANY, a Delaware corporation, Defendant.

CASE NO. 3:21-cv-05815-DGE

United States District Court, W.D. Washington, at Tacoma.

Signed May 5, 2022

Joel B. Ard, Ard Law Group PLLC, Bainbridge Island, WA, William R. Restis, Pro Hac Vice, Restis Law Firm, San Diego, CA, for Plaintiffs.

Jeffrey Lamb, Pro Hac Vice, Mohamed Awan, Pro Hac Vice, Honigman LLP, Detroit, MI, Kevin J. Craig, Mark B. Tuvim, Patrick T. Jordan, Gordon Rees Scully Mansukhani LLP, Seattle, WA, for Defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT

David G. Estudillo, United States District Judge

I. INTRODUCTION

In their First Amended Complaint ("FAC"), Plaintiffs allege Defendant General Motors Company ("GM") manufactures and sells vehicles with infotainment systems designed to allow drivers (or other passengers in a vehicle) to use their personal cellphones hands free while a vehicle is being operated. As part of their design, however, the infotainment systems also independently download, copy, and store indefinitely the call logs and text messages of any cellphone connected to the systems without the knowledge or consent of the cellphone owner. This stored information is extractable by third parties.

Plaintiffs assert the infotainment systems unlawfully intercept and record call logs and text messages by downloading, copying, and indefinitely storing them. There is no assertion that the infotainment systems are acting in any capacity on behalf of GM after a vehicle is purchased by an end user, such as Plaintiff Michael McKee. This is because there is no assertion GM—other than having designed or installed the infotainment system—reviews, utilizes, benefits from, or even has the ability to retrieve the cellphone data collected and stored by an infotainment system.

The Washington State Privacy Act prohibits "any individual, partnership, corporation, association, or the State of Washington, its agencies and political subdivisions" from intercepting or recording any private communication transmitted by telephone. It also requires an injury to one's business, person, or reputation. Because an infotainment system installed in a vehicle sold by GM is not an individual, partnership, corporation, association, or the State of Washington, its agencies and political subdivisions, and is not alleged to be acting in any agency capacity on behalf of GM when the infotainment system downloads, copies and stores indefinitely call logs and text messages, and because Plaintiffs have not alleged sufficient injury, Plaintiffs fail to state a claim upon which relief can be granted.

As there is no justiciable controversy absent the Washington Privacy Act claim, Plaintiffs’ requests for declaratory and injunctive relief are not actionable.

Accordingly, GM's Motion to Dismiss is GRANTED.

II. BACKGROUND

Plaintiffs Michael McKee ("McKee") and Evgeniy Goussev ("Goussev," and collectively "Plaintiffs") bring this proposed class action alleging GM made unlawful recordings of text messages and call logs¹ stored on Plaintiffs’ cellphones in violation of the Washington Privacy Act, Wash. Rev. Code § 9.73.060 ("WPA"). Plaintiffs also seek declaratory and injunctive relief that Defendant has violated the WPA (Dkt. No. 18 at 21), and seek to bring a class action of similarly situated individuals in Washington. (Id. at 18-19.)

Plaintiffs filed their Complaint in Thurston County Superior Court before Defendant removed the action to federal court. (Dkt. No. 1.) After GM filed its initial Motion to Dismiss (Dkt. No. 9), Plaintiffs filed the FAC. (Dkt. No. 18.) GM now brings the present Motion to Dismiss Plaintiffs’ First Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 19.)

