Dehen v. Doe et al

Filing 83

ORDER Granting Defendants' Motions to Dismiss With Prejudice (Dkt. 57 , 58 , 63 ); Denying Plaintiff's Motion for Leave to File Third Amended Complaint (Dkt. 67 , 79 , 82 ). Dehen shall have until 11/16/2018 to determine the identity of Doe(s) and to substitute those parties in. If she meets that deadline, she shall have until 12/17/2018 to properly serve them. Dehen is ordered to show cause by 10/19/2018 why each of the Defendants' costs should not be taxed against her. Signed by Judge Larry Alan Burns on 9/18/2018. (All non-registered users served via U.S. Mail Service)(jdt)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

TIFFANY DEHEN, an individual on
behalf of herself,

12

Plaintiff,

13
14
15

CASE NO. 17cv198-LAB (WCG)

vs.
JOHN DOES 1-100, TWITTER, INC.,
UNIVERSITY OF SAN DIEGO, AND
PERKINS COIE LLP,

16

ORDER GRANTING DEFENDANTS’
MOTIONS TO DISMISS WITH
PREJUDICE [DKT. 57, 58, 63];
ORDER DENYING PLAINTIFF’S MOTION
FOR LEAVE TO FILE THIRD AMENDED
COMPLAINT [DKT. 67, 79, 82]

Defendants.

17
18
19

Plaintiff Tiffany Dehen sued Defendants Twitter, University of San Diego (USD),

20

Perkin Coie LLP (Perkins), and Does 1-100 for claims related to a fake Twitter account

21

she suspects USD law students created to intimidate her and damage her reputation.

22

Twitter, USD, and Perkins now move to dismiss Plaintiff’s claims against them. For the

23

reasons below, these motions are GRANTED and Plaintiff’s claims against these

24

Defendants are DISMISSED WITH PREJUDICE.

25

BACKGROUND

26

I.

27

Plaintiff Tiffany Dehen is a former USD law student whose Second Amended

28

Complaint alleges a wide-ranging conspiracy to impersonate and defame her online.

Factual History

-1-

1

See, e.g., Dkt. 55 at ¶¶32, 154, 281, 330. The central allegation of her Complaint is that,

2

in January 2017, an anonymous user, John Doe, created a Twitter account using her

3

name (@tiffanydehen) and likeness to parody her as a fictitious Donald Trump supporter.

4

Id. at ¶89-115. The posts, which used Plaintiff’s copyrighted images, were replete with

5

swastikas and other content Dehen found offensive. Id. Dehen claims Doe’s fake Twitter

6

account has permanently damaged her reputation and has impacted her ability to, among

7

other things, sit for the bar exam. Id. at ¶22-26.

8

Dehen’s connection to the non-Doe Defendants is more complicated. While she

9

was a student at USD, Dehen claims she was subject to “terroristic” behavior by unnamed

10

USD students who declared themselves to be engaging in terrorism against the United

11

States. Id. at ¶¶27, 48-49. She reported this behavior to the FBI in July 2016, but there

12

is no indication that anything came of the investigation. Id. at ¶28. Dehen’s Complaint

13

attaches more than 200 pages of text messages, emails, and similar documents in which

14

Dehen discusses the erratic behavior of one of these students with her friends and other

15

members of the USD community. Id. at Ex. 94-139. Dehen alleges that USD “shut down”

16

the law enforcement investigation of these students, but provides no explanation as to

17

how it did so. Id. at ¶51. In Dehen’s view, USD’s failure to remedy the situation with her

18

“terroristic” classmates directly led to the creation of the fake Twitter account that gives

19

rise to the current dispute. Id. at ¶320. As evidence of this link, Dehen notes that “two

20

[unknown] individuals from USD Law School viewed [her] LinkedIn profile” in the days

21

leading up to the creation of fake Twitter account. Id. at ¶30, Ex. 52. She posits these

22

viewers may be the Doe Defendants that created the fake Twitter account and may or

23

may not be the same students who engaged in terroristic threats. Thus, according to

24

Dehen, one of the “terroristic” students may be John Doe and USD is therefore

25

responsible for the fake Twitter account and the various harms that have befallen Dehen

26

because USD “shut down” an investigation that might have led to John Doe’s arrest or

27

dismissal from the school.

