Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`GARY CASTERLOW-BEY,
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`CASE NO. 3:17-cv-05687-RJB
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`v.
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`EBAY, INC.,
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`Plaintiff,
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`ORDER ON MOTION TO
`DISMISS
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`Defendant.
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`This matter comes before the Court on Defendant eBay, Inc.’s (“eBay”) Motion to
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`Dismiss. Dkt. 7. The Court has considered the motion and the remainder of the record herein.
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`This case arises from the alleged sale of Plaintiff’s books on Defendant eBay’s website.
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`Dkt. 4. Plaintiff is a pro se prisoner, proceeding IFP. Dkt. 3. Defendant “eBay operates a
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`popular Internet Web site that allows private sellers to list goods they wish to sell, either through
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`an auction or at a fixed price.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390 (2006).
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`Defendant eBay now moves for dismissal of the claims asserted against it pursuant to Fed. R.
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`Civ. P. 12 (b). Dkts. 7. On December 6, 2017, the motion was provisionally granted, and
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`Plaintiff was given an opportunity to amend his complaint in an effort to properly plead his
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`ORDER ON MOTION TO DISMISS- 1
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 2 of 17
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`claims. Dkt. 16. Plaintiff filed an Amended Complaint. Dkt. 20. After review of the Amended
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`Complaint, eBay’s Motion to Dismiss (Dkt. 7) should be granted and the claims dismissed for
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`the reasons provided below.
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`I.
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`FACTS AND PROCEDURAL HISTORY
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`This case is one of several Plaintiff has filed against the alleged publisher (Trafford
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`Publishing Company) of his books and various alleged sellers of those books: Google.Com, Inc.,
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`Amazon.Com, Inc., eBay, Inc., and Barnes & Nobles [sic]. Casterlow-Bey v. Trafford
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`Publishing Company, Western District of Washington case number 17-5459-RJB; Casterlow-
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`Bey v. Google.Com, Inc., et. al., U.S. District Court for the Western District of Washington case
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`number 17-5686; Casterlow-Bey v. Amazon.Com, et al., Western District of Washington case
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`number 17-5833 RJB; Casterlow-Bey v. Barnes and Nobles, U.S. District Court for the Western
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`District of Washington case number 17-5834 and Casterlow-Bey v. Barnes and Nobles, U.S.
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`District Court for the Western District of Washington case number 17-5871.
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`The facts and procedural history regarding this case are in the December 6, 2017 order, and
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`are repeated here, for ease of reference:
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`On August 30, 2017, Plaintiff, a pro se prisoner, filed this case, moved to
`proceed in forma pauperis (“IFP”), and provided a proposed complaint asserting
`that Defendant eBay, Inc. committed copyright infringement, breached a contract,
`and committed fraud when Plaintiff’s books were sold on its website. Dkts. 1, 1-1,
`and 4. He was granted IFP. Dkt. 3.
`According to the Complaint, Plaintiff and non-party Trafford Publishing
`Company (“Trafford”) (Plaintiff has other lawsuits pending against Trafford)
`entered a contract in which Trafford would publish and distribute Plaintiff’s
`books and would then pay Plaintiff the royalties from the sales. Dkt. 4. Although
`Plaintiff asserts that he is the copyright owner of the books, he does not allege that
`he registered any of them with the Copyright Office. Id.
`Plaintiff further maintains that “[a] fake/illegal/bogus contract was produced
`by Trafford Publishing Company with false name, address, and phone number
`signed by someone other than Plaintiff entering into agreement with eBay to sale
`Plaintiffs [sic] books universally for astronomical, ridiculous prices,” which hurt
`the market for his books because his “target audience was poor, impoverished
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`ORDER ON MOTION TO DISMISS- 2
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 3 of 17
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`children living in crime/gang infested areas . . . .” Id., at 2-3. Plaintiff alleges that
`“[b]oth eBay and Trafford . . . have conspired to exploit and deprive Plaintiff of
`his royalty payments for copyrighted work.” Id., at 3. He maintains that “[b]oth
`companies have gained financially at [sic] expense of Plaintiff’s hard labor and
`ultimate dream of being successfully recognized and honored in the literary
`world.” Id. In addition to copyright infringement, breach of contract, and fraud
`claims, Plaintiff’s Complaint also asserts that eBay violated his civil
`constitutional rights, committed “criminal conspiracy” and engaged in
`“international racketeering.” Id. Plaintiff seeks injunctive relief and several
`million dollars in damages. Id.
