Zuckerman v. Meta Platforms, Inc.

Filing 43

ORDER by Judge Jacqueline Scott Corley granting without prejudice 30 Meta Platforms, Inc.'s Motion to Dismiss. (ahm, COURT STAFF) (Filed on 11/22/2024)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
ETHAN ZUCKERMAN,

7

Plaintiff,

8
v.

9

META PLATFORMS, INC.,

10

Defendant.

11

United States District Court
Northern District of California

Case No. 24-cv-02596-JSC
ORDER RE: DEFENDANT META
PLATFORMS’ MOTION TO DISMISS
THE AMENDED COMPLAINT
Re: Dkt. No. 30

12
13

This lawsuit involves a proposed web browser extension called Unfollow Everything 2.0,

14

which would automate the process of unfollowing friends, groups, and pages on a user’s Facebook

15

social media profile. Ethan Zuckerman, a professor at UMass Amherst, seeks a declaratory

16

judgment against Meta Platforms, Inc. that 47 U.S.C. § 230(c)(2)(B) provides him immunity for

17

all breach of contract, Computer Fraud and Abuse Act (“CFAA”), and Computer Data Access and

18

Fraud Act (“CDAFA”) claims related to Unfollow Everything 2.0. In the alternative, Professor

19

Zuckerman requests a declaratory judgment that Unfollow Everything 2.0: 1) does not violate

20

Meta’s Terms of Service, or as applied, the Terms of Service are void for public policy; 2)

21

Unfollow Everything 2.0 does not violate the CFAA; and 3) Unfollow Everything 2.0 does not

22

violate the CDAFA. Defendant moves to dismiss all claims.
After considering the parties’ submissions, and with the benefit of oral argument on

23
24

November 7, 2024, the Court GRANTS the motion to dismiss for lack of subject-matter

25

jurisdiction. Professor Zuckerman’s request for declaratory relief is not ripe for adjudication and

26

seeks an unconstitutional advisory opinion.

27

//

28

//

DISCUSSION

United States District Court
Northern District of California

1
2

Professor Zuckerman’s request for relief is governed by the Declaratory Judgment Act, 28

3

U.S.C. § 2201, which provides: “[i]n a case of actual controversy,” a court “may declare the rights

4

and other legal relations of any interested party . . . whether or not further relief is or could be

5

sought.” 28 U.S.C. § 2201(a). Analysis under the Act proceeds in two parts: first, a court must

6

determine whether an “actual controversy exists,” and second, whether to exercise its discretion to

7

permit the declaratory judgment action. Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143-44 (9th

8

Cir. 1994).

9

A complaint must be dismissed when the district court lacks subject-matter jurisdiction to

10

hear the dispute. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121-22 (9th Cir.

11

2010). Article III of the Constitution limits federal courts “to deciding cases and controversies”

12

where the plaintiff has standing to bring suit and the dispute is ripe for judicial review. Bova v.

13

City of Medford, 564 F.3d 1093, 1095 (9th Cir. 2009) (cleaned up). The ripeness inquiry, in

14

particular, “addresses when litigation may occur” and often “coincides squarely with standing’s

15

injury in fact prong.” Id. (citations omitted). The interplay between standing and ripeness

16

instructs that “a possible future injury is not sufficient to establish standing . . . [b]ut future injury

17

may suffice if the threatened injury is certainly impending, or there is a substantial risk that the

18

harm will occur.” 3taps, Inc. v. LinkedIn Corp., No. 18-cv-00855, 2022 WL 16953623, at *3

19

(N.D. Cal. Nov. 15, 2022) (citation omitted) (cleaned up).