28

-2-

1

Defendant Twitter’s involvement in the chain of events began when John Doe

2

created the fake Twitter account in January 2017. John Doe styled the account as a

3

“Parody account; Fiction and political satire about Republican white women” and used

4

Plaintiff’s photograph for the profile. Id. at ¶89. Doe then used the account to post views

5

Dehen found offensive and to follow controversial Twitter accounts, including Vladimir

6

Putin, the KKK, and Adolf Hitler. Id. at ¶92-115. On January 30, 2017, Dehen became

7

aware of the account and reported the impersonation to Twitter using their designated

8

form. Id. at ¶118. Following a car wreck that temporarily delayed her efforts, Dehen

9

completed the verification process several days later and the account was disabled on

10

February 3, 2017. Id. at ¶127. Dehen’s primary dispute with Twitter appears to be over

11

its identity verification process, which she claims led to the account remaining active for

12

a matter of days.

13

As to the final named defendant, law firm Perkins Coie, Dehen alleges that she

14

was involved in a separate car wreck on February 20, 2017 in which Perkins was

15

somehow involved. Id. at ¶142. Dehen claims the San Diego Police Department refused

16

to record an incident report and that she was forced to report the collision to the FBI over

17

concerns that the accident was intentional and related to either the terroristic behavior of

18

her classmates or her newly filed federal Complaint. Id. at ¶142-43. Dehen asserts that

19

Perkins, who represents Twitter in this case, was involved in orchestrating the car wreck

20

in order to intimidate her. Id. at ¶330. As relevant to Perkins, Dehen also alleges she

21

received unwanted attention from an unnamed elderly woman in June 2017 while she

22

was filing documents at the Southern District courthouse. Id. at ¶154. The woman was

23

overly interested in Dehen’s case and contacted her multiple times over the following

24

days. After blocking her number, Dehen discovered the woman’s daughter works for the

25

law firm of Jones Day, and she alleges that this interference was part of a conspiracy by

26

Perkins—a different law firm—to intimidate Dehen from pursuing her claims. Id. at ¶154.

27

///

28

///

-3-

1

II.

2

Dehen filed her first complaint in February 2017. Dkt. 1. Following Motions to

3

Dismiss by Twitter and USD, Dehen sought leave to file a First Amended Complaint,

4

which the Court permitted. Dkt. 36. Before the Court could rule on the pending Motions

5

to Dismiss, Dehen sought leave to file a Second Amended Complaint (SAC). Dkt. 45. At

6

that time, the Court noted that Defendants’ motions were well-taken, but permitted Dehen

7

to file her SAC under FRCP 15’s liberal amendment standards. Dkt. 54. The Court

8

instructed Dehen to review Defendants’ motions and correct any deficiencies they

9

identified. Id. Dehen was also specifically cautioned that, among other things, it was not

10

sufficient to “reserve the right” to bring claims later. Id. Dehen filed her SAC on April 6,

11

2018. Dkt. 55. Shortly thereafter, the three named Defendants submitted the Motions to

12

Dismiss addressed here. After the Court took those motions under submission and

13

received supplemental briefing from the parties, Dehen sought leave to file her Third

14

Amended Complaint. Dkt. 79. The Court suspended briefing on that Motion until it could

15

rule on the pending Motions to Dismiss. Dkt. 80.

Procedural History

16

DISCUSSION

17

I.

18

A 12(b)(6) motion to dismiss for failure to state a claim challenges the legal

19

sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). The Court

20

must accept all factual allegations as true and construe them in the light most favorable

21

to Plaintiff. Cedars Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972,

22

975 (9th Cir. 2007). To defeat Defendants' motion to dismiss, Plaintiff’s factual allegations

23

need not be detailed, but they must be sufficient to “raise a right to relief above the

24

speculative level . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

25
26

II.