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`Defendant eBay moved to dismiss on November 6, 2017. Dkt. 7. The
`Court issued a notice to Plaintiff, as a pro se litigant, regarding eBay’s motion to
`dismiss under Fed. R. Civ. P. 12 (b), and Plaintiff’s obligations if he intended to
`oppose the motion. Dkt. 14. Plaintiff did not respond to the motion to dismiss.
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`Dkt. 16, at 2-3. The order noted that Plaintiff’s claim for copyright infringement should
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`be dismissed because Plaintiff failed to allege that any of his works were registered with
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`the U.S. Copyright Office and so, there is no allegation supporting this Court’s subject
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`matter jurisdiction under Fed. R. Civ. P. 12 (b)(1). Id., at 4. It further noted that
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`Plaintiff’s other claims: breach of contract, fraud, violation of Plaintiff’s constitutional
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`rights, criminal conspiracy, and racketeering should be dismissed for failure to state a
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`claim under Rule 12 (b)(6). Id. Plaintiff was given until December 22, 2017 to amend
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`his complaint in order to establish subject matter jurisdiction and to attempt to state a
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`claim. Id.
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`After the order was entered, on December 7, 2017, Plaintiff filed a pleading with the
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`Court, stating that “Plaintiff has never received a motion to dismiss from Plaintiff to
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`respond to.” Dkt. 18.
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`On December 12, 2017, Plaintiff filed a response to two motions to dismiss in
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`Casterlow-Bey v. Google.Com, Inc., et. al., U.S. District Court for the Western District of
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`Washington case number 17-5686, Dkt. 23. On the fourth page of this pleading, Plaintiff
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`wrote: “*Also, this is the response to eBay through its attorney . . . case number 3:17-cv-
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`ORDER ON MOTION TO DISMISS- 3
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 4 of 17
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`05687-RJB.” Id. The Clerk of the Court docketed this pleading in this case. Dkt. 19. In
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`this pleading, Plaintiff argues that “[i]t is undisputed that Defendants have engaged in
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`‘predicate acts’ that constitute an ‘illegal pattern of racketeering activity’ dating back to
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`2006.” Dkt. 19, at 1-2. He maintains that “Defendants cannot claim ‘lawful sales’ of
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`Plaintiff’s books because ‘all sales’ by Trafford Publishing and third party distributors
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`stem from falsified, forged, and fraudulent contract/document that ultimately initiated
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`national and international conspiracy to illegally traffic in stolen property for financial
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`gain.” Id., at 3. Plaintiff argues that “Trafford Publishing, through Defendants, have
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`deprived Plaintiff of his legal earnings, none of the named Defendants have legal
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`authorization or justification under civil or criminal statutes to manufacture or distribute
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`Plaintiff’s copyrighted work.” Id. He asserts that the “exhibits attached to this motion
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`demonstrate Defendants’ involvement in sales of Plaintiffs’ copyrighted work not only in
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`foreign countries but all over the United States.” Id. Plaintiff also attaches documents
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`entitled “Sales and Royalties Page” and “Trafford Publishing Quarterly Royalty Report,”
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`which purport to relate to sales in the United States. Dkt. 19, at 5-7. Plaintiff also again
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`asserts that he “owns the copyrights to all (3) books published through Trafford, attached
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`to this motion is a copy of original contract outlining details of copyright/registration
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`ownership, i.e. ‘Exhibit D’ page 3, paragraphs 5.6 and 5.7.” Id. Exhibit D is entitled
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`“Trafford Publishing Self-Publishing Services Agreement.” Dkt. 19, at 8-18. Page three,
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`paragraphs 5.6 and 5.7 provide:
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`5.6 Copyright and Title Registration. If purchased by You as part of Your
`Services, We shall include a copyright notice in accordance with Your
`instructions in each copy of the Work. We shall secure a unique International
`Standard Book Number (ISBN) for each version of the work where applicable.
