Klairen v. Amazon.Com, Inc.

Filing 13

MEMORANDUM OPINION (Order to follow as separate docket entry) re 5 MOTION to Dismiss filed by Amazon.Com, Inc. Signed by Chief MJ Daryl F. Bloom on November 25, 2024. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALBERT B. KLAIREN,
Plaintiff,
v.
AMAZON.COM, INC.
Defendant.

: Civ. No. 1:24-CV-1033
:
:
:
: (Chief Magistrate Judge Bloom)
:
:
:
:

MEMORANDUM OPINION
I.

Introduction
This case comes before us on a motion to dismiss filed by the
defendant, Amazon.Com, Inc. (“Amazon”). (Doc. 5). The pro se plaintiff,
Albert B. Klairen, filed suit in state court after Amazon banned him from
their platform and removed Klairen’s content for purported violations of
their terms and conditions. (Doc. 1-2 ¶ 6). Klairen contends that his
reviews did not violate Amazon’s terms and conditions, and that he was
banned in retaliation for posting negative reviews of Amazon’s content
and for challenging their classification of a specific show, Titans. (Id. ¶¶
3, 11). His claim alleges these actions subject Amazon to liability under
the Communications Decency Act (“CDA”), 47 U.S.C. § 230. (Id. ¶ 11).
Specifically, Klairen alleges violations of Section 230(e), which he

characterizes as requiring a moderator of content to act in good faith.
(Id.). Klairen requests $1,000,000 in punitive damages. (Id. at 6).
Amazon removed the case to this court, and subsequently filed a
motion to dismiss. (Docs. 1, 5). Amazon argues that Section 230 of the
CDA does not create a private right of action, and thus, Klairen’s claim
fails as a matter of law. (Doc. 6). While that motion was being briefed,
the parties learned that the underlying state court action had been
dismissed with prejudice before it was removed to this court, but the
dismissal was not inputted into the court’s electronic docket until after
Amazon removed the case to this court. (Doc. 9). Amazon now asks this
court to remand the case back to state court, or in the alternative, to grant
its motion to dismiss. (Id.).
After consideration, we conclude that Klairen’s complaint fails to
state a claim against Amazon as a matter of law. Accordingly, we will
grant Amazon’s motion to dismiss.
II.

Background
This controversy began in March of 2024 and relates to Titans,
content hosted on Amazon’s web site. (Doc. 1-2 ¶ 3). Klairen, whose
occupation is a “shopper,” apparently reviews Amazon products as part

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of his work as a “reviewer and influencer.” (Id.). On March 3, 2024,
Klairen submitted a “negative” review of Titans. (Id.). That review was
rejected by Amazon for violating their policies. (Id. ¶ 4). Speculating
that his review was rejected because it contained profanity, Klairen
omitted the profane language and resubmitted his review. (Id. ¶ 5).
On March 25, Klairen received an email banning him from Amazon
altogether. (Doc. 1-2 ¶ 5). Klairen states that Titans is inaccurately
labeled as rated for children when it is in fact “18+ content.” (Id.). He
contends that Amazon treats adult material differently, and that profane
language is permitted in the context of adult content. (Id.). Klairen
argues that his second review, which he presumes was considered
profane for its use of the work “dick,” was therefore not violative of
Amazon’s policies.

(Id.).

He further contends that, whatever the

unspecified reasons for the ban were, they were pretextual, and Amazon’s
true intent is to retaliate against him for his negative review, and for
complaining about the allegedly incorrect age classification of Titans. (Id.
¶¶ 3, 11).
On April 18, 2024, Klairen filed a pro se complaint with a
Pennsylvania Magisterial District Judge purporting to sue Amazon

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under 47 U.S.C. § 230(e). On May 30, 2024, that court dismissed the
complaint without prejudice.

