KLAYMAN v. ZUCKERBERG et al

Filing 42

MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on 12/28/2012. (lcrbw2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
LARRY KLAYMAN,
)
)
Plaintiff,
)
)
v.
)
Civil Action No. 11-874 (RBW)
)
MARK ZUCKERBERG, and
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FACEBOOK, INC.,
)
)
Defendants.
)
____________________________________)
MEMORANDUM OPINION
The pro se plaintiff, Larry Klayman, brings this action against the defendants, Facebook,
Inc. and its founder and CEO, Mark Zuckerberg, asserting claims of assault and negligence. See
Complaint (“Compl.”) ¶¶ 14-20. Currently before the Court are the Defendants’ Motion to
Dismiss (“Defs.’ Mot.”) and the Defendants’ Motion to Transfer. Upon consideration of the
parties’ submissions,1 the Court concludes, for the reasons stated below, that the defendants’
motion to dismiss must be granted. Moreover, because the defendants sought transfer of this
action “as alternative relief” to dismissal, Defs.’ Transfer Mem. at 1, the Court denies as moot
the defendants’ motion to transfer without reaching the merits of that motion.

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In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Defendants’ Memorandum of Points and Authorities in Support of Motion to Dismiss (“Defs.’
Mem.”); (2) the Plaintiff’s Opposition to Defendants’ Motion to Dismiss (“Pl.’s Opp’n”); (3) the Defendants’ Reply
Brief in Support of Motion to Dismiss (“Defs.’ Reply”); (4) the Defendants’ Memorandum of Points and Authorities
in Support of Motion to Transfer (“Defs.’ Transfer Mem.”); (5) the plaintiff’s Praecipe, attaching the Plaintiff’s
Opposition to Defendants’ Motion to Transfer; and (6) the Defendants’ Reply Brief in Support of Motion to
Transfer.

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I. BACKGROUND
The defendants operate www.facebook.com (“Facebook”), which is a “social
networking” website. Compl. ¶¶ 4, 7; Defs.’ Mem. at 2. As explained by the defendants,
“Facebook allows users to share content with others, including articles, photographs, news about
family members and friends, and opinions about world events. Users can also view content
shared by other Facebook users on one or more of the hundreds of millions of Facebook Pages.”
Defs.’ Mem. at 2 (citing Compl. ¶ 4). “Viewership [of the website] is growing fast and
exponentially” in many parts of the world, including the Middle East and the District of
Columbia. Compl. ¶¶ 4-5. In order to use Facebook’s services, “a user must open an account,”
which is provided without cost. Defs.’ Mem. at 2.
The plaintiff, an attorney who acts as the Chairman and General Counsel of an
organization called Freedom Watch, Compl. ¶¶ 2, 11, maintains “a Facebook account, titled
Larry Klayman,” id. ¶ 6. While using his Facebook account, the plaintiff “encountered the
Facebook page titled ‘Third Palestinian Intifada.’” Id. ¶ 7. The Third Palestinian Intifada
Facebook page “called for an uprising beginning on May 15, 2011, after Muslim prayers [were]
completed, announcing and threatening that ‘Judgment Day will be brought upon us only once
Muslims have killed all the Jews.’” Id. The Facebook page “had over 360,000 participants” and
“three similar [Facebook] Intifada pages have come up with over 7,000 subscribers.” Id. The
Facebook page at issue, the Third Palestinian Intifada Facebook page, caught the attention of the
Public Diplomacy Minister of Israel, who wrote a letter to the defendants requesting that they
“take down the page and similar and related pages.” Id. The defendants initially “refused for
many days” to remove the page, but eventually removed it “begrudgingly.” Id. ¶ 12.

