Force et al v. Facebook Inc.

Filing 62

MEMORANDUM & ORDER, For the foregoing reasons, Plaintiffs' motions to amend the judgment (Dkt. 50) and to file a second amended complaint (Dkt. 52) are DENIED WITH PREJUDICE. So Ordered by Judge Nicholas G. Garaufis on 1/17/2018. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

STUART FORCE,individually and as
Administrator on behalf ofthe Estate of Taylor
Force, et al..
MEMORANDUM & ORDER

Plaintiffs,

16-CV-5158(NGG)
(LB)
-againstFACEBOOK,INC.,

Defendant.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiffs in the above-captioned action are the victims, estates, and family members of
victims ofterrorist attacks in Israel. (1st Am. Compl.("FAC")(Dkt. 28).) They assert various

claims against Facebook,Inc.("Facebook") based on their contention that Facebook has
supported the terrorist organization Hamas by allowing that group and its members and
supporters to use Facebook's social media platform to further their aims.

On May 18, 2017,the court dismissed Plaintiffs' first amended complaint without

prejudice for failure to state a claim upon which relief may be granted.^ (May 18, 2017, Mem.&
Order("May 18 M&O")
(Dkt. 48).) Before the court are Plaintiffs' motions to alter the

judgment dismissing the first amended complaint(Mot. to Alter J.("Recons. Mot.")(Dkt. 50))
and for leave to file a second amended complaint(Mot.for Leave to File 2d Am. Compl.

("Amendment Mot.")(Dkt. 52)). For the following reasons, the court DENIES both motions.

' that order, the court also addressed the factually similar allegations in Cohen v. Facebook. Inc..
In
No. 16-CV-4453, and dismissed the operative complaint in that case as well. (May 18 M&O.)
1

L

BACKGROUND

The court assumes familiarity with Plaintiffs' allegations and the court's prior decision

granting Facebook's motion to dismiss Plaintiffs' first amended complaint. fSee May 18 M&O.)
In that opinion,the court specified that the dismissal was without prejudice. (Id at 28.) On
June 15,2017,Plaintiffs filed two motions: first, a motion to alter the judgment,"retracting [the

May 18 M&O]and issuing a modified opinion denying Facebook's motion to dismiss"(Recons.

Mot.); and second, a motion for leave to file a second amended complaint, a copy of which

Plaintiffs appended to their memorandum in support ofthat motion(Amendment Mot.; see also
Proposed 2d Am. Compl.("PSAC")(Dkt. 53-1)).
II.

DISCUSSION

A.

Motion to Alter the Judgment

Plaintiffs ask the court to reconsider its dismissal ofthe first amended complaint. The
court concluded that all ofthe claims contained therein were barred by Section 230(c)(1)

("Section 230")ofthe Communications Decency Act("CDA"),47 U.S.C. § 230(c)(1). That law
states 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). Examining the myriad opinions considering the application ofthat law,the
court concluded that each of Plaintiffs' claims and theories ofliability sought to hold Facebook

liable based on its role as the "publisher or speaker" of social media content generated by Hamas
and affiliated individuals, and so were barred by the defense afforded by Section 230. (May 18

M&O at 17-23.) The court also held that applying Section 230 to the claims and theories at issue
did not require an impermissible extraterritorial application ofthe CDA,as the relevant location
for its extraterritoriality analysis was "the situs ofthe litigation." (Id. at 26.)

Plaintiffs contend that the court erred both in its determination that Section 230 applied to

the claims raised in the first amended complaint and that the application ofthat law to those

claims was not impermissibly extraterritorial. They seek reconsideration and rescission ofthe

opinion dismissing their complaint pursuant to Rule 59(e) ofthe Federal Rules of Civil
Procedure. For the reasons that follow,the court sees no reason to reconsider its previous

decision dismissing the first amended complaint.
1.

Legal Standard

"A motion for reconsideration should be granted only when the [moving party] identifies

'an intervening change of controlling law,the availability of new evidence, or the need to correct
a clear error or prevent manifest injustice.'" Kolel Beth Yechiel Mechil of Tartikov. Inc. v. YLL
Irrevocable Tr.. 729 F.3d 99,104(2d Cir. 2013)(quoting Virgin Atl. Airwavs v. Nat'l Mediation
Bd.. 956 F.2d 1245,1255(2d Cir. 1992)). "It is well-settled that Rule 59 is not a vehicle for

relitigating old issues, presenting the case under new theories, securing a rehearing on the merits,
or otherwise taking a 'second bite at the apple.'" Analytical Survevs. Inc. v. Tonga Partners,

L.P.. 684 F.3d 36,52(2d Cir. 2012)(intemal quotation marks and citation omitted). "[T]he

standard for granting a Rule 59 motion for reconsideration is strict, and reconsideration will

generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked." Id.(quoting Shrader v. CSX Transp.. Inc.. 70 F.3d 255,257(2d Cir. 1995))
(alterations omitted). "The burden is on the movant to demonstrate that the Court overlooked

controlling decisions or material facts that were before it on the original motion and that might
materially have influenced its earlier decision." Schoolcraft v. Citv ofNew York.248 F. Supp.
3d 506,508(S.D.N.Y. 2017); see also Levin v. Gallerv 63 Antiques Corp.. No.04-CV-1504

(KMK),2007 WL 1288641, at *2(S.D.N.Y. Apr. 30,2007)("Motions for reconsideration allow

the district court to correct its own mistakes, not those ofthe Parties."(internal quotation marks
and citations omitted)).

2.

Application

Plaintiffs argue that the court erred in(1)determining that the "focus" of Section 230 was

on the "limitation ofliability;" and(2)applying Section 230 to the claims against Facebook and,

particularly, to claims raised under the Anti-Terrorism Act("ATA")and Israeli law. (See
generally Mem.in Supp. of Mot.for Recons.("Recons. Mem.(Dkt. 51).) The court addresses
these arguments in tum.

a.

"Focus"ofSection 230

Plaintiffs first argue that the court erred in concluding that the presumption against

extraterritoriality did not preclude application of Section 230 to the allegations raised in the first
amended complaint. Plaintiffs take particular issue with the court's determination that Section
230's "focus" was on that section's "limitation on liability." (Recons. Mem.at 4(quoting

May 18 M&O at 25).) Plaintiffs argue both that the court's identification ofthe statutory
"focus" was based on an overly narrow focus on the provision at issue in this litigation.