`You may not use the formatted Manuscript (at any stage of development) or
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`ORDER ON MOTION TO DISMISS- 4
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 5 of 17
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`finished Work, the ISBN, and/or cover with any other provider of similar Services
`at any time during or after the term of this agreement.
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`5.7 Rights to Manuscript and the Work. There are generally three sets of
`intellectual property rights that are included in any Work; (a) the first set of rights
`relates to the Manuscript or Your Work. You shall remain the sole and exclusive
`owner of all right, title, and interest in and to Manuscript and Your Work as
`initially submitted to Us. We shall have no right or license to use any Manuscript
`or Work except as permitted herein with respect to development of the resulting
`book in print, digital, or audio format; (b) the second set of intellectual property
`rights relates to content that We, Our employees, Our Affiliates or Our
`Contractors create as part of the Services that We offer ("Our Work Product");
`and (c) the third set of intellectual property rights relates to the content that We
`own or that We license from third parties that We cannot transfer to You.
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`Dkt. 19, at 10.
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`On December 20, 2017, Plaintiff filed a pleading entitled, “Motion to Amend
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`Complaint Pursuant to Courts [sic] Order of December 6, 2017.” Dkt. 20. The pleading
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`contains provisions regarding jurisdiction, facts, claims and requested relief. Id.
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`Accordingly, the Court will construe this pleading as Plaintiff’s Amended Complaint.
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`In the Amended Complaint, Plaintiff asserts that, “[t]his civil action originates from
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`an unlawful, forged document/contract illegally crafted by Trafford Publishing” that “has
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`a bogus signature . . . non-existent address, fabricated telephone number” and so, is
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`“invalid.” Dkt. 20, at 1. He maintains that “every business transaction initiated from this
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`bogus, illegal, and invalid document/contract is fruit of the poisonous tree.” Id. Plaintiff
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`asserts that “[f]ruit of the poisonous tree doctrine mandates the suppression of all ‘fruits’
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`derived from a defective, deficient source. Here the subject matter being ‘forged
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`contract.’” Id. Plaintiff alleges that his copyrighted material was stolen with a forged
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`contract. Id., at 2. Plaintiff asserts that Defendant eBay “has perpetually promoted,
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`encouraged, and facilitated trafficking in stolen property since 2006, gaining financially
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`with no regard for compensation to Plaintiff or with Plaintiff’s consent.” Id. He alleges
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`ORDER ON MOTION TO DISMISS- 5
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 6 of 17
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`that even after being informed (via this lawsuit) that it was “trafficking in stolen goods,”
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`Defendant eBay “continue[d] to traffic in stolen property, i.e. Plaintiff’s copyrighted
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`material. With full knowledge of conspiracy, Defendant’s actions rise to the level of
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`criminal.” Id., at 3. Plaintiff alleges that “all (9) nine elements of fraud have been
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`consciously committed.” Id. He asserts that:
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`[A] forged contract does . . . exist, forged contract is material to this complaint,
`the signature, address and phone number on the face of contract is false,
`Defendant possesses knowledge of the falsity, Defendant cannot claim ignorance.
`Plaintiff relies on the truth reflected in contract to safeguard his financial interest .
`. . Defendant has actively engaged in fraud since August 30, 2017 [the date this
`case was filed] . . . [I]n spite of knowledge of allegations of copyright
`infringement, Defendant continues to engage in the deliberate, conscious
`trafficking of stolen property on its online market outlet.
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`Id., at 3-4. As to “racketeering,” Plaintiff maintains that he “has documentation from
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`[Trafford] of actual eBay sales of Plaintiff’s copyrighted work across the United States
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`and abroad.” Id., at 4. He maintains that “[t]his is an ongoing civil conspiracy, an actual
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`business enterprise through a pattern of racketeering activity. Every illegal sale of stolen
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`property is a ‘predicate act’ that has caused actual injury” in violation of the Racketeer
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`Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). Id.