20

Ultimately, it is “[t]he party asserting federal subject-matter jurisdiction [who] bears the

21

burden of proving its existence.” Chandler, 598 F.3d at 1122. A motion to dismiss under Federal

22

Rule of Civil Procedure 12(b)(1) may assert a factual or facial challenge to jurisdiction. 3taps,

23

Inc., 2022 WL 16953623 at *4 (citing Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

24

Cir. 2004)). A factual challenge “disputes the truth of the allegations that, by themselves, would

25

otherwise invoke federal jurisdiction,” while a facial challenge argues “the allegations contained

26

in a complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone,

27

373 F.3d at 1039. To resolve a factual challenge, the court “may review evidence beyond the

28

complaint” and “need not presume the truthfulness of the plaintiff's allegations.” Id. at 1038. The
2

United States District Court
Northern District of California

1

court “resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the

2

plaintiff’s allegations as true and drawing all reasonable inferences in the plaintiff’s favor . . . .”

3

3taps, Inc., 2022 WL 16953623 at *4 (citing Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.

4

2014)).

5

Meta maintains the instant case presents no actual controversy for two main reasons. As

6

alleged, Professor Zuckerman has not built the Unfollow Everything 2.0 browser extension—he

7

has prepared “pseudocode” describing the product’s functionality and architecture, but his team of

8

software engineers have not developed the actual code that would allow the extension to operate.

9

(Amended Complaint “AC” ¶ 85.) Additionally, Meta has not contacted Professor Zuckerman

10

regarding Unfollow Everything 2.0 to assert a position on whether it would violate Facebook’s

11

Terms of Service. Meta argues these facts make this case unripe for adjudication. Even if the case

12

were ripe, Meta further asserts the Court should not exercise its discretion based on the factors

13

outlined in Brillhart v. Excess Ins. Co. of Am., 316 U.S. 491 (1942).
The Court considers the instant motion a facial attack on subject-matter jurisdiction and

14
15
16

addresses these arguments assuming the truth of the Amended Complaint allegations.
I.

RIPENESS

17

The “actual controversy” required by the Declaratory Judgment Act “is the same as the

18

‘case or controversy’ requirement of Article III,” and “requires no more stringent showing of

19

justiciability than the Constitution does.” Societe de Conditionnement en Aluminium v. Hunter

20

Eng’g Co., 655 F.2d 938, 942 (9th Cir. 1981) (citation omitted). “The disagreement must not be

21

nebulous or contingent but must have taken on a fixed and final shape so that a court can see what

22

legal issues it is deciding, what effect its decision will have on the adversaries, and some useful

23

purpose to be achieved in deciding them.” Pub. Serv. Comm’n v. Wycoff, Co., 344 U.S. 237, 244

24

(1952). Absent such a controversy, the court cannot adjudicate the matter as it would “become an

25

unconstitutional advisory opinion.” Rhoades v. Avon Prod., Inc., 504 F.3d 1151, 1157 (9th Cir.

26

2007).

27

The constitutional ripeness inquiry looks to “whether the facts alleged, under all the

28

circumstances, show that there is a substantial controversy, between parties having adverse legal
3

United States District Court
Northern District of California

1

interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.”

2

Spokane Indian Tribe v. United States, 972 F.2d 1090, 1092 (9th Cir. 1992). “If the defendant’s

3

actions cause the plaintiff to have a ‘real and reasonable apprehension that he will be subject to

4

liability,’ the plaintiff has presented a justiciable case or controversy.” Id. (citation omitted). So,

5

the plaintiff’s alleged injury must not be “dependent on ‘contingent future events that may not

6

occur as anticipated, or indeed may not occur at all.’” Trump v. New York, 592 U.S. 125, 131

7

(2020) (citation omitted). Here, Plaintiff’s alleged injury is too contingent upon uncertain events

8

to satisfy the constitutional ripeness requirement.

