Young v. Facebook, Inc.

Filing 28

Reply Memorandum re 19 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed byFacebook, Inc.. (Avalos, Julio) (Filed on 10/1/2010)

Young v. Facebook, Inc.

Doc. 28

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GARY E. WEISS (SBN 122962) [e-mail] JULIO C. AVALOS (SBN 255350) [e-mail] MORVARID METANAT (SBN 268228) [e-mail] ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025 Telephone: [phone] Facsimile: 650-614-7401 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

KAREN BETH YOUNG, an individual, Plaintiff, v. FACEBOOK, INC., Defendant.

Case No. C 10-03579 JF DEFENDANT FACEBOOK, INC.'S REPLY IN SUPPORT OF MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Date: Time: Judge: Courtroom: October 15, 2010 9:00 a.m. Honorable Judge Fogel 3

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FACEBOOK'S REPLY IN SUPPORT OF MOTION TO DISMISS CASE NO.: C 10-03579 JF

Dockets.Justia.com

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I.

INTRODUCTION Plaintiff's case should be dismissed for failure to state a claim. Plaintiff's Motion in

Opposition to Facebook's Motion to Dismiss ("Plaintiff's Opposition," cited as "Opp. Br.") confirms that Plaintiff has no cognizable claims against Facebook. Accordingly, and because amendment would be futile, Facebook respectfully requests that Plaintiff's case be dismissed in its entirety and with prejudice. II. FACTS A full recitation of the facts relevant to this motion to dismiss is provided in Facebook's opening brief. See Defendant Facebook's Motion to Dismiss Plaintiff's Complaint ("Motion to Dismiss") (Dkt. No. 19). In short, Plaintiff created a number of pages on the Facebook website, including a personal account and at least two "group pages" allegedly "relating to cancer for communication and discussion." Plaintiff's Complaint ("Compl.") at ¶ 10. According to her Complaint, "Plaintiff sent `friendvites' to others who she believed to be sincere in the cancer cause." Id. Judging from the Complaint, Plaintiff appears to have sent many thousands of these "friendvites" to Facebook users that she did not know, a violation of Facebook's terms of service. Id. Plaintiff's account was thus disabled. Id. When Plaintiff e-mailed Facebook regarding her account, a member of the Facebook support team informed her that her "account was disabled because [her] behavior on the site was identified as harassing or threatening to other people on Facebook." Opp. Br. at Ex. A-1. Plaintiff was informed on multiple occasions that Facebook prohibited, among other things, "[s]ending friend requests to people you don't know" and "regularly contacting strangers through unsolicited Inbox messages." Id. After exchanging multiple e-mails with Facebook's support team, Plaintiff drove from Maryland to Facebook's headquarters in Palo Alto, where she demanded to have her account reinstated. Compl. at ¶ 9. Because her account remained terminated, Plaintiff set up temporary residence in the Bay Area and instituted the current litigation. Id. Plaintiff believes that Facebook's refusal to reinstate her account gives rise to multiple violations of the United States Constitution. Id. at ¶¶ 16-29.

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Unrelatedly, Plaintiff claims that while still on Facebook, she was made fun of by, and suffered "personal attacks" from, unknown third-parties and that she was exposed to a webpage that she considered offensive. Id. ¶ 11. This third-party content is the purported basis for a number of Plaintiff's additional claims, including breach of contract claims, negligence, and fraud. This Court recently noted that Plaintiff's "complaint appears to be without merit in that it fails to set forth a cognizable claim." Dkt. No. 26 at 2:21-22. Plaintiff's Opposition confirms this observation. III. ARGUMENT A. Plaintiff Has Failed To State Claims For Civil Violations Under The U.S. Constitution.