Section 230(c)(1)(Recons. Mem.at 4-5), and that the court's conclusion that the statute's focus
is on liability "wrongly conflates the effect ofa statute with its focus," which is on the actions of
interactive computer providers(id at 5-8).

Plaintiffs' argximents on this point do not come close to meriting reconsideration. The
court notes that Plaintiffs at no point attempted to raise either ofthese arguments in their

opposition to Facebook's motion to dismiss; in fact, the portions ofPlaintiffs' brief discussing
extraterritoriality do not even mention the word "focus." (See Pis. Mem.in Opp'n to Mot. to

Dismiss("Pis. MTD Opp'n")(Dkt. 40)at 30-31.) Plaintiffs provide no reason why they could
not have presented such arguments in their initial briefing, and such new arguments have no
4

place in a motion for reconsideration. See, e.g.. Schoolcraft. 248 F. Supp. 3d at 508. While
Plaintiffs now seek to take a new tack,"[a] party requesting reconsideration is not supposed to

treat the court's initial decision as the opening of a dialogue in which that party may then use
Rule [59(e)] to advance new facts and theories in response to the court's rulings." Id. at 509
(quoting Church of Scientology Int'l v. Time Warner. Inc.. No.92-CV-3024(PKL), 1997 WL
538912, at *2(S.D.N.Y. Aug. 27,1997)).

Moreover,Plaintiffs identify no contrary authority that the court overlooked or

misapplied, as is normally required to obtain reconsideration. See Analytical Surveys.684 F.3d
at 52. Instead, Plaintiffs contend the court's approach is generally at odds with Supreme Court

and Second Circuit opinions examining issues of extraterritoriality because the court failed to
adequately accoimt for "statutory context." (Recons. Mem at 4-6.) Plaintiffs plainly misread the
court's opinion, however, which was explicit in basing its conclusion about the statute's focus on
its reading of Section 230 as a whole. (See May 18 M&O at 25-26 (examining policy statements
and substantive provisions of Section 230).)

Plaintiffs' second argument—^that the court's holding that Section 230's focus is on
limiting liability "wrongly conflates the effect ofa statute with its focus"(Recons. Mem.

at 6-7)—^is likewise unsupported by any contrary authority. Plaintiffs wave their hands at two
recent Supreme Court decisions contemplating statutes other than the CDA and purport to draw
from those decisions the proposition that"no statute's focus can ever be to simply limit liability."

(Id. at 6-7(citing Morrison v. Nat'I Austl. Bank Ltd.. 561 U.S. 247(2010), and Kiobel v. Roval
Dutch Petroleum Co.. 569 U.S. 108(2013)).) However,those decisions offer no support for

such a broad generalization, as they examine only the particular statutes before the Court while
stressing that the touchstone of extraterritoriality analysis must be on the "focus of congressional

concern" in enacting the challenged statute. Morrison. 561 U.S. at 266. The court sees nothing
in those opinions that disturbs its analysis ofthe CDA and certainly sees nothing that suggests
that Congress's focus in enacting a statute can never be on limiting liability.
b.

The Scope ofthe CDA

Plaintiffs next argue that the court misapplied Section 230 to their claims against

Facebook. (Recons. Mem.at 8-17.) Plaintiffs make two separate arguments: first, that the court
failed to consider Plaintiffs' allegations and arguments that Facebook acted as an "information

content provider," independent ofcontent provided by Hamas-affiliated users (id. at 11-14); and
second,that the court incorrectly extended Section 230's coverage to "valuable services"

provided by Facebook(id at 14-17). The court examines these arguments separately.
i.

Facebook's Role as "Information Content Provider"

Plaintiffs first contend that the court failed to address their contention that Facebook

acted as an "information content provider" within the meaning of Section 230 and could not

claim protection under that section. As noted in the court's original decision, the protection
afforded by Section 230 applies only to claims "based on information provided by [an]
information content provider" other than the defendant. (May 18 M&O at 18-19(quoting FTC
V. LeadClick Media. LLC.838 F.3d 158,173(2d Cir. 2016)).) Plaintiffs now maintain that their

claims have, in fact, always sought to hold Facebook liable for its own content, and not that

generated by another "information content provider,"i^ Hamas and related entities, based on
Facebook's alleged role in "networking" and "brokering" links among terrorists. (Recons. Mot.
at 12.)

Plaintiffs' contention is completely disingenuous. In the current motion. Plaintiffs

acknowledge in a footnote that "perhaps plaintiffs could have made their reliance on Facebook's

productive conduct clearer in their briefing" but attribute this oversight to Facebook's supposed
6

failure to argue that it was not a content provider. (Recons. Mot. at 12 & n.9.) Plaintiffs'

contention is flatly refuted by Facebook's briefing on the original motion to dismiss, which
clearly argued that all ofthe offending content cited in Plaintiffs' complaint was "provided by
another information content provider, not by Facebook itself." (Def. Mem.in Supp. of MTD

(Dkt. 35)at 17-18.) Plaintiffs did not respond to this argument at any point, and in fact began
their opposition memorandum by stating that "[t]hese cases do not concern speech or content."
(Pis. MTD Opp'n at 1.) For Plaintiffs to now turn around and argue that its allegations are
largely about content that Facebook itself created borders on mendacious. More to the point, this
entirely new argument in support ofliability is not suitably considered on a motion for
reconsideration, which"may not be used to advance new facts, issues or arguments not

previously presented to the Court." See Montblanc-Simnlo GmbH v. Colibri Corp.. 739 F. Supp.
2d 143,147(E.D.N.Y. 2010)(internal quotation marks and citations omitted).
ii.