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`Plaintiff seeks five million dollars in damages. Id., at 4-5.
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`A. MOTION TO DISMISS 12 (b)(1) STANDARD
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`II.
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`DISCUSSION
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`A complaint must be dismissed under Fed. R. Civ. P.12 (b)(1) if, considering the factual
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`allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the
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`Constitution, laws, or treaties of the United States, or does not fall within one of the other
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`enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or
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`controversy within the meaning of the Constitution; or (3) is not one described by any
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`ORDER ON MOTION TO DISMISS- 6
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 7 of 17
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`jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v.
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`Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986); see 28 U.S.C. §§ 1331 (federal
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`question jurisdiction) and 1346 (United States as a defendant). When considering a motion to
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`dismiss pursuant to Rule 12 (b)(1), the court is not restricted to the face of the pleadings, but may
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`review any evidence to resolve factual disputes concerning the existence of jurisdiction.
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`McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052
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`(1989); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). A federal court
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`is presumed to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v.
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`Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated
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`Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). Therefore, plaintiff bears the burden of proving the
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`existence of subject matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill Publishing Co.,
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`Inc. v. Gen’l Tel & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
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`B. COPYRIGHT INFRINGMENT
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`Under the Copyright Act, “no civil action for infringement of the copyright in any United
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`States work shall be instituted until preregistration or registration of the copyright claim has been
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`made in accordance with this title.” 17 U.S.C. § 411(a). “A district court does not have subject
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`matter jurisdiction over an infringement claim until the Copyright Office grants the registration
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`application and issues a certificate of registration.” Corbis Corp., v. Amazon. com, Inc., 351
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`F.Supp.2d 1090, 1112, 77 U.S.P.Q.2d 1182 (W.D.Wash. 2004); Safeair, Inc. v. Airtran Airways,
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`Inc., 09-5053RJB, 2009 WL 801754, at *2 (W.D. Wash. Mar. 25, 2009).
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`It is unclear from Plaintiff’s Amended Complaint whether he still intends to assert a
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`copyright infringement claim against eBay. To the extent that he does, Plaintiff does allege that
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`he has registered his three books with the U.S. Copyright Office. Dkt. 20, at 2. A review of the
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`ORDER ON MOTION TO DISMISS- 7
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 8 of 17
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`records of the U.S. Copyright Office shows that only one book, Wildflower, is registered with the
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`U.S. Copyright Office to Plaintiff Gary Casterlow-Bey; with the registration number:
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`TXu001644896; date: 07-31-2009. Pursuant to Federal Rule of Evidence 201 (b)(2), a “court
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`may judicially notice a fact that is not subject to reasonable dispute because it . . . can be
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`accurately and readily determined from sources whose accuracy cannot reasonably be
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`questioned.” The “court may take judicial notice on its own” . . . but if the “court takes judicial
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`notice before notifying a party, the party, on request, is still entitled to be heard.” Federal Rule of
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`Evidence 201 (c)(1) and (e). “Judicial notice is appropriate for records and reports of
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`administrative bodies.” United States v. 14.02 Acres of Land More or Less in Fresno Cty., 547
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`F.3d 943, 955 (9th Cir. 2008). To the extent that Plaintiff makes a claim for copyright
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`infringement against eBay for any book other than Wildflower, the claim should be dismissed for
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`lack of subject matter jurisdiction under Rule 12 (b)(1).
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`C. MOTION TO DISMISS 12 (b)(6) STANDARD
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`Fed. R. Civ. P. 12 (b)(6) motions to dismiss may be based on either the lack of a cognizable
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`legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri
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`v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken
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`as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d
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`1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12 (b)(6) motion to dismiss does
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`not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his
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`entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
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`elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55
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`(2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief
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`above the speculative level, on the assumption that all the allegations in the complaint are true
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`ORDER ON MOTION TO DISMISS- 8
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 9 of 17
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`(even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim
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`to relief that is plausible on its face.” Id. at 547.
