Kimbrell v. Twitter Inc.

Filing 37

ORDER by Judge Phyllis J. Hamilton. (pjhlc1, COURT STAFF) (Filed on 11/16/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JODY DIANE KIMBRELL,

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v.

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TWITTER INC.,

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United States District Court
Northern District of California

Case No. 18-cv-04144-PJH

Plaintiff,

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ORDER
Re: Dkt. Nos. 22, 26, 27

Defendant.

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Before the court is defendant Twitter Inc.’s motion to dismiss and pro se plaintiff

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Diane Kimbrell’s motion for leave to file an amended complaint. The matter is fully

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briefed and suitable for decision without oral argument. Accordingly, the hearing set for

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December 5, 2018, is VACATED. Having read the parties’ papers and carefully

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considered their arguments and the relevant legal authority, and good cause appearing,

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the court hereby rules as follows.

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BACKGROUND
Plaintiff voluntarily amended her original complaint on August 14, 2018. Plaintiff’s

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First Amended Complaint (the “FAC”) alleges that Twitter employs twitter trolls who are

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responsible for goading Twitter users who support President Donald Trump into engaging

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in purportedly abusive conduct, which Twitter subsequently uses as a basis for banning

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those pro-Trump Twitter users. Dkt. 9, FAC ¶¶ 8, 24. Plaintiff alleges that she was a

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target of that scheme and that that scheme is contrary to Twitter holding itself out to be a

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“free and open” platform. FAC ¶¶ 6, 7, 9.

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Specifically, plaintiff alleges that she replied to a @realDonaldTrump tweet with a

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“history of progressive talking points and where they originated.” Id. ¶ 10. In response,

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Twitter’s trolls targeted plaintiff with “remark[s] from the Brock troll book.” FAC ¶ 14.

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Plaintiff responded with the following two tweets. Id. ¶ 16-18.

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United States District Court
Northern District of California

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Three days later, Twitter suspended plaintiff’s account for abusive behavior. FAC

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¶¶ 14-15, 20. The FAC alleges that Twitter’s Rules state that abusive behavior includes

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“behavior that harasses, intimidates, or uses fear to silence another user’s voice.” Id. ¶¶

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14, 15. Amongst other factors, Twitter considers whether a user’s behavior targets an

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individual or group. Id. Plaintiff alleges, however, that in fact “abuse” is defined by

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Twitter employees to mean tweets that “disagree[ ] with them politically . . . with the

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ultimate goal [of] suspend[ing] every POTUS supporter by targeting their accounts.” Id. ¶

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16. According to the FAC, it is for that reason that Twitter suspended plaintiff’s account.

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Id. On June 13, 2018, Twitter permanently suspended plaintiff’s account. Id. ¶ 22. The

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email informing plaintiff of her permanent suspension attributed the suspension to plaintiff
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“participating in targeted abuse.” Id. Plaintiff alleges her suspension violated Twitter and

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her contractual agreement—though no contract claim is made—and was contrary to

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Twitter advertising itself as a free and open platform. Id. ¶ 22.
Based on the above allegations, the FAC states two “counts” based on the

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following: (i) violation of 18 U.S.C. § 1028, criminal fraud relating to identification

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documents; (ii) violation of 15 U.S.C. § 45, unfair competition; (iii) violation of 15 U.S.C.

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§ 54, false advertising; (iv) violation of 18 U.S.C. § 2520, the federal Wiretap Act, (v)

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violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200; (vi)

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violation of the Illinois Consumer Fraud and Deceptive Practices Act, 815 ILCS 505/1

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(“ICFA”); and (vii) violation of the Illinois Uniform Deceptive Trade Practices Act, 815

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United States District Court
Northern District of California

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ILCS 510/1 (“UDTPA”). Plaintiff also seeks declaratory relief under 28 U.S.C. §§ 2201-

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2202. FAC at 18, 21.
On October 9, 2018, defendant moved to dismiss the FAC with prejudice. Dkt. 26.

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Plaintiff did not file an opposition by the October 23, 2018 deadline.
On October 15, 2018, presumably in lieu of filing an opposition, plaintiff filed a

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motion for leave to amend her complaint. Dkt. 27. The proposed second amended

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complaint (the “proposed SAC”), however, neither contains any new factual allegations

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about plaintiff’s suspension nor any causes of action. Dkt. 27-2. Instead, the proposed

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SAC describes how Twitter allegedly treats Republican Twitter users more harshly than it

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treats Democrats who use Twitter’s platform. Id. The proposed SAC also alleges that

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Twitter’s value is tied to how many users it has. According to plaintiff, Twitter, however,

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fraudulently obtains those users by advertising a free and open platform while failing to

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disclose that Twitter would “use its rules to remove any voices opposing [Twitter

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employees’] political ideology.” Id. at 5-6. Lastly, the proposed SAC attempts to join or

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add President Trump as a plaintiff. Id. at 1, 3.
DISCUSSION

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A.

