FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK JONES; MICHAEL MCKEE,

Plaintiffs-Appellants, 

 v. 

FORD MOTOR COMPANY, a 

Delaware Corporation,

Defendant-Appellee.

No. 22-35447

D.C. No. 3:21-cv05666-DGE

OPINION

Appeal from the United States District Court

for the Western District of Washington

David G. Estudillo, District Judge, Presiding

Argued and Submitted August 22, 2023 

Seattle, Washington

Filed October 27, 2023

Before: Michael Daly Hawkins, Susan P. Graber, and M. 

Margaret McKeown, Circuit Judges.

Per Curiam Opinion
2 JONES V. FORD MOTOR COMPANY

SUMMARY*

Article III Standing / Washington Privacy Act 

The panel affirmed the district court’s judgment 

dismissing for failure to state a claim a class action alleging 

that the Ford Motor Company made unlawful recordings of 

plaintiffs’ private communications in violation of the 

Washington Privacy Act (“WPA”).

The panel rejected plaintiffs’ request for remand to the 

Washington state court because it was based on the flawed 

argument that Ford “self-rebutted the assertion of Art. III 

jurisdiction” when it alleged that plaintiffs failed to plead a 

statutory injury under the WPA in its motion to dismiss. The 

injury-in-fact prong of Article III standing and the merits of 

a WPA claim are separate inquiries. With respect to 

constitutional injury-in-fact, the complaint’s allegations 

plausibly articulated an Article III injury because they 

claimed violation of a substantive privacy right. Article III 

standing was thus satisfied, and the district court properly 

retained jurisdiction.

Turning to the merits of the WPA claim, the panel 

rejected plaintiffs’ claim that a violation of the WPA itself is 

an invasion of privacy that constitutes remediable injury. An 

invasion of privacy, without more, is insufficient to meet the 

statutory injury requirements of WPA Section 

9.73.060. Plaintiffs must allege an injury to “his or her 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
JONES V. FORD MOTOR COMPANY 3 

business, his or her person, or his or her reputation.” Wash. 

Rev. Code § 9.73.060. Plaintiffs failed to do so here. 

COUNSEL

Joel Ard (argued), Ard Law Group PLLC, Bainbridge 

Island, Washington; William R. Restis, Restis Law Firm PC, 

San Diego, California; for Plaintiffs-Appellants. 

Peder K. Batalden (argued) and Emily V. Cuatto, Horvitz & 

Levy LLP, Burbank, California; Aaron D. Van Oort 

(argued), Faegre Drinker Biddle & Reath LLP, Minneapolis, 

Minnesota; Eric B. Wolff (argued), Perkins Coie LLP, 

Seattle, Washington; Anthony Todaro and Jeffrey B. 

DeGroot, DLA Piper LLP (US), Seattle, Washington; for 

Defendants-Appellees.

OPINION

PER CURIAM: 

Plaintiffs Mark Jones and Michael McKee appeal the 

dismissal of their class action alleging that the Ford Motor 

Company (“Ford”) made unlawful recordings of their 

private communications in violation of the Washington 

Privacy Act (“WPA”). 

I. BACKGROUND 

Ford manufactures and sells automobiles with integrated 

infotainment systems that allow drivers and passengers to 

use their cellphones hands-free while operating Ford 
4 JONES V. FORD MOTOR COMPANY

vehicles. According to the complaint, as part of this design,

the infotainment system automatically downloads, copies, 

and indefinitely stores the call logs and text messages of any 

cellphone connected to it. If text messages or call logs are 

deleted from a cellphone, the vehicle nevertheless retains the 

communications on the vehicle’s on-board memory, even 

after the cellphone is disconnected. Vehicle owners cannot 

access or delete their personal information once it has been 

stored.

Plaintiff Jones owns a Ford vehicle equipped with such 

a system. He exchanged private text messages with Plaintiff 

McKee before subsequently connecting his cellphone to the 

vehicle’s on-board infotainment system. Both Plaintiffs 

allege that their private communications were unlawfully 

recorded from Plaintiff Jones’s cellphone and permanently

stored on his Ford vehicle in violation of the WPA. Plaintiffs 

do not allege, however, that Ford actually accessed the 

personal communications on the vehicle. Instead, Plaintiffs

allege that the information may be accessed by a third-party 

company, for example, the Berla Corporation (“Berla”). 