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`D. COPYRIGHT INFRINGMENT
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`Under the Copyright Act, copyright owners have the exclusive right to do or authorize the
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`following:
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`(1) to reproduce the copyrighted work in copies or phonorecords;
`(2) to prepare derivative works based upon copyrighted work;
`(3) to distribute copies or phonorecords of the copyrighted work to the public by
`sale or other transfer of ownership, or by rental, lease, or lending;
`(4) in the case of literary, musical, dramatic, and choreographic works,
`pantomimes, and motion pictures and other audiovisual works, to perform the
`copyrighted work publically;
`(5) in the case of literary, musical, dramatic, and choreographic works,
`pantomimes, and pictorial, graphic, or sculptural works, including the
`individual images of a motion picture or other audiovisual work, to display the
`copyrighted work publicly; and
`(6) in the case of sound recordings, to perform the copyrighted work publicly by
`means of a digital audio transmission.
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`17 U.S.C. § 106. “Plaintiffs must satisfy two requirements to present a prima facie case of direct
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`infringement: (1) they must show ownership of the allegedly infringed material and (2) they must
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`demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
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`holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
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`Cir. 2007). Under 17 U.S.C. § 109 (a), “[n]otwithstanding the provisions of section 106 (3), the
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`owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without
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`the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy
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`or phonorecord.” Referred to as the “First Sale Doctrine” and codified at 17 U.S.C. § 109 (a),
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`“when a copyright owner sells a lawfully made copy of its work, [he] loses the power to restrict
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`the purchaser's freedom to sell or otherwise dispose of that copy.” Impression Products, Inc. v.
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`Lexmark Int'l, Inc., 137 S. Ct. 1523, 1535 (2017)(internal quotations omitted).
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`ORDER ON MOTION TO DISMISS- 9
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 10 of 17
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`To the extent that Plaintiff asserts a claim for copyright infringement against eBay, the claim
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`should be dismissed without prejudice for failure to state a claim on which relief can be granted.
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`Aside from failing to establish that he is a copyright holder of any book other than Wildflower,
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`Plaintiff has failed to allege sufficient facts that eBay violated at least one of the rights granted
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`under § 106. He does not give any details – only unspecific allegations that his books were sold
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`through the eBay website. Further, “[i]t is well settled that the Copyright Act does not apply
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`extraterritorially.” Los Angeles News Serv. C. Reuters Television Int’l, Ltd., 149 F.3d 987, 990-
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`91 (9th Cir. 1998). To the extent that Plaintiff’s Amended Complaint asserts copyright
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`violations outside the United States, his claim should also be dismissed with prejudice for failure
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`to state a claim.
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`Moreover, to the extent that Plaintiff asserts a claim for copyright infringement against eBay
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`for Wildflower, his claims as plead are barred by the first sale doctrine. Plaintiff’s Amended
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`Complaint does not assert that eBay sold Wildflower initially. He generally asserts that the
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`contract with Trafford, which purports to sell an unidentified work to Trafford in order for
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`Trafford to sell the work to others, was forged. Dkt. 20. Taking a conflicting position in his
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`response, he attaches a contract between Plaintiff and Trafford regarding an unidentified “work,”
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`asserting that provisions of the contract validly demonstrate that he registered the books with the
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`U.S. Copyright Office. Dkt. 19, at 8-18. (They do not). He also attaches pleadings he asserts are
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`Trafford Publishing’s royalty reports, allegedly demonstrating that Trafford paid Plaintiff
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`royalties on books sold through the “Amazon.Com website” and “Print Lightning Source US” to
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`people in the United States. Dkt. 19, at 6-7. The resale of Wildflower by an unidentified third
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`party on or through the eBay website to another buyer does not give rise to a claim for direct
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`copyright infringement against eBay due to the operation of the first sale doctrine.
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`ORDER ON MOTION TO DISMISS- 10
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 11 of 17
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`To the extent Plaintiff asserts claims for secondary copyright infringement liability, eBay’s
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`motion to dismiss should be granted.
