IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AARON C. BORING and CHRISTINE BORING, husband and wife, respectively,
GOOGLE, INC., a California corporation,
CIVIL ACTION NUMBER: 08-694 (ARH)
MOTION FOR RECONSIDERATION PURSUANT TO F.R.C.P. 59
Prior to Appeal
This case is about every little guy, once again being trampled upon by the big shoe of big business. With nowhere to turn but the American Courts, he is cast away to endure the pinpricks of trespass that bleed our American liberty to death.
Whether the trespass is by a foreign king, or the royalty of big business, does not matter. The Borings, such as our American forefathers in millennia past, are entitled to proclaim, “Google, Don’t Tread On Me.”
The Borings should not need to post gates and guard dogs,[i] nor should they need to institute batteries of cannons in their driveways. They should have the full power and authority of our American Courts at their defense. But, now, this Court has left the American right of private property helpless, injured, and without remedy.
It is not so in our philosophy or our American body constitution. To wit, it is the Constitution of the People of this Commonwealth that a person should get to a jury to let the People decide the question:
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. ... [A]nd every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and eight and justice administered without sale, denial or delay...
Pennsylvania Constitution §1 (Inherent Rights of Mankind), §11 (Courts to be Open).
Google intentionally and systematically enters onto private property, for a commercial profit-making purpose, without permission. Google trespasses. Google is a trespasser.
Trespasser. One who commits a trespass; one who intentionally and without consent or privilege enters another's property.
Black's Law Dictionary, 8th Ed.[ii]
Google, the pirating trespasser, pays no licenses, royalties or fees, and they keep the treasure-profit. They did it again to the Borings, common people.[iii] But, the Borings take them to task. Quite rightfully so. And, it is the privilege of the undersigned to take up the pen, where a sword might otherwise be required.
Let us be clear:
The Borings do not assert that they are injured because trampled grass will remain flat, or that driveway pebbles have been moved. Certainly, the sun will rise, and grass will stand back up. There are no broken fences.
The injury is to every American's right of private property. And, the law is clear and well-established that injury to this fundamental American right is enough to have a jury of the People decide the value of the related injury.
And, let us cut through the fat of Google’s arguments to get to heart of it:
This Court holds that Google, the trespasser, is allowed to look down a street and systematically and intentionally trespass on each house on the entire road, and then to make a profit, without compensation to the people who supplied the property to make that profit.
Google’s defense is that the grass will stand back up, and there was no gate or guard dog.[iv] Or, possibly, that you can pick the fruit off that poison tree by: a) stopping what you are doing; b) going to a computer, if you know how to use one; c) accessing a computer at the cost of doing so; d) accessing the Internet at the cost of doing so; e) researching and becoming familiar with the Google program by going onto their website properties; f) removing the pictures Google acquired while trespassing on your property; and g) not pursuing the happiness you might otherwise be finding. All while they directly and indirectly advertise to you. The more Google injures, the more money they make.
This Court tells Google that it is okay to enter onto a person's private property without permission. I would not teach that rule to my child.
This Court’s ruling makes our private property a Google Slave; our property is no longer our own: it is forced to work for another, against its will, without compensation, for the profit of another. The Federal Court should free slavery, not create it.
The Plaintiffs’ former private property is now the food of every commercial enterprise seeking to have a bite. There is no logical end to the principle. This Court has made a gift to Google and others of a right to and interest in the Borings’ property.
Google made a profit of over four billion dollars ($4,000,000,000) in 2008.[v] If Google implemented proper internal controls it would have dedicated some of that profit to prevent its trespasses. It used the Plaintiffs’ private property in some part to make that profit. Google intentionally disregards controls that would take money to implement: proper investigation and request of property owners.
Google completely avoids securing the legal permissions because controlling doing so would cost money. If our private property rights were natural persons, this case is nothing more than a seat belt manufacturer making huge profits by failing to make a better seat belt, even if our children die.[vi]
If the new pervasiveness of 20th Century roads, in conjunction with the pervasiveness of 21st Century technology, requires any adjustment to the principles of trespass in the digital age, this is the case for such review.
In an age of needed responsibility, Google must be held accountable for its choices.
A motion for reconsideration will be granted if necessary to correct a clear error of law or to prevent manifest injustice. Hirsch Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 47 U.S. 1171 (1986). The undersigned asserts that the dismissal of the case was in clear error for the reasons stated herein. Plaintiff hereby requests that this Court vacate its decision on all counts, but with particular consideration, as stated above for the trespass and unjust enrichment counts with the claim for punitive damages.
It is the law in this Commonwealth that an owner of realty has a cause of action in trespass against any person who has committed a trespass upon the owner’s land, and it is not necessary for the landowner to allege any actual injury or damage as an element of the cause of action.