Facebook's Conduct as "Sneaker or Publisher"

Plaintiffs next contend that the court "misapprehended" the scope oftheir claims in

failing to consider Plaintiffs' allegation that Facebook "provided ...terrorists with valuable
services unrelated to publication...that do not fall within the traditional role of a publisher."
(Recons. Mem. at 16.) In particular. Plaintiffs contend that they are suing Facebook for

"developing, encouraging, and facilitating connections between terrorists," and not simply based
on its failure to "police its accounts" and remove terrorist-affiliated users. (Id.)
In the court's view, however,it has already addressed Plaintiffs' argument and need not

revisit its conclusions on that point. It is true that the court's previous opinion focused largely on
whether Facebook's provision of accounts to Hamas-affiliated users could meaningfully be
separated from its role as a "publisher or speaker" ofcontent produced by users, with the court
concludmg that"Facebook's choices as to who may use its platform are inherently bound up iu

its decisions as to what may be said on its platform, and so liability imposed based on its failure
to remove users would equally "derive[] from [Facebook's] status or conduct as a 'publisher or

speaker.'" (May 18 M&O at 21 (quoting LeadClick Media.838 F.3d at 175).) While Plaintiffs
now seek to distinguish between "making [Facebook's] system available to terrorists and a
terrorist organization" and "provid[ing][]terrorists with valuable services" through such access

(Recons. Mem.at 16), this is a distinction without a difference: the "valuable services" at issue
are part and parcel of access to a Facebook account, and so imposing liability on that basis would
again effectively turn on "Facebook's choices as to who may use its platform." (May 18 M&O
at 21.) Plaintiffs are merely attempting to rehash arguments that the court has already considered

and rejected, which are insufficient to merit reconsideration.^

Shrader. 70 F.3d at 257("[A]

motion to reconsider should not be granted where the moving party seeks solely to relitigate an
issue already decided.").

c.

Interplay Between the CDA and the ATA

Plaintiffs next argue that, even if Section 230 would otherwise apply to the challenged
conduct, it cannot apply here because such application "would be in direct conflict with the
ATA." (Recons. Mem. at 19.) Though presented in several ways. Plaintiffs' essential argument
is two part:(1)the ATA's goal ofimposing expansive civil liability for harms resulting from
terrorism is at odds with immunity under Section 230; and(2)because the ATA was adopted and
amended after the CDA,it supersedes Section 230. (Id at 17-23.)

^ Plaintiffe make the related argument that the court simply erred in its conclusion that Section 230 protects
Facebook from liability based on its provision ofuser accounts and platfonn services to Hamas-afBliated users.
(Recons. Mem.at 17-18.) However, Plaintiff provides no contraiy controlling authority, but only argues the court
unduly e3q)anded the scope of Section 230's coverage beyond that envisioned by the Second Circuit. Qd at 18.) As
with Plaintiffs' more indirect attack on the court's holding discussed above,the court sees no reason to permit
relitigation ofissues already decided simply because Plaintiffs are dissatisfied with the court's prior decision.
8

At the outset, the court notes that it is skeptical that this argument is properly raised in the
instant motion, as it can hardly be said to have been fully presented previously. Plaintiffs first

advanced this argument in a single line in a footnote in their brief opposing Facebook's motion
to dismiss. (See Pis. MTD Opp'n at 27 n.6("Even ifthere were a conflict between the limited
immunity granted by the CDA and the liability imposed by the ATA,the ATA would control as
its later enactment would be a tacit limiting ofthe CDA.").) Expanding this line to encompass

five pages oftheir present briefing seems to the court to be the very definition ofimpermissibly
"advanc[ing]... arguments not previously presented to the court." Schoolcraft. 248 F. Supp. 3d
at 508 (internal quotation marks and citations omitted).

Even if Plaintiffs' argument is not waived, however,it is meritless. Quoting from the
preamble to the most recent amendment to the ATA,Plaintiffs contend that immunizing
Facebook under Section 230 frustrates Congress's purpose of"provid[ing] civil litigants with the

broadest possible basis ...to seek relief against entities ...that have provided material support,
whether directly or indirectly, to foreign organizations or persons that engage in terrorist

activities."^ (Recons. Mem. at 21 (quoting Justice Against Sponsors of Terrorism Act
("JASTA"),§ 2(b), Pub. L. No. 114-222,130 Stat. 852, 853).) Plaintiffs do not suggest that the

ATA explicitly limits Section 230 immunity, however, but instead argue that the ATA's later-intime enactment and the broad policy statements quoted above implicitly displace Section 230
with respect to ATA-based civil actions. (Id. at 21-23.)
"When it is claimed that a later enacted statute creates an irreconcilable conflict with an

earlier statute, the question is whether the later statute, by implication, has repealed all or, more

^ While it is not necessary to the decision here, the court notes that, whatever their interpretive value, statements of
purpose contained in the preamble to a statute are not part ofthe substantive scope ofthe law itself. See, e.g.. 73
Am.Jur, 2d Statutes § 101 (2d ed. updated Nov. 2017).

typically, part ofthe earlier statute." Garfield v. Ocwen Loans Servicing. LLC.811 F.3d 86,89
(2d Cir. 2016). "[R]epeals by implication are not favored." In re Stock Exch. Options Trading
Antitrust Litig.. 317 F.3d 134,144(2d Cir. 2003)(quoting United States v. Borden Co., 308 U.S.

188, 198 (1939)). Accordingly, courts must not "infer a statutory repeal unless the later statute

expressly contradicts the original act or unless such construction is absolutely necessary in order
that the words ofthe later statute shall have any meaning at all." Nat'l Ass'n ofHome Builders
V. Defenders of Wildlife, 551 U.S. 644,662(2007)(internal quotation marks and citations
omitted, and alterations omittedl: see also Radzanower v. Touche Ross & Co.. 426 U.S. 148,155

(1976)("The statutory provisions at issue here cannot be said to be in 'irreconcilable conflict' in
the sense that there is a positive repugnancy between them or that they cannot mutually co

exist."). "[A] statute dealing with a narrow, precise, and specific subject is not submerged by a
later enacted statute covering a more generalized spectrum." Nat'l Ass'n ofHome Builders, 551
U.S. at 663(quoting Radzanower.426 U.S. at 153).