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`To succeed in imposing vicarious liability for copyright infringement, “a plaintiff must
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`establish that the defendant exercises the requisite control over the direct infringer and that the
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`defendant derives a direct financial benefit from the direct infringement.” Perfect 10, Inc. v.
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`Amazon.com, Inc., 508 F.3d 1146, 1173 (9th Cir. 2007). “The ‘control’ element of the vicarious
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`liability test as the defendant's right and ability to supervise the direct infringer. Id. (internal
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`citations omitted).
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`Plaintiff fails to allege claims supporting a claim for vicarious liability because he does not
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`allege eBay had the right to control the alleged infringing activity or derived a direct financial
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`benefit from the direct infringement. Moreover, the Court may take judicial notice of
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`information posted on eBay’s website and judicial proceedings from other courts summarizing
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`eBay’s website and service. See United States v. Yepiz, 844 F.3d 1070, 1076 (9th Cir. 2016). In
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`Hendrickson v. eBay, Inc., 165 F. Supp. 2d 1082, 1094 (C.D. Cal. 2001), a district court noted
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`that “[u]nlike a traditional auction house, eBay is not actively involved in the listing, bidding,
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`sale and delivery of any item offered for sale on its website. . . . it does not have any control over
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`the allegedly infringing items . . . it never has possession of, or opportunity to inspect, such items
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`because such items are only in the possession of the seller.” Additionally, Plaintiff fails to allege
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`facts sufficient to show that eBay derived a direct financial benefit from the direct infringement.
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`Plaintiff has failed to assert facts supporting a claim for contributory liability for copyright
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`infringement because he failed to allege infringement by a third party (based on the first sale
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`doctrine), or that eBay intentionally encouraged or induced infringement through “specific acts.”
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`ORDER ON MOTION TO DISMISS- 11
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 12 of 17
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`Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170 (9th Cir. 2007). This claim should be
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`dismissed without prejudice.
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`eBay also asserts that it is protected by the safe harbor provisions of the Digital Millennium
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`Copyright Act (“DMCA”), 17 U.S.C. § 512. Section 512 of the DMCA, “protects qualifying
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`Internet service providers from liability for all monetary relief for direct, vicarious and
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`contributory infringement.” Hendrickson, at 1088. The Court need not reach this issue because
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`Plaintiff’s copyright claim should be dismissed as stated above.
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`E. BREACH OF CONTRACT
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`Under Washington law, in order to state a claim for breach of contract, a plaintiff must
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`allege: (1) the existence of a valid contract that imposes a duty, (2) the duty was breached, and
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`(3) the plaintiff was damaged as a result. Nw. Indep. Forest Mfrs. v. Dep't of Labor & Indus., 78
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`Wn. App. 707, 712 (1995).
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`To the extent he makes one, Plaintiff’s claim for breach of contract should be dismissed with
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`prejudice. He asserts that there is not a valid contract between Plaintiff and eBay. He fails to
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`plead a contractual duty which he asserts that eBay breached. Further, he fails to assert that he
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`was damaged as a result of eBay breaching a contract. He has failed to plead a breach of
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`contract claim against eBay and the claim should be dismissed for failure to state a claim.
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`F. FRAUD
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`Under Washington law, there are nine essential elements of fraud:
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`(1) a representation of existing fact, (2) its materiality, (3) its falsity, (4) the
`speaker's knowledge of its falsity, (5) the speaker's intent that it be acted upon by
`the person to whom it is made, (6) ignorance of its falsity on the part of the person
`to whom the representation is addressed, (7) the latter's reliance on the truth of the
`representation, (8) the right to rely upon it, and (9) consequent damage.
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`ORDER ON MOTION TO DISMISS- 12
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`

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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 13 of 17
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`Elcon Const., Inc. v. E. Washington Univ., 174 Wn.2d 157, 166 (2012). Fed. R. Civ. P. 9 (b),
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`Pleading Special Matters, provides, in part, “Fraud or Mistake; Conditions of Mind. In alleging
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`fraud or mistake, a party must state with particularity the circumstances constituting fraud or
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`mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged
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`generally.”