Plaintiff has failed to state a claim for violation of the First and Fourteenth Amendments. In her Opposition, Plaintiff appears to set forth four reasons why Facebook should be considered a governmental entity: (i) "Facebook hypocritically deteriorates and undermines the secured rights of all United States citizens through both their actions and inactions"; (ii) "Facebook promotes things that they say they discourage"; (iii) Facebook partakes in "Commercial Advertising fill[ing] the nations [sic] economy in and on every level all the while benefiting from government affiliations" and (iv) government agencies use Facebook. See Opp. Br. at 29. Even if these theories had been raised in the Complaint, which they were not, they would not establish state action. Under well-established federal law, a private entity acts under the color of state authority only when "he or she has `exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law." West v. Atkins, 487 U.S. 42, 49 (1988) (citations omitted). Moreover, the only time that "a § 1983 action can lie against a private entity [is] when the private entity is a willful participant in joint action with the State or its agents." Liao v. Ashcroft, No. C 08-2776 PJH, 2009 WL 636116, at *4 (N.D. Cal. Mar. 11, 2009) (citations omitted). Plaintiff concludes that Facebook is "a state actor" and "a willful participant in joint action with the State and its agents," but has failed to plead facts to support that conclusion. And according to Plaintiff's own legal citations, agreements with the -2OHS West:260994673.5 FACEBOOK'S REPLY IN SUPPORT OF MOTION TO DISMISS CASE NO.: C 10-03579 JF

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government, by themselves, are insufficient to create state action. Forbes v. City of New York, No. 05 Civ. 7331 NRB, 2008 U.S. Dist. LEXIS 63021, at *17-18 (S.D.N.Y. Aug. 12, 2008) (citing Lansing v. City of Memphis, 202 F. 3d 821, 832 (6th Cir. 2000)). Plaintiff's reliance on Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), where defendant, a private restaurant, was found to have acted under the color of state law in discriminating against African Americans, is easily distinguishable. The Burton restaurant leased space from the city, was an integral part of a public building, benefitted from the public building's tax exempt status, and relied on public funds for its upkeep. Id. at 723-24. Here, Plaintiff does not and cannot allege that Facebook's free website is government-funded or that Facebook uses government property. Plaintiff's remaining cases are similarly off-point. Accordingly, and because Plaintiff cannot amend to allege facts showing state authority, Plaintiff's claims of constitutional violations against Facebook should be dismissed without leave to amend. B. Plaintiff Has Failed To State A Claim For Breach Of Contract.

To maintain her breach of contact claim, Plaintiff is required, at a minimum, to identify the contract at issue as well as the terms of that contract that Facebook is alleged to have breached. Plaintiff has failed to do so. As Plaintiff admits, "Plaintiffs [sic] claims are based on user content, page content, poor business practices and poor business procedures which have resulted in the indifferent rights of the plaintiff and irreparable harm." Opp. Br. at 33:14-16. No mention of particular contract terms is made. To the extent Plaintiff's claims are based on "user content" and "page content," such claims are barred by the Communications Decency Act ("CDA"). See Motion to Dismiss at 7:2-14. Plaintiff provides no authority to the contrary and does not adequately explain why the CDA should not apply. The remainder of Plaintiff's breach of contract claim appears based on three alleged agreements: a newly-alleged agreement between a government agency and Facebook, Facebook's unilateral policy statements, and the only contract possibly at issue here, Facebook's Statement of Rights and Responsibilities ("SRR"). With respect to the government agency agreement, even if Facebook had entered into such a contract, Plaintiff did not (and could not) raise that agreement -3OHS West:260994673.5 FACEBOOK'S REPLY IN SUPPORT OF MOTION TO DISMISS CASE NO.: C 10-03579 JF

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in her Complaint and has not alleged that she is a party to it. She thus lacks standing to assert a breach of its terms. Further, Plaintiff has still not identified any language or terms in Facebook's policies or SRR that give rise to the obligations she seeks to enforce. None exists. To the contrary, the SRR expressly bars and disclaims such obligations and liability. See Motion to Dismiss at 8:8-19; Compl. at Ex. A, Section 15.3. Plaintiff concludes that the SRR's disclaimer--as well as this Court's prior decisions enforcing it--are inapplicable. Opp. Br. at 33. But Plaintiff cites to no support for this conclusion other than an argument that "Facebook `Law' is not the governing body" and that if the disclaimer were enforceable, "there would be no need for all of the other Facebook documented sections and articles, or a United States government foundation." Id. These arguments are unavailing. Accordingly, and because amendment would be futile, Plaintiff's breach of contract claim should be dismissed without leave to amend. C. Plaintiff Has Failed To State A Claim For Breach Of The Implied Covenant Of Good Faith And Fair Dealing.