The court sees no reason to conclude that the ATA impliedly abrogated Section 230, as

each statute can be enforced without depriving the other of"any meaning at all." Id at 662. The
ATA's civil recovery provisions create a broad right ofrecovery for U.S. nationals injured by
acts ofinternational terrorism, without differentiating based on the particular defendants against
whom claims are raised. 18 U.S.C. § 2333. In enacting Section 230, however. Congress"was

focusing on the particularized problems of[providers and users of interactive computer services]
that might be sued in the state or federal courts," Radzanower.426 U.S. at 153,limiting the
liability of a narrow subset of defendants for a particular type of claims. Thus,the ATA's
general cause ofaction for victims ofintemational terrorism cannot be said to "expressly
contradictQ" the CDA,nor does the Section 230's limitation on certain theories ofliability

10

deprive the ATA of"any meaning at all." NatT Ass'n of Home Builders. 551 U.S. at 662. Said
differently, the two acts can be read without any conflict: Section 230 provides a limited defense
to a specific subset of defendants against the liability imposed by the ATA.
In contrast to the direction provided by the Supreme Court and Second Circuit to act
cautiously in inferring statutory repeal, Plaintiffs urge an approach that would treat auy statute

that imposes liability and which was enacted after the CDA as implicitly limiting the reach of
Section 230 absent an affirmative contrary statement. This approach would effectively reverse

the presumption against inferring repeal and is patently inconsistent with the law outlined
above."^

Accordingly,the court sees no reason to conclude that the ATA implicitly limited or

repealed Section 230 or any other part ofthe CDA or to reconsider its prior opinion on that basis.
d

Application ofthe CDA to Plaintiffs'Israeli Law Claims

Plaintiffs' final argument is that the court erred in applying Section 230 to Plaintiffs'

Israeli-law claims. (Recons. Mem.at 24-25.) Plaintiffs argue that court should have conducted a
conflict-of-laws analysis, which would have demonstrated that Israeli(as opposed to New York)

law applied to a number ofPlaintiffs' claims. (Id. at 24-25.) From this. Plaintiffs contend that
the court should not have applied Section 230 to the Israeli law claims, as the CDA "is a feature
of American law that has no corollary in Israel." (Id. at 25.)

Plaintiffs' argument misunderstands the court's prior opinion, which addressed the issue

raised. Noting that Plaintiffs contended that Section 230 "does not apply to claims based in
foreign law," the court assumed that the Plaintiffs' Israeli tort claims were properly presented

^ Plaintiffe make the related argument that the court's inteipretaticn of Section 230 "jdelds results that can only be
described as 'absurd'" when applied to the ATA. (Recons. Mem. at 23-24.) This argument, which is unsupported
by citation to legal authority, is not properly presented on a motion for reconsideration, and so the court does not
address it.

11

and concluded those claims were barred in any event. (May 18 M&O at 27 n.14.) In coming to
this determination,the court examined the enumerated exceptions to Section 230's grant of

immunity,and concluded that the absence of any carve-out for claims based on foreign law
indicated that no such exception was intended. (Id.)

To the extent that Plaintiffs argue that a conflict-of-laws analysis prevents the application
offederal statutes to foreign-law-based claims, the argument is unsupported in law or logic.

Plaintiffs point to no authority for the notion that the decisional mles applied in a conflict-oflaws analysis require courts in this country to ignore governing sources offederal law when

applying claims raised under the laws of other nations,^ nor is the court aware of any such
authority. Further, Plaintiffs' suggestion appears to be fundamentally at odds with supremacy of
federal law over state law. When conducting a conflict-of-laws analysis, federal courts look to
the law ofthe forum state, in this case New York. Cf. e.g.. Licci ex rel. Licci v. Lebanese

Canadian Bank. SAL.672 F.3d 155,157(2d Cir. 2012)("A federal court sitting in diversity or

adjudicating state law claims that are pendent to a federal claim must apply the choice oflaw
rules ofthe forum state."(internal quotation marks and citation omitted)). It is almost too
obvious to state that New York law,including the law governing conflict oflaws, could not

direct courts to disregard federal law. Cf Figueroa v. Foster, 864 F.3d 222,227(2d Cir. 2017)
("Under the Supremacy Clause ofthe Constitution, state and local laws that conflict with federal
law are without effect."(intemal quotation marks and citation omitted)). Finally, the court notes

^ Instead, Plaintiffs cite to cases considering conflicts oflaw between the laws ofindividual states and other states or
foreign nations or between the laws oftwo foreign nations. See Licci ex rel. v. Lebanese Canadian Bank. SAL.672
F.3d 155, 157-58(2d Cir. 2012); Fin. One Pub. Co. Ltd. v. Lehman Bros. Special Fin.. Inc.. 414 F.3d 325,331-339
(2d Cir. 2005)(same as to New York and Thai law); Coonev v. Oseood Mach.. Inc.. 81 N.Y.2d 66,75(N.Y. 1993)
(same as to New York and Missouri law); Schultz v. Bov Scouts of Am.. Inc.. 65 N.Y.2d 189,194-204(N.Y. 1985)
(same as to New York and New Jersey law); Wultz v. Islamic Pap, ofIran. 755 F. Supp.2d 1, 78-80(D.D.C. 2010)
(same as to laws of China and Israel).
12

that the application of Section 230's affirmative defense to Israeli claims is sensible under the
circumstances, as it avoids the perverse result that plaintiffs could bring claims in American
courts under foreign law that would be barred if brought under federal or state law.

Accordingly, and again assuming that Israeli law, not New York law, applies to the cited
claims,the court is not convinced that its prior decision was erroneous.
%

Hs

4s

For the foregoing reasons. Plaintiffs' motion to alter the judgment pursuant to Federal
Rule of Civil Procedure 59(e)is DENIED.
B.

Motion to Amend the Complaint

In the alternative. Plaintiffs move to amend their complaint a second time and propose

new allegations which,in their account, correct the deficiencies in their prior complaint.
(Amendment Mot.; Pis. Mem.in Supp. of Amendment Mot.("Amendment Mem.")(Dkt. 53);

see also PSAC.) After considering the proposed second amended complaint, the court concludes
that Plaintiffs fail to allege facts that would support any ofthe asserted causes of action against
Facebook. Their motion to amend is accordingly denied.
1.

Legal Standard

Under Federal Rule of Civil Procedure 15(a), a party may amend its complaint either

with its opponent's written consent or with leave ofthe court.^ Fed. R. Civ. P. 15(a)(2). Courts
"should freely give leave [to amend] when justice so requires." Id. Accordingly, requests to

amend should be generally be granted absent a showing of"'undue delay, bad faith or dilatory

motive on the part ofthe movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party...[or] futility of amendment.'" Conforti v.

