Dehen v. Doe et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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TIFFANY DEHEN, an individual on
behalf of herself,
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Plaintiff,
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CASE NO. 17cv198-LAB (WCG)
vs.
JOHN DOES 1-100, TWITTER, INC.,
UNIVERSITY OF SAN DIEGO, AND
PERKINS COIE LLP,
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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.
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Plaintiff Tiffany Dehen sued Defendants Twitter, University of San Diego (USD),
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Perkin Coie LLP (Perkins), and Does 1-100 for claims related to a fake Twitter account
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she suspects USD law students created to intimidate her and damage her reputation.
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Twitter, USD, and Perkins now move to dismiss Plaintiff’s claims against them. For the
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reasons below, these motions are GRANTED and Plaintiff’s claims against these
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Defendants are DISMISSED WITH PREJUDICE.
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BACKGROUND
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I.
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Plaintiff Tiffany Dehen is a former USD law student whose Second Amended
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Complaint alleges a wide-ranging conspiracy to impersonate and defame her online.
Factual History
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See, e.g., Dkt. 55 at ¶¶32, 154, 281, 330. The central allegation of her Complaint is that,
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in January 2017, an anonymous user, John Doe, created a Twitter account using her
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name (@tiffanydehen) and likeness to parody her as a fictitious Donald Trump supporter.
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Id. at ¶89-115. The posts, which used Plaintiff’s copyrighted images, were replete with
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swastikas and other content Dehen found offensive. Id. Dehen claims Doe’s fake Twitter
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account has permanently damaged her reputation and has impacted her ability to, among
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other things, sit for the bar exam. Id. at ¶22-26.
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Dehen’s connection to the non-Doe Defendants is more complicated. While she
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was a student at USD, Dehen claims she was subject to “terroristic” behavior by unnamed
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USD students who declared themselves to be engaging in terrorism against the United
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States. Id. at ¶¶27, 48-49. She reported this behavior to the FBI in July 2016, but there
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is no indication that anything came of the investigation. Id. at ¶28. Dehen’s Complaint
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attaches more than 200 pages of text messages, emails, and similar documents in which
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Dehen discusses the erratic behavior of one of these students with her friends and other
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members of the USD community. Id. at Ex. 94-139. Dehen alleges that USD “shut down”
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the law enforcement investigation of these students, but provides no explanation as to
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how it did so. Id. at ¶51. In Dehen’s view, USD’s failure to remedy the situation with her
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“terroristic” classmates directly led to the creation of the fake Twitter account that gives
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rise to the current dispute. Id. at ¶320. As evidence of this link, Dehen notes that “two
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[unknown] individuals from USD Law School viewed [her] LinkedIn profile” in the days
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leading up to the creation of fake Twitter account. Id. at ¶30, Ex. 52. She posits these
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viewers may be the Doe Defendants that created the fake Twitter account and may or
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may not be the same students who engaged in terroristic threats. Thus, according to
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Dehen, one of the “terroristic” students may be John Doe and USD is therefore
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responsible for the fake Twitter account and the various harms that have befallen Dehen
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because USD “shut down” an investigation that might have led to John Doe’s arrest or
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dismissal from the school.
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Defendant Twitter’s involvement in the chain of events began when John Doe
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created the fake Twitter account in January 2017. John Doe styled the account as a
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“Parody account; Fiction and political satire about Republican white women” and used
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Plaintiff’s photograph for the profile. Id. at ¶89. Doe then used the account to post views
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Dehen found offensive and to follow controversial Twitter accounts, including Vladimir
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Putin, the KKK, and Adolf Hitler. Id. at ¶92-115. On January 30, 2017, Dehen became
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aware of the account and reported the impersonation to Twitter using their designated
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form. Id. at ¶118. Following a car wreck that temporarily delayed her efforts, Dehen
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completed the verification process several days later and the account was disabled on
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February 3, 2017. Id. at ¶127. Dehen’s primary dispute with Twitter appears to be over
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its identity verification process, which she claims led to the account remaining active for
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a matter of days.