A. GM Vehicles Are Manufactured and Sold with Infotainment Systems

As alleged in the FAC, modern GM vehicles contain "infotainment systems" that allow one to connect a smartphone to the vehicle and use apps and other smartphone functionality through the controls in the vehicle. (Dkt. No. 18 at 3.) Common uses of the infotainment system include playing music stored on a smartphone through the speakers of the vehicle or talking on the phone using vehicle microphones and speakers. (Id. )

Plaintiffs allege that from at least 2014, infotainment systems in GM vehicles automatically record, download, store, and are capable of transmitting a copy of all text messages and call logs existing on a smartphone when it is connected to the vehicle. (Id. at 3-4.) The infotainment systems also automatically record, download, store, and are capable of creating a copy of all text messages and call logs made while connected to a smartphone. (Id. ) This includes all call logs and text messages, including both those sent and received by a connected smartphone. (Id. )

According to Plaintiffs, once the information is copied and downloaded to the vehicle, it is stored in the vehicle's onboard memory and the owner of the vehicle is unable to access or delete it. (Id. at 4.) Although Plaintiffs do not allege that the data was transmitted to or accessed by anyone outside of the vehicle, equipment exists that would allow third parties to connect and access the stored information from the infotainment systems. (Id. at 4-5.)

B. Plaintiffs’ Alleged Injuries

McKee owns a GM vehicle manufactured in 2020 and has connected his smartphone to its infotainment system on multiple occasions. (Id. at 15.) Goussev has sent McKee at least one text where McKee subsequently connected his smartphone to his GM's infotainment system. (Id. at 16.) Both Plaintiffs allege that their information was downloaded and stored onto McKee's GM vehicle, in violation of the WPA. (Id. at 15-16.)

1. Plaintiff McKee's Alleged Injuries

Plaintiff McKee alleges he was injured in his person: (1) because "Plaintiff McKee's private and confidential text messages and call logs now reside on his GM vehicle, can be accessed without his authorization by Berla systems, and cannot be deleted by Plaintiff McKee. Each of Plaintiff McKee's private and confidential text messages and call logs is accessible at any time by law enforcement, by Berla, and by similar private actors without his authorization"; and (2) because McKee has been deprived "of the right and ability to engage in private phone calls and text communications without GM intercepting and recording a call log or text message copy for access by third parties such as Berla and law enforcement, without his authorization." (Id. at 17.)

2. Plaintiff Goussev's Alleged Injuries

Plaintiff Goussev alleges he was injured in his person: (1) because "Plaintiff Goussev's private and confidential text messages now reside on Plaintiff McKee's GM vehicle, and can be accessed without his authorization by Berla systems, and cannot be deleted by either Plaintiff McKee or Goussev. Each of Plaintiff Goussev’[s] private and confidential text messages to Plaintiff McKee is accessible at any time by law enforcement, by Berla, and by similar private actors without his authorization"; and (2) because Goussev has been deprived "of the right and ability to engage in private text communications without GM intercepting and recording a copy for access by third parties such as Berla and law enforcement without authorization." (Id. at 18.)

III. DISCUSSION

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) motions to dismiss may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts , 717 F.2d 1295, 1300 (9th Cir. 1983). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 554-55, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). "Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955. The complaint must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 547, 127 S.Ct. 1955.

B. The FAC Does Not Support a WPA Claim

1. Infotainment Systems Are Not Alleged to be Acting in Any Agency Capacity

The WPA makes it unlawful "for any individual, partnership, corporation, association" to intercept or record any private communications or conversations. Wash. Rev. Code § 9.73.030. Moreover, § 9.73.060 provides that "[a]ny person who, directly or by means of a detective agency or any other agent," violates the provisions of this chapter shall be subject to legal action for damages. Reading these two provisions together, the Supreme Court of Washington has held that liability under the WPA "encompass persons acting as ‘agents’ on behalf of someone in Washington." State v. Fowler , 157 Wash.2d 387, 139 P.3d 342, 347 (2006). The law makes clear that "[l]iability rests with the party recording or intercepting the conversation." Kearney v. Kearney , 95 Wash.App. 405, 974 P.2d 872, 876 (1999).

Although Washington Courts have had little opportunity to determine who may be liable under the WPA, the Washington Court of Appeals addressed alleged WPA violations when computer software recorded communications between law enforcement and a suspect. State v. Bilgi , 19 Wash.App.2d 845, 496 P.3d 1230, 1233 (2021), review denied , 199 Wash.2d 1002, 504 P.3d 827 (2022).

In Bilgi , law enforcement,...