® Rule 15(a) also pennits amendment once as a matter ofcourse within set time periods. That provision is not
relevant here, however, not least because Plaintiffs have already amended their complaint once before.
13

Sunbelt Rentals. Inc.. 201 F. Supp. 3d 278,290-91 (E.D.N.Y. 2016)(quoting Dougherty v. Town
ofN.Hempstead Bd. ofZoning Anneals. 282 F.3d 83,87(2d Cir. 2002))(alterations in

original). In considering whether an amendment would be "futile," courts apply the same
standard oflegal sufficiency as that employed in motions to dismiss,

Thea v. Kleinhandler.

807 F.3d 492,496-97(2d Cir. 2015), considering whether the proposed amended complaint

"contain[s] sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible
on its face,'" Ashcroft v. Iqbal 556 U.S. 662,678(2009)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544,570(2007)).

Leaye to amend may be granted post-judgment. "As a procedural matter,'[a] party

seeking to file an amended complaint postjudgment must first haye the judgment yacated or set
aside pursuant to [Rules] 59(e)or 60(b).'" Williams y. Citigroup Inc., 659 F.3d 208,213
(2d Cir. 2011)(quoting Ruotolo y. City ofNew York. 514 F.3d 184,191 (2d Cir. 2008)). In
such cases, howeyer,"Rule 15's liberality must be tempered by considerations offinality." Id
2.

Application

In their proposed second amended complaint("PSAC"),Plaintiffs propose to add a
number of allegations that fall into four primary categories: (1)"[fjactual backgroimd and

legislatiye statements inyolyed in the enactment ofthe federal antiterrorism statutes at issue"

(Amendment Mem. at 4);(2)allegations that Facebook yiolated the ATA by proyiding material
support to Hamas in the form of"personnel" and "expert assistance"(id at 3-4), and that
Facebook's assistance to Hamas "fi'eed-up money and other resources for Hamas and the
terrorists to carry out the terrorist acts that seyerely injured the Plaintiffs"(id at 7);(3)
allegations related to Facebook users' abihty to "self-publish"(id at 4); and(4)Allegations
demonstrating that Facebook's actions pertaining to its proyision of material support and
resources to Hamas occurred" outside ofthe United States(id at 6). Additionally, Plaintiffs
14

propose adding a new claim under 18 U.S.C. § 2339C(c)based on Facebook's purported
concealment of material resources provided to Hamas, as well as factual allegations related to
that claim. The court examines each ofthese categories of proposed amendments and,for the
reasons that follow, denies the motion to amend as futile.

a.

Allegations Regarding Antiterrorism Statutes

The first category ofnew proposed new allegations pertains only to the background ofthe
two antiterrorism statutes at issue here, the ATA and JASTA. Qd at 4.) These allegations

include a history ofthe ATA's enactment(PSAC

civil enforcement provisions (id.

2-7,18-53),including specifically the act's

38-44). Plaintiffs' evident purpose in introducing this

background is to demonstrate that civil claims for material support fall outside of Section 230's

grant ofimmunity based on an exception within that section, which states that "[n]othing in this
section shall be construed to impair the enforcement of... any ...Federal criminal statute." 47

U.S.C. § 230(e)(1). Plaintiffs contend that the background and legislative history ofthe ATA
and JASTA show that the creation of civil remedies for violations of criminal statutes prohibiting

terrorism were meant to facilitate "enforcement" ofthose statutes.^ (Pis. Reply in Supp. of
Amendment Mot.("Amendment Reply")(Dkt. 59)at 2-3.)

Plaintiffs' arguments are unpersuasive. The court addressed Section 230's exception for
enforcement offederal criminal laws in its previous opinion, noting that"most courts that have
examined" that subsection have concluded that it does not "inhibit immunity as to civil liability

'
Plaintiffs also argue that the text and legislative history ofthe ATA and, particularly, JASTA,demonstrate that
"Congress deems ATA claims supremely important, and insofar as other statute or regulations—including the
CDA—^are inconsistent with this most recent expression of Congress's intent,the ATA claims must prevail." (Pis.
Reply in Supp. of Amendment Mot.("Amendment Reply")(Dkt 59)at 4-6.) This argument effectively retreads
Plaintiffs' contention that the ATA and JASTA implicitly repeal the CDA to the extent ofany conflict For the same
reasons that it denied the motion for reconsideration, the court concludes that Plaintiffs' proposed amendments on
this point are futile.
15

predicated on federal criminal statutes." (May 18 M&O at 21 n.11.) In this regard, the court

finds particularly convincing the First Circuit's conclusion that Section 230(e)(l)'s specific
reference to "criminal statutes," viewed alongside other exceptions within Section 230 that apply

equally to civil and criminal remedies, indicates that Congress only intended to exclude criminal
prosecutions through that exception.^ Jane Doe No. 1 v. Backoage.com, 817 F.3d 12,23(1st

Cir. 2016). The court agrees with this reasoning and concludes that the "enforcement"^ of
"Federal criminal statutes" in this context was intended only to extend to enforcement bv means
nf a criminal proceeding.

Accordingly,the court finds these new allegations regarding the history and purpose of
the ATA and JASTA to be insufficient to overcome previously identified shortcomings in
Plaintiffs' first amended complaiut.

b.

Additional Material Support Allegations and Self-Publication

Plaintiffs' proposed complaint also attempts to refine its allegations that Facebook
provided material support to terrorism so as to avoid involving implicating Facebook's role as a

