Kimbrell v. Twitter Inc.
Filing
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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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1.
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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2.
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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