United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS AS TO
FACEBOOK [1] RE: DKT. NO. 50
William H. Orrick United States District Judge
On
September 5, 2019, I granted defendant Facebook, Inc.'s
motion to dismiss. In doing so, I rejected each of the claims
plaintiff Christopher King asserted against Facebook with
prejudice, but gave him limited leave to amend to expressly
allege one new theory; a claim for retaliatory breach of
contract based on King's assertion “that Facebook
engaged in retaliatory conduct by removing his posts or
suspending his accounts based on his speech that was critical
of Facebook.” September 2019 Order at 8.[2]
King
filed his “Post Judgment Amended Complaint” (AC)
on September 25, 2019 and Facebook again moves to dismiss.
Dkt. No. 50. In his Amended Complaint, King asserts three
claims: (1) “Retaliatory Breach of Contract in
violation of California's Covenant of Good Faith and Fair
Dealing” against Facebook; (2) “Unlawful
Cancelling of, and Chilling of Free Speech as contrary to the
First Amendment of the United States Constitution”
against Facebook; and (3) defamation against individual Doe
defendants and one now-identified defendant Jennifer Marie
Malone. The basis for the retaliatory breach claim against
Facebook is that some of King's content on Facebook was
blocked by Facebook (for purported violation of
“community standards”) only after he threatened
to sue and did sue Facebook. AC ¶ 16. In addition, he
alleges that in response to his posts that were critical of
Facebook, Facebook shut down his accounts or blocked his
posts, delayed internal review of his complaints in response,
and blocked content that was not in violation of
Facebook's “community
standards.”[3] King alleges that Facebook's actions
were taken “out of retaliatory animus to frustrate
Plaintiff's enjoyment even terms of a contract in which
Defendant would agree that Plaintiff had not violated!”
AC ¶ 18.
With
respect to the new First Amendment claim, plaintiff was not
given leave to assert it under my prior Order granting
Facebook's motion to dismiss. The claim, therefore, is
not properly in this case and I will not address
it.[4]
The
claim King was given limited leave to allege for retaliatory
breach fails. In order to state a claim based on a breach of
contract, a plaintiff must identify, but King but has not
identified here, “the specific provision of the
contract allegedly breached by the defendant.”
Caraccioli v. Facebook, Inc., 167 F.Supp.3d 1056,
1064 (N.D. Cal. 2016), aff'd, 700 Fed.Appx. 588
(9th Cir. 2017) (internal quotation omitted); see also
Ebeid v. Facebook, Inc., 18-CV-07030-PJH, 2019 WL
2059662, at *7 (N.D. Cal. May 9, 2019) (dismissing complaint
for failure to identify the contract and provision within the
contract allegedly breached by Facebook). Assuming that the
contractual basis for King's breach claim is the Terms of
Use (Terms) which Facebook requires users to agree to, the
claim lacks merit. As courts in this District have explained,
while Facebook's Terms “place restrictions on
users' behavior, ” they “do not create
affirmative obligations” on Facebook. Young v.
Facebook, Inc., No. 5:10-cv-03579-JF/PVT, 2010 WL
4269304, at *3, (N.D.Cal. Oct. 25, 2010); see also
Caraccioli v. Facebook, Inc., 167 F.Supp.3d 1056, 1064
(N.D. Cal. 2016), aff'd, 700 Fed.Appx. 588 (9th
Cir. 2017)(unpublished). Also fatal to King's breach
claim is that the Terms themselves provide that Facebook may
for “any reason” and in its “sole
discretion” remove content and suspend or block user
accounts.[5]Considering the facts alleged in support of
the retaliatory breach claim - that Facebook removed or
blocked access to King's content or accounts because
Facebook disagreed with King's comments that were
critical of Facebook's own conduct - there is nothing in
the Terms of Use or other contract identified by King that
could plausibly support a breach claim.
Finally,
King was not given leave to plead a claim based on the
implied covenant of good faith and fair dealing. Although
King apparently asserts the implied covenant claim as part of
the retaliatory breach claim, breach of contract and breach
of the implied covenant are two separate claims.
Swearengin v. Contl. Ins. Co., CV-02-5281-EFS (SHX),
2002 WL 34439648, at *3 (C.D. Cal. Oct. 3, 2002)
(“breach of contract and breach of the implied covenant
of good faith and fair dealing are two distinct
claims”). And the implied covenant claim fails for the
same reasons the retaliatory breach claim
fails.[6] King fails to identify a contractual
provision that Facebook allegedly violated. Instead, the
conduct King alleges that forms the basis of this claim is
expressly allowed by the Terms. See Ebeid v.
Facebook, Inc., 2019 WL 2059662 at *8 (implied covenant
claim failed as “Facebook had the contractual right to
remove or disapprove any post or ad at Facebook's sole
discretion.”).
In
light of the foregoing, Facebook's Motion to Dismiss is
GRANTED and Facebook is dismissed from this case WITH
PREJUDICE.
ORDER
TO SHOW CAUSE
Remaining
as defendants are Jennifer Marie Malone and Does that
plaintiff is presumably attempting to identify through
limited discovery provided by Facebook. Dkt. No. 52. The only
claim asserted against these remaining defendants is the
claim for defamation. Diversity jurisdiction is not apparent
from the face of the Amended Complaint and I am not inclined
to exercise supplemental jurisdiction over the defamation
claim now that the federal claims have been dismissed with
prejudice.
Therefore,
plaintiff is ORDERED TO SHOW CAUSE why the remaining
defamation claim should not be dismissed. On or before
January 6, 2020, plaintiff shall file a
response informing me of the status of the discovery covered
by Dkt. No. 52, the status of service of Malone and any
current or former Doe defendant, and any reason why I should
not dismiss the remaining claim against the remaining
defendants for lack of jurisdiction.
IT
IS SO ORDERED.
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Notes:
[1] Pursuant to Civil Local Rule 7-1(b),
this matter is appropriate for resolution on the papers and
the December 11, ...