Albert Klairen v. Amazon Corporation

Service Company, No. MJ-12203-CV-74-2024. Klairen then refiled the
complaint with the Dauphin County Court of Common Pleas on May 31,
2024. (Doc. 1-2).
On June 6, 2024, the Court of Common Pleas dismissed Klairen’s
claim with prejudice on the grounds that it was frivolous. (Doc. 8 at 34).
Significantly, this order was not filed on the court’s docket until 20 days
later, on June 26, 2024. (Doc. 9-1). On June 24, Amazon, under the
impression that the case was still pending in Dauphin County, removed
the case to this court, and subsequently filed a motion to dismiss. (Docs.
1, 5). After Klairen responded to the motion, Amazon alerted the court
to the June 4 dismissal in Dauphin County. (Doc. 9). Amazon requested
that, pursuant to the dismissal, we remand to state court. (Id.). Klairen
argued in reply that the dismissal was only of his in forma pauperis
petition, not his actual claim, and so no remand was necessary. (Doc. 10).
The issue of what to do with a case that has been improperly
removed after being dismissed with prejudice raises questions regarding
this court’s subject matter jurisdiction. However, even if we conclude that

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we have subject matter jurisdiction over this action, Klairen’s complaint
fails to state a claim against Amazon as a matter of law. Accordingly, we
will grant the defendant’s motion to dismiss.
III.

Discussion
A. Motion to Dismiss – Standard of Review
The defendant has filed a motion to dismiss the complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(6)
permits the court to dismiss a complaint if the complaint fails to state a
claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Under
federal pleading standards, a complaint must set forth a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2).
In determining whether a complaint states a claim for relief under
this pleading standard, a court must accept the factual allegations in the
complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007), and accept “all reasonable inferences that can be drawn from
them after construing them in the light most favorable to the nonmovant.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994). However, a court is not required to accept legal

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conclusions or “a formulaic recitation of the elements of a cause of action.”

Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”).
As the Third Circuit Court of Appeals has aptly summarized:
[A]fter Iqbal, when presented with a motion to dismiss for
failure to state a claim, district courts should conduct a twopart analysis. First, the factual and legal elements of a claim
should be separated. The District Court must accept all of the
complaint’s well-pleaded facts as true, but may disregard any
legal conclusions. Id. Second, a District Court must then
determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for
relief.” Id. at 1950. In other words, a complaint must do more
than allege the plaintiff’s entitlement to relief. A complaint
has to “show” such an entitlement with its facts. See Phillips,
515 F.3d at 234–35. As the Supreme Court instructed in Iqbal,
“[w]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘show[n]’—‘that the pleader is
entitled to relief.’ ” Iqbal, 129 S.Ct. at 1949. This “plausibility”
determination will be “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Generally, when considering a motion to dismiss, a court relies on
the complaint and its attached exhibits, as well as matters of public
record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). A court

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can also consider “undisputedly authentic document[s] that a defendant
attached as an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the [attached] documents.” Pension Benefit Guar. Corp. v.

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally,
if the complaint relies on the contents of a document not physically
attached to the complaint but whose authenticity is not in dispute, the
court may consider such document in its determination. See Pryor v.

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002).
However, the court may not rely on any other part of the record when
deciding a motion to dismiss. Jordan, 20 F.3d at 1261.
B. The Defendant’s Motion to Dismiss will be Granted.
As we have explained, this case is before us in an unusual
procedural posture, in that the case was removed from state court after
the case had been dismissed with prejudice due to a delay in filing the
dismissal. Thus, the defendant effectively removed a closed case to this
court. Accordingly, we are faced with the initial question of whether this
court has subject matter jurisdiction in this case. We conclude that even
if this court had subject matter jurisdiction over this case, Klairen’s

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complaint fails as a matter of law.

Therefore, we will grant the

defendant’s motion to dismiss.
1. The Court Likely Lacks Subject Matter Jurisdiction over
this Matter.
Federal courts have an “obligation to satisfy themselves of
jurisdiction if it is in doubt.” Nesbit v. Gears Unlimited, Inc., 347 F.3d 72,
76 (3d Cir. 2003).