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`Plaintiff’s claim for fraud should be dismissed without prejudice for failure to state a
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`claim and for failure to plead fraud with particularity. Plaintiff fails to plead any facts which
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`would support his claim of fraud against eBay and certainly does not do so with particularity.
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`Plaintiff’s bare assertion that eBay committed “fraud,” is insufficient; he doesn’t plead any of the
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`nine elements of the claim based on eBay’s actions. eBay’s motion to dismiss this claim should
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`be granted.
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`G. VIOLATION OF CIVIL CONSTITUTIONAL RIGHTS
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`Under 42 U.S.C. § 1983, in pertinent part:
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`Every person who, under the color of any statute, ordinance, regulation, custom,
`or usage, of any State...subjects, or causes to be subjected, any citizen...to the
`deprivation of any rights, privileges, or immunities secured by the Constitution
`and laws, shall be liable to the party injured in an action at law, suit in equity, or
`other proper proceeding for redress.
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`42 U.S.C. § 1983. In order to state a claim under 42 U.S.C. § 1983, a complaint must allege that
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`(1) the conduct complained of was committed by a person acting under color of state law, and
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`that (2) the conduct deprived a person of a right, privilege, or immunity secured by the
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`Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled
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`on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate
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`avenue to remedy an alleged wrong only if both of these elements are present. Haygood v.
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`Younger, 769 F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).
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`ORDER ON MOTION TO DISMISS- 13
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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 14 of 17
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`Plaintiff’s claims for violation of his civil constitutional rights against eBay should be
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`dismissed with prejudice. He appears to have abandoned this claim. In any event, Plaintiff fails
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`to allege facts showing that “the conduct complained of was committed by a person acting under
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`the color of law” or that the “conduct deprived [Plaintiff] of a right, privilege or immunity
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`secured by the Constitution or the laws of the United States.” Parratt, at 535. Plaintiff does not
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`allege eBay was a state actor. He does not address this claim in either his Amended Complaint
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`or in the response. His claim should be dismissed with prejudice for failure to state a claim.
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`H. CRIMINAL CONSPIRACY
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`To the extent Plaintiff attempts to assert claims against eBay for “criminal conspiracy,” the
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`claim should be dismissed with prejudice. There is no private right of action for criminal
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`conduct.
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`I. RACKETEERING
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`To the extent that Plaintiff intends the “racketeering” claim to be a claim under the Racketeer
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`Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”), the claim should
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`be dismissed. To state a claim for a civil RICO claim, a plaintiff allege that the defendant
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`engaged in: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity
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`and, additionally, must establish that (5) the defendant caused injury to plaintiff's business or
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`property.” Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083, 1086 (9th Cir. 2002)(citing 18
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`U.S.C. §§ 1962(c), 1964(c)).
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`Plaintiff’s RICO claim should be dismissed without prejudice for failure to state a claim.
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`Plaintiff fails to identify any RICO predicate acts, but just incorporates his prior allegations.
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`Such “shotgun” pleading is insufficient to plead a RICO claim. See Graf v. Peoples, 2008 WL
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`ORDER ON MOTION TO DISMISS- 14
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`

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`Case 3:17-cv-05687-RJB Document 21 Filed 12/29/17 Page 15 of 17
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`4189657, at *6 (C.D. Cal. Sept. 4, 2008). eBay’s motion should be granted and the RICO claim
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`dismissed.
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`J. PREEMPTION
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`Defendant eBay also asserts that Plaintiff’s state law claims against it are preempted by 47
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`U.S.C. § 230 (c)(1). Dkt. 7. The Communications Decency Act (“CDA”) provides that “‘[n]o
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`provider or user of an interactive computer service shall be treated as the publisher or speaker of
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`any information provided by another information content provider,’ and expressly preempts any
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`state law to the contrary.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir.
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`2007)(quoting, in part, and citing, 47 U.S.C. § 230 (c)(1) and (e)(1)).
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`By this order, all state law claims should be dismissed, and so the Court need not reach the
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`question at this time.
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`K. LEAVE TO AMEND
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`Unl