Legal Standard

Federal Claims Relevant to All Defendants
a.

RICO Claims

27

Plaintiff’s Tenth and Twelfth Causes of Action are for violations of the Racketeer

28

Influenced and Corrupt Organizations Act (RICO) against Twitter and USD, respectively.

-4-

1

RICO claims must meet the heightened standard of FRCP 9(b), so complaints must be

2

particularized as to the time, place, and specific content of the alleged violation. Edwards

3

v. Marin Park, Inc., 356 F.3d 1058, 1065-66 (9th Cir. 2004).

4

Against Twitter, Dehen provides only conclusory allegations that Twitter

5

“participated in a pattern of racketeering activity” through “uses of interstate wire

6

communications.” Dkt. 55 at ¶286. She proceeds to quote the statutory definition of wire

7

fraud as an allegation of predicate acts.

8

conclusory, threadbare recitals of the elements of an offense, insufficient to meet even

9

the Iqbal and Twombly standard, much less the heightened standard of Rule 9(b). Her

10

allegations don’t particularize as to time, place, or specific content with regards to any

11

wire fraud or other predicate acts.

Id. at ¶289.

These are classic cases of

12

The same analysis is true of Dehen’s RICO claims against USD, with identical

13

conclusory allegations of a pattern of racketeering activity, (id. at ¶303), and wire fraud.

14

Id. at ¶306.

15

Because Dehen’s RICO claims fail to meet even the basic pleading standards of

16

Iqbal and Twombly, much less the heightened standard of Rule 9(b), her RICO claims

17

must be dismissed.

18

b.

Extortion and Hobbs Act Claims

19

Dehen’s Fifteenth, Sixteenth, and Seventeenth Causes of Action are for violations

20

of various federal criminal laws, including extortion, against each of the named

21

Defendants. There is no private right of action for violations of criminal statutes and so

22

claims brought under them must be dismissed. Allen v. Gold Count Casino, 464 F.3d

23

1044, 1048 (9th Cir. 2006).

24

III.

25

Having dismissed Plaintiff’s federal claims against all named Defendants, the

26

Court turns to the Plaintiff’s remaining state law claims. A federal court has discretion to

27

retain jurisdiction over pendent state claims “even if the federal claims . . . are dismissed.”

28

Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995). In making this decision, the court

Remaining State Law Claims

-5-

1

weighs factors such as “economy, convenience, fairness, and comity.” Id. Weighing

2

these factors, the Court finds the state and federal claims are premised on the same

3

allegations and that judicial efficiency is served by this Court retaining (and ruling on)

4

these causes of action now.

5

a.

Twitter, Inc.

6

Twitter argues that Section 230(c)(1) of the Communications Decency Act bars all

7

claims Plaintiff has brought against it, each of which is based on Twitter’s alleged delay

8

in taking down the offending content once notified. The Court agrees. Section 230(c)(1)

9

of the CDA provides that “[n]o provider or user of an interactive computer service shall be

10

treated as the publisher or speaker of any information provided by another information

11

content provider.” 47 U.S.C.§ 230(c)(1). This provision immunizes providers “against

12

liability arising from content created by third parties.” Fair Hous. Council of San Fernando

13

Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). Courts apply

14

Section 230 immunity broadly “to protect websites not merely from ultimate liability, but

15

from having to fight costly and protracted legal battles.” Id. at 1175.

16

A defendant is entitled to protection under the CDA if (1) it provides an “interactive

17

computer service,” (2) plaintiff’s claim treats the defendant as the “publisher” or “speaker”

18

of the offending content, and (3) the content was “provided by another information content

19

provider.” Barnes v. Yahoo!, Inc., 570F.3d 1096, 1100-01 (9th Cir. 2009), as amended

20

(Sept. 28, 2009).

21

requirements are plainly met: Twitter is an interactive computer service, see Fields v.