According to the Plaintiffs, Berla produces hardware and 

software capable of extracting stored text messages and call 

logs stored on a vehicle’s on-board memory. Berla products 

are not generally available to the public, and sales access is 

restricted to law enforcement, the military, civil and 

regulatory agencies, and select private investigation service 

providers.

Plaintiffs initially filed their complaint in Washington 

state court. Ford removed to federal court under the Class 

Action Fairness Act (“CAFA”), and Plaintiffs did not 

challenge removal. Ford then moved to dismiss the 

operative complaint under Federal Rule of Civil Procedure 

(“Rule”) 12(b)(6) for failure to state a claim. The district 
JONES V. FORD MOTOR COMPANY 5

court granted the motion to dismiss on two alternative 

grounds: (1) Plaintiffs failed to allege an injury to their 

“person,” “business,” or “reputation,” as the WPA requires, 

and (2) Ford did not violate the WPA merely by 

manufacturing and selling vehicles with infotainment 

systems. Plaintiffs timely appealed.

II. STANDARD OF REVIEW

We review de novo a district court’s determination 

whether a party has standing. See Tailford v. Experian Info. 

Sols., Inc., 26 F.4th 1092, 1098 (9th Cir. 2022). We also 

review de novo a district court’s dismissal for failure to state 

a claim under Rule 12(b)(6). Dougherty v. City of Covina, 

654 F.3d 892, 897 (9th Cir. 2011).

III.DISCUSSION 

A. Jurisdiction.

Article III of the Constitution limits the “Judicial Power” 

of the federal courts to “Cases, in Law and Equity, arising 

under this Constitution [and] the Laws of the United States.” 

U.S. CONST. art. III, § 2, cl. 1. “[A]ny civil action brought 

in a State court of which the district courts of the United 

States have original jurisdiction, may be removed by the 

defendant . . . .” 28 U.S.C. § 1441(a). Upon removal, the 

burden to demonstrate Article III jurisdiction shifts to the 

Defendant as “[t]he party invoking federal jurisdiction.” 

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); see also 

Tailford, 26 F.4th at 1099. Plaintiffs ask the court to remand 

this case to the Washington state court by applying a “strong 

presumption against removal jurisdiction.” But no such 

presumption applies when a case is removed under CAFA. 

Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 
6 JONES V. FORD MOTOR COMPANY

89 (2014); Jauregui v. Roadrunner Transp. Servs., Inc., 28 

F.4th 989, 992–93 (9th Cir. 2022).

Plaintiffs seek remand based on the flawed argument that 

Ford “self-rebutted the assertion of Art. III jurisdiction” 

when it alleged that Plaintiffs failed to plead a statutory 

injury under the WPA in its motion to dismiss. This we 

decline to do. Plaintiffs’ challenge fails because the injuryin-fact prong of Article III standing and the merits of a WPA 

claim are separate inquiries. See Maya v. Centex Corp., 658 

F.3d 1060, 1068 (9th Cir. 2011). To establish the 

constitutional minimum for Article III jurisdiction, a 

plaintiff must plead an injury-in-fact; this creates a pleading 

floor. A particular cause of action may require more—for 

instance, a particular type of injury or a threshold magnitude 

of injury—without raising the constitutional pleading floor. 

A failure to plead the more-specific or more-demanding 

statutory injury shows a failure to state a claim, not a failure 

to establish standing. See Salmon Spawning & Recovery All. 

v. Gutierrez, 545 F.3d 1220, 1225 (9th Cir. 2008) (“If a 

plaintiff has shown sufficient injury to satisfy Article III, but 

has not been granted statutory standing, the suit must be 

dismissed under Federal Rule of Civil Procedure 12(b)(6), 

because the plaintiff cannot state a claim upon which relief 

can be granted.”). As such, demanding that Plaintiffs plead 

a WPA-specific injury to establish jurisdiction “conflate[s] 

standing with the merits.” See Lazar v. Kroncke, 862 F.3d 

1186, 1198–99 (9th Cir. 2017).

