O'Hara-Harmon v. Facebook Inc. et al

Filing 29

ORDER GRANTING 19 MOTION TO DISMISS AND VACATING HEARING; DENYING 24 MOTION TO APPOINT COUNSEL; DENYING 25 MOTION FOR LEAVE TO APPEAR IN DISTRICT OF SOUTH CAROLINA. By Judge Alsup. (whalc3, COURT STAFF) (Filed on 5/5/2019)

Case 3:19-cv-00601-WHA Document 29 Filed 05/05/19 Page 1 of 6

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SANDRA O’HARA-HARMON,

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For the Northern District of California

United States District Court

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No. C 19-cv-00601 WHA

Plaintiff,
v.
FACEBOOK, INC.,

ORDER GRANTING MOTION TO
DISMISS

Defendant.
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INTRODUCTION
Pro se plaintiff Sandra O’Hara-Harmon asserts claims against defendant Facebook, Inc.

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for breach of the implied covenant of good faith and fair dealing and for extortion. Defendant

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moves to dismiss. To the extent below stated, defendant’s motion to dismiss is GRANTED.

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STATEMENT
Defendant Facebook, Inc. operates a social network where users create personal profiles,

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build communities, and share content. Users can post messages to their “friends” and within

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their “communities.” Facebook’s “Boost Post” function allows users to create an advertisement

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out of a post. When boosting a post, a user will inform Facebook who the target audience is for

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the advertisement, how much money the user would like to spend, and how long the

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advertisement should run (Dkt. No. 1 at ¶¶ 2, 3).

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Pro se plaintiff Sandra O’Hara-Harmon maintains a Facebook page for a community

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named Advocates for Equal Justice. In January 2019, plaintiff attempted to “boost” a post she

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had made to this community page describing the death of her transgender child and experience at
a local North Carolina hospital related to that event. The next day, an email from Facebook

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confirmed her advertisement had been approved and would be delivered “shortly” (id. at ¶¶ 1, 4,

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5).

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The advertisement did not immediately circulate. Plaintiff contacted Facebook’s support

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team, who informed her that she should reset her “ad manager” and try re-posting her ad.

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Despite receiving the aforementioned email on January 13, 2019 at 12:19 AM, plaintiff

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proceeded to re-post her ad seven more times over the course of the next four days, starting from

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January 13, 2019, at 1:05 PM. She received the same confirmation email from Facebook each

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time she re-posted her ad informing her that her advertisement had been approved and would be

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delivered shortly. Despite the multiple postings, her advertisement did not circulate (id. at ¶¶

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6–10).
On the date that plaintiff tried for the seventh time to re-post her advertisement, plaintiff

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received an email from Facebook. The e-mail notified plaintiff that it appeared as if someone

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had accessed her Facebook account and that for her protection, her account was going to be

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hidden from view until she secured her account by answering a few security questions and

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changed her password. Plaintiff unsuccessfully attempted to verify her identity to Facebook.

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After each unsuccessful verification attempt, plaintiff received the same email indicating that for

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security reasons, her account was “locked” and could only be unlocked after she verified her

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identity and changed her password (id. at ¶ 11–14).

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Plaintiff complained numerous times via Facebook’s “help-support page.” In response to

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her complaints, plaintiff received an email from a man living in Khowai, India, named Babulal

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Sarkar, who claimed to have been experiencing the same problem as plaintiff and asked for

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advice on how to solve the problem. Plaintiff located what she concluded was this person’s

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Facebook page and discovered that he listed his work occupation as a “Manager at Facebook.”

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Plaintiff further concluded, therefore, that Mr. Sarkar was being sarcastic in his email to her and

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had personally “intentionally locked and banned” her from accessing her Facebook account (id.

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at ¶¶ 16–19).

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Plaintiff also attempted to address her problem by calling a person named Gulberg
Hendrick, whom she believed to be associated with Facebook’s technical support headquarters.
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As alleged in the complaint, the man she spoke with informed plaintiff that she needed to go to

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Walmart to buy a $100 Google Play card and provide him with the code on the card before he

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could “unblock” her account (id. at ¶¶ 26–27).

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Frustrated at every turn to unlock her account, plaintiff subsequently filed this action

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against Facebook. The complaint alleged four claims: (i) “locking plaintiff out of her Facebook

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account in bad faith;” (ii) “preventing access to the Facebook community page in bad faith;” (iii)

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“censoring the advertisement in bad faith;” and that (iv) Facebook’s employee Gulberg Hendrick

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engaged in extortion (id. at ¶¶ 1–4). The complaint therefore appeared to allege three separate

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claims for breach of the implied covenant of good faith and fair dealing and one claim for

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extortion.
After the case management conference had been scheduled, plaintiff moved to appear by

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telephone and have the action transferred to a magistrate judge for adjudication (Dkt. No. 18).

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Facebook had already declined to proceed before a magistrate judge (Dkt. No. 11). Both

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motions were denied (Dkt. No. 21).

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Facebook now moves to dismiss the complaint (Dkt. No. 19). The motion has been fully

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briefed (Dkt. Nos. 23, 26). Plaintiff, however, has subsequently moved “for an appointment of a

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local lawyer” and also for leave to appear at the United States District Court for the District of

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South Carolina for all hearings in this action (Dkt. Nos. 24, 25). These motions can be decided

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on the papers. This order follows.

