Caraccioli v. Facebook, Inc.

167 F.Supp.3d 1056

Franco Caraccioli, Plaintiff,

v.Facebook, Inc., Defendant.

Case No. 5:15–cv–04145–EJD

United States District Court, N.D. California, San Jose Division.

Signed March 7, 2016

Franco Caraccioli, San Diego, CA, pro se.

Daniel Eric Lassen, Perkins Coie, Palo Alto, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS; DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Re: Dkt. Nos. 17, 21

EDWARD J. DAVILA, United States District Judge

With the rise of social media on the internet, many people choose to make public the aspects of their lives that would otherwise be known to few. Social media networks can also be easily misused, however, by those motivated to impermissibly reveal the private matters of others. Plaintiff Franco Caraccioli (“Plaintiff”) alleges in this case that someone posted private images and videos to a webpage without his consent and disseminated that material to his unsuspecting online network of friends, family and professional contacts. He asked Defendant Facebook, Inc. (“Facebook”) to remove the webpage, but was unsatisfied with Facebook's response. He filed this action for damages against Facebook as a result.

Two matters are now before the court. In the first, Facebook moves to dismiss Plaintiff's claims because it argues they contradict Facebook's Terms of Service and are barred by the Communications Decency Act. In the second, Plaintiff seeks leave file a second amended complaint that includes an additional claim. Having carefully considered the parties' arguments for and against these motions, this court has determined that Plaintiff cannot maintain this case either as pled or as re-pled in an amended complaint. Accordingly, Facebook's motion will be granted, all claims will be dismissed without leave to amend, and Plaintiff's motion will be denied.

I. BACKGROUND

According to Plaintiff, a law student, “[t]his is a case about one of the most powerful corporations in the world, a corporation that maliciously recreated obscene or pornographic sexual content on a personal profile named ‘Franco Caracciolijerkingman’ ... inside its online digital community....” First Am. Compl. (“FAC”), Dkt. No. 4, at ¶¶ 1, 10. The referenced corporation is Facebook, which is a Delaware corporation¹ that provides “a social networking Website that connects people with their friends, families and other online communities.” Id. at ¶¶ 12, 14.

Plaintiff alleges that, on September 14, 2014, “an account who's creator is still unascertainable” created a Facebook account entitled “Franco Caracciolijerkingman” (the “suspect account”). Id. at ¶ 27. This account “included videos and pictures of [Plaintiff] sexually arousing or pleasuring himself....” Id. at ¶ 29. Plaintiff became aware of the account because it sent him a “friend request.” Id. at ¶ 28. He believes a similar request “was sent to every friend [Plaintiff] has in his community because of the amount of messages or calls he received that day.” Id. at ¶ 31.

After becoming aware of the account, Plaintiff reported it to Facebook and demanded that it be deleted “because of the humiliating sexual nature of the content.” Id. at ¶ 30. He clicked on several of the photos and videos published with the account “in order to report or notify” Facebook with his own personal account. Id. at ¶ 32, 33. Many of his friends and family members informed Plaintiff they would also report the account to Facebook and ask that it be deleted. Id. at ¶ 34–36. Plaintiff, however, received other calls and messages that he alleges were made “solely to humiliate, mock, ridicule, or embarrass” Plaintiff. Id. at ¶ 37.

The day after his report, Plaintiff received an email from Facebook in which it admitted receiving notifications concerning the account but stating it had reviewed the account and “ ‘determined that Franco Caracciolijerkingman is a person who's using Facebook in a way that follows the Facebook Community Standards.’ ” Id. at ¶ 38. Subsequently, Plaintiff sent an email to Facebook suggesting he would take legal action. Id. at ¶ 43. Plaintiff alleges that Facebook then deleted the account the following day. Id. at ¶ 44.

Plaintiff initiated this action on September 11, 2015, and filed an amended complaint on September 18, 2015.² He asserts the following claims under California law: (1) defamation, (2) libel, (3) intrusion upon seclusion, (4) public disclosure of private facts, (5) false light, (6) intentional infliction of emotional distress, (7) negligent infliction of emotional distress, (8) breach of contract, (9) negligent supervisions and retention, and (10) violation of the Unfair Competition Law (“UCL”), Business and Professions Code § 17200 et seq. These motions followed.

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations omitted). The factual allegations “must be enough to raise a right to relief above the speculative level” such that the claim “is plausible on its face.” Id. at 556–57, 127 S.Ct. 1955. A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.2008).

When deciding whether to grant a motion to dismiss, the court must generally accept as true all “well-pleaded factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1988). However, “courts are not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937.

Also, the court generally does not consider any material beyond the pleadings for a Rule 12(b)(6) analysis. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). Exceptions to this rule include material submitted as part of the complaint or relied upon in the complaint, and material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688–69 (9th Cir.2001).

B. Pro Se Pleadings

Where, as here, the pleading at issue is filed by a plaintiff proceeding pro se, it must be construed liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). In doing so, the court “need not give a plaintiff the benefit of every conceivable doubt” but “is required only to draw every reasonable or warranted factual inference in the plaintiff's favor.” McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir.1974). The court “should use common sense in interpreting the frequently diffuse pleadings of pro se complainants.” Id. A pro se complaint should not be dismissed unless the court finds it “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

III. DISCUSSION

As noted, Facebook challenges Plaintiff's claims on two grounds. First, it argues that Plaintiff's allegations fail to state a claim because they contradict Facebook's Terms of Service. Second, Facebook contends this lawsuit is barred by § 230(c) of the Communications Decency Act. These arguments are discussed below.

A. Facebook's Terms of Service

Facebook requires users agree to its Terms of Service.³ Decl. of Daniel E. Lassen, Dkt. No. 17, at Ex. A (“By using or accessing the Facebook Services, you agree to this Statement, as updated from time to time....”). Among its provisions are those addressing “Safety,” through which users commit not to “bully, intimidate, or harass any user,” not to post content that is “hate speech, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence,” and not to “use Facebook to do anything unlawful, misleading, malicious, or discriminatory.” Id. at § 3. There is also a section entitled “Protecting Other People's Rights,” which prohibits users from posting content or taking any action that “infringes or violates someone else's rights or otherwise would violate the law,” and provides the Facebook “can remove any content or information you post ... if we believe that it violates” the Terms of Service or other policies. Id. at § 5. Furthermore, there is a disclosure which states:

Although we provide rules for user conduct, we do not control or direct users' actions on Facebook and are not responsible for the content or information users transmit or share on Facebook. We are not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content or information you may encounter on Facebook. We are not responsible for the conduct, whether online or offline, of any user of Facebook.

Id. at § 15.

Another disclosure is emphasized in majuscule and provides in relevant part:

We try to keep Facebook up, bug-free, and safe, but you use it at your own risk. We are providing Facebook as is without any express or implied warranties including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. We do not guarantee that Facebook will always be safe, secure or error-free or that Facebook will always function without disruptions, delays or imperfections. Facebook is not responsible for the actions, content, information, or data of third parties, and you release us, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any

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