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As to the final named defendant, law firm Perkins Coie, Dehen alleges that she
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was involved in a separate car wreck on February 20, 2017 in which Perkins was
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somehow involved. Id. at ¶142. Dehen claims the San Diego Police Department refused
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to record an incident report and that she was forced to report the collision to the FBI over
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concerns that the accident was intentional and related to either the terroristic behavior of
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her classmates or her newly filed federal Complaint. Id. at ¶142-43. Dehen asserts that
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Perkins, who represents Twitter in this case, was involved in orchestrating the car wreck
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in order to intimidate her. Id. at ¶330. As relevant to Perkins, Dehen also alleges she
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received unwanted attention from an unnamed elderly woman in June 2017 while she
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was filing documents at the Southern District courthouse. Id. at ¶154. The woman was
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overly interested in Dehen’s case and contacted her multiple times over the following
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days. After blocking her number, Dehen discovered the woman’s daughter works for the
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law firm of Jones Day, and she alleges that this interference was part of a conspiracy by
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Perkins—a different law firm—to intimidate Dehen from pursuing her claims. Id. at ¶154.
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II.
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Dehen filed her first complaint in February 2017. Dkt. 1. Following Motions to
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Dismiss by Twitter and USD, Dehen sought leave to file a First Amended Complaint,
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which the Court permitted. Dkt. 36. Before the Court could rule on the pending Motions
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to Dismiss, Dehen sought leave to file a Second Amended Complaint (SAC). Dkt. 45. At
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that time, the Court noted that Defendants’ motions were well-taken, but permitted Dehen
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to file her SAC under FRCP 15’s liberal amendment standards. Dkt. 54. The Court
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instructed Dehen to review Defendants’ motions and correct any deficiencies they
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identified. Id. Dehen was also specifically cautioned that, among other things, it was not
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sufficient to “reserve the right” to bring claims later. Id. Dehen filed her SAC on April 6,
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2018. Dkt. 55. Shortly thereafter, the three named Defendants submitted the Motions to
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Dismiss addressed here. After the Court took those motions under submission and
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received supplemental briefing from the parties, Dehen sought leave to file her Third
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Amended Complaint. Dkt. 79. The Court suspended briefing on that Motion until it could
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rule on the pending Motions to Dismiss. Dkt. 80.
Procedural History
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DISCUSSION
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I.
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A 12(b)(6) motion to dismiss for failure to state a claim challenges the legal
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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). The Court
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must accept all factual allegations as true and construe them in the light most favorable
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to Plaintiff. Cedars Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972,
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975 (9th Cir. 2007). To defeat Defendants' motion to dismiss, Plaintiff’s factual allegations
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need not be detailed, but they must be sufficient to “raise a right to relief above the
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speculative level . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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II.
Legal Standard
Federal Claims Relevant to All Defendants
a.
RICO Claims
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Plaintiff’s Tenth and Twelfth Causes of Action are for violations of the Racketeer
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Influenced and Corrupt Organizations Act (RICO) against Twitter and USD, respectively.
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RICO claims must meet the heightened standard of FRCP 9(b), so complaints must be
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particularized as to the time, place, and specific content of the alleged violation. Edwards
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v. Marin Park, Inc., 356 F.3d 1058, 1065-66 (9th Cir. 2004).
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Against Twitter, Dehen provides only conclusory allegations that Twitter
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“participated in a pattern of racketeering activity” through “uses of interstate wire
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communications.” Dkt. 55 at ¶286. She proceeds to quote the statutory definition of wire
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fraud as an allegation of predicate acts.
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conclusory, threadbare recitals of the elements of an offense, insufficient to meet even
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the Iqbal and Twombly standard, much less the heightened standard of Rule 9(b). Her
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allegations don’t particularize as to time, place, or specific content with regards to any
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wire fraud or other predicate acts.
Id. at ¶289.
These are classic cases of
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The same analysis is true of Dehen’s RICO claims against USD, with identical
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conclusory allegations of a pattern of racketeering activity, (id. at ¶303), and wire fraud.
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Id. at ¶306.
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Because Dehen’s RICO claims fail to meet even the basic pleading standards of
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Iqbal and Twombly, much less the heightened standard of Rule 9(b), her RICO claims
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must be dismissed.
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b.
