Zimmerman v. Facebook, Inc.

ROBERT ZIMMERMAN, et al., Plaintiffs, v. FACEBOOK, INC., et al., Defendants.

Case No. 19-cv-04591-VC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

October 2, 2020

ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO AMEND IN PART

Re: Dkt. No. 27

The defendants' motion to dismiss the first amended complaint is granted in part. Most of the claims asserted in the complaint are privacy-related claims that overlap substantially with the lead case in the Facebook MDL. See In re: Facebook, Inc. Consumer Privacy User Profile Litigation, Case No. 18-md-2843-VC. Those claims are stayed pending adjudication or resolution of the MDL. See Fed. R. Civ. P. 42(a). The other claims are barred by the Communications Decency Act, 47 U.S.C. § 230, or by clear Ninth Circuit and Supreme Court precedent. Because these claims fail as a matter of law, leave to amend would be futile, and those claims are dismissed with prejudice. See Parents for Privacy v. Barr, 949 F.3d 1210, 1239 (9th Cir. 2020).

The Court was clear that the plaintiffs had a choice with respect to their original lawsuit: the lawsuit could be consolidated with the lead case in the MDL, or, if they preferred to pursue their unrelated claims immediately, they could do so by voluntarily dismissing the related claims and proceeding "solely on claims related to the blocking of [their] accounts." Pretrial Order No. 29 (Dkt. No. 21). The plaintiffs accepted this condition and voluntarily dismissed their privacy-related claims to pursue their account-related claims. See Notice of Voluntary Dismissal Without Prejudice (Dkt. No. 23). Despite this, the amended complaint asserts privacy-related claims based on the alleged mishandling of Facebook user data. For example, counts one, two, four, five, ten and seventeen for civil RICO, unjust enrichment, computer fraud and abuse, civil conversion, civil conspiracy, and identity theft, respectively, all are supported by allegations relating to the Facebook defendants' allegedly unlawful use, disclosure, and monetization of Facebook User Information. See First Amended Compl. ¶¶ 1287-1371; 1425-1443; 1468-1481; 1497-1500 (Dkt. No. 25-2). Similarly, counts seven, eight, nine, and eleven for intentional misrepresentation, breach of contract, intentional infliction of emotional duress, and breach of the implied covenant of good faith and fair dealing also appear to be supported at least in part by allegations related to the alleged mishandling of user data. See id. ¶¶ 1449-1467; 1482-1488. In fact, the Facebook MDL complaint alleges some of the exact same causes of action based on substantially similar factual allegations. See Second Amended Consolidated Compl. in Case No. 18-md-2843-VC, Dkt. No. 491, ¶¶ 882-896 (claim for breach of contract); 963-978 (claim for breach of the implied covenant of good faith and fair dealing); 979-988 (claim for unjust enrichment); 1137-1155 (claim under RICO); 1370-1379 (claim for intentional misrepresentation).

The plaintiffs' claims relating to the defendants' decision to block access to their Facebook profiles are barred by the Communications Decency Act ("CDA"), 47 U.S.C. § 230. "Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties: 'No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.'" Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (quoting 47 U.S.C. § 230(c)) (footnotes omitted). The Ninth Circuit, in an en banc opinion, interpreted this section of the CDA "to immunize the removal of user-generated content, not the creation of content," such that "any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230." Id. at 1163, 1170-71 (emphasis in original). A social media site's decision to delete or block access to a user's individual profile falls squarely within thisimmunity. See Riggs v. MySpace, Inc., 444 F. App'x 986, 987 (9th Cir. 2011); see also Federal Agency of News LLC v. Facebook, Inc., 395 F.Supp.3d 1295, 1304-1308 (N.D. Cal. 2019); Ebeid v. Facebook, Inc., 2019 WL 2059662, at *3-5 (N.D. Cal. May 9, 2019); Sikhs for Justice "SFJ", Inc. v. Facebook, Inc., 144 F.Supp.3d 1088, 1092-96 (N.D. Cal. 2015).

The plaintiffs' claims that the defendants violated their constitutional rights also fail. As an initial matter, many of the plaintiffs' constitutional claims relate to Facebook's alleged misuse of user information and thus cannot be pursued separately from the MDL at this time. See, e.g., First Amended Compl. ¶¶ 1401-1424 (alleging constitutional violations based on Facebook's use of the plaintiffs' user data and Facebook's dissemination of allegedly misleading information). This includes the plaintiffs' claims brought under the California and North Carolina constitutions, as these state-based constitutional claims appear to be partly based on a right to privacy and a right to free elections—both rights implicated by the privacy-related claims and not by the claims related to the blocking of the plaintiffs' accounts. See First Amended Compl. ¶¶ 1395-97.

To the extent that the constitutional claims are free speech claims premised on the blocking of the plaintiffs' accounts, they fail because Facebook is not a state actor. Claims brought under the federal constitution must be directed at conduct which can "be fairly attributable to the State." Lugar v. Edmondson Oil Company, 457 U.S. 922, 937 (1982). The same is true for claims brought under the California and North Carolina constitutions. See Golden Gateway Center v. Golden Gateway Tenants Association, 26 Cal. 4th 1013, 1031 (2001) (holding that California constitution's free speech clause "only protects against state action"); Corum v. University of North Carolina Through Board of Governors, 330 N.C. 761, 782 (1992) (noting that the rights guaranteed in the North Carolina constitution "are individual and personal rights entitled to protection against state action"). The plaintiffs argue that Facebook has become a "quasi-state actor" by operating a "digital town square" and providing a "public free speech forum." First Amended Compl. ¶¶ 1373, 1380-81. But the Ninth Circuit recently rejected these exact arguments in the context of constitutional claims brought against YouTube, and itsreasoning is equally applicable here. See Prager University v. Google LLC, 951 F.3d 991, 995 (9th Cir. 2020) ("Despite YouTube's ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment."); see also Federal Agency of News LLC, 395...