® Plaintiffs attempt to distinguish Jane Doe and other cases cited in the court's previous opinion on the basis that the
statutes cited therein "permitted recovery of compensatory damages, not punitive or exemplary damages[as]
permitted by the ATA." (Amendment Reply at 3(emphasis in original).) However,the First Circuit reasoned in
Jane Doe from the language ofthe statute itselfthat Section 230(e)(1) excepts only criminal actions to enforce
criminal statutes, 817 F.3d at 23, which means that the purposes ofa particular civil action are irrelevant. Further,
the court notes that Plaintiffs appear to be incorrect in their contention that the statute at issue in Jane Doe does not
permit punitive damages in civil suits. While the statute and Second Circuit case law do not provide direct guidance
on the point, the Ninth Circuit concluded that the civil remedies available under that section include punitive
damages.^Ditullio v. Boehm.662 F.3d 1091,1098(9th Cir. 2011); see also Walia v. Veritas Healthcare
Solutions. L.L.C.. No. 13-CV-6935(KPF),2015 WL 4743542, at *10 n.l5(S.D.N.Y Aug. 11, 2015).
'
Plaintiffs point to a statement by the Second Circuit that "the ATA's legislative history reflects that Congress
conceived ofthe ATA,at least in part, as a mechanism for protecting the public's interests through private
enforcement." Linde v. Arab Bank.PLC.706 F.3d 92,112(2d Cir. 2013). The court is not convinced that this
language, which appears in dicta and arose in the entirely different context ofinternational comity analysis, implies
that private suits to enforce the ATA are, in effect, on the same footing as are prosecutions imder that law.
Moreover, as stressed above, the task before the court is not to interpret the ATA,but to determine the meaning of
Section 230(e)(1). As the court has already determined that Section 230's reference to "enforcement... ofany...
Federal criminal statutes" is specific to criminal prosecutions, it need not ascertain whether civil provisions ofother
statutes were envisioned as providing a secondary means of enforcement.
16

publisher or speaker ofthird-party content. First, Plaintiffs attempt to differentiate Facebook
from other websites by stressing that Facebook users register to "design and create their own
internet website," from which they are free to "self-publish" content without Facebook

purporting to act as "editor, publisher, or speaker" ofits users' postings. (PSAC f 127-28.)
Second,Plaintiffs add new allegations regarding the types of"material support" that Facebook
provides. They characterize Facebook as providing "personnel"to Hamas by "making Hamas
leaders, operatives, and recruits available to Hamas to conspire, plan, prepare, and carry out
terrorist activity." (PSAC 1223.) Plaintiffs also contend that Facebook provides "expert
services" to Hamas-affiliated users by allowing them access to its platform and,through such

access,"highly advanced software, algorithms, computer servers and storage, communications
devices,[and] computer applications" that Facebook provides to all users. (Id.

123-24; s^

also Amendment Mem.at 5.)

Plaintiffs' additional allegations do nothing to address the shortcomings in their theories
ofliability identified in the court's previous decision. With respect to the allegations regarding
"self-pubhcation," Plaintiffs misinterpret the scope of Section 230's immunity. Plaintiffs
repeatedly stress that users' introduction ofinformation onto Facebook's eponymous platform
occurs without Facebook "exercis[ing] any editorial discretion when providing registered
accounts or over what users publish on their own [] accounts." (Amendment Reply at 8.) From

this. Plaintiffs appear to suggest that Facebook cannot be exercising any editorial or publication
functions protected by Section 230 which,they imply, require some specific selection with
respect to the particular users or postings that may appear on its platform. This argument
misimderstands the court's prior decision: In the court's view, Facebook's decision to keep its
platform as an open forum, available for registration and posting without prior approval from

17

Facebook, is itself an exercise of editorial discretion. (May 18 M&O at 21.) As noted by the
First Circuit:

[the plaintiffs-appellants'] well-pleaded claims address the structure
and operation of the [defendant-appellee's] website, that is,
[defendant's] decisions about how to treat postings. Those claims
challenge features that are part and parcel ofthe overall design and
operation of the website (such as the lack of phone number
verification, the rules about whether a person may post after

attempting to enter a forbidden term, and the procedure for
uploading photographs). Features such as these, which reflect
choices about what content can appear on the website and in what
form, are editorial choices that fall within the purview oftraditional
publisher functions.

Jane Doe.817 F.3d at 21. The same reasoning supports both the court's previous decision and

its conclusion here that allegations regarding "self-publication" do not exempt Plaintiffs' claims
from Section 230's coverage: Facebook's decisions regarding the "overall design and operation
of its website," including the criteria(or lack thereof)for obtaining an account and posting on the

platform are themselves "editorial choices that fall within the purview oftraditional publisher
functions." Id; see also Fields v. Twitter, Inc., 217 F. Supp. 3d 1116,1124(N.D. Cal. 2016)

(holding that the defendant's "decisions to structure and operate itself as a 'platform...
allow[ing] for the freedom of expression of hxmdreds [of] millions of people around the world,'

and,through its hands-off policy, allowing [a terrorist group] to obtain 'dozens of accounts on its
social network' 'reflect choices about what [third-party] content can appear on [Twitter] and in

what form.'"(internal quotation marks and citations omitted; alterations in original)). Plaintiffs'
new allegations that these policies allow users to join Facebook's platform and to "self-publish"
without Facebook's prior approval do not alter the conclusion that Facebook's decisions

regarding the structure of its platform fall within the traditional functions ofa publisher and so
that Plaintiffs' theory relies only on a"duty ... derive[d] from [Facebook's] status or conduct as
a 'publisher or speaker.'" LeadClick Media,838 F.3d at 175.
18

Plaintiffs' new allegations regarding Facebook's alleged provision of"personnel" and

"expert services" to Hamas and Hamas-affiliated users suffer from the same flaw. Plaintiffs
claim that "technological tools" Facebook provided to its users, and that these tools are unrelated
to the content ofthe underlying communications. (Amendment Reply at 8; see also Amendment

Mem.at 4-5.) Plaintiffs contend these tools provided to users "extend[] far beyond providing or

performing traditional services of a publisher," and so are not within the scope ofthe services of
a 'publisher.'" (Amendment Reply at 7-8.) At root, however,these theories again derive from a
claimed duty on Facebook's part to prevent certain users from using its platform and seek to

impose liability based on Facebook's decision to allow free access to, and use of, its platform
and forum. Said differently, Facebook is alleged to have violated a duty to prevent certain users

from accessing and using its platform. As discussed above and in this court's previous dismissal
ofPlaintiffs' claims. Section 230 shields Facebook from such claims, as "Facebook's choices as

to who may use its platform are inherently bound up in its decisions as to what may be said on its

platform, and so liability imposed based on its failure to remove users would equally 'derive[]
from [Facebook's] status or conduct as a 'publisher or speaker."" (May 18 M&O at 21 (quoting
LeadClick Media. 838 F.3d at 175).)