Extortion and Hobbs Act Claims
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Dehen’s Fifteenth, Sixteenth, and Seventeenth Causes of Action are for violations
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of various federal criminal laws, including extortion, against each of the named
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Defendants. There is no private right of action for violations of criminal statutes and so
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claims brought under them must be dismissed. Allen v. Gold Count Casino, 464 F.3d
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1044, 1048 (9th Cir. 2006).
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III.
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Having dismissed Plaintiff’s federal claims against all named Defendants, the
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Court turns to the Plaintiff’s remaining state law claims. A federal court has discretion to
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retain jurisdiction over pendent state claims “even if the federal claims . . . are dismissed.”
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Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995). In making this decision, the court
Remaining State Law Claims
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weighs factors such as “economy, convenience, fairness, and comity.” Id. Weighing
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these factors, the Court finds the state and federal claims are premised on the same
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allegations and that judicial efficiency is served by this Court retaining (and ruling on)
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these causes of action now.
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a.
Twitter, Inc.
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Twitter argues that Section 230(c)(1) of the Communications Decency Act bars all
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claims Plaintiff has brought against it, each of which is based on Twitter’s alleged delay
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in taking down the offending content once notified. The Court agrees. Section 230(c)(1)
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of the CDA provides that “[n]o provider or user of an interactive computer service shall be
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treated as the publisher or speaker of any information provided by another information
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content provider.” 47 U.S.C.§ 230(c)(1). This provision immunizes providers “against
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liability arising from content created by third parties.” Fair Hous. Council of San Fernando
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Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). Courts apply
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Section 230 immunity broadly “to protect websites not merely from ultimate liability, but
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from having to fight costly and protracted legal battles.” Id. at 1175.
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A defendant is entitled to protection under the CDA if (1) it provides an “interactive
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computer service,” (2) plaintiff’s claim treats the defendant as the “publisher” or “speaker”
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of the offending content, and (3) the content was “provided by another information content
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provider.” Barnes v. Yahoo!, Inc., 570F.3d 1096, 1100-01 (9th Cir. 2009), as amended
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(Sept. 28, 2009).
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requirements are plainly met: Twitter is an interactive computer service, see Fields v.
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Twitter, Inc., 217 F. Supp. 3d 1116, 1121 (N.D. Cal. 2016), and the offending content—
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the tweets—was posted by another information content provider, John Doe. Nemet
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Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009)
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(“[P]laintiffs may hold liable the person who creates or develops unlawful content, but not
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the interactive computer service provider who merely enables that content to be posted
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online.”).
Twitter meets each of these requirements.
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The first and third
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Only the second requirement of the CDA, which requires that the claims at issue
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treat the defendant as the “publisher” or “speaker” of the offending content, is arguably at
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play here. Dehen argues that her claims do not involve Twitter’s “publishing” of the
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tweets, but rather Twitter’s delay in taking down the offending tweets after Dehen notified
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Twitter of the impersonation. See, e.g., id. at ¶178. She also argues that Twitter violated
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its terms of service and thereby breached a contract with her, rendering the claims not
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subject to the CDA. However, the case Dehen relies on, Barnes v. Yahoo!, Inc., 570 F.3d
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1096 (9th Cir. 2009), is inapposite. In that case, Yahoo’s Director of Communications
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personally promised the plaintiff he would remove the offending content, but failed to do
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so for two months. The court there found the CDA did not bar plaintiff’s promissory
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estoppel claim because Yahoo took on a legal obligation as a counterparty, not a
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publisher. Id. at 1107. The court acknowledged that this was a limited exception and that
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“a general monitoring policy, or even an attempt to help a particular person … does not
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suffice for contract liability.” Id. at 1108.
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Dehen’s interactions with Twitter do not meet this limited exception. Twitter’s
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terms of service disclaim any specific obligation to remove content and Dehen makes no
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allegation that Twitter promised to remove the content. See Barnes, 570 F.3d at 1108
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(An interactive computer service “need only disclaim any intention to be bound” in order
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“to avoid liability.”). In short, even accepting Dehen’s allegations as true, it appears
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Twitter complied with its own monitoring policies and removed the offending account in a
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matter of days. Without a breach of contract, Twitter’s decision to remove the content,
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and the speed at which it did so, is publisher conduct that satisfies the second prong of
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the CDA.
