United States District Court, N.D. California
S. HIXSON UNITED STATES MAGISTRATE JUDGE
ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE ORDER
GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA
PAUPERIS AND SCREENING COMPLAINT PURSUANT TO 28 U.S.C. §
Plaintiff Thomas Hayes currently has two cases pending before
the Court, Hayes v. Facebook, 19-cv-1297-TSH, and
Hayes v. Facebook, 19-cv-2106-TSH. In 19-cv-1297,
Hayes named Facebook and its CEO Mark Zuckerberg as
Defendants and alleged defamation. The Court dismissed the
amended complaint in that action with leave to amend. On
April 18, 2019 Hayes filed the complaint in 19-cv-2106-TSH,
containing similar allegations and an Application to Proceed
In Forma Pauperis. 19-cv-2106, Compl, ECF No. 1; Appl., ECF
No. 3. The Court consolidated the two cases and requested
clarification as to whether the complaint in 19-cv-2106 was
meant to be the further amended complaint in 19-cv-1297.
Hayes failed to respond. For the reasons that follow, the
Court DISMISSES the 19-cv-1297 action. As to
19-cv-2106, the Court GRANTS the in forma
pauperis application and finds the complaint fails to state a
claim on which relief may be granted pursuant to 28 U.S.C.
§ 1915(e). Accordingly, Hayes must file a first amended
complaint in the 19-cv-2106 action that addresses the
deficiencies identified in this screening order by August 2,
2019; otherwise, the Court will recommend dismissal of his
THE 19-CV-1297 CIVIL ACTION
filed the 19-cv-1297 action on September 12, 2018, originally
in the District of Colorado. 19-cv-1297, ECF No. 1. In the
amended complaint, Hayes sued Defendants Facebook and
Zuckerberg for defamation concerning warnings Facebook posted
about clicking on the links to Hayes's own website or his
email address. Id., ECF No. 10. All parties
consented to Magistrate Judge jurisdiction in this action.
Id., ECF Nos. 17, 32, 34.
alleged in the amended complaint (id., ECF No. 10),
Hayes owns Seventh Generation Fuels, LLC, a start-up company
that aims to become an environmentally clean renewable energy
producer. He owns three web pages (all at the domain
wakute.wixsite.com) touting the company's exclusive
licensing, brokering, contracting and leasing rights, as well
as other business rights related to U.S. patent No. 9057024.
Hayes joined Facebook on June 28, 2018 to promote his
business and website, with the specific goal of enlisting
Facebook users to write or help write a grant application for
his business. He says the company needs to raise
approximately $80, 000 in funding.
on July 10, 2018, Hayes discovered that when Facebook users
click on the link to the wakute.wixsite.com website or on his
email address (email@example.com), Facebook displayed the
message: “BLOCKED - We believe the link you are trying
to visit is malicious. For your safety, we have blocked
it.” Starting on September 22, 2018, the message
changed to: “You Can't Go to This Link From
Facebook. The link you tried to visit goes against our
Community Standards.” Hayes refers to these as the
alleged that these messages deter potential grant writers and
investors from contacting him by suggesting they will get a
computer virus if they do so. He seeks $80, 000 in damages
for his inability to get a grant. He also seeks $30 million
in damages for what he calls the administrative start-up
costs listed in his company's 2018-19 business plan, or
if that full amount is not awarded, 10% of it.
March 28, 2019, the Court granted Defendants' motion to
dismiss because the facts alleged in the amended complaint
did not show that Facebook's alleged statements were
about Hayes. Id., ECF No. 61 at 5. The
Court also found that there were no allegations against
Zuckerberg sufficient to name him as a defendant.
Id. at 6. The Court gave Hayes 30 days to file a
second amended complaint. Id.
April 18, 2019, Hayes filed a new case based on similar
factual allegations, but with Facebook as the only named
defendant. 19-cv-2106, ECF No. 1. Because the two cases
involve common questions of fact and law, the Court
consolidated them pursuant to Federal Rule of Civil Procedure
42 and ordered Hayes to file a notice stating whether his
April 18, 2019 complaint is (1) intended to be an amended
complaint in his original case, 19-cv-1297, or (2) intended
as a new case, separate from 19-cv-1297. 19-cv-1297, ECF No.
64; 19-cv-2106, ECF No. 6. To date, Hayes has failed to file
an amended complaint in 19-cv-1297 and failed to respond to
the Court's order requesting clarification.
Ninth Circuit precedent, when a plaintiff fails to amend a
complaint after the district judge dismisses the complaint
with leave to amend, the dismissal is typically considered a
dismissal for failing to comply with a court order rather
than for failing to prosecute the claim.” Yourish
v. Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). To
determine whether to dismiss a case for failure to comply
with a court order, a court weighs the following factors: (1)
the public's interest in expeditious resolution of
litigation, (2) the court's need to manage its docket,
(3) the risk of prejudice to defendants, (4) the public
policy favoring disposition of cases on their merits, and (5)
the availability of less drastic alternatives. Id.
at 990 (citing Hernandez v. City of El Monte, 138
F.3d 393, 399 (9th Cir. 1998). Dismissal is appropriate
“where at least four factors support dismissal . . . or
where at least three factors strongly support
dismissal.” Hernandez, 138 F.3d at 399
(citations and internal quotation marks omitted).