Moreover,like Plaintiffs' first amended complaint. Plaintiffs' new allegations regarding

Facebook's claimed provision of"personnel" and "expert services" again "rely on content to
establish causation and, by extension, Facebook's liability," a theory already rejected by this

court. (May 18 M&O at 22.) As Plaintiffs' proposed amended complaint makes clear, their
theory that Facebook makes "personnel" available to Hamas depends on the content of
communications on Facebook's website: Plaintiffs seek to hold Facebook liable for providing a

publication forum for Hamas and its leaders, operatives, and recruits,"to conspire, plan, prepare.

19

and carry out terrorist activity." (SAC f 223.) This is fundamentally no different than Plaintiffs'
prior argument that "Facebook contributed to their harm by allowing Hamas to use its platform

to post particular offensive content." (May 18 M&O at 22.) Likewise, both the "personnel" and
"expert services" allegations appear to rest in large part on allegations that Facebook's
networking algorithms recommend content to account holders. However, as Facebook points
out,"the features ofFacebook that [PJlaintiffs criticize operate solelv in conjunction with...

content posted by Facebook users." (See Def. Opp'n to Amendment Mot.("Amendment

Opp'n")(Dkt. 57)at 5(emphasis in original); see also PSAC fl611-22(describing how
Facebook's algorithms connect"users to one another and to groups and events that they will be
interested in based on the information in their user profiles and online activities"). Plaintiffs'

new allegations would again simply seek to hold Facebook liable solely on the basis ofthe
website's role in hosting and re-publishing content generated by Hamas-affiliated users.

Bound up as they are in the content that Hamas-affiliated users provide,the court concludes that
these new claims remain subject to the immunity afforded under Section 230 and so cannot
provide a basis for liability as to Facebook.

Plaintiff also proposes to add new allegations regarding additional "predicate" acts ofterrorism by Hamas.
(PSAC Tflf 648-49; Amendment Mem.at 7.) Plaintiffs contend that these additional predicate acts support the
conclusion that"Facebook's liability does not depend upon attributing the content ofHamas' Facebook posts to
Facebook." (Amendment Mem.at 7.) In particular, Plaintiffs point to the "aiding and abetting" charges brought
under JASTA and argue that "once Facebook... providfes] material support to Hamas,Facebook is liable under
[JASTA]for any reasonably foreseeable injury that may result from Hamas's use ofthat material support."
(Amendment Reply at 9.) These proposed amendments do nothing to address or sidestep the basis for the court's
prior dismissal ofPlaintiffs' claims: regardless ofthe predicate acts at issue, the only basis that Plaintiffe propose for
imposing liability on Facebook for "aiding and abetting" or providiag "material support" to those terroristic crimes
is Facebook's decision to permit Hamas-affiliated users to use its platform. The court has repeatedly rejected that
theory, and so the proposed amendments do not further Plaintiffs' entitlement to relief.
"PlaintifB also propose alleging that, because of its use ofFacebook, Hamas was able to "allocate other financial
resources to terrorist activities." (Amendment Reply at 10; see also PSAC ^219.) Plaintiffs are correct that this
allegation could support a claim under the material support statutes. See, e.g.. Holder v. Humanitarian Law Proiect.
561 U.S. 1,30(2010). In light ofthe court's conclusion that the Plaintiffs' material support claims are not viable
because they rely on theories barred by Section 230, however,these allegations do not support Facebook's liability.
20

c.

Extraterritoriality Allegations

Plaintiffs' proposed amendments include a number offactual allegations regarding
Facebook's conduct outside ofthe United States, which Plaintiffs contend "support [their]

contention that the CDA does not apply to claims involving violation oflaws outside ofthe

territorial jurisdiction ofthe United States." (Amendment Reply at 10; PSAC Tfll 629-32.) The
court need not dwell on these new allegations. The court concluded in its prior opinion that, for

purposes ofthe extraterritoriality analysis, the relevant territorial relationships are based "where
redress is sought and immunity is needed"—^the situs ofthe litigation. (May 18 M&O at 27.)
Plaintiffs' new allegations obviously do not suggest that the situs ofthis litigation has changed,
but are better viewed as part oftheir tenacious effort to convince the court to reconsider its prior
extraterritoriality analysis. The court has already declined to do so, and so concludes that these
new allegations fail to advance Plaintiffs' claims.
d.

"Concealment" ofMaterial Support

Plaintiffs' final set ofnew allegations relates to their new claim that Facebook

"concealed" its provision of material support to Hamas in violation ofthe ATA. Specifically,

Plaintiffs allege that Facebook's "Community Standards," which purport to prevent terrorists and
terrorist organizations to use the platform,"conceal" both Facebook's own provision of material
support to Hamas and the separate use ofthe platform by terrorists to provide material support to
Hamas. (Amendment Mem.at 6.)

The relevant section ofthe material support statutes prohibits covered individuals and

entities^^ from "knowingly conceal[ing] or disguis[ing] the nature, location, source, ownership.

Specifically, file prohibition applies to individuals and entities in the United States or outside ofthe United States
ifthey are ei&er"a national ofthe United States or a legal entity organized under the laws ofthe United States
(including any ofits States, districts, commonwealths, territories, or possession)[.]" 18 U.S.C. § 2339C(c)(l)(A)(B). Facebook does not argue that it falls outside this coverage.
21

or control ofany material support or resources, or any proceeds ofsuch funds...knowing or

intending that the support or resources are to be provided, or...were provided,in violation of
section 2339B[.]" 18 U.S.C. § 2339C(c)(2)(A). Thus, in order to violate that provision, the

entity must have knowingly "concealed" or "disguised" material support provided to a

designated foreign terrorist organization^^ but need not necessarily have provided the material
support itself.

