Quigley v. Yelp, Inc. et al

Filing 14

ORDER by Judge Richard Seeborg Denying 6 Ex Parte Application for Temporary Restraining Order and Order to Show Cause; Granting 5 Motion for Permission for Electronic filing. (cl, COURT STAFF) (Filed on 7/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RODNEY J. QUIGLEY,

Case No. 17-cv-03771-RS

Plaintiff,
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United States District Court
Northern District of California

v.
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YELP, INC., et al.,
Defendants.

ORDER DENYING APPLICATION
FOR TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW
CAUSE

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Plaintiff Rodney J. Quiqley seeks a temporary restraining order and an order to show cause

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why a preliminary injunction should not issue in this action against various defendants —

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including Yelp, Disney, Twitter, Facebook, and the Washington Times — whom he argues have

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unconstitutionally blocked him from commenting on their websites. Because plaintiff has not, at

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this juncture, demonstrated any likelihood of success on the merits, or even serious questions

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going to the merits of his claims, his application is denied.

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A request for a temporary restraining is evaluated by the same factors that generally apply

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to a preliminary injunction. See Stuhlbarg Int’l. Sales Co. v. John D. Brushy & Co., 240 F.3d 832,

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839 n.7 (9th Cir. 2001). Thus, as a form of preliminary injunctive relief, a temporary restraining

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order is an “extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def.

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Council, Inc., 555 U.S. 7, 24 (2008). To obtain preliminary relief, a plaintiff must “must establish

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that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence

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of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

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public interest.” Id. at 20. The Ninth Circuit has clarified, however, that courts in this Circuit

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should still evaluate the likelihood of success on a “sliding scale.” Alliance for Wild Rockies v.

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Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (“[T]he ‘serious questions’ version of the sliding

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scale test for preliminary injunctions remains viable after the Supreme Court’s decision in

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Winter.”). As quoted in Cottrell, that test provides, “[a] preliminary injunction is appropriate

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when a plaintiff demonstrates . . . that serious questions going to the merits were raised and the

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balance of hardships tips sharply in the plaintiff’s favor,” provided, of course, that “plaintiffs must

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also satisfy the other Winter factors” including the likelihood of irreparable harm. Id. at 1135.

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Plaintiff’s application for a temporary restraining order fails at the outset because he has
not demonstrated any likelihood of success on the merits or shown any serious questions going to

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United States District Court
Northern District of California

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the merits of his claims. As he acknowledges, his constitutional claims, which form the basis of

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this application, require him to show that defendants — various private corporations and private

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unnamed individuals — can be subjected to liability as state actors. See Villegas v. Gilroy Garlic

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Festival Ass’n, 541 F.3d 950, 954-55 (9th Cir. 2008) (en banc) (citations omitted). “[S]tate action

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may be found if, though only if, there is such a close nexus between the State and the challenged

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action that seemingly private behavior may be fairly treated as that of the State itself.” Id. at 955

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(quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001))

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(internal quotation marks omitted) (alteration in original).

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“Some of the factors to consider in determining whether there is a ‘close nexus’ are: (1) the

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organization is mostly comprised of state institutions; (2) state officials dominate decision making

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of the organization; (3) the organization’s funds are largely generated by the state institutions; and

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(4) the organization is acting in lieu of a traditional state actor.” Id. (citing Brentwood Acad., 531

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U.S. at 295-99. The Supreme Court has “held that a challenged activity may be state action when

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it results from the State’s exercise of coercive power, . . . when the State provides significant

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encouragement, either overt or covert, . . . or when a private actor operates as a willful participant

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in joint activity with the State or its agents.” Brentwood Acad., 531 U.S. at 296 (citations and

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internal quotation marks omitted). The Supreme Court has also “treated a nominally private entity

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ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER
CASE NO. 17-cv-03771-RS

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as a state actor when it is controlled by an agency of the State, . . . when it has been delegated a

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public function by the State, . . . when it is entwined with governmental policies, or when

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government is entwined in [its] management or control.” Id. (citation and internal marks omitted)

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(alteration in original).