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The plaintiff originally filed this action in the Superior Court of the District of Columbia
on March 31, 2011. Notice of Removal ¶ 1. The defendants successfully removed the case to
this Court in May 2011. See generally Notice of Removal. The plaintiff asserts claims of
negligence and assault against the defendants, and seeks permanent injunctive relief preventing
the defendants from allowing Facebook users to publish the Third Palestinian Intifada Facebook
page and other similar pages, compensatory and punitive damages amounting to over
$1,000,000,000.00, as well as attorneys’ fees and costs. Compl. ¶ 20. The defendants seek
dismissal under Federal Rule of Civil Procedure 12(b)(6). Defs.’ Mot at 1.
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) tests whether a complaint has properly stated a
claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C.
2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a)
requires that it contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not require “detailed factual
allegations,” a plaintiff is required to provide “more than an unadorned, the-defendantunlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–57 (2007)), in order to “‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,’” Twombly, 550 U.S. at 555 (citation
omitted and alteration in original). In other words, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw [a] reasonable inference that the defendant is

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liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). A complaint alleging
facts which are “merely consistent with a defendant’s liability . . . stops short of the line between
possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557)
(internal quotation marks omitted).
In evaluating a Rule 12(b)(6) motion under this framework, “[t]he complaint must be
liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that
can be derived from the facts alleged,” Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir.
1979) (internal quotation marks and citations omitted), and the Court “may consider only the
facts alleged in the complaint, any documents either attached to or incorporated in the
complaint[,] and matters of which [the Court] may take judicial notice,” EEOC v. St. Francis
Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997) (footnote omitted). While the Court
must accept the plaintiff’s factual allegations as true, any conclusory allegations are not entitled
to an assumption of truth, and even those allegations pleaded with factual support need only be
accepted to the extent that “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
at 679. If “the [C]ourt finds that the plaintiff[] [has] failed to allege all the material elements of
[his] cause of action,” then the Court may dismiss the complaint without prejudice, Taylor v.
FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997), or with prejudice, provided that the Court
“determines that the allegation of other facts consistent with the challenged pleading could not
possibly cure the deficiency,” Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)
(internal quotation marks and citations omitted). Although courts ordinarily afford special
consideration to pro se pleadings in the motion to dismiss context, the plaintiff here is an
attorney, Compl. ¶¶ 2, 11, and is thus “presumed to have a knowledge of the legal system and

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need less protections from the [C]ourt.” Richards v. Duke Univ., 480 F. Supp. 2d 222, 234
(D.D.C. 2007); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n.4 (2d Cir. 2001) (“[A
lawyer] . . . cannot claim the special consideration which the courts customarily grant to pro se
parties.”) (internal citation omitted).
III. LEGAL ANALYSIS
The defendants argue that the Communications Decency Act of 1996 (the “CDA”), 47
U.S.C. § 230 (2006), requires that the plaintiff’s complaint be dismissed in its entirety. Defs.’
Mem. at 1-2. The plaintiff responds that the CDA does not bar his claims,2 Pl.’s Opp’n at 3-9,
and that, in any event, “raising the affirmative defense of § 230 [in] a motion to dismiss is
improper and thus, should be denied,” id. at 9.
The CDA, which has not been extensively construed within this Circuit, provides that
“[n]o provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.” 47 U.S.C. §
230(c)(1). The Act, in turn, defines an “interactive computer service” as “any information
service, system, or access software provider that provides or enables computer access by
multiple users to a computer server, including specifically a service or system that provides
access to the Internet and such systems operated or services offered by libraries or educational
institutions.” 47 U.S.C. § 230(f)(2). An “information content provider” is defined as “any
person or entity that is responsible, in whole or in part, for the creation or development of
information provided through the Internet or any other interactive computer service.” 47 U.S.C.

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Among other arguments, the plaintiff devotes a portion of his opposition to discussing the public policy and
legislative intent underlying the CDA. Pl.’s Opp’n at 3-5. The Court declines the plaintiff’s invitation to elevate
policy considerations above the plain meaning of the statute, and instead “must give effect to the plain meaning of
the words Congress has chosen.” News Am. Publ’g, Inc. v. FCC, 844 F.2d 800, 806 (D.C. Cir. 1988).