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ANALYSIS
Under California law, “there is implied in every contract a covenant by each party not to

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do anything which will deprive the other parties thereto of the benefits of the contract.” Harm v.

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Frasher, 181 Cal. App.2d 405, 417 (1960) (citations omitted). To state a claim for breach of the

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implied covenant, a plaintiff must show “that the conduct of the defendant, whether or not it also

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constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge

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contractual responsibilities . . . depriving [the other] party of the benefits of the agreement.”

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Careau & Co. v. Security Pacific Business Credit, Inc., 222 Cal. App.3d 1371, 1395 (1990). In

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other words, here, Facebook needed to have taken on an obligation, either expressly or

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impliedly, before it can be said to have acted in bad faith by not carrying out that obligation.

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The complaint does not articulate any obligation as to which Facebook did not deliver.

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The only contractual provisions isolated by the complaint were terms which applied when a user

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“violated our terms or policies.” Specifically, that “Facebook expressly reserves the right to

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terminate the accounts of users who violate Facebook terms of service; Rights &

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Responsibilities” (Dkt. No. 1 at ¶ 21) and that “. . . [i]f [Facebook] determine[s] that you have

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violated our terms or policies, we may take action against your account to protect our community

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and services, including by suspending access to your account or disabling it . . . .” (Dkt. No. 1 at

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5–6, ¶ 2).
Yet, the complaint supports that plaintiff had been locked out of her accounts due to

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concern that a third party had gained access to those accounts. Specifically, Facebook sent an e-

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mail, quoted in the complaint, which stated: “[i]t looks like someone may have accessed your

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Facebook account. To secure your account, you’ll need to answer a few questions and change

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your password the next time you go to Facebook. For your protection, no one can see you on

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Facebook until you secure your account” (Dkt. No. 1 at ¶ 11). The terms isolated by the

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complaint, pertaining to users who violate Facebook’s terms of service, therefore do not appear

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to govern this action.

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As to the claim that Facebook censored plaintiff’s advertisement, of course, it would be

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concerning if plaintiff paid to boost a post and that post had never been boosted — particularly if

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plaintiff then received no refund or compensation for what she had paid for. Still, plaintiff needs

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to isolate any specific contractual obligation Facebook impliedly violated.

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As to plaintiff’s claim that Mr. Hendrick, as a Facebook employee, extorted her, this

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claim is also insufficiently plausible. First, plaintiff needs to show additional facts that support

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Mr. Hendrick was employed by Facebook and that he acted within the scope of his employment

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with Facebook. See Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 967 (1986). Second,

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plaintiff needs to show additional facts that support that Mr. Hendrick induced plaintiff to buy

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the gift card through force or fear, elements required for extortion. See Cal. Penal Code § 518.
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“The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

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Justice is so required here, and so, pro se plaintiff is permitted the opportunity to fix the

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deficiencies identified in the complaint.

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Facebook urges this complaint be barred under Section 230 of the Communications

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Decency Act. Not enough facts, however, have been alleged to warrant such a conclusion.

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Section 230 “immunizes providers of interactive computer services against liability arising from

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content created by third parties.” Fair Hous. Council of San Fernando Valley v.

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Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc). The third element of §

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230(c) requires dismissal of plaintiff’s claims if “the complaint seeks to hold Facebook as the
‘publisher or speaker’ of that information.” 27 U.S.C. § 230(c)(1). For this third element,

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“courts must ask whether the duty that the plaintiff alleges the defendant violated derives from

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the defendant’s status or conduct as a ‘publisher or speaker.’ ” Barnes v. Yahoo!, Inc., 570 F.3d

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1096, 1102 (9th Cir. 2009).

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It is impossible to ascertain from the complaint whether the duty Facebook violated

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derived from Facebook’s status or conduct as a publisher or speaker. As indicated above,

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however, Facebook would likely not be immunized from a claim alleging it charged and

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collected money to publish advertising that it then did not publish. More facts are required to

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make this determination. As such, it remains to be seen whether this action should be barred

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under Section 230 immunity.

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CONCLUSION
Based on the foregoing, Facebook’s motion to dismiss is GRANTED. Plaintiff may move

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for leave to amend by MAY 31 at NOON. Any motion should explain how the proposed

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complaint overcomes all deficiencies. Plaintiff should further consider all deficiencies

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highlighted by defendant’s motion to dismiss. This order highlights certain deficiencies in the

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initial complaint, but it will not necessarily be enough to add a sentence parroting each missing

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item identified herein. If plaintiff so moves, she should be sure to plead her best case.

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The hearing set for May 9 is hereby VACATED. Plaintiff’s motions to appoint counsel
and for leave to appear at the United States District Court for the District of South Carolina are
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both DENIED. Plaintiff, or plaintiff’s counsel (should she elect to retain one), must appear in

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person at hearings at the courthouse in San Francisco. In addition, this is a civil action and so

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the Court does not appoint counsel like in criminal prosecutions. If plaintiff wants to proceed

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with an attorney, she should retain one.

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Plaintiff, who is proceeding pro se, is advised that helpful information is available online

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at http://cand.uscourts.gov/proselitigants and also at the legal help center. The legal help center

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may be reached by calling 415-782-9000, extension 8657.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: May 5, 2019.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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