United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITHOUT PREJUDICE,
Re: Dkt. No. 25
H. KOH UNITED STATES DISTRICT JUDGE
Federal Agency of News LLC (“FAN”) and Evgeniy
Zubarev (collectively, “Plaintiffs”) bring suit
against Defendant Facebook, Inc. (“Facebook”)
because Facebook removed FAN's Facebook account and page.
Before the Court is Facebook's motion to dismiss. ECF No.
25. Having considered the parties' submissions, the
relevant law, and the record in this case, the Court GRANTS
Facebook's motion to dismiss without prejudice.
FAN is a “corporation organized and existing under the
laws of the Russian Federation” that “gathers,
transmits and supplies domestic and international news
reports and other publications of public interest.” ECF
No. 1 (“Compl.”) at ¶¶ 2, 5. Plaintiff
Evgeniy Zubarev is “the sole shareholder and General
Director of FAN.” Id. at ¶ 6. Defendant
Facebook operates an online social media and social
networking platform on which users like FAN can disseminate
content by publishing on the users' Facebook page
“posts and other content for its Facebook
followers.” Id. at ¶¶ 3-4, 25.
Facebook users' utilization of Facebook is governed by
Facebook's Terms of Service that, if violated, may result
in the deletion of users' Facebook accounts and pages.
Id. at ¶¶ 4, 53, 94.
about December 2014, FAN started “a Facebook page
through which FAN has published its posts and other content
for its Facebook followers.” Id. at ¶ 3.
After the 2016 United States presidential election,
“Facebook began to shut down ‘inauthentic'
Facebook accounts that allegedly sought to inflame social and
political tensions in the United States.” Id.
at ¶ 10.
allegedly shut down such accounts because the accounts'
activities were “similar or connected to that of
Russian Facebook accounts during the 2016 United States
presidential election which were allegedly controlled by the
Russia-based Internet Research Agency
(‘IRA').” Id. FAN's Facebook
account and page were among those that were shut down.
Id. at ¶ 52. FAN's Facebook account and
page were shut down on April 3, 2018. Id.
FAN's Role in Russian Interference in the 2016 United
States Presidential Election
aforementioned, Facebook shut down Facebook accounts with
connections to Russian Facebook accounts allegedly controlled
by the IRA. Id. at ¶ 10. The IRA was “an
agency which allegedly employed fake accounts registered on
major social networks . . . to promote the Russian
government's interests in domestic and foreign
policy.” Id. at ¶ 11. Specifically, in a
United States Intelligence Community report regarding Russian
interference in the 2016 presidential election, the IRA was
described as an agency of “professional trolls whose
likely financier is a close Putin ally with ties to Russian
intelligence.” Id. at ¶ 14 (internal
quotation marks omitted). Notably, from “the time of
FAN's incorporation and until in or about the middle of
2015, FAN and the IRA were located in the same
building” in Saint Petersburg, Russia. Id. at
addition, FAN's founder and first “General
Director” is Aleksandra Krylova. Id. at ¶
29. The Special Counsel investigation into Russian
interference in the 2016 presidential election that was
headed by Robert Mueller determined that Krylova was employed
by the IRA from about September 2013 to about November 2014.
Id. at ¶¶ 19, 29. However, FAN proclaims
that it does not know the veracity of the Special
Counsel's finding. Id. at ¶ 29.
Nevertheless, on February 16, 2018, the Special Counsel
indicted Krylova, who was accused of participation in the
IRA's “interference operations targeting the United
States.” Id. at ¶ 34.
on October 19, 2018, the United States District Court for the
Eastern District of Virginia unsealed a criminal complaint.
Id. at ¶ 36. The criminal complaint divulged
that the Federal Bureau of Investigation (“FBI”)
had uncovered “a Russian interference operation in
political and electoral systems targeting populations within
the Russian Federation, and other countries, including the
United States” codenamed “Project Lakhta.”
Id. In support of the criminal complaint, the FBI
asserted that Project Lakhta used “inauthentic user
names to create fictitious Facebook profiles” and
“published false and misleading news articles intended
to influence the U.S. and other elections.”
Id. at ¶¶ 41, 43. Notably, the FBI also
attested that FAN, as well as the IRA, were entities within
Project Lakhta. Id. at ¶ 37. Furthermore, the
criminal complaint was filed against Elena Khusyaynova, who
has been FAN's chief accountant since August 2, 2016.
Id. at ¶ 36, 46. However, FAN maintains that it
had no involvement in Project Lakhta or a “direct
connection” to the IRA. Id. at ¶¶
Facebook's Role in the United States' Investigation
of Russian Interference in the 2016 Presidential
September 6, 2017, Facebook's Chief Security Officer Alex
Stamos announced that “Facebook found approximately
$100, 000 in advertisement spending” between June 2015
and May 2017 “associated with more than 3, 000
advertisements in connection with approximately 470 allegedly
inauthentic Facebook accounts and Pages.” Id.
at ¶ 15. Stamos stated that “Facebook conducted a
sweeping search looking for all ads that might have
originated in Russia.” Id. at ¶ 16.