22

Twitter, Inc., 217 F. Supp. 3d 1116, 1121 (N.D. Cal. 2016), and the offending content—

23

the tweets—was posted by another information content provider, John Doe. Nemet

24

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009)

25

(“[P]laintiffs may hold liable the person who creates or develops unlawful content, but not

26

the interactive computer service provider who merely enables that content to be posted

27

online.”).

Twitter meets each of these requirements.

28

-6-

The first and third

1

Only the second requirement of the CDA, which requires that the claims at issue

2

treat the defendant as the “publisher” or “speaker” of the offending content, is arguably at

3

play here. Dehen argues that her claims do not involve Twitter’s “publishing” of the

4

tweets, but rather Twitter’s delay in taking down the offending tweets after Dehen notified

5

Twitter of the impersonation. See, e.g., id. at ¶178. She also argues that Twitter violated

6

its terms of service and thereby breached a contract with her, rendering the claims not

7

subject to the CDA. However, the case Dehen relies on, Barnes v. Yahoo!, Inc., 570 F.3d

8

1096 (9th Cir. 2009), is inapposite. In that case, Yahoo’s Director of Communications

9

personally promised the plaintiff he would remove the offending content, but failed to do

10

so for two months. The court there found the CDA did not bar plaintiff’s promissory

11

estoppel claim because Yahoo took on a legal obligation as a counterparty, not a

12

publisher. Id. at 1107. The court acknowledged that this was a limited exception and that

13

“a general monitoring policy, or even an attempt to help a particular person … does not

14

suffice for contract liability.” Id. at 1108.

15

Dehen’s interactions with Twitter do not meet this limited exception. Twitter’s

16

terms of service disclaim any specific obligation to remove content and Dehen makes no

17

allegation that Twitter promised to remove the content. See Barnes, 570 F.3d at 1108

18

(An interactive computer service “need only disclaim any intention to be bound” in order

19

“to avoid liability.”). In short, even accepting Dehen’s allegations as true, it appears

20

Twitter complied with its own monitoring policies and removed the offending account in a

21

matter of days. Without a breach of contract, Twitter’s decision to remove the content,

22

and the speed at which it did so, is publisher conduct that satisfies the second prong of

23

the CDA.

24

The Court finds that Plaintiff’s claims against Twitter—each of which is “derive[d]

25

from the [Twitter’s] status or conduct as a publisher or speaker”—are barred by § 230 of

26

///

27

///

28

///

-7-

1

the CDA and should be dismissed.1 Barnes, 570 F.3d at 1102. The Court also declines

2

to find § 230 unconstitutional, as Dehen argues.

3

b.

USD and Perkins

4

Twitter is shielded by the CDA, but Defendants USD and Perkins are not. The

5

Court must therefore assess the validity of each of Plaintiff’s claims against these

6

Defendants.

7

i.

Negligent and Intentional Infliction of Emotional Distress

8

Dehen brings a claim against USD for negligent and intentional infliction of

9

emotional distress. She states that “USD owed a duty of care to prevent plaintiff from

10

being injured as a result of Doe’s conduct.” Dkt. 55 at ¶ 319. This breach of duty caused

11

her to “suffer extreme mental and emotional distress.” Id. at ¶339 (on page 64, as it

12

appears out of order).

13

“In California, there is no independent tort of negligent infliction of emotional

14

distress.” Eastman v. Allstate Ins. Co., 2014 WL 5355036 at *8 (S.D. Cal. 2014) (quoting

15

Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (1993)). The applicable cause of

16

action is general negligence, and “[u]nless the defendant has assumed a duty to plaintiff

17

in which the emotional condition of the plaintiff is an object, recovery is available only if

18

the emotional distress arises out of the defendant's breach of some other legal duty and

19

the emotional distress is proximately caused by the breach of duty.”

20

quotations omitted).

