Asis Internet Services, a California corporation v. AZOOGLE.COM, INC., a Delaware corporation

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASIS INTERNET SERVICES, a
California corporation,
Plaintiff - Appellant,
v.
AZOOGLE.COM, INC., a Delaware
corporation,
Defendant - Appellee.
No. 08-15979
D.C. No. 3:05-cv-05124-JCS
MEMORANDUM *
ASIS INTERNET SERVICES, a
California corporation,
Plaintiff - Appellant,
v.
AZOOGLE.COM, INC., a Delaware
corporation,
Defendant - Appellee.
No. 08-17779
D.C. No. 3:05-cv-05124-JCS
Appeal from the United States District Court
for the Northern District of California
FILED
DEC 02 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The Honorable Cormac J. Carney, District Judge for the Central
District of California, sitting by designation.
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted October 8, 2009
San Francisco, California
Before: GOODWIN and PAEZ, Circuit Judges, and CARNEY, ** District Judge.
Plaintiff ASIS Internet Services, Inc. (“Plaintiff”) appeals a summary
judgment for Defendant Azoogle.com (“Defendant”) and an award of costs. We
have jurisdiction under 28 U.S.C. § 1291. We affirm both orders.
Plaintiff’s claim under the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003 (“CAN-SPAM”), 15 U.S.C. §§ 7701, et
seq., fails for lack of standing. “[T]he CAN-SPAM standing inquiry involves two
general components: (1) whether the plaintiff is an ‘Internet access service’
provider (‘IAS provider’), and (2) whether the plaintiff was ‘adversely affected by’
statutory violations.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1049 (9th Cir.
2009).
Here, the second requirement is not satisfied. The mere cost of carrying
SPAM emails over Plaintiff’s facilities does not constitute a harm as required by
the statute. See id. at 1053 n.11. While Plaintiff argues that employee time was
spent on spam-related issues, Plaintiff concedes that it has no records detailing
employee time. Plaintiff also spent money on email filtering, though the cost of

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email filtering did not increase due to the emails at issue. Such ordinary filtering
costs do not constitute a harm. See Gordon, 575 F.3d at 1054 (“We expect a
legitimate service provider to secure adequate bandwidth and storage capacity and
take reasonable precautions, such as implementing spam filters, as part of its
normal operations.”). Thus, Plaintiff has not suffered a harm within the meaning
of the statute and lacks standing.
Plaintiff’s California Business and Professions Code § 17529.5 claim also
fails. Defendant neither sent nor procured the emails at issue, and therefore did not
“advertise” within the meaning of the statute.
Accordingly, the district court’s grant of summary judgment for Defendant
is affirmed.
We review for abuse of discretion an award of costs. Dawson v. City of
Seattle, 435 F.3d 1054, 1070 (9th Cir. 2006) (citing Miles v. California, 320 F.3d
986, 988 (9th Cir. 2003)). Irrespective of whether the district court awarded costs
under Federal Rule of Civil Procedure 54(d)(1) or 15 U.S.C. § 7706(g)(4), we find
no abuse of discretion in the award. Accordingly, the order is affirmed.
AFFIRMED.

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