Gonzalez v. Google, Inc.

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REYNALDO GONZALEZ, et al., Plaintiffs, v. GOOGLE, INC., Defendant.

No. 16-cv-03282-DMR

United States District Court, N.D. California

July 8, 2024

Re Dkt. No. 154

ORDER DENYING PLAINTIFFS' MOTION FOR LEAVE TO FILE A FOURTH AMENDED COMPLAINT

Donna M. Ryu, Chief Magistrate Judge

In this action, Plaintiffs Reynaldo Gonzalez; the Estate of Nohemi Gonzalez; Beatriz Gonzalez, individually and as the representative of the Estate of Nohemi Gonzalez; Jose Hernandez; Rey Gonzalez; and Paul Gonzalez seek to hold Defendant Google, Inc. (“Google”) liable for the November 2015 death of Nohemi Gonzalez during a coordinated terrorist attack by individuals associated with the Islamic State of Iraq and Syria (“ISIS”) in Paris. Plaintiffs now move for leave to file a fourth amended complaint (“FAC”). [Docket Nos. 154, 154-1 (Prop FAC).] Google opposes. [Docket No. 157.] This matter is suitable for determination without oral argument. Civ. L.R 7-1(b). For the following reasons, the motion is denied.

I. BACKGROUND AND PROCEDURAL HISTORY

A. District Court Proceedings

Plaintiff Reynaldo Gonzalez filed this lawsuit in June 2016 against Google, Twitter, Inc. (“Twitter”), and Facebook, Inc. (“Facebook”). He alleged claims under the Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333, on the theory that social media platforms, including YouTube, a free online video platform owned and operated by Google, played a role in the rise of ISIS and in facilitating its international terrorist attacks. This included ISIS's November 2015 attack in Paris during which his daughter Nohemi Gonzalez was murdered. Defendants jointly moved to dismiss, and Reynaldo Gonzalez filed an amended complaint pursuant to Federal Rule of Civil Procedure 15(a)(1)(B) that added claims in his capacity as successor-in-interest to Nohemi Gonzalez's estate (“the Estate”) and Beatriz Gonzalez, Nohemi Gonzalez's mother, as a nominal defendant under California Code of Civil Procedure section 382. [Docket Nos. 36, 55 (Am. Compl.) ¶ 13.] Defendants again jointly moved to dismiss the amended complaint. Beatriz Gonzalez was appointed administrator of the Estate in January 2017 and Reynaldo Gonzalez, Beatriz Gonzalez, and the Estate subsequently dismissed their claims against Twitter and Facebook. [Docket Nos. 74, 75.] In April 2017, the court granted an unopposed motion for leave to file a second amended complaint against Google. [Docket No. 94.]

Reynaldo Gonzalez, the Estate, and Beatriz Gonzalez filed the second amended complaint (“SAC”) in April 2017, adding as Plaintiffs Nohemi Gonzalez's brothers Rey Gonzalez and Paul Gonzalez and Nohemi Gonzalez's stepfather Jose Hernandez. [Docket No. 95 (SAC).] The SAC asserted four claims under the ATA civil remedy provisions, 18 U.S.C. § 2333(a) and (d).^[1] Claims 1 and 2 alleged that Google was liable under 18 U.S.C. § 2333(d) for aiding and abetting acts of international terrorism and for conspiring with ISIS in furtherance of ISIS's acts of international terrorism. Claim 3 alleged that Google was liable under section 2333(a) for violating 18 U.S.C. § 2339A, a federal criminal statute which prohibits knowingly providing “material support and resources” to terrorists. Claim 4 alleged that Google was liable under section 2333(a) for violating 18 U.S.C. § 2339B(a)(1), which prohibits “knowingly provid[ing] material support or resources” to a designated foreign terrorist organization.

Google moved to dismiss the SAC on the grounds that the claims are barred by Section 230 of the Communications Decency Act of 1996 (“CDA”), 47 U.S.C. § 230(c)(1), which protects from liability “(a) a provider or user of an interactive computer service (b) that the plaintiff seeks to treat as a publisher or speaker (c) of information provided by another information content provider.” Fields v. Twitter, 200 F.Supp.3d 964, 969 (N.D. Cal. 2016) (citing Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100-01 (9th Cir. 2009)). Google also argued that the claims were insufficiently pleaded. The court granted the motion in October 2017, concluding that the claims were barred by Section 230 and granting leave to amend. Gonzalez v. Google, Inc., 282 F.Supp.3d 1150, 1171 (N.D. Cal. 2017).

Plaintiffs filed a third amended complaint (“TAC”) in November 2017. [Docket No. 111.] The TAC alleged four claims for relief under the ATA that were identical or nearly identical to the claims alleged in the SAC (claims 1-4) and added a new theory supporting claims 3 and 4 based upon Google's alleged revenue sharing with ISIS. The TAC also added two new claims for relief under section 2333(a): claim 5 was for concealment of material support and resources to a designated foreign terrorist organization in violation of 18 U.S.C. § 2339C(c) and claim 6 was for violation of terrorism sanctions regulations issued pursuant to the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. §§ 1701-1707, 31 C.F.R. Part 594.