In the court's view, allegations brought imder that section against Facebook,if plausibly

pled, would escape Section 230's coverage. In its opposition to the amendment,Facebook
argues strenuously that the "concealment claim boils down to a challenge to who may use
Facebook and what content they share" and so seeks to impose liability on the same basis already
rejected by the court. (Def. Suppl. Opp'n to Amendment Mot.(Dkt. 60)at 3.) It may be true
that a concealment claim based only on Facebook's own purported provision of material support
would fail: As noted. Section 2339C(c)requires a predicate violation of Section 2339B, 18

U.S.C. § 2339C(c)(2)(A), and the court has already held that Facebook cannot be held liable
under that statute based on Plaintiffs' theories. Plaintiffs also contend, however, that Facebook's

statements in the Community Standards "conceal" acts by Hamas members and supporters that

provide material support to Hamas using Facebook's platform. (Amendment Mem., at 6("By its
actions and deceptions, Facebook also conceals the Hamas leaders' and affiliates' own provision
ofpersonnel(themselves) via their Facebook accounts."(emphasis in original)); PSAC

222-24.) Said differently, unlike the other theories of liability proposed by Plaintiffs, the
"concealment" claim does not seek to hold Facebook liable for failing to prevent Hamas and its

''18 U.S.C. § 2339B applies only to material support provided to designated foreign terrorist organizations. 18
U.S.C. § 2339B(a).
22

affiliates from obtaining accounts or posting offensive content. (See May 18 M&O,at 21-22.)
Instead, Plaintiffs argue that Facebook's own actions conceal or disguise material support to

Hamas provided by others. The court agrees that, thus construed,the concealment cause of
action does not fall within the coverage of Section 230, as it does not "inherently require[] the

court to treat[Facebook] as the publisher or speaker of content provided by another," or

"derive]] from [Facebook's] status or conduct as a 'publisher or speaker.'"(Id at 20(quoting
LeadClick Media. 838 F.3d at 175).

This does not end the inquiry, however, as Plaintiffs must still set forth sufficient

allegations "to state a claim to relief that is plausible on its face." lobal. 556 U.S. at 678(internal
quotation marks and citation omitted). The key question in this instance is whether the proposed
amendments set forth a sufficient factual basis for the court to conclude that Facebook

"concealed" or "disguised" material support to Hamas provided using its platform. The statute
does not define those terms, nor does any court appear to have interpreted them in the context of

this or similar statutes. "[WJhere a statute does not define a term, we give the term its ordinary

meaning." EMI Christian Music Grp.. Inc. v. MP3Tunes. LLC.844 F.3d 79, 89(2d Cir. 2016)
(internal quotation marks and citation omitted). The Merriam-Webster dictionary defines
"conceal" as, inter alia,"to prevent disclosure or recognition of," Conceal. Merriam-Webster

Online Dictionary, https://www.merriam-webster.com/dictionary/conceal (last visited

Jan. 8,2018),and "disguise" as, inter alia,"to obscure the existence or true state or character of,"
Disguise. Merriam-Webster Online Dictionary, https://www.merriam-

Similar language appears in 18 U.S.C. § 2339A (criminalizing "concealfing] or disguisefing] the nature, location,
source, or ownership of material support or resources") and various places in 18 U.S.C § 1956(defining money
laundering transaction to include transactions intended "to conceal or disguise the nature, location, source,
ownership, or control ofproperty believed to be the proceeds ofspecified unlawful activity"). The court reviewed

cases interpreting the terms "conceal" and "disguise" in the context ofthose statutes as well, but found no helpful
guidance.
23

webster.com/dictionary/disguise (last visited Jan. 8,2018). Thus,in order to avoid the
conclusion that leave to amend should be denied as futile, Plaintiffs must present facts sufficient

to show that Facebook's actions either prevented "disclosure or recognition" ofHamas' use ofits
platform or "obscured the existence or true state or character" ofthat use.
After examining the allegations set forth in the proposed amended complaint,the court
concludes that Plaintiffs fail to set forth a plausible claim that Facebook "concealed" or

"disguised" the use ofits platform by Hamas and its member and supporters. As noted.
Plaintiffs' claims that Facebook conceals Hamas's presence on its platform are based solely on

allegedly false claims in Facebook's "Community Standards" and public statements by the

company that it does not permit terrorists or terrorist organizations to use the website. (See Pis.
Suppl. Mem.in Supp. of Amendment Mot.(Dkt.61)at 5-6; see also, e.g., PSAC

172-74,

583-89.) Plaintiffs do not allege, however,that such false statements had the effect ofpreventing
anyone from discovering that Hamas or its members were using Facebook's platform. At most,

the policy statements and public pronouncements to which Plaintiffs point have the effect of

concealing or disguising Facebook's factual willingness to abide such use, but not the fact ofthe
use itself. To the contrary, the complaint is replete with allegations that"HAMAS,its leaders,

spokesmen, and members have openly maintained and used official Facebook accounts"(PSAC
f 9), use those accounts to draw attention to their activities(PSAC ^ 165), and that this use ofthe
platform by Hamas and other, similar groups has been widely recognized by the public
(id.

590-98). Against these allegations, the court sees no plausible claim that Facebook's

statements—or any other action by the company,for that matter—did anything to "prevent

24

disclosure or recognition" or "obscure the existence or true... character of the use ofits
platform to support Hamas.
4:

4:

^

Accordingly, Plaintiffs' motion to amend their complaint is pursuant to Federal Rules of
Civil Procedure 15(a), 59(e), and 60(b)is denied. Moreover, as the proposed amendments fail to
correct the deficiencies identified by the court's decision dismissing Plaintiffs' first amended

complaint,the court concludes that it is appropriate to deny the motion with prejudice. See, e.g.,
Curtis V. Citibank. N.A.,204 F. App'x 929,932(2d Cir. 2006)(summary order)(holding that

dismissal with prejudice was within the court's discretion where plaintiff had notice ofand failed
to correct deficiencies in complaint).
ni.

CONCLUSION

For the foregoing reasons, Plaintiffs' motions to amend the judgment(Dkt. 50)and to file
a second amended complaint(Dkt. 52)are DENIED WITH PREJUDICE.
SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn, New York
January 17,2018

NICHOLAS G. GARAUMS
United States District Judge

In their supplemental briefin support ofthe concealment claim. Plaintiffs also request leave to amend their
complaint—again—to include allegations related to testimony by Facebook's general counsel before the United
States Senate. (Pis. Suppl. Mem.in Supp. of Amendment Mot. at 9-10.) Plaintiffs do not, however, state how this
information would support any oftheir claims, leaving the court without any basis to assess the utility or futility of
such amendments. Particularly in light ofcourt's existing judgment against Plaintiff, the court finds that
considerations offinality outwei^ any interest in allowing Plaintiffs to submit another round ofamendments and
denies the motion accordingly. Cf Williams.659 F.3d at 213("Where... a'party does not seek leave to file an
amended complaint until afterjudgment is entered. Rule 15's liberality must be tempered by considerations of
finality.").
25