Id. (internal

21

Dehen simply makes conclusory allegations about the duties owed by USD. She

22

claims that the contracts between her and USD created a duty of care that it breached by

23

not preventing John Doe’s harmful conduct. Although a valid contract may or may not

24

have existed between Dehen and USD, as discussed below, she hasn’t sufficiently

25

alleged that these contracts placed a duty on USD to prevent John Doe’s conduct. Nor

26
27
28

This includes Plaintiff’s Declaratory Relief claim, which depends on the survival of
Plaintiff’s other claims.
1

-8-

1

has she sufficiently pled facts of how USD breached its alleged contractual duties.

2

Because she has not sufficiently pled negligence against USD, her claim is dismissed.

3

Having failed to state a claim even for negligent infliction of emotional distress, Dehen’s

4

claim for intentional infliction of emotional distress, which must meet a higher bar, is also

5

dismissed.

6

ii.

Breach of Contract

7

Dehen alleges Breach of Contract against USD. To recover under a breach of

8

contract claim under California law, Dehen must show “(1) existence of the contract, (2)

9

performance by the plaintiff or excuse for nonperformance, (3) breach by the defendant,

10

and (4) damages.” Tom Trading, Inc. v. Better Blue, Inc., 26 Fed. Appx. 733, 735 (9th Cir.

11

2002).

12

Although it is unclear from her pleading which specific document constitutes the

13

breached contract, Dehen’s Complaint refers to snippets from USD’s website regarding

14

the various safety policies on campus (Dkt. 55 at ¶¶35-42) as well as USD’s Rules of

15

Conduct, which she alleges (but does not demonstrate) that she signed when she entered

16

school. Id. at ¶¶43-47. Courts within the Ninth Circuit have held that whether or not

17

school guidelines, such as a code of conduct or student handbook, constitute a contract

18

depends on its specific language. Compare Banga v. Kanios, 2016 WL 7230870 (N.D.

19

Cal. 2016) (dismissing breach of contract claim because plaintiff failed to produce any

20

language suggesting that handbook was binding) with Dauven v. George Fox University,

21

2010 WL 6089077 (D. Or. 2010) (allowing breach of contract claim because student

22

handbook included express signature requirement for each student). But the Court need

23

not reach that question today, because even assuming it was a contract, Dehen has not

24

alleged any plausible breach by USD. None of the policies Dehen alleges USD breached

25

required USD to take any affirmative action with respect to a given student or situation,

26

such as the “terroristic” students she claims USD failed to have removed from campus.

27

Instead, the terms provide that USD “may” take action if a student violates the guidelines.

28

See, e.g., Dkt. 55 at ¶45 (“Violations … may subject an individual or group to disciplinary

-9-

1

action.”) (emphasis added). More importantly, all of Dehen’s allegations of breach are

2

conclusory statements, not factual allegations that would permit an inference of

3

misconduct. See Dkt. 55 at ¶51 (alleging, without any supporting facts, that USD broke

4

federal law and “shut down” a federal investigation); Id. at ¶¶52-53 (stating that USD failed

5

to address “serious situations”); Id. at ¶55 (stating that USD failed to uphold federal law,

6

but failing to allege what federal laws USD allegedly breached or in what way).

7

Because Dehen fails to allege breaching activity in a way that meets the

8

requirements of Twombly and Iqbal, her breach of contract claim against USD is

9

dismissed.

10

iii.

“Reserved” Claims

11

Under her Ninth Cause of Action, Dehen does not allege any actual claim, but

12

instead “reserves the right” to bring civil conspiracy claims. Dkt. 55 at ¶277. Under her

13

Eleventh Cause of Action, Dehen likewise “reserves the right” to bring libel claims. Id. at

14

¶298. The Court has already ordered that Dehen include facts that show she can

15

plausibly allege the elements for each cause of action, and stated that merely “reserv[ing]

16

the right” to make other claims will not be good enough. Dkt. 54. As such, Dehen’s claims

17

of civil conspiracy and libel are dismissed.