Here, we are faced with a question of removal

jurisdiction under 28 U.S.C. § 1441, which confers jurisdiction over “any
civil action brought in a State court of which the district courts of the
United States have original jurisdiction, . . . where such action is

pending.” 28 U.S.C. § 1441(a) (emphasis added). Thus, § 1441 “only
authorizes removal of cases ‘pending’ in state court at the time the notice
of removal is filed.” Smith v. Toyota Motor Sales, U.S.A. Corp., 2007 WL
1585157, at *3 (D.N.J. May 31, 2007). See Boardakan Rest., LLC v. Atl.

Pier Assocs., LLC, 2012 WL 3651086, at *4 (E.D. Pa. Aug. 27, 2012) (“[A]
dismissed case cannot be removed.”); Price v. Wyeth Holdings Corp., 505
F.3d 624, 630 (7th Cir. 2007) (“It goes without saying that a dismissed
case cannot be removed.”).
Here, Klairen’s underlying state court case was dismissed with
prejudice on June 4, 2024. (Doc 9-1). But for a delay in electronic filing,
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this case would not have been removable to this court. Because the
underlying state court action was technically closed prior to Amazon
removing the case to this court, there is no pending case in State court,
and this court likely lacks subject matter jurisdiction of over the matter.

See Castano v. Signature Flight Support LLC, 2022 WL 17070123, at *3
(D.N.J. Oct. 27, 2022) (collecting cases); Smith, 2007 WL 1585157, at *3.
But even if we were to conclude that subject matter jurisdiction was
proper, as discussed below, Klairen’s complaint fails to state a claim
against Amazon.
2. The Complaint Fails to Invoke a Private Right of Action.
Amazon argues that the CDA does not create a private right of
action, and that because Klairen has neither alleged nor implied any
alternate right of action, the case must be dismissed for failure to state a
claim upon which relief can be granted. (Doc. 6, at 10).
A right of action is the avenue by which an individual or entity can
initiate legal action against another and can only be created by the U.S.
Congress. Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (citing Touche

Ross & Co. v. Redington, 442 U.S. 560, 578 (1979) (holding the only
remedies available to plaintiffs are those “Congress enacted into law”)).

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The CDA’s intent and effect are to provide immunity to internet
companies for the speech of others in certain limited situations. Green v.

America Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003) (“By its terms,
§ 230 provides immunity to . . . a publisher or speaker of information
originating from another information content provider.”); Saponaro v.

Grindr, LLC, 93 F. Supp.3d 319, 325 (D.N.J., 2015) (“[T]he CDA
manifests a Congressional policy supporting broad immunity”); Dimeo v.

Max, 433 F. Supp. 2d 523, 529 (E.D. Pa., 2006) (finding Congress’s
intention was to use the CDA to insulate content providers from liability).
The plain text of the CDA does not establish a private right of
action. 47 U.S.C. § 230. Courts have consistently refused to find such a
right. See e.g., Viola v. A & E Television Networks, 433 F. Supp. 613, 618
(W.D. Pa. 2006) (“[T]he authority to enforce the CDA lies with the proper
government authorities and not with a private citizen”); Cain v. Christine

Valmy International School of Esthetics, Skin Care, and Makeup, 216
F.Supp.3d 328, 334 (S.D.N.Y, 2016) (“Case law is unanimous that a
private right of action is not available under the Communications
Decency Act.”). This Court will not find such a right of action where there
was no clear congressional intent to create one. See Ziglar v. Abbasi, 582

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U.S. 120, 133 (2017) (“If the statute itself does not display an intent to
create a private remedy, then a cause of action does not exist and courts
may not create one, no matter how desirable that might be as a policy
matter, or how compatible with the statute.”)
Accordingly, given that Section 230 is a vehicle by which providers
such as Amazon are issued immunity to certain types of liability, that
Section 230 contains no rights-creating language, and that Congress did
not intend to create such a right in the CDA, Klairen has no private right
of action against Amazon under the CDA. Therefore, his claim fails as a
matter of law, and we will grant the defendant’s motion to dismiss.
IV.

Conclusion
For the foregoing reasons, the defendants’ motion to dismiss (Doc.
5) will be granted and this case dismissed without prejudice.
An appropriate order follows.

s/ Daryl F. Bloom
Daryl F. Bloom
Chief United States Magistrate Judge
Dated: November 25, 2024

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