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§ 230(f)(3). By its plain terms, then, the CDA immunizes internet computer service providers
from liability for the publication of information or speech originating from third parties. 47
U.S.C. § 230(c)(1); see also Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.D.C. 1998)
(“Congress . . . in enacting the [CDA] . . . made the legislative judgment to effectively immunize
providers of interactive computer services from civil liability in tort with respect to material
disseminated by them but created by others.”).
The Court must therefore grant the defendants’ motion to dismiss if it answers three
questions in the affirmative: (1) whether the defendants are “provider[s] . . . of an interactive
computer service,” 47 U.S.C. § 230(c)(1); (2) whether the plaintiff seeks to treat the defendants
as “publisher[s] or speaker[s] of any information provided,” id.; and (3) whether the information
at issue was published “by another information content provider,” id. See Parisi v. Sinclair, 774
F. Supp. 2d 310, 315-16 (D.D.C. 2011) (citing Nemet Chevrolet, Ltd., v. Consumeraffairs.com,
Inc., 564 F. Supp. 2d 544, 548 (E.D. Va. 2008), aff’d, 591 F.3d 250 (4th Cir. 2009)). Contrary to
the plaintiff’s arguments, Pl.’s Opp’n at 9, the Court may grant a motion to dismiss on CDA
grounds, Nemet Chevrolet, Ltd., 591 F.3d at 260.
A. Are the defendants providers of an interactive computer service?
“Courts generally conclude that a website falls within” the definition of an interactive
computer service. Ascentive, LLC v. Opinion Corp., 842 F. Supp. 2d 450, 473 (E.D.N.Y. 2011)
(collecting cases from the First, Fourth, and Ninth Circuits). At least one court has treated
defendants who provided services similar to those at issue in this case as interactive computer
service providers. See, e.g., Doe v. MySpace, Inc., 528 F.3d 413, 415, 418-19, 422 (5th Cir.
2008) (affirming district court’s dismissal of tort claims against defendant who provided an

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interactive computer service by creating and maintaining an “[o]nline social networking”
website). And other courts have specifically found that “Facebook meets the definition of an
interactive computer service under the CDA.” Fraley v. Facebook, Inc., 830 F. Supp. 2d 785,
801-802 (N.D. Cal. 2011); see also Young v. Facebook, Inc., No. 5:10-cv-03579, 2010 WL
4269304 at *5 (N.D. Cal. Oct. 25, 2010).
As the defendants explain, Defs.’ Mem at 2, and as the plaintiff describes in his
complaint, Compl. ¶¶ 4, 7, 12, the defendants maintain a website that gives its users the ability to
create, upload, and share various types of information, potentially with hundreds of millions of
other users. In other words, the defendants “provide[] or enable[] computer access by multiple
users to a computer server,” 47 U.S.C. § 230(f)(1), and the Court finds that they are therefore
interactive computer service providers.
B. Does the plaintiff seek to hold the defendants liable as publishers or speakers of
information published by another information content provider?
As another court has observed, when examining a plaintiff’s claims through the lens of
the CDA, courts must ask whether the alleged conduct “derives from the defendant’s status or
conduct as a publisher or speaker. If it does, [§] 230(c)(1) precludes liability.” Barnes v.
Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) (internal quotation marks omitted); see also
Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (“[L]awsuits seeking to hold a
service provider liable for its exercise of a publisher’s traditional editorial functions . . . are
barred.”). Although this Circuit has not examined the definition of the word “publisher” within
the meaning of the CDA, other courts have construed the term as referring to one who
“review[s], edit[s], and decid[es] whether to publish or to withdraw from publication third-party
content.” Barnes, 570 F.3d at 1102 (citing Fair Hous. Council of San Fernando Valley v.