18

CONCLUSION

19

The Court has already given Dehen two opportunities to amend her complaint,

20

along with specific instructions as to what deficiencies she needed to cure. Dehen has

21

failed to cure these deficiencies, and her Third Amended Complaint, which she has now

22

sought leave to file, fares no better. Dkts. 77, 79, 82. As such, the following causes of

23

action in Dehen’s SAC are DISMISSED WITH PREJUDICE:

24
25
26
27
28








Fourth Cause of Action for Rescission for Fraud against Twitter;
Fifth Cause of Action for Declaratory Relief against Twitter;
Eighth Cause of Action for Negligent Infliction of Emotional Distress against
Twitter;
Ninth Cause of Action for Conspiracy against All Defendants;
Tenth Cause of Action for Violation of 18 U.S.C. § 1962 against Twitter;
Eleventh Cause of Action for Libel against Twitter;

- 10 -

1
2
3






4
5
6




Twelfth Cause of Action for Violation of 18 U.S.C. § 1962 against USD;
Thirteenth Cause of Action for Breach of Contract against USD;
Fourteenth Cause of Action for Intentional and/or Negligent Infliction of
Emotional Distress against USD;
Fifteenth Cause of Action for Extortion and Conspiracy to Commit Extortion
against Twitter;
Sixteenth Cause of Action for Extortion and Conspiracy to Commit Extortion
against Perkins; and
Seventeenth Cause of Action for Extortion and Conspiracy to Commit
Extortion against USD.

7
8

The claims are dismissed under FRCP 12(b)(6) because Dehen cannot state a

9

plausible claim against any of the named Defendants that meets the required pleading

10

standards. In the alternative, however, the claims are dismissed under Rule 41, because

11

Plaintiff, despite having ample chance to amend and receiving direct instructions from the

12

Court on how to go about amending, still has not put forth a pleading that meets the

13

requirements of FRCP 8. The claims are therefore subject to dismissal under FRCP

14

41(b). Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) (“A complaint

15

which fails to comply with [R]ules 8(a) and 8(e) may be dismissed with prejudice pursuant

16

to [R]ule 41(b).”)

17

This leaves only Dehen’s claims against John Doe(s) for copyright infringement,

18

defamation, interference with economic advantage, intentional infliction of emotional

19

distress, and violation of California’s online impersonation statute (Cal. Penal Code

20

§ 528.5). The Court is not in a position to rule on these claims at this point. But this

21

action has been pending for more than 18 months and Dehen has yet to identify Doe(s).

22

Dehen shall have until November 16, 2018 to determine the identity of Doe(s) and to

23

substitute those parties in. If she meets that deadline, she shall have until December 17,

24

2018 to properly serve them. Given the amount of time Plaintiff has had to identify and

25

serve Doe since initiating this case, if she fails to meet these deadlines, her remaining

26

claims will be dismissed with prejudice under FRCP 41(b). Plaintiff should not name

27

another defendant unless she can demonstrate to the Court that the named defendant is,

28

- 11 -

1

in fact, John Doe. Naming a defendant without an adequate basis for doing so is grounds

2

for sanctions under FRCP 11.

3

Because Plaintiff cannot correct the deficiencies identified, Plaintiff’s Motion for

4

Leave to File a Third Amended Complaint [Dkt. 79] and Motion to Consider New

5

Additional Evidence in Support of Plaintiff’s Motion for Leave to File a Third Amended

6

Complaint [Dkt. 82] are DENIED.

7

USD argues it is entitled to costs under FRCP 54(d)(1) as the prevailing party. Dkt.

8

57 at 20. Dehen is ORDERED TO SHOW CAUSE by October 19, 2018 why each of the

9

Defendants’ costs should not be taxed against her. She may submit a memorandum no

10

longer than three pages. If she fails to show cause, Defendants are each entitled to

11

submit a bill of costs.

12

This Order resolves Dkts. 57, 58, 63, 67, 79, and 82.

13
14

IT IS SO ORDERED.

15

Dated: September 18, 2018

16
17

HONORABLE LARRY ALAN BURNS
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

- 12 -