With respect to constitutional injury-in-fact, the relevant 

law is settled. A statute that codifies a common law privacy 

right “gives rise to a concrete injury sufficient to confer 

standing.” In re Facebook, Inc. Internet Tracking Litig., 956 

F.3d 589, 598 (9th Cir. 2020). And this court has 

consistently found that “[v]iolations of the right to privacy 
JONES V. FORD MOTOR COMPANY 7

have long been actionable at common law.” Eichenberger 

v. ESPN, Inc., 876 F.3d 979, 983 (9th Cir. 2017); see also

Patel v. Facebook, Inc., 932 F.3d 1264, 1272–73 (9th Cir. 

2019). The WPA codifies such substantive privacy rights 

and “is one of the most restrictive electronic surveillance 

laws ever promulgated.” State v. Roden, 321 P.3d 1183, 

1185 (Wash. 2014) (en banc); see also State v. Clark, 916 

P.2d 384, 391–92 (Wash. 1996) (en banc).

Here, the complaint alleges that the vehicle’s system 

downloads all text messages and call logs from Plaintiffs’ 

cellphones as soon as they are connected. The complaint 

also alleges that the infotainment system permanently stores 

the private communications without Plaintiffs’ knowledge 

or consent. At the pleading stage, those allegations plausibly 

articulate an Article III injury because they claim violation 

of a substantive privacy right. See Eichenberger, 876 F.3d 

at 983. Whether Plaintiffs “will be successful on the merits 

in [this] suit against [Ford] does not affect whether [they 

have] standing to pursue such a suit.” Iten v. Los Angeles, 

No. 22-55480, 2023 WL 5600292, at *8 (9th Cir. Aug. 30, 

2023) (citation omitted). Article III standing is thus 

satisfied, and the district court properly retained jurisdiction

to hear this case. 

B. Injury. 

To bring a claim under the WPA, a plaintiff must show 

that “a violation of [the WPA] has injured his or her 

business, his or her person, or his or her reputation. A person 

so injured shall be entitled to actual damages . . . or 

liquidated damages.” WASH. REV. CODE § 9.73.060. On 

appeal, Plaintiffs claim that a violation of the WPA itself is 

an invasion of privacy that constitutes remediable injury. 

But the statutory text does not support their interpretation.
8 JONES V. FORD MOTOR COMPANY

It is well established that “[s]tatutes must be interpreted 

and construed so that all the language used is given effect, 

with no portion rendered meaningless or superfluous.” 

Whatcom Cnty. v. City of Bellingham, 909 P.2d 1303, 1308 

(Wash. 1996) (en banc); see also Corley v. United States, 

556 U.S. 303, 314 (2009). If Plaintiffs’ understanding of the 

statute were sufficient to establish a claim, WPA 

Section 9.73.060 would be surplusage because a violation of 

the statute alone, without more, would automatically satisfy 

an injury to the person. Yet, the statute expressly requires 

an injury to one’s business, person, or reputation. We find it 

difficult to believe Washington intended such a redundant

outcome. 

This issue has been percolating through district courts in 

our circuit, and they have reached the same conclusion. See, 

e.g., Brinkley v. Monterey Fin. Servs., LLC, 340 F. Supp. 3d 

1036, 1044–45 & n.3 (S.D. Cal. 2018) (finding that the 

invasion of privacy inherent in the unauthorized recording of 

an individual’s conversation, without more, is insufficient to 

meet the Section 9.73.060 injury requirement); Russo v. 

Microsoft Corp., No. 4:20-cv-04818-YGR, 2021 WL 

2688850, at *3 n.3 (N.D. Cal. June 30, 2021) (finding that 

the WPA’s cause of action applies only to those claiming 

that a violation has injured business, person, or reputation). 

We embrace this analysis and hold that an invasion of 

privacy, without more, is insufficient to meet the statutory 

injury requirements of Section 9.73.060. To succeed at the 

pleading stage of a WPA claim, Plaintiffs must allege an 

injury to “his or her business, his or her person, or his or her 

reputation.” WASH. REV. CODE § 9.73.060. Plaintiffs failed 
JONES V. FORD MOTOR COMPANY 9

to do so here.1 We note that Plaintiffs were given an 

opportunity to amend their complaint but declined to do so.

AFFIRMED. 

1 Because our injury determination dispositively resolves this case, we 

need not address the district court’s alternative holding that the WPA 

does not extend liability to manufacturing. See Johnson v. Riverside 

Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).