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Roommates.com, LLC, 521 F.3d 1157, 1170-71 (9th Cir. 2008) and Webster’s Third New
International Dictionary 1837 (Philip Babcock Gove ed., 1986)) (emphasis added); see also
Green v. Am. Online, 318 F.3d 465, 471 (3d Cir. 2003) (describing decisions “whether to
publish, withdraw, postpone, or alter content” as falling within “a publisher’s traditional editorial
functions” (quoting Zeran, 129 F.3d at 330) (internal quotation marks omitted)).
The plaintiff in this case asserts two state law causes of action: assault and negligence.
Given that the action was filed in the District of Columbia, the law of the District might govern
the plaintiff’s claims. However, the defendants argue that California state law should control the
plaintiff’s claims, Defs.’ Mem. at 11, and the plaintiff does not dispute the defendants’ position,
see generally Pl.’s Opp’n. The choice of law is of no moment, however, because the elements of
each cause of action are identical under both California state law and the law of the District of
Columbia. Assault is defined as “an intentional and unlawful attempt or threat, either by words
or by acts, to do physical harm to the victim.” Etheredge v. Dist. of Columbia, 635 A.2d 908,
916 (D.C. 1993); see also Thing v. La Chusa, 48 Cal.3d 644, 649 (Cal. 1989) (“‘A civil action
for assault is based upon an invasion of the right of a person to live without being put in fear of
physical harm.’” (citation omitted)). And in order to prevail on a claim of negligence, the
plaintiff “must show: (1) that the defendant owed a duty to the plaintiff, (2) breach of that duty,
and (3) injury to the plaintiff that was proximately caused by the breach.” Hedgepeth v.
Whitman Walker Clinic, 22 A.3d 789, 793 (D.C. 2011); see also Juarez v. Boy Scouts of Am.,
Inc., 81 Cal. App. 4th 377, 401 (Cal. Ct. App. 2000) (citing Nally v. Grace Cmty. Church, 47
Cal.3d 278, 292-93 (Cal. 1988)).

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As to the assault claim, the plaintiff alleges that the defendants “marketed, used, and
allowed [Facebook] to be used” to “intentionally, violently and without just cause” assault the
plaintiff. Compl. ¶ 17. As to the negligence claim, the plaintiff alleges that the defendants
“owed [him] a duty of care, which they violated and breached by allowing and furthering the
death threats by the Third Palestinian Intifada, and . . . refus[ing] . . . to remove these postings.”
Id. ¶ 19. Accordingly, and with respect to both claims, the defendants’ alleged conduct ascribed
to them the status of publishers of information, whether by “using” the website to post certain
content (i.e., publishing), id. ¶ 17, “allow[ing]” certain content to be posted to the website (i.e.,
deciding whether to publish), id. ¶¶ 17, 19, or by “refus[ing] . . . to remove these postings,” id. ¶
19. The defendants’ potential liability is thus “derive[d] from [their] status or conduct as a
publisher or speaker.” Barnes, 570 F.3d at 1102.
The plaintiff argues, however, that the defendants’ alleged conduct does not arise from
the defendants’ status as publishers, but rather from their violation of “contractual, quasicontractual and fiduciary obligations” and that the defendants are thus not entitled to immunity
under the CDA. Pl.’s Opp’n at 5 (citing Barnes, 570 F.3d at 1107). Leaving aside the question
of whether the plaintiff’s argument is legally sound, the Court notes that, unlike in Barnes, upon
which the plaintiff relies, Pl.’s Opp’n at 5, the complaint here is devoid of any references to any
contractual cause of action. See Barnes, 570 F.3d at 1099 (“Barnes . . . refers in her complaint
and in her briefs to Yahoo’s ‘promise’ to remove the indecent profiles and her reliance thereon to
her detriment. We construe such references to allege a [breach of contract] cause of action.”
(emphasis added)). Instead, the plaintiff raises the possibility of contractual liability for the first
time in his opposition to the defendants’ motion to dismiss. Pl.’s Opp’n at 5-6. It begs credulity

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that the plaintiff, a “highly visible and well known lawyer,” Compl. ¶ 11, would not have
included a claim for breach of contract if he contemplated such a claim as a viable possibility. In
light of the plaintiff’s failure to assert a breach of contract claim or to plead facts consistent with
such a claim, as well as his failure to amend his complaint when given the opportunity to do so,
September 16, 2011 Order at 1-2 (ECF # 30); March 23, 2012 Order at 1-2 (ECF # 34), the Court
declines to entertain the plaintiff’s attempt to essentially re-fashion his complaint to now include
a claim for breach of contract, Larson v. Northrop Corp., 21 F.3d 1164, 1173-74 (D.C. Cir. 1994)
(affirming district court’s grant of summary judgment in favor of defendant where plaintiff
“failed to plead” a new cause of action, “raised the issue for the first time in his opposition to . . .
[the defendant’s] motion,” and had not adequately pleaded the new cause of action in his
complaint).
C. Were the defendants acting as information content providers?
The plaintiff seems to acknowledge that “another information content provider,” 47
U.S.C. § 230(c)(1) (emphasis added), created the information, Compl. ¶¶ 17, 19. He argues,
however, that the defendants are subject to liability under the CDA because they are, themselves,
information content providers. Pl.’s Opp’n at 6-8. The defendants reply that they cannot be
categorized as information content providers because they “were not responsible for the ‘creation
or development’ of the offending content.” Defs.’ Reply at 8 (quoting 47 U.S.C. § 230(f)(3)).
While the defendants might well be information content providers as to some information
on their website, other courts have framed the relevant question to be whether a defendant
“function[s] as an ‘information content provider’ for the portion of the statement or publication
at issue.” Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003); see also

