Zimmerman et al v. Facebook, Inc. et al
Filing
47
ORDER by Judge Vince Chhabria granting in part 27 Motion to Dismiss; staying privacy related claims. (vclc2S, COURT STAFF) (Filed on 10/2/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ROBERT ZIMMERMAN, et al.,
Case No. 19-cv-04591-VC
Plaintiffs,
v.
FACEBOOK, INC., et al.,
Defendants.
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 privacyrelated 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 this
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immunity. 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 its
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reasoning 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 F.Supp.3d at 1308-1314.
The plaintiffs’ argument that Facebook is a state actor because of its joint action with
government entities also does not save their constitutional claims. These allegations of joint
action between Facebook and the Trump administration relate to the allegedly unlawful
surveillance of user data and influence over federal elections. See Opposition to Motion to
Dismiss at 15-16 (Dkt. No. 37). As already explained, these allegations pertain to the privacyrelated claims brought in the Facebook MDL and do not relate to the blocking of the plaintiffs’
user accounts. These allegations of joint action are thus insufficient to support the claims at issue
here.
Finally, the plaintiffs’ claims relating to Facebook’s allegedly treasonous conduct fail
because “[t]here is no private cause of action for treason.” Arunachalam v. Apple, Inc., 2018 WL
5023378, at *5 (N.D. Cal. Oct. 16, 2018).
Because the plaintiffs’ claims relating to their user accounts fail as a matter of law,
amendment would be futile. The claims relating to the blocking of the plaintiffs’ accounts are
thus dismissed with prejudice.
The remaining claims all relate to privacy and overlap with the MDL. The plaintiffs
earlier dismissed these claims without prejudice, but the Court interprets their inclusion in the
Amended Complaint as a decision by the plaintiffs to re-allege them. Because, as described
above, these claims overlap so substantially with the lead case in the Facebook MDL, for
purposes of efficiency and judicial economy, they are stayed pending adjudication or resolution
of the privacy claims in the MDL. See Fed. R. Civ. P. 42(a). This does not mean that the
plaintiffs’ privacy-related claims in this suit have been resolved or are no longer valid; it just
means that no further action will be taken on them until the lead case has been resolved or
adjudicated.
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The plaintiffs should also be aware that, if a class is certified in the lead case, they will
have a chance to opt out of the class and pursue their claims on their own. If they choose to do
this (rather than simply remaining as members of the class and allowing the lead plaintiffs and
class counsel to represent them), their claims will nonetheless be stayed until after the lead case
is adjudicated or resolved. After the MDL has been adjudicated or resolved, the plaintiffs may
move to lift the stay in this case and proceed on their individual privacy claims.
The plaintiffs are once again advised to contact the Northern District’s Legal Help Desk
for assistance in litigating this case pro se.
IT IS SO ORDERED.
Dated: October 2, 2020
______________________________________
VINCE CHHABRIA
United States District Judge
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