Facebook then “shared these findings with United States
authorities” and provided Congress “with
information related to the 3, 000 advertisements.”
Id. at ¶¶ 16-17.
September 21, 2017, Facebook's cofounder, chairman, and
chief executive officer Mark Zuckerberg released a video
stating that “Facebook is actively working with the
U.S. government on its ongoing investigations into Russian
interference” and that Facebook is supplying
information to the Special Counsel. Id. at ¶
The Removal of FAN's Facebook Account and Page
April 3, 2018, Facebook shut down FAN's Facebook account
and page. Id. at ¶ 52. In an email, Facebook
explained that FAN's Facebook account and page were shut
down because FAN violated Facebook's Terms of Service.
Id. at ¶ 53. FAN was among the more than 270
Russian language accounts and pages that Facebook shut down
on April 3, 2018. Id. at ¶ 20. On the same day,
Zuckerberg published a blog post explaining Facebook's
actions. Id. at ¶ 21. Zuckerberg wrote that the
accounts and pages taken down on April 3, 2018 were removed
because “they were controlled by the IRA” and not
because of “the content they shared.”
Id. Specifically, Zuckerberg wrote that the IRA
“has repeatedly acted deceptively and tried to
manipulate people in the US, Europe, and Russia, ” and
since 2016, when the IRA “had set up a network of
hundreds of fake accounts to spread divisive content and
interfere in the U.S. presidential election, ” Facebook
has improved its “techniques to prevent nation states
from interfering in foreign elections.” Mark
visited July 19, 2019).
November 20, 2018, Plaintiffs filed their complaint against
Facebook. ECF No. 1. On April 15, 2019, Facebook filed the
instant motion to dismiss. ECF No. 25 (“Mot.”).
On May 15, 2019, Plaintiffs filed an opposition. ECF No. 26
(“Opp.”). On May 29, 2019, Facebook filed a
reply. ECF No. 27 (“Reply”). On June 12, 2019 and
June 19, 2019, Facebook filed two separate statements of
recent decisions pursuant to Civil Local Rule 7-3(d)(2). ECF
Motion to Dismiss Under Federal Rule of Civil Procedure
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6). The U.S. Supreme Court has held that Rule 8(a)
requires a plaintiff to plead “enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.” Id.
(internal quotation marks omitted). For purposes of ruling on
a Rule 12(b)(6) motion, the Court “accept[s] factual
allegations in the complaint as true and construe[s] the
pleadings in the light most favorable to the nonmoving
party.” Manzarek, 519 F.3d at 1031 (9th Cir.
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Schwarz
v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and
it “may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion into a motion for summary judgment, Shaw
v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor
must the Court “assume the truth of legal conclusions
merely because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (internal quotation marks
omitted). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004).
Leave to Amend
Court determines that a complaint should be dismissed, it
must then decide whether to grant leave to amend. Under Rule
15(a) of the Federal Rules of Civil Procedure, leave to amend
“shall be freely given when justice so requires,
” bearing in mind “the underlying purpose of Rule
15 to facilitate decisions on the merits, rather than on the
pleadings or technicalities.” Lopez v. Smith,
203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations
and internal quotation marks omitted). When dismissing a
complaint for failure to state a claim, “a district
court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other
facts.” Id. at 1130 (internal quotation marks
omitted). Accordingly, leave to amend generally shall be
denied only if allowing amendment would unduly prejudice the
opposing party, cause undue delay, or be futile, or if the
moving party has acted in bad faith. Leadsinger, Inc. v.
BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).
complaint states the following five causes of action: (1) a
Bivens claim for violation of the First Amendment;
(2) “damages under Title II of the U.S. Civil Rights
Act of 1964 and 42 U.S.C. Section 1983”; (3)
“damages under the California Unruh Civil Rights
Act”; (4) breach of contract; and (5) breach of implied
covenant of good faith and fair dealing. Compl. at
argues that the Communications Decency Act renders Facebook
immune from all of Plaintiffs' federal and state causes
of action, except for Plaintiffs' first cause of action:
a Bivens claim for violation of the First Amendment.
Mot. at 6. Moreover, Facebook argues that Plaintiffs'
Bivens claim for violation of the First Amendment
fails because Facebook is not a state actor, and the First
Amendment only applies to state actors or private entities
whose actions amount to state action. Id. at 9.
Court finds Facebook's arguments persuasive. Therefore,
below, the Court first addresses why Plaintiffs' second
cause of action for “damages under . . . 42 U.S.C.
Section 1983” fails, then how Facebook is immune from
most of Plaintiffs' remaining causes of action pursuant
to the Communication Decency Act, and finally why
Plaintiffs' Bivens claim for violation of the
First Amendment fails because Facebook is neither a state
actor nor a private actor whose actions amount to state
Plaintiffs' Second Cause of Action for Damages under 42