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Plaintiff advances four unavailing theories of state action. First, he asserts defendants
perform a public function by disseminating news and fostering free and public political debate.

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“Private activity becomes a public function only if that action has been traditionally the exclusive

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prerogative of the State” — like holding elections, governing a town, or serving as an international

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peacekeeping force. Brunette v. Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1214 (9th Cir.

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2002), as amended on denial of reh’g and reh’g en banc (Aug. 23, 2002) (citations and internal

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United States District Court
Northern District of California

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quotation marks omitted). The dissemination of news and fostering of debate cannot be said to

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have been traditionally the exclusive prerogative of the government. See id. (holding that various

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media organizations were not engaged in a public function when performing newsgathering).

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Second, plaintiff argues the government financed and created the internet for the benefit of

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individuals and website owners, and thereby encourages e-commerce. Even assuming the

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accuracy of this description of the government’s activity with respect to the internet, plaintiff has

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not articulated a theory of encouragement or coercion sufficient to show state action because he

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has neither argued nor alleged that the government encouraged or coerced defendants to take the

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challenged actions — blocking him from their websites’ comments sections. See Blum v.

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Yaretsky, 457 U.S. 991, 1004 (1982) (“[A] State normally can be held responsible for a private

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decision only when it has exercised coercive power or has provided such significant

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encouragement, either overt or covert, that the choice must in law be deemed to be that of the

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State.”). Moreover, even if plaintiff could show such coercion or encouragement, he has not made

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clear why an action would lie against defendants, as opposed to the relevant state actor — the

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United States. See id. (contemplating liability against a state actor for coercing or encouraging the

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actions of a private actor).

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Third, plaintiff conclusorily claims the existence of a joint enterprise between defendants
ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER
CASE NO. 17-cv-03771-RS

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and the government, which he states can be inferred from defendants providing information to the

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electorate on the government’s behalf. This theory, however is not supported by plausible

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allegations in the complaint, and does not, in any event, describe a joint enterprise elevating

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defendants’ alleged activities to state action. A finding of state action through a joint enterprise is

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appropriate where a private party and the state engage in a joint enterprise with respect to the

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private party’s challenged actions. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982)

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(“[W]e have consistently held that a private party’s joint participation with state officials in the

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seizure of disputed property is sufficient to characterize that party as a state actor for purposes of

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the Fourteenth Amendment.”). Plaintiff here presents no such joint enterprise.

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Fourth, and finally, plaintiff proclaims a pervasive entwinement between defendants and

United States District Court
Northern District of California

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the government because the government maintains accounts on the defendants’ websites, and uses

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their websites to communicate with citizens. Whether or not these claims are true, plaintiff fails to

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articulate the sort of entwinement that would converts a private party’s actions to state action. See

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Evans v. Newton, 382 U.S. 296, 299 (1966) (“Conduct that is formally ‘private’ may become so

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entwined with governmental policies or so impregnated with a governmental character as to

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become subject to the constitutional limitations placed upon state action. The action of a city in

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serving as trustee of property under a private will serving the segregated cause is an obvious

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example.”); see also Brentwood Acad., 531 U.S. at 296 (holding state action can be found when

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government is entwined in the management or control of the challenged action of a private party).

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Plaintiff does not argue the government participates in the operation or management of

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defendants’ websites; he merely argues the government uses the defendants’ websites in the same

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manner as other users. This is not sufficient to show state action.

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Plaintiff fails to show a likelihood of success on the merits, or even serious questions going

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to the merits of his claim, because he has not identified any actions by defendants describable as

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state action and thus subject to constitutional scrutiny. Accordingly, his application for a

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temporary restraining order and order to show cause why a preliminary injunction should not issue

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ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER
CASE NO. 17-cv-03771-RS

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is denied.1

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IT IS SO ORDERED.

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Dated: July 5, 2017
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RICHARD SEEBORG
United States District Judge

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United States District Court
Northern District of California

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Plaintiff’s motion for permission for electronic case filing, however, is granted.
ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER
CASE NO. 17-cv-03771-RS

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