There is no need to allege harm in an action for trespass, because the harm is not to the physical well-being of the land, but to the landowner's right to peaceably enjoy full, exclusive use of the property.
Jones v. Walker, 425 Pa.Super. 102, 109 (Pa.Super. 1993); see, Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988), alloc. den., 520 Pa. 575, 549 A.2d 136 (1988).
This Court opines that the Plaintiffs “do not describe damage to or interference with their possessory rights.” Memorandum Opinion, February 17, 2009, at 8. However, as stated, Pennsylvania law, like many states, does not have damage as an element of a substantive cause of action for trespass. Any requirement of pleading proximate cause is rendered accordingly unnecessary.
In clear error to the Walker Pennsylvania substantive standard of law, this Court cites to no precedent for the support of its dismissal of Plaintiff’s trespass count. This Court cites merely to a district court case for the ever-present standard proposition that liability is imposed for damages caused, to wit: “See N.E. Women's Ctr., Inc. v. McMonagle, 689 F.Supp. 465, 477 (E.D.Pa. 1988).” Memorandum Opinion, at 8. The indirect citation to Kopka v. Bell Tel, 91 A.2d 232, 235 (1952) stands for the same proposition.
The fact that the District Court of Philadelphia stated the positive proposition that, “a trespasser is responsible in damages for all injurious consequences which are the natural and proximate result of his conduct,” does not make the negative inverse proposition true. That is, that without physical damage, there is no liability.[vii] While a trespasser is responsible in damages for all injurious consequences which are the natural and proximate result of his conduct, this is not the same as opining that the Plaintiff, in a trespass action, has to establish actual damages to maintain the action.[viii] In N.E. Women, the Court was merely not limiting Plaintiff to actual damages to real property. Moreover, importantly, the Court still let the jury decide whether the damages flowed from the trespass.[ix] [x]
Accordingly, Plaintiff's trespass action should not have been dismissed. Moreover, see Restatement (Second) of Torts, §158, 163. Section 158 states as follows:
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so...
Id. (emphasis added). And, in Goodrich Amram, Summary of Pennsylvania Jurisprudence 2d, § 23:1, it is further stated:
Under this definition, one who intentionally and without consensual or other privilege enters land in possession of another or causes anything or a third person to do so is liable as a trespasser irrespective of whether harm is thereby cause to any legally protected interest.
Id. (emphasis added). See also, Pennbaur v. City of Cincinnati, 745 F.Supp. 446 affirmed 947 F.2d 945 (S.D.OH 1990) (every unauthorized entry upon land of another constitutes a trespass, and regardless of whether the owner suffered substantial injury, he at least sustains legal injury which entitles the owner to verdict for some damages); Gavcus v. Potts, 808 F.2d 596 (7th Cir. 1986) (nominal compensatory damages can be awarded when no actual or substantial injury has been alleged or proven to have resulted from trespass, as law infers some damages from unauthorized entry on land); Hoffman v. Vuilcan Materials Co., 91 F.Supp. 2d 881 (M.D.NC. 1999) (trespass upon the land of another entitles the possessor to at least nominal damages). Wilson v. Amoco, 33 F.Supp.2d 969 (D. Wyo. 1998) (once Plaintiff establishes that trespass occurred, Plaintiff is entitled to at least nominal damages for wrongful intrusion); Cook v. Rockwell Int’l., 273 F.Supp 2d 1175 (D.Colo. 2003) (proof that trespass invasion caused actual damages is not required to establish liability, and Plaintiff is always entitled to recover at least nominal damages); Lugue v. Hercules, 12 F.Supp. 2d 1351 (S.D.Ga. 1997) (proof of actual injury to the land or a diminution in the property's value is not required to maintain an action for trespass, and nominal damages can be awarded when the amount of actual injury is unclear).
This Court has made a gift to Google and others of a right to and interest in the Borings’ property and that is a manifest injustice.
III. PUNITIVE DAMAGES ARE PROPER.
With regard to punitive damages, our Pennsylvania Supreme Court has delineated the clear purpose:
If the purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others from similar conduct, then a requirement of proportionality defeats that purpose. It is for this reason that the wealth of the tortfeasor is relevant. In making its determination, the jury has the function of weighing the conduct of the tortfeasor against the amount of damages which would deter such future conduct. In performing this duty, the jury must weigh the intended harm against the tortfeasor's wealth. If we were to adopt the Appellee's theory, outrageous conduct, which only by luck results in nominal damages, would not be deterred and the sole purpose of a punitive damage award would be frustrated. If the resulting punishment is relatively small when compared to the potential reward of his actions, it might then be feasible for a tortfeasor to attempt the same outrageous conduct a second time. If the amount of punitive damages must bear a reasonable relationship to the injury suffered, then those damages probably would not serve as a deterrent. It becomes clear that requiring punitive damages to be reasonably related to compensatory damages would not only usurp the jury's function of weighing the factors set forth in Section 908 of the Restatement (Second) of Torts, but would also prohibit victims of malicious conduct, who fortuitously were not harmed, from deterring future attacks. (emphasis added) Kirkbride v. Lisbon Contractors, 521 Pa. 97, at 103-4, 555 A.2d 800 (1998).