Google again moved to dismiss all of Plaintiffs' claims as barred by Section 230 of the CDA and on the ground that the claims were insufficiently pleaded. The court granted the motion to dismiss the TAC in August 2018. Gonzalez v. Google, Inc. (“Gonzalez I”), 335 F.Supp.3d 1156 (N.D. Cal. 2018). The court found that, except as to the new revenue-sharing allegations, claims 1 through 4 and claims 5 and 6 fell “within the scope of section 230(c)(1)'s grant of immunity and are therefore barred.” Id. at 1174-75.

In addition, the court held that the TAC failed to state direct liability claims under section 2333(a) for failure to allege proximate causation under applicable Ninth Circuit authority (claims 3-6). See id. at 1176-79 (discussing Fields v. Twitter, 881 F.3d 739, 744, 748-49 (9th Cir. 2018)). Accordingly, the court dismissed claims 3-6, including Plaintiffs' revenue sharing claims, “for failure to adequately plead proximate causation.” Id. at 1179. As Plaintiffs had already been given an opportunity to amend the complaint to avoid Section 230 immunity, the court dismissed all claims other than the revenue sharing claims with prejudice. It granted Plaintiffs “one final opportunity” to amend the revenue sharing claims. Id. Plaintiffs did not file an amended complaint by the court-ordered deadline and the court entered judgment for Google on August 31, 2018. [Docket No. 130.] Plaintiffs appealed.

B. Ninth Circuit Proceedings

In June 2021, the Ninth Circuit affirmed in a consolidated opinion that addressed this case along with Taamneh v. Twitter, 17-CV-04107-EMC (N.D. Cal.), and Clayborn v. Twitter, Nos. 17-CV-06894-LB (N.D. Cal.), 18-CV-00543-LB (N.D. Cal.), two similar cases alleging that Google, Twitter, and Facebook were liable for terrorist attacks committed by ISIS supporters around the world. Gonzalez v. Google LLC (“Gonzalez II”), 2 F.4th 871 (9th Cir. 2021). The Ninth Circuit affirmed the dismissal of Plaintiffs' ATA claims, holding that Section 230 barred those claims except to the extent that they were based on allegations that Google shared advertising revenue with ISIS because the “revenue-sharing allegations are not directed to the publication of third-party information.” Id. at 897-98. The court next held that the revenuesharing allegations failed to adequately allege “the requirements necessary to establish direct liability for an act of international terrorism pursuant to § 2333(a).” Id. at 901 (citing 18 U.S.C. § 2331(1)). The court also held that Plaintiffs failed to state a claim for secondary liability under section 2333(d)(2) for aiding and abetting an act of international terrorism because the TAC did not allege that the purported assistance was “substantial.” Id. at 906-07. Finally, the court held that Plaintiffs failed to state a claim for secondary liability under section 2333(d)(2) for conspiracy because the allegations in the TAC did not “plausibly suggest that Google reached an agreement with ISIS to carry out the Paris Attacks that caused” Nohemi Gonzalez's death. Id. at 907.

In addressing Taamneh, the Ninth Circuit held that the operative complaint stated an aiding-and-abetting claim under the ATA against Twitter, Google, and Facebook based on allegations that the defendants knowingly assisted ISI and that their assistance was substantial. Id. at 908-10. The court affirmed the dismissal of the Clayborn plaintiffs' aiding-and-abetting claim on the ground that the operative complaint did not “plausibly allege that ISI committed, planned, or authorized the” fatal shooting at issue. Id. at 911-12.

C. Supreme Court Proceedings

The Gonzalez Plaintiffs sought review in the Supreme Court of the Ninth Circuit's application of Section 230, and the Taamneh Defendants sought review of the Ninth Circuit's interpretation of the ATA's aiding-and-abetting provision. See Opp'n 5. The Supreme Court granted both petitions.

The Supreme Court decided both cases in May 2023. In Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), the Court reversed the Ninth Circuit's ruling on the merits of the Taamneh plaintiffs' aiding-and-abetting theory under the ATA. The Court held that to state an aiding-and-abetting claim under the ATA, the plaintiffs must plausibly allege that “defendants gave such knowing and substantial assistance to ISIS that they culpably participated in” the “act of international terrorism that injured the plaintiffs.” Id. at 497. The Court described “the fundamental question of aiding-and-abetting liability” as follows: “Did defendants consciously, voluntarily, and culpably participate in or support the relevant wrongdoing?” and concluded that the answer was no. Id. at 505.

The Court also affirmed the Ninth Circuit's holding that the revenue-sharing allegations against Google failed to state an aiding-and-abetting claim because there...