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The Court finds that Plaintiff’s claims against Twitter—each of which is “derive[d]
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from the [Twitter’s] status or conduct as a publisher or speaker”—are barred by § 230 of
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the CDA and should be dismissed.1 Barnes, 570 F.3d at 1102. The Court also declines
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to find § 230 unconstitutional, as Dehen argues.
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b.
USD and Perkins
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Twitter is shielded by the CDA, but Defendants USD and Perkins are not. The
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Court must therefore assess the validity of each of Plaintiff’s claims against these
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Defendants.
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i.
Negligent and Intentional Infliction of Emotional Distress
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Dehen brings a claim against USD for negligent and intentional infliction of
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emotional distress. She states that “USD owed a duty of care to prevent plaintiff from
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being injured as a result of Doe’s conduct.” Dkt. 55 at ¶ 319. This breach of duty caused
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her to “suffer extreme mental and emotional distress.” Id. at ¶339 (on page 64, as it
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appears out of order).
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“In California, there is no independent tort of negligent infliction of emotional
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distress.” Eastman v. Allstate Ins. Co., 2014 WL 5355036 at *8 (S.D. Cal. 2014) (quoting
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Potter v. Firestone Tire & Rubber Co., 6 Cal.4th 965 (1993)). The applicable cause of
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action is general negligence, and “[u]nless the defendant has assumed a duty to plaintiff
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in which the emotional condition of the plaintiff is an object, recovery is available only if
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the emotional distress arises out of the defendant's breach of some other legal duty and
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the emotional distress is proximately caused by the breach of duty.”
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quotations omitted).
Id. (internal
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Dehen simply makes conclusory allegations about the duties owed by USD. She
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claims that the contracts between her and USD created a duty of care that it breached by
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not preventing John Doe’s harmful conduct. Although a valid contract may or may not
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have existed between Dehen and USD, as discussed below, she hasn’t sufficiently
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alleged that these contracts placed a duty on USD to prevent John Doe’s conduct. Nor
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This includes Plaintiff’s Declaratory Relief claim, which depends on the survival of
Plaintiff’s other claims.
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has she sufficiently pled facts of how USD breached its alleged contractual duties.
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Because she has not sufficiently pled negligence against USD, her claim is dismissed.
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Having failed to state a claim even for negligent infliction of emotional distress, Dehen’s
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claim for intentional infliction of emotional distress, which must meet a higher bar, is also
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dismissed.
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ii.
Breach of Contract
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Dehen alleges Breach of Contract against USD. To recover under a breach of
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contract claim under California law, Dehen must show “(1) existence of the contract, (2)
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performance by the plaintiff or excuse for nonperformance, (3) breach by the defendant,
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and (4) damages.” Tom Trading, Inc. v. Better Blue, Inc., 26 Fed. Appx. 733, 735 (9th Cir.
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2002).
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Although it is unclear from her pleading which specific document constitutes the
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breached contract, Dehen’s Complaint refers to snippets from USD’s website regarding
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the various safety policies on campus (Dkt. 55 at ¶¶35-42) as well as USD’s Rules of
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Conduct, which she alleges (but does not demonstrate) that she signed when she entered
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school. Id. at ¶¶43-47. Courts within the Ninth Circuit have held that whether or not
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school guidelines, such as a code of conduct or student handbook, constitute a contract
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depends on its specific language. Compare Banga v. Kanios, 2016 WL 7230870 (N.D.
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Cal. 2016) (dismissing breach of contract claim because plaintiff failed to produce any
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language suggesting that handbook was binding) with Dauven v. George Fox University,
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2010 WL 6089077 (D. Or. 2010) (allowing breach of contract claim because student
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handbook included express signature requirement for each student). But the Court need
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not reach that question today, because even assuming it was a contract, Dehen has not
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alleged any plausible breach by USD. None of the policies Dehen alleges USD breached
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required USD to take any affirmative action with respect to a given student or situation,
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such as the “terroristic” students she claims USD failed to have removed from campus.
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Instead, the terms provide that USD “may” take action if a student violates the guidelines.
