Trump et al v. Twitter, Inc et al

Filing 185

ORDER TO SHOW CAUSE. Show cause response due by 1/23/2023. Signed by Judge James Donato on 1/4/2023. (jdlc3, COURT STAFF) (Filed on 1/4/2023)

Case 3:21-cv-08378-JD Document 185 Filed 01/04/23 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DONALD J. TRUMP, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 3:21-cv-08378-JD
ORDER TO SHOW CAUSE

v.
TWITTER INC., et al.,
Defendants.

Plaintiffs Naomi Wolf, former President Donald J. Trump, four other individuals, and the

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American Conservative Union, sued Twitter on behalf of themselves and a putative class of

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Twitter users for being “de-platformed” and “censored.” Dkt. No. 21 ¶¶ 8, 18. Plaintiffs alleged

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First Amendment claims in connection with a state action theory of liability. The Court dismissed

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the complaint under Federal Rule of Civil Procedure 12(b)(6) with leave to amend. Dkt. No. 165.

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Plaintiffs elected not to amend, and judgment was entered against them. Dkt. No. 168.

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Plaintiffs filed an appeal in the Ninth Circuit. Dkt. No. 169. Although the appeal is

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pending, Wolf has asked the Court for an “indicative ruling” under Federal Rule of Civil

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Procedure 62.1 on whether the Court would set aside the judgment under Rule 60(b)(2) in light of

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newly discovered evidence. Dkt. No. 176.

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Wolf’s request raises a question of mootness as a threshold matter. To start, the Rule 62.1

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motion is procedurally sound. “The filing of a notice of appeal is an event of jurisdictional

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significance -- it confers jurisdiction on the court of appeals and divests the district court of its

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control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer

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Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). But even when an appeal is pending, a party may

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seek relief from a final judgment or order by filing a Rule 60(b) motion in the district court with a

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request for an indicative ruling on the motion under Rule 62.1. The district court may: “(1) defer

United States District Court
Northern District of California

Case 3:21-cv-08378-JD Document 185 Filed 01/04/23 Page 2 of 2

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considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the

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court of appeals remands for that purpose or that the motion raises a substantial issue.” Fed. R.

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Civ. P. 62.1(a).

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The salient question is whether Wolf’s claims are moot in light of recent, well-publicized

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changes in Twitter’s operations and policies. “[I]t is familiar law that a federal court always has

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jurisdiction to determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 (2002).

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“An actual controversy must be extant at all stages of review, not merely at the time the complaint

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is filed.” Bernhardt v. Cnty. of Los Angeles, 279 F.3d 862, 871 (9th Cir. 2002). A matter is moot

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if at any time during the course of litigation, the plaintiff ceases to be threatened with or suffer “an

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actual injury [that is] traceable to the defendant,” and that is “likely to be redressed by a favorable

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judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation and citation

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omitted).

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Publicly available information suggests that circumstances may have changed with respect

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to Wolf’s claims and Twitter’s current practices. Consequently, Wolf is directed to show cause in

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writing why her claims present a live controversy, and whether her request for an injunction,

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which is the main remedy she seeks, is tenable. A response is due by January 23, 2023.

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IT IS SO ORDERED.
Dated: January 4, 2023

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JAMES DONATO
United States District Judge

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