9

Professor Zuckerman has not yet created Unfollow Everything 2.0. The “pseudocode”

10

prepared by him and reviewed by an “academic cybersecurity expert” provides a sense of the

11

tool’s architecture and its proposed function. (AC ¶ 85.) Indeed, the Amended Complaint states

12

often what the browser extension “will” do or how it “would” function. (Id. ¶¶ 71-77.) But as

13

alleged, Professor Zuckerman has not yet built the tool. (Id. ¶ 85 (“an academic cybersecurity

14

expert has reviewed the design and confirmed that the tool, if built to the specifications in the

15

design, will perform as expected” (emphasis added).) Additionally, he alleges:

16
17
18
19
20

Before actually launching Unfollow Everything 2.0, Professor
Zuckerman must build the tool as designed and obtain approval for
the research study from his university’s institutional review board.
Professor Zuckerman has assembled a team of engineers to code the
tool. He has also applied for institutional review board review, and
fully expects to receive approval. He anticipates being able to
complete the tool within six weeks of a determination from this Court
that it would be lawful for him to launch the tool.

21

(Id.) So, although he “anticipates” the coding could be completed within six weeks by his “team

22

of engineers,” his anticipation demonstrates the uncertainty in how the tool will ultimately be

23

coded, by what technical means it will interact with Facebook, and how long the venture will take.

24

(Id.) “[U]nless and until contingent events occur,” his request for declaratory relief remains too

25

speculative to support jurisdiction. Bova, 564 F.3d at 1097.

26

Professor Zuckerman cites various cases across federal courts to suggest his preparations

27

to date are sufficiently concrete. But those cases do not support his contention that a tool which

28

remains only conceptual suffices to meet the “actual controversy” requirement. Indeed, in nearly
4

United States District Court
Northern District of California

1

all of those cases1 meaningful steps in manufacturing had been completed by the time declaratory

2

relief was sought. See, e.g., Interdynamics, Inc. v. Firma Wolf, 698 F.2d 157, 160 (3d Cir. 1982)

3

(noting an “experimental sample” had been created); Cat Tech LLC v. TubeMaster, Inc., 528 F.3d

4

871, 877 (Fed. Cir. 2008) (The product at issue was “customized based upon the dimensions of

5

each customer’s reactor,” so manufacture had to wait until dimensions were received from

6

customers.); Paramount Pictures Corp. Axanar Prods., Inc., No. 15-cv-09938, 2016 WL 2967959,

7

at *6 (C.D. Cal. May 9, 2016) (Though film had not been completed, the script was “fully revised

8

and locked,” and the infringement was “based on Defendants’ utilization of similar character,

9

theme, setting, and mood.”); Gelmart Indus., Inc. v. Eveready Battery Co., 120 F. Supp. 3d 327,

10

332 (S.D.N.Y. 2014) (noting the existence of “marketing prototypes” and that plaintiff had

11

“designed and offered product for sale bearing [the allegedly offending mark]”). The absence of a

12

meaningful prototype or functional code distinguishes Unfollow Everything 2.0 from the above-

13

cited cases.
Professor Zuckerman’s insistence that the absence of actual code does not impact the

14
15

ripeness analysis because the dispute turns on the core functionality—not technical details—of

16

Unfollow Everything 2.0, is unpersuasive. To satisfy ripeness, a court must be able to issue “a

17

decree of a conclusive character, as distinguished from an opinion advising what the law would be

18

upon a hypothetical state of facts.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127

19

(2007). If all that mattered were the core function or outcome the tool enabled, then this dispute

20

could be about any extension that automated an interaction with Facebook, real or hypothetical.

21
22
23
24
25
26
27
28

1

In Rengo Co. v. Molins Mach. Co., 657 F.2d 535, 539 (3d Cir. 1981), the plaintiff asserted a
patent infringement claim against a defendant who had advertised, but not manufactured, a
potentially infringing device. The defendant argued the court lacked jurisdiction because there
was no infringing device, but also asserted a counterclaim against the plaintiff for violation of
antitrust laws and sought declaratory judgment on patent invalidity. Id. at 538-39. Ultimately, the
court of appeals upheld jurisdiction to determine patent validity and infringement, noting that
“[r]egardless of deficiencies in the complaint,” the defendant’s assertion of a counterclaim
conferred jurisdiction. Id. at 539. Though the court of appeals went on to hold the defendant’s
“apparent ability” to produce a possibly infringing device was sufficient, it maintained its separate
ground for jurisdiction based on the defendant’s counterclaims. Id. These facts differ from the
instant case, where Meta has not asserted a claim against Professor Zuckerman while
simultaneously contesting the Court’s jurisdiction. Given the Rengo court’s alternate grounds for
jurisdiction, the Court does not consider its “apparent ability” analysis to be dispositive.
5

