United States District Court, N.D. California
ORDER DENYING MOTION FOR LEAVE TO AMEND COMPLAINT AND
DENYING MOTION TO TRANSFER VENUE
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
February 2019, pro se plaintiff Sandra
O'Hara-Harmon initiated this action against defendant
Facebook, Inc. attempting to allege various claims for breach
of the implied covenant of good faith and fair dealing and a
single claim for extortion (Dk. No. 1). In May 2019, an order
dismissed plaintiff's complaint for failure to state a
claim (Dkt. No. 29). The order permitted plaintiff leave to
amend her complaint. Plaintiff now so moves (Dkt. No. 33).
Defendant opposes (Dkt. No. 35). This order holds that
plaintiff's amendment did not resolve the issues isolated
by the prior order. Plaintiff's motion to amend is
original complaint averred that in January 2019 plaintiff
paid Facebook to advertise one of her posts. When the
advertisement did not immediately circulate, plaintiff
re-posted her advertisement seven times in four days.
Facebook “locked” plaintiff's account.
Facebook sent plaintiff an e-mail that it appeared her
account had been compromised. Plaintiff unsuccessfully
attempted to re-open her account (Dkt. No. 1 ¶¶
complained via Facebook's “help-support
page.” A man living in India named Babulal Sarkar,
contacted plaintiff and claimed to have experienced the same
problem. His Facebook page represented he was a
“Manager at Facebook.” From this fact alone,
plaintiff concluded that Mr. Sarkar “intentionally
locked and banned” plaintiff from accessing her
account. Plaintiff then called a person named Gulberg
Hendrick, whom she believed to be associated with
Facebook's technical support headquarters. The man she
spoke with offered to “unblock” plaintiff's
account in exchange for a $100 Google Play card purchased at
Walmart (id. ¶¶ 16-19, 26-27).
these facts, plaintiff attempted to allege three claims for
breach of the covenant of good faith and fair dealing and one
claim for extortion. More specifically, the original
complaint attempted to allege claims for: (i) “locking
plaintiff out of her Facebook account in bad faith;”
(ii) “preventing access to the Facebook community page
in bad faith;” (iii) “censoring the advertisement
in bad faith;” and that (iv) Facebook's employee
Gulberg Hendrick engaged in extortion (id.
¶¶ 1-4). A prior order concluded each of these
failed (Dkt. No. 29).
a claim for breach of the covenant of good faith and fair
dealing requires Facebook to have make an obligation and not
deliver on it. Careau & Co. v. Security Pacific
Business Credit, Inc., 222 Cal.App.3d 1371, 1395 (1990).
The complaint had not articulated any relevant obligation.
Turning to the claim for extortion, it depended entirely on
Mr. Hendrick's offer to unblock plaintiff in exchange for
the Walmart gift card. Yet, no facts supported that Mr.
Hendrick was employed by Facebook and that he acted within
the scope of his employment. See Perez v. Van Groningen
& Sons, Inc., 41 Cal.3d 962, 967 (1986). In
addition, no facts supported that Mr. Hendrick induced
plaintiff to buy the Walmart gift card through force or fear.
See Cal. Penal Code § 518.
to this motion, plaintiff alleged the following. On December
11, 2018, Facebook “censored” two approved ads
while continuing to bill plaintiff for those ads. Mr. Sarkar
purportedly censored the ads because the ads shed a negative
light on the medical treatment of plaintiff's now
deceased child. Plaintiff's child was transgender. Both
Mr. Sarkar and plaintiff's child's former attending
physician are from India. Plaintiff had commented to Mr.
Sarkar that “[i]t's rumored that in India,
transgender individuals are treated harshly, so I assume this
doctor from India believed my daughter's life was not
worth saving, which is why he did nothing to aid in
preserving it. . . .” (Dkt. No. 33. ¶ 8).
Plaintiff accordingly theorized that Mr. Sarkar took offense
to the ads and censored them (Dkt. No. 33. ¶¶ 2-3,
8; p. 6. ¶¶ 7-9).
addition, plaintiff provided detail on how much she paid
Facebook. Specifically, plaintiff spent $200 on her ads and
then permitted Facebook to charge another $400. Plaintiff
insisted, without proof, that some of the ads were supposed
to run until May 22, 2019, and other ads until July 3, 2019.
The ads did not. Plaintiff never specified when the ads
stopped circulating. Moreover, plaintiff's AOL account
was subsequently hacked. Plaintiff blamed Facebook
(id. at ¶¶ 9-17; p. 4 ¶¶ 1-3).
these facts fix any of the aforementioned deficiencies.
First, turning to plaintiff's attempted breach
of the implied covenant claims, plaintiff still has not
alleged any relevant obligation violated by Facebook.
Plaintiff provided no support for its allegation that
Facebook committed to posting plaintiff's ads until May
or July 2019.
the bulk of plaintiff's bad faith theories rest on the
purported conduct by Mr. Sarkar. Yet, plaintiff never
adequately connects the dots between Mr. Sarkar and Facebook.
The only connection alleged is that he is a “Manager at
Facebook” as represented on his Facebook profile. This
is not enough. The attempted breach of the implied covenant
claims remain implausible.
turning to the attempted claim for extortion, plaintiff still
has not put forward any evidence that Mr. Hendrick induced
plaintiff to buy the Walmart gift card through force or fear.
Furthermore, even assuming Mr. Hendrick was a Facebook
employee, there is no evidence he acted within the scope of
his employment. This attempted claim also remains
on the foregoing, plaintiff's motion for leave to amend
is Denied. Nevertheless, amendment would not
be futile. Accordingly, plaintiff must move for leave to
amend by August 1 at Noon.
Any motion should explain how the proposed complaint
overcomes the deficiencies raised. If plaintiff so moves, she
should be sure to plead her best case.
hearing set for July 11 is hereby Vacated.
The initial case management conference is
Continued to August 22,
2019 at 11:00 a.m. Plaintiffs
motion “for change of venue” is
Denied. Plaintiff chose to file this lawsuit
in San Francisco. This action will remain in San Francisco.
who is proceeding pro se, is advised that helpful
information is available online at
http://cand.uscourts.gov/proselitigants and also at
the legal help center. The legal help ...