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See, e.g., Dkt. 55 at ¶45 (“Violations … may subject an individual or group to disciplinary
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action.”) (emphasis added). More importantly, all of Dehen’s allegations of breach are
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conclusory statements, not factual allegations that would permit an inference of
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misconduct. See Dkt. 55 at ¶51 (alleging, without any supporting facts, that USD broke
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federal law and “shut down” a federal investigation); Id. at ¶¶52-53 (stating that USD failed
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to address “serious situations”); Id. at ¶55 (stating that USD failed to uphold federal law,
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but failing to allege what federal laws USD allegedly breached or in what way).
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Because Dehen fails to allege breaching activity in a way that meets the
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requirements of Twombly and Iqbal, her breach of contract claim against USD is
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dismissed.
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iii.
“Reserved” Claims
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Under her Ninth Cause of Action, Dehen does not allege any actual claim, but
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instead “reserves the right” to bring civil conspiracy claims. Dkt. 55 at ¶277. Under her
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Eleventh Cause of Action, Dehen likewise “reserves the right” to bring libel claims. Id. at
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¶298. The Court has already ordered that Dehen include facts that show she can
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plausibly allege the elements for each cause of action, and stated that merely “reserv[ing]
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the right” to make other claims will not be good enough. Dkt. 54. As such, Dehen’s claims
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of civil conspiracy and libel are dismissed.
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CONCLUSION
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The Court has already given Dehen two opportunities to amend her complaint,
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along with specific instructions as to what deficiencies she needed to cure. Dehen has
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failed to cure these deficiencies, and her Third Amended Complaint, which she has now
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sought leave to file, fares no better. Dkts. 77, 79, 82. As such, the following causes of
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action in Dehen’s SAC are DISMISSED WITH PREJUDICE:
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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;
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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.
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The claims are dismissed under FRCP 12(b)(6) because Dehen cannot state a
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plausible claim against any of the named Defendants that meets the required pleading
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standards. In the alternative, however, the claims are dismissed under Rule 41, because
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Plaintiff, despite having ample chance to amend and receiving direct instructions from the
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Court on how to go about amending, still has not put forth a pleading that meets the
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requirements of FRCP 8. The claims are therefore subject to dismissal under FRCP
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41(b). Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 673 (9th Cir. 1981) (“A complaint
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which fails to comply with [R]ules 8(a) and 8(e) may be dismissed with prejudice pursuant
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to [R]ule 41(b).”)
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This leaves only Dehen’s claims against John Doe(s) for copyright infringement,
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defamation, interference with economic advantage, intentional infliction of emotional
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distress, and violation of California’s online impersonation statute (Cal. Penal Code
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§ 528.5). The Court is not in a position to rule on these claims at this point. But this
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action has been pending for more than 18 months and Dehen has yet to identify Doe(s).
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Dehen shall have until November 16, 2018 to determine the identity of Doe(s) and to
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substitute those parties in. If she meets that deadline, she shall have until December 17,
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2018 to properly serve them. Given the amount of time Plaintiff has had to identify and
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serve Doe since initiating this case, if she fails to meet these deadlines, her remaining
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claims will be dismissed with prejudice under FRCP 41(b). Plaintiff should not name
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another defendant unless she can demonstrate to the Court that the named defendant is,
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in fact, John Doe. Naming a defendant without an adequate basis for doing so is grounds
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for sanctions under FRCP 11.
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Because Plaintiff cannot correct the deficiencies identified, Plaintiff’s Motion for
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Leave to File a Third Amended Complaint [Dkt. 79] and Motion to Consider New
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Additional Evidence in Support of Plaintiff’s Motion for Leave to File a Third Amended
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Complaint [Dkt. 82] are DENIED.
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USD argues it is entitled to costs under FRCP 54(d)(1) as the prevailing party. Dkt.
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57 at 20. Dehen is ORDERED TO SHOW CAUSE by October 19, 2018 why each of the
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Defendants’ costs should not be taxed against her. She may submit a memorandum no
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longer than three pages. If she fails to show cause, Defendants are each entitled to
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submit a bill of costs.
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This Order resolves Dkts. 57, 58, 63, 67, 79, and 82.
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IT IS SO ORDERED.
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Dated: September 18, 2018
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HONORABLE LARRY ALAN BURNS
United States District Judge
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