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Roskowski v. Corvallis Police Officers’ Ass’n, 250 Fed. App’x 816, 816-17 (9th Cir. 2007) (“To
the extent that [the plaintiff] . . . has not shown that [the defendant] made those postings itself,
[the plaintiff] cannot hold [the defendant] liable for the content of the postings.”); Nemet
Chevrolet, Ltd., 591 F.3d at 260 (affirming district court’s dismissal of complaint where plaintiff
failed to show that defendant “was responsible for the creation or development of the allegedly
defamatory content at issue” (emphasis added)). And another member of this Court has stated
that “[§] 230(c)(1) would not immunize [the defendant] with respect to any information [the
defendant] developed or created entirely by itself and [] there are situations in which there may
be two or more information content providers responsible for material disseminated on the
Internet.” Blumenthal, 992 F. Supp. at 50. Restricting a defendant’s liability as an information
content provider to information actually created or developed by the defendant, in whole or at
least in part, is in keeping with the stated policy of the CDA “to preserve the vibrant and
competitive free market that presently exists for the Internet and other interactive computer
services, unfettered by Federal or State regulation,” 47 U.S.C. § 230(b)(2). The Court will
therefore follow the approach of the Ninth Circuit, Fourth Circuit and the Blumenthal Court.
The plaintiff argues only that the “[d]efendants encouraged [the Third Palestinian Intifada
Facebook page] . . . by failing to remove” the page “in a timely manner.” Pl.’s Opp’n at 8; see
also Compl. ¶ 7 (alleging that the defendants “refused” to remove the page). Nowhere in his
complaint or in his opposition brief does the plaintiff allege that the defendants contributed to the
content of the Facebook page at issue. Rather, as described above, the plaintiff focuses on the
role that the defendants played in publishing the Facebook page.3 The plaintiff’s own allegations

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The plaintiff asserts in his opposition that the defendants are nonetheless information content providers because
they collect data from Facebook users and then use that data “to make suggestions” to users about content in which
(Continued . . . )

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are inconsistent with a finding that the defendants acted as information content providers with
respect to the offensive material at issue. The Court thus finds that the defendants are not
information content providers within the meaning of the CDA.
IV. CONCLUSION
Because (1) the defendants provide an interactive computer service, (2) the plaintiff’s
complaint attempts to hold the defendants liable as publishers or speakers of a third party’s
information, and (3) the defendants are not, themselves, information content providers with
respect to the information at issue, the defendants are immune to suit in accordance with the
CDA, and the Court must grant the defendants’ motion to dismiss.4
SO ORDERED this 28th day of December, 2012.
REGGIE B. WALTON
United States District Judge

( . . . continued)
the users might be interested. Pl.’s Opp’n at 7-8. Even if this is the case, such actions do not constitute the creation
or development of information. Indeed, courts have held in other cases that the manipulation of information
provided by third parties does not automatically convert interactive computer services providers into information
content providers. Blumenthal, 992 F. Supp. at 51-52 (interactive computer service provider that “exercis[ed]
editorial control” over content on its website was not an information content provider); Ben Ezra, Weinstein, & Co.,
v. Am. Online, Inc., 206 F.3d 980, 985-86 (10th Cir. 2000) (internet computer service provider that edited and
altered stock quotation information at the request of third parties was not an information content provider);
Carafano, 339 F.3d at 1123-24 (interactive computer service provider’s categorization of postings on website “does
not transform [it] into” an information content provider).
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The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

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