1

But the dispute must be about this tool, not a tool. Professor Zuckerman, or his investors, want an

2

opinion on legality before they invest further resources into Unfollow Everything 2.0. Federal

3

courts do not, and cannot, exist to give advisory opinions to assist investment decisions.

United States District Court
Northern District of California

4

Professor Zuckerman’s allegations also do not permit a plausible inference of a “real and

5

reasonable apprehension that he will be subject to liability.” Spokane, 972 F.2d at 1092. In

6

assessing apprehension of liability, the Ninth Circuit has declined to “identify specific acts or

7

intentions of the defendant that would automatically constitute a threat of litigation,” instead

8

considering a spectrum of factual circumstances. Chesebrough-Pond’s, Inc. v. Faberge, Inc., 666

9

F.2d 393, 396 (9th Cir. 1982). Here, Professor Zuckerman has not alleged any contact with Meta

10

prior to this suit regarding Unfollow Everything 2.0. This lack of contact signals that adverse

11

positions on the dispute have not sufficiently crystallized into a ripe case. See, e.g., Adobe Sys.

12

Inc. v. Kelora Sys. LLC, No. 11-cv-3938 CW, 2011 WL 6101545, at *4 (N.D. Cal. Dec. 7, 2011)

13

(holding there was no apprehension of suit where the defendant had not “communicated with [the

14

plaintiff] at all before [plaintiff] instituted [the] suit”).

15

Instead, Professor Zuckerman argues Meta’s history of litigation against third parties who

16

have created browser extensions suggests a reasonable apprehension of suit. He also alleges a

17

cease-and-desist letter from Meta threatened litigation against an individual who created a browser

18

extension that functioned identically to Unfollow Everything 2.0. (AC ¶¶ 86-89.) Ultimately,

19

Meta’s litigation history against other entities—who have no alleged connection to Professor

20

Zuckerman—does not establish a plausible apprehension of suit related to this proposed

21

technology. See Xerox Corp. v. Apple Computer, Inc., 734 F. Supp. 1542, 1547 (N.D. Cal. 1990)

22

(“[S]uit against [third parties] alone cannot reasonably be viewed as giving rise to an

23

‘apprehension of liability’ on [plaintiff’s] part.”). Professor Zuckerman cites to 3taps, Inc. v.

24

LinkedIn Corp., No. 18-cv-00855, 2022 WL 16953623, at *4 (N.D. Cal. Nov. 15, 2022), to

25

support his assertion that litigation brought against similarly situated entities can give rise to an

26

actual controversy. However, 3taps is distinguishable. There, the plaintiff had communicated

27

with the defendant about the basis of the dispute prior to seeking declaratory relief. Id.

28

Additionally, the defendant in 3taps had sued a third party related to the matter, but that third party
6

1

shared a common partial owner with the plaintiff, and the court had granted a motion to relate the

2

plaintiff’s case to the third party’s suit because of common facts. Id. at *2. These circumstances

3

differ from the instant case where Professor Zuckerman has not alleged any such connection to the

4

third parties sued by Meta.
Professor Zuckerman’s other cited authority fares no better. In both E. & J. Gallo Winery

United States District Court
Northern District of California

5
6

v. Proximo Spirits, Inc., 583 F. App’x 632 (9th Cir. 2014), and Societe de Conditionnement en

7

Aluminium v. Hunter Eng’g Co., 655 F.2d 938 (9th Cir. 1981), the plaintiff had a relationship to