To sustain a claim for breach of implied covenant of good faith and fair dealing, a plaintiff must show that the parties had an agreement and the defendant interfered with the plaintiff's right to receive the benefits of that agreement. See Guz v. Bechtel National, Inc., 24 Cal. 4th 317, 349350 (2000). This covenant cannot import onto the parties' contract terms or contractual provisions that were absent from the actual underlying agreement. See, e.g., In Re Facebook PPC Adver. Lit., 2010 U.S. Dist. LEXIS 39776, at *13-14. Plaintiff, however, attempts to do just that--impose onto Facebook obligations that Facebook never agreed to. Plaintiff's claim rests entirely on her allegation that Facebook terminated her account. Plaintiff argues that her use of Facebook was unfettered and that by terminating her account, Facebook deprived her of some contractual benefit. This argument fails. The SRR contains no terms guaranteeing Plaintiff use of the Facebook website. To the contrary, the SRR allows Facebook to terminate any account at its discretion. Compl. at Ex. A, Section 14.

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Further, Plaintiff's argument that Facebook "had an obligation to adhere to their terms of agreement rather than allow for the degradation of plaintiffs [sic] rights by means of hypocritical policies and practices and neglect" "[t]hus, preventing the subsequent frustration of rights of benefits the agreement was supposed to depict" is unfounded and conclusory. Opp. Br. at 34:710. It is unclear what contractual "obligations" Plaintiff's theory is based on or how Facebook frustrated those "rights of benefits" of the agreement. Accordingly, this claim should also be dismissed without leave to amend. D. Plaintiff Has Failed To State A Claim For Negligence.

Plaintiff's negligence claim also fails. The Opposition fails to point to any allegations that would give rise to Facebook's duty of care. Rather, and without support, Plaintiff simply concludes that Facebook was negligent and "failed in its responsibility to condemn all acts or statements that inspire, imply, incite or directly threaten violence against anyone." Opp. Br. at 35. Facebook never assumed any such responsibility. Plaintiff further argues that the CDA does not apply to her negligence claim because the alleged third-party messages "compromise the `decency' general principles which the Communications Decency Act was originally designed to address." Opp. Br. at 35. This proposition runs contrary to CDA precedent and would itself nullify Section 230's overarching policy interests. Accordingly, and because it is clear that amendment would be futile, Plaintiff's negligence claim should be dismissed with prejudice. E. Plaintiff Has Failed To State A Claim For Fraud.

Rather than pointing to facts sufficient to establish a claim of fraud, Plaintiff's Opposition offers only unsupported conclusions. Plaintiff argues that her fraud claim is based on the assertion that Facebook "mislead [sic] plaintiff in relation to its practices and procedures all the while intentionally and carelessly not providing assistance when needed" and "created an environment that was threatening and harmful by allowing for the ongoingly [sic] development of a cult like page with death threats." Opp. Br. at 36. These allegations are conclusory and do not support a claim for fraud. Plaintiff also claims -5OHS West:260994673.5 FACEBOOK'S REPLY IN SUPPORT OF MOTION TO DISMISS CASE NO.: C 10-03579 JF

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that "Facebook has misrepresented itself to members by posting and advertising content which is inconsistent with practices and concern." Id. However, Plaintiff fails to identify what that content was or why and how it was a misrepresentation. Moreover, Plaintiff fails to identify how or why Facebook intended to induce any reliance on the alleged misrepresentation, any justifiable reliance on the misrepresentation, or the actual damage that was suffered as a result of the misrepresentation. Accordingly, Plaintiff has failed to meet the requisite pleading standard and the fraud claim should be dismissed with prejudice. IV. CONCLUSION For the foregoing reasons, Facebook respectfully requests that Plaintiff's Complaint be dismissed in its entirety.1 Facebook further requests that the Complaint be dismissed with prejudice due to the futility of its claims.2 Dated: October 1, 2010 ORRICK, HERRINGTON & SUTCLIFFE LLP

/s/ Julio C. Avalos JULIO C. AVALOS Attorneys for Plaintiff FACEBOOK, INC.

Plaintiff submitted a proposed order together with her Opposition. The proposed order once again asks the Court to order Facebook to preserve certain categories of evidence. Opp. Br. at 42. The Court has already denied this request and should do so again. Dkt. No. 26. 2 Plaintiff's Opposition contains a section entitled "Additional Criminal Concern" that appears to raise new allegations relating to a previous criminal matter in which Ms. Young was involved. Opp. Br. at 38-39. This matter is not addressed in the Complaint and appears to be wholly irrelevant to the instant action.
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