Google's argument that punitive damages are not warranted because Plaintiffs do not point to aggravating or outrageous conduct found in the complaint is factually conclusory in that the illegal entry onto property, pursuant to a calculated scheme of approach, is a crime and clearly warrants punitive damages.[xi] Furthermore, Plaintiff is entitled to all inferences.
In good faith and for judicial efficiency, Plaintiff request that the Honorable Magistrate Judge reconsider her initial determination, as stated in the Memorandum Opinion, and reinstate the Counts II (Trespass) and V (Unjust Enrichment) with the claim for punitive damages for the reasons stated herein.
If the case goes forward with effectively on one substantive claim, the case will proceed to a jury determination as guaranteed to Plaintiff by law, and the case will be procedurally streamlined as a result of this Court’s dismissal of the other counts.
Dated: February 27, 2008 s/Gregg R. Zegarelli/
Gregg R. Zegarelli, Esq.
PA I.D. #52717
s/Dennis M. Moskal/
Dennis M. Moskal, Esq.
PA I.D. #80106
Counsel for Plaintiffs
Z E G A R E L L I
Technology & Entrepreneurial
Ventures Law Group, P.C.
Allegheny Building, 12th Floor
Pittsburgh, PA 15219-1616
CERTIFICATE OF SERVICE
The following person or persons are believed to have been served electronically in accordance with the procedures and policies for Electronic Case Filing (ECF) on this date:
Brian P. Fagan, Esq.
KEEVICAN WEISS BAUERLE & HIRSCH, LLC
1001 Liberty Avenue
11th Floor, Federated Investors Tower
Pittsburgh, PA 15222
Tonia Ouellette Klausner, Esq.
Joshua A. Plaut, Esq.
Jason P. Gordon, Esq.
Elise M. Miller, Esq.
Gerard M. Stegmaier, Esq.
WILSON SONSINI GOODRICH & ROSATI PC
1301 Avenue of the Americas
New York, NY, 10019
s/Gregg R. Zegarelli/
Gregg R. Zegarelli
PA I.D. #52717
s/Dennis M. Moskal/
Dennis M. Moskal, Esq.
PA I.D. #80106
Counsel for Plaintiffs
Z E G A R E L L I
Technology & Entrepreneurial
Ventures Law Group, P.C.
Allegheny Building, 12th Floor
Pittsburgh, PA 15219-1616
[i] Google's Brief (initial), pg. 2 (there is no gate or guard dog standing watch over the property).
[ii] Damages is not part of the definition of the term. Damage is a secondary jury question. In fact, damages is not an element of a state-based trespass claim in Pennsylvania, so dismissal on the basis of damages is ungrounded. See Section II, below.
[iii] There was a "Private Road No Trespassing" sign, and the road turned from pavement to pebbles, but these are jury fact questions.
[iv] See Note 1, above. It is important to note the 4-cell analytical matrix of who is trespassing relative to whose property upon which the trespass occurs. 1. Commercial trespasser (CT) onto commercial land (CL); 2. CT onto non-commercial land (NL); 3. Non-commercial trespasser (NT) onto CL; 4. NT onto NL.
For example, if a non-commercial person innocently drives down the street, and turns around in the driveway of a non-commercial owner (particularly on unmarked property) (4. NT/NL), the ability to measure damages may be nominal by nature, but even this is not our situation. In our situation, the party trespassing is a commercial enterprise who intentionally enters for a profit-making purpose. (2. CT/NL) Google confuses the analysis by using a No. 4 example for our No. 2. case. Everyone whose property is enjoyed by Google by their intentional trespass is entitled by law to a jury determination of damages. Google was on the Boring's land because it needed to be there for its service. The Borings are entitled to have a jury determination with an expert calculation of that act of trespass. For non-commercial land (NL), extrapolating rental value might include who is making the request, since it is not publicly offered, and such a fair market determination might or might not include who is requesting the access. But such things are for experts at trial. See 6, below.
[v] 2008 Google Annual Report
[vi] See, eg, Restitution and Unjust Enrichment (Draft) (attached for convenience as Exhibit 1):
§ 40. Trespass and Conversion: (1) A person who obtains a benefit by an act of trespass or conversion, is accountable to the victim of the wrong for the benefit so obtained. (2) The measure of recovery depends on the blameworthiness of the defendant’s conduct. As a general rule: (a) a conscious wrongdoer, or one who acts despite a known risk that the conduct in question violates the rights of the claimant, will be required to disgorge all gains (including consequential) derived from the wrongful transaction.