Plaintiff’s Motion For Leave to Amend

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Though plaintiff moved under Fed. R. Civ. P. 15 to amend her complaint, plaintiff’s

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reply in support of that motion asserts that Rule 15 gives her the right to amend her

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complaint in response to defendant’s motion to dismiss. That is incorrect. “Under Rule

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15(a) of the Federal Rules of Civil Procedure, a party may amend his [or her] pleading

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once as a matter of course[.]” Heilman v. Sanchez, No. 210CV1120JAMCKDPT EMP,

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2016 WL 3226307, at *1 (E.D. Cal. June 10, 2016) (emphasis added). Plaintiff filed her

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original complaint on July 11, 2018. A little over one month later, plaintiff filed the

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operative FAC. “[S]ince plaintiff has already amended his pleading once, leave of court is

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necessary under Rule 15(a)(2) to amend once more.” Id. at *2.
Rule 15(a)(2) directs courts to freely give leave to amend a pleading “when justice

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United States District Court
Northern District of California

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so requires.” However, a district court may deny leave to amend where there is “any

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apparent or declared reason for doing so, including . . . futility of the amendment.”

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Lockman Found. v. Evangelical All. Mission, 930 F.2d 764, 772 (9th Cir. 1991) (quotation

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marks omitted). Here, there are at least two reasons for denying leave to amend.

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First, plaintiff’s proposed SAC either alleges no causes of actions or improperly attempts

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to incorporate the prior complaint.1 Civ. L.R. 10-1 (“Any party filing or moving to file an

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amended pleading must reproduce the entire proposed pleading and may not incorporate

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any part of a prior pleading by reference.”); Lacey v. Maricopa Cty., 693 F.3d 896, 927–

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28 (9th Cir. 2012) (“an amended complaint supersedes the original complaint and

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renders it without legal effect”). Second, plaintiff has provided no coherent basis for

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adding or joining President Trump as a plaintiff under Rule 19 or Rule 20. And plaintiff

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has provided no evidence that President Trump has consented to being added as a

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plaintiff.
Accordingly, the court DENIES plaintiff’s motion for leave to file the proposed SAC.

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Because the proposed SAC improperly attempts to incorporate the FAC, the proposed
SAC is also almost entirely devoid of factual allegations regarding the suspension of
plaintiff’s Twitter account.
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B.

Defendant’s Motion To Dismiss The FAC

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Legal Standard

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A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims

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alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th Cir. 2003).

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Under the minimal notice pleading requirements of Federal Rule of Civil Procedure 8,

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which requires that a complaint include a “short and plain statement of the claim showing

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that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint may be

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dismissed under Rule 12(b)(6) if the plaintiff fails to state a cognizable legal theory, or

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has not alleged sufficient facts to support a cognizable legal theory. Somers v. Apple,

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United States District Court
Northern District of California

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Inc., 729 F.3d 953, 959 (9th Cir. 2013).
While the court must accept as true all the factual allegations in the complaint,

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legally conclusory statements, not supported by actual factual allegations, need not be

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accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer

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sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555, 558-59 (2007).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well-pleaded facts do not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679.

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Where dismissal is warranted, it is generally without prejudice, unless it is clear the

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complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013

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(9th Cir. 2005).

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Review is generally limited to the contents of the complaint, although the court can

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also consider a document on which the complaint relies if the document is central to the

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claims asserted in the complaint, and no party questions the authenticity of the

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document. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). That is, the court

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may consider matters that are properly the subject of judicial notice, Knievel v. ESPN,
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393 F.3d 1068, 1076 (9th Cir. 2005); Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir.

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2001), and may also consider exhibits attached to the complaint, see Hal Roach Studios,

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Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989), and

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documents referenced extensively in the complaint and documents that form the basis of

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a the plaintiff's claims. See No. 84 Emp'r-Teamster Jt. Counsel Pension Trust Fund v.

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Am. W. Holding Corp., 320 F.3d 920, 925 n.2 (9th Cir. 2003).

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In addition, when, as here, the allegations involve fraud, heightened pleading
standards apply. “[T]he circumstances constituting fraud or mistake shall be stated with

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particularity.” Fed. R. Civ. P. 9(b). Under Rule 9(b), falsity must be pled with specificity,

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including an account of the “time, place, and specific content of the false representations

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United States District Court
Northern District of California

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as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP,

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476 F.3d 756, 764 (9th Cir. 2007) (citations omitted).

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Analysis
a.

Three of the Statutes Do Not Create A Private Right of Action.

Plaintiff cites the following statutes: (1) criminal fraud relating to identification

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documents, 18 U.S.C. § 1028; (2) unfair competition, 15 U.S.C. § 45 (§ 5(a) of the

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Federal Trade Commission Act); and (3) false advertising, 15 U.S.C. § 54. None of those

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statutes create a private right of action. See Finnegan v. Clark, No. 8:18–cv–00330–

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SJO–KES, 2018 WL 2972504, at *9 (C.D. Cal. May 22, 2018) (“§ 1028 is a criminal

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statute that does not support a private cause of action;” also requires allegations that the

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defendant produces, processes, or sells false identification documents); Hylton v.

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Anytime Towing, No. 11cv1039–GPC (WMC), 2012 WL 5498887, at *6 (S.D. Cal. Nov.