8

the third parties threatened with suit by the defendant—for Gallo, the third party was their sole

9

supplier, and in Societe, it was a purchaser of their product. Moreover, Professor Zuckerman

10

overlooks an important distinction between the patent cases upon which he relies and the instant

11

case. An action for patent infringement may derive from unauthorized use or sale of a patented

12

invention, but also the making of the invention. 35 U.S.C. § 271. The manufacture of a product

13

may expose a declaratory relief plaintiff to patent infringement liability, thereby creating an

14

apprehension of suit without sale or distribution. Here, he has not alleged a theory of liability that

15

prevents him from even coding Unfollow Everything 2.0. As such, Professor Zuckerman—who

16

has not created the tool at issue—falls short of the reasonable apprehension of suit articulated in

17

the cited authority.
Accordingly, Professor Zuckerman has not pled an “actual controversy” to provide this

18
19
20
21
22

Court with subject-matter jurisdiction.
II.

THE COURT’S DISCRETIONARY EXERCISE OF JURISDICTION
To the extent ripeness is a close question here, the Court touches lightly on the

discretionary factors that counsel in favor of dismissal.

23

The Declaratory Judgment Act provides courts with discretion to assert jurisdiction when

24

an actual controversy exists. To guide courts in this exercise, the Supreme Court laid out factors

25

that bear on the utility and propriety of adjudicating a request for declaratory relief in Brillhart v.

26

Excess Ins. Co. of Am., 316 U.S. 491, 495 (1942). These Brillhart factors caution that “[t]he

27

district court should avoid needless determination of state law issues; it should discourage litigants

28

from filing declaratory actions as a means of forum shopping; and it should avoid duplicative
7

1

litigation.” Gov’t Emps. Ins. Co. v. Dizol, 133 F.3d 1220, 1225 (9th Cir. 1998). This list is not

2

exhaustive, and the Ninth Circuit has also considered:
“whether the declaratory action will settle all aspects of the
controversy; whether the declaratory action will serve a useful
purpose in clarifying the legal relations at issue; whether the
declaratory action is being sought merely for the purposes of
procedural fencing or to obtain a ‘res judicata’ advantage; or whether
the use of a declaratory action will result in entanglement between the
federal and state court systems. In addition, the district court might
also consider the convenience of the parties, and the availability and
relative convenience of other remedies.”

3
4
5
6
7
8

Id. at n.5.
Of these factors, the Court considers “settlement of all aspects of the controversy” and

United States District Court
Northern District of California

9
10

“clarifying the legal relations at issue” to be the most relevant here. These factors echo the

11

underlying concerns of the ripeness doctrine, where a premature suit may not fully develop the

12

topography of a dispute to achieve a conclusive resolution. Since Unfollow Everything 2.0 is not

13

built, and the parties have not solidified their positions on its use with Facebook, much remains

14

uncertain. Ruling on the hypothetical causes of action Meta might bring had Unfollow Everything

15

2.0 been released could fail to resolve the dispute, leaving the parties embroiled in further

16

litigation on claims unconsidered here. Indeed, were Professor Zuckerman to prevail, the Court

17

would have to cabin a declaratory relief order based on contingent facts—such as, whether

18

Unfollow Everything 2.0 would be built to x specification or function in y capacity, or whether z

19

provision of the Meta Terms of Service would be implicated. Such guesswork runs counter to the

20

benefit of finality offered by the judiciary. Therefore, even if the Court had subject-matter

21

jurisdiction, it would nonetheless exercise its discretion to decline to hear the dispute until it

22

becomes concrete.

23

CONCLUSION

24

For the reasons stated above, the Defendant’s motion to dismiss under Federal Rule of

25

Civil Procedure 12(b)(1) is GRANTED without prejudice.
IT IS SO ORDERED.

26
27

//

28

//
8

1

Dated: November 22, 2024

2
3
JACQUELINE SCOTT CORLEY
United States District Judge

4
5
6
7
8
9
10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9