Comment b. Measure of Recovery. ...In consequence, a conscious wrongdoer may be liable to disgorge more than the value of what was taken or obtained in the first instance. ... Restitution is justified in such cases because the advantage acquired by the defendant is one that should properly have been the subject of negotiation and payment....The more difficult issues of valuation are accordingly those in which the defendant has made a use of the claimant’s property for which there is no ordinary market; or in which the defendant has bypassed any market by taking without asking, or by proceeding in the face of a refusal. Valuation in such cases resists any precise formula, and courts exercise a wide discretion in fixing a price for the benefit in question—in other words, a measure of liability—that will correspond to the unjust enrichment of the defendant. The one constant factor in such cases is that values will be more liberally estimated against a conscious wrongdoer. See, also, Note 4, above regarding party type matrix. See also, Jacques v. Steenberg Home, footnote 11, below.
[vii] E.g., “If you are hungry, then you eat” does not create the truth of the inverse negative proposition, “You cannot eat unless you are hungry.”
[viii] Defendants in N.E. Women contended that the Court erred by permitting the jury to award plaintiff damages for injury to its business as well as injury to its property under the trespass claim. The defendants argued that they should only be required to pay for the actual damage to plaintiff's real property, not for any injury to plaintiff's business. The Court found that it "sees no valid reason why a trespasser could not be held liable for injuries to his or her business which are properly found by a jury to be the proximate cause of the trespass. If plaintiff's alleged injuries to business were not the consequence of defendants actions, the jury would have found that they were not the proximate cause of defendants' actions. Plaintiff's injuries as alleged and proven were not unduly indirect or remote from defendants' trespass. Therefore, defendants' motion on this ground is denied." N.E. Women, at 477.
[ix] In the dicta of footnote 4 of the Memorandum Opinion, this Court references the case of Costlow v. Cusimano, 34 A.D.2d 196; 311 N.Y.S.2d 92 (1970). That case is inapplicable as it is a citation to the New York state court, which is applying the rules of procedure and body of law for that state court forum, rather than this Federal court forum, using the substantive law of the State of New York, not the Commonwealth of Pennsylvania.
[x] In Phillips v. County of Allegheny, 515 F.3d 224, 231, the Third Circuit delineates the substance of what Twombly expressly leaves intact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The Supreme Court reaffirmed that FED R. Civ.P. 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests,'" and that this standard does not require "detailed factual allegations." Twombly, 127 S.Ct. at 1964, quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).
[xi] [Plaintiffs] argue that both the individual and society have significant interests in deterring intentional trespass to land, regardless of the lack of measurable harm that results. We agree with the [Plaintiffs]. …
[T]he United States Supreme Court has recognized that the private landowner's right to exclude others from his or her land is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Dolan v. City of Tigard, 512 U.S. 374, 384, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994); (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979)). Accord Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982). ...
[B]ecause a legal right is involved, the law recognizes that actual harm occurs in every trespass. The action for intentional trespass to land is directed at vindication of the legal right. W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984). The law infers some damage from every direct entry upon the land of another. Id. The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded. Id. Thus, in the case of intentional trespass to land, the nominal damage award represents the recognition that, although immeasurable in mere dollars, actual harm has occurred. . . .
Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner. Society has an interest in preserving the integrity of the legal system. Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished. When landowners have confidence in the legal system, they are less likely to resort to "self-help" remedies. In McWilliams, the court recognized the importance of "'preventing the practice of dueling, [by permitting] juries to punish insult by exemplary damages.'" McWilliams, 3 Wis. at 381. 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 Steenberg, who refuses to heed no trespass warnings. . . .
If punitive damages are not allowed in a situation like this, what punishment will prohibit the intentional trespass to land? Moreover, what is to stop [Defendant] from concluding, in the future, that [it] is not more profitable than obeying the law? . . . An appropriate punitive damage award probably will.
In sum, as the court of appeals noted, the Barnard rule sends the wrong message to [Defendant] and any others who contemplate trespassing on the land of another. It implicitly tells them that they are free to go where they please, regardless of the landowner's wishes. As long as they cause no compensable harm, the only deterrent intentional trespassers face is the nominal damage award of $1, the modern equivalent of Merest's halfpenny, and the possibility of a Class B forfeiture under Wis. Stat. § 943.13. We conclude that both the private landowner and society have much more than a nominal interest in excluding others from private land. Intentional trespass to land causes actual harm to the individual, regardless of whether that harm can be measured in mere dollars. Consequently, . . ., we hold that nominal damages may support a punitive damage award in an action for intentional trespass to land.
Jacque v. Steenberg Homes, 209 Wis. 2d 605; 563 N.W.2d 154, 159-162 (1997) (emphasis added).