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13, 2012) (enforcement of 15 U.S.C. § 45 is limited to the FTC); Cross v. Bd. of

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Supervisors of San Mateo Cty., 326 F. Supp. 634, 637 (N.D. Cal. 1968) (no private right

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of action under 15 U.S.C. § 54). Thus, the plaintiff has not stated a claim—and in fact

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cannot state a claim—based on those statutes.

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b.

Plaintiff Has Not Stated A Claim Based On The Federal Wiretap
Act
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Plaintiff next cites 18 U.S.C. § 2520 of the federal Wiretap Act. Section 2520

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creates civil liability when the plaintiff’s “wire, oral, or electronic communication is

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intercepted, disclosed, or intentionally used [the communication] in violation of this

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chapter.” Plaintiff, however, does not allege what part of the chapter Twitter supposedly

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violated. Nor does plaintiff include factual allegations giving rise to any inference that

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Twitter “intercepted, disclosed, or intentionally used” plaintiff’s communications. Thus,

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the plaintiff has not stated a claim based on the federal Wiretap Act.

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c.

Plaintiff Has Not Stated A Claim Based On the UCL, the ICFA, or
the UDTPA

First, “[t]he UCL prohibits any ‘unlawful, unfair or fraudulent business act or

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United States District Court
Northern District of California

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practice.’” Gregorio v. Clorox Co., No. 17-CV-03824-PJH, 2018 WL 732673, at *3 (N.D.

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Cal. Feb. 6, 2018). Because plaintiff has not alleged a violation of any other law, plaintiff

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has failed to state a claim under the unlawful prong. And, while “the precise meaning of

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‘unfair’ practices is ‘in flux,’” the court finds that the conduct alleged does not rise to the

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necessary level. See Khaziri v. Caliber Home Loans, Inc., No. 17-CV-01639 NC, 2018

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WL 646594, at *2 (N.D. Cal. Jan. 30, 2018) (“a business practice [is] unfair when it

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offends an established public policy or when the practice is immoral, unethical,

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oppressive, unscrupulous or substantially injurious to consumers”). Lastly, plaintiff has

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not stated a claim under the fraud prong, which is governed by the “reasonable

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consumer” test. Gregorio, 2018 WL 732673, at *3. As an initial matter, plaintiff’s lone

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allegation that Twitter advertises a “free and open” platform does not satisfy Rule 9(b)’s

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requirement that the plaintiff allege “the who, what, when, where, and how” of the fraud.

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Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003). Further, while

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Twitter’s Rules—which plaintiff quotes in the FAC—states that Twitter “believe[s] in

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freedom of expression and open dialogue,” that sentence goes on to say “we prohibit

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behavior that crosses the line into abuse[.]” FAC ¶ 15. That is not likely to deceive a

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reasonable consumer into believing that Twitter did not retain the right to suspend users

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who “cross the line into abuse.”
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Second, and independently fatal, plaintiff lacks standing to state a UCL claim

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because she has not alleged “(1) an economic injury (2) as a result of the challenged

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practice.” Singh v. Google LLC, No. 16-CV-03734-BLF, 2018 WL 984854, at *3-4 (N.D.

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Cal. Feb. 20, 2018) (citing Kwikset Corp. v. Sup.Ct., 51 Cal.4th 310, 323 (2011)); Rubio

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v. Capital One Bank, 613 F.3d 1195, 1203-04 (9th Cir. 2010).
For the same reasons, plaintiff has not stated a claim under either the ICFA or the

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UDTPA. In re Coca-Cola Prod. Mktg. & Sales Practices Litig. (II), No. 14-MD-02555-

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JSW, 2016 WL 2930964, at *7 (N.D. Cal. May 19, 2016) (listing elements of ICFA claim);

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In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. Litig., No. 05-CV-01699

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CRB, 2012 WL 3154957, at *8 (N.D. Cal. Aug. 2, 2012) (same for UDTPA claim).
Thus, plaintiff has not stated a claim based on the UCL, the ICFA, or the UDTPA.

United States District Court
Northern District of California

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CONCLUSION

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For the foregoing reasons, plaintiff’s motion for leave to file an amended complaint

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is DENIED and defendant’s motion to dismiss the FAC is GRANTED WITH LEAVE TO

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AMEND only the UCL, ICFA, UDTPA, and federal Wiretap Act claims. Plaintiff’s

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amended complaint, if any, may not be based on 18 U.S.C. § 1028, 15 U.S.C. § 45, or 15

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U.S.C. § 54, as those claims are dismissed with prejudice. In addition, no new parties or

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claims may be added without leave of court. Any amended complaint shall be filed no

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later than December 21, 2018. Lastly, plaintiff’s motion to compel defendant to discuss

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the parties’ ADR options is DENIED because plaintiff’s motion was filed before the

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deadline to meet and confer had passed and because the parties do not currently have

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any meet and confer obligations regarding that topic.2

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IT IS SO ORDERED.

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Dated: November 16, 2018
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PHYLLIS J. HAMILTON
United States District Judge

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Defendant’s request for judicial notice is DENIED as moot.
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