REGGIE B. WALTON, District Judge.
The pro se plaintiff, Larry Klayman, brings this action against the defendants, Facebook, Inc. and its founder and CEO, Mark Zuckerberg, asserting claims of assault and negligence. See Complaint ("Compl.") ¶¶ 14-20. Currently before the Court are the Defendants' Motion to Dismiss ("Defs.' Mot.") and the Defendants' Motion to Transfer. Upon consideration of the parties' submissions,
The defendants operate www.facebook.com ("Facebook"), which is a "social networking"
The plaintiff, an attorney who acts as the Chairman and General Counsel of an organization called Freedom Watch, Compl. ¶¶ 2, 11, maintains "a Facebook account, titled Larry Klayman," id. ¶ 6. While using his Facebook account, the plaintiff "encountered the Facebook page titled `Third Palestinian Intifada.'" Id. ¶ 7. The Third Palestinian Intifada Facebook page "called for an uprising beginning on May 15, 2011, after Muslim prayers [were] completed, announcing and threatening that `Judgment Day will be brought upon us only once Muslims have killed all the Jews.'" Id. The Facebook page "had over 360,000 participants" and "three similar [Facebook] Intifada pages have come up with over 7,000 subscribers." Id. The Facebook page at issue, the Third Palestinian Intifada Facebook page, caught the attention of the Public Diplomacy Minister of Israel, who wrote a letter to the defendants requesting that they "take down the page and similar and related pages." Id. The defendants initially "refused for many days" to remove the page, but eventually removed it "begrudgingly." Id. ¶ 12.
The plaintiff originally filed this action in the Superior Court of the District of Columbia on March 31, 2011. Notice of Removal ¶ 1. The defendants successfully removed the case to this Court in May 2011. See generally Notice of Removal. The plaintiff asserts claims of negligence and assault against the defendants, and seeks permanent injunctive relief preventing the defendants from allowing Facebook users to publish the Third Palestinian Intifada Facebook page and other similar pages, compensatory and punitive damages amounting to over $1,000,000,000.00, as well as attorneys' fees and costs. Compl. ¶ 20. The defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(6). Defs.' Mot at 1.
A motion to dismiss under Rule 12(b)(6) tests whether a complaint has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 197 F.R.D. 191, 193 (D.D.C.2000). For a complaint to survive a Rule 12(b)(6) motion, Federal Rule of Civil Procedure 8(a) requires that it contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Although Rule 8(a) does not require "detailed factual allegations," a plaintiff is required to provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation," Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)), in order to "`give the defendant fair notice of what the ... claim is and the grounds upon which it rests,'" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted and alteration in original). In other words, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
In evaluating a Rule 12(b)(6) motion under this framework, "[t]he complaint must be liberally construed in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979) (internal quotation marks and citations omitted), and the Court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint[,] and matters of which [the Court] may take judicial notice," EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997) (footnote omitted). While the Court must accept the plaintiff's factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pleaded with factual support need only be accepted to the extent that "they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. If "the [C]ourt finds that the plaintiff[] [has] failed to allege all the material elements of [his] cause of action," then the Court may dismiss the complaint without prejudice, Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir.1997), or with prejudice, provided that the Court "determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency," Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir.1996) (internal quotation marks and citations omitted). Although courts ordinarily afford special consideration to pro se pleadings in the motion to dismiss context, the plaintiff here is an attorney, Compl. ¶¶ 2, 11, and is thus "presumed to have a knowledge of the legal system and need less protections from the [C]ourt." Richards v. Duke Univ., 480 F.Supp.2d 222, 234 (D.D.C.2007); see also Holtz v. Rockefeller & Co., 258 F.3d 62, 82 n. 4 (2d Cir.2001) ("[A lawyer] ... cannot claim the special consideration which the courts customarily grant to pro se parties.") (internal citation omitted).
The defendants argue that the Communications Decency Act of 1996 (the "CDA"), 47 U.S.C. § 230 (2006), requires that the plaintiff's complaint be dismissed in its entirety. Defs.' Mem. at 1-2. The plaintiff responds that the CDA does not bar his claims,
The CDA, which has not been extensively construed within this Circuit, provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1).
The Court must therefore grant the defendants' motion to dismiss if it answers three questions in the affirmative: (1) whether the defendants are "provider[s]... of an interactive computer service," 47 U.S.C. § 230(c)(1); (2) whether the plaintiff seeks to treat the defendants as "publisher[s] or speaker[s] of any information provided," id.; and (3) whether the information at issue was published "by another information content provider," id. See Parisi v. Sinclair, 774 F.Supp.2d 310, 315-16 (D.D.C.2011) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 564 F.Supp.2d 544, 548 (E.D.Va.2008), aff'd, 591 F.3d 250 (4th Cir.2009)). Contrary to the plaintiff's arguments, Pl.'s Opp'n at 9, the Court may grant a motion to dismiss on CDA grounds, Nemet Chevrolet, Ltd., 591 F.3d at 260.
"Courts generally conclude that a website falls within" the definition of an interactive computer service. Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 473 (E.D.N.Y.2011) (collecting cases from the First, Fourth, and Ninth Circuits). At least one court has treated defendants who provided services similar to those at issue in this case as interactive computer service providers. See, e.g., Doe v. MySpace, Inc., 528 F.3d 413, 415, 418-19, 422 (5th Cir. 2008) (affirming district court's dismissal of tort claims against defendant who provided an interactive computer service by creating and maintaining an "[o]nline social networking" website). And other courts have specifically found that "Facebook meets the definition of an interactive computer service under the CDA." Fraley v. Facebook, Inc., 830 F.Supp.2d 785, 801-802 (N.D.Cal.2011); see also Young v. Facebook, Inc., No. 5:10-cv-03579, 2010 WL 4269304 at *5 (N.D.Cal. Oct. 25, 2010).
As the defendants explain, Defs.' Mem. at 2, and as the plaintiff describes in his complaint, Compl. ¶¶ 4, 7, 12, the defendants maintain a website that gives its users the ability to create, upload, and share various types of information, potentially with hundreds of millions of other users. In other words, the defendants "provide[] or enable[] computer access by multiple users to a computer server," 47 U.S.C. § 230(f)(1), and the Court finds that they are therefore interactive computer service providers.
As another court has observed, when examining a plaintiff's claims
The plaintiff in this case asserts two state law causes of action: assault and negligence. Given that the action was filed in the District of Columbia, the law of the District might govern the plaintiff's claims. However, the defendants argue that California state law should control the plaintiff's claims, Defs.' Mem. at 11, and the plaintiff does not dispute the defendants' position, see generally Pl.'s Opp'n. The choice of law is of no moment, however, because the elements of each cause of action are identical under both California state law and the law of the District of Columbia. Assault is defined as "an intentional and unlawful attempt or threat, either by words or by acts, to do physical harm to the victim." Etheredge v. Dist. of Columbia, 635 A.2d 908, 916 (D.C.1993); see also Thing v. La Chusa, 48 Cal.3d 644, 649, 257 Cal.Rptr. 865, 771 P.2d 814 (Cal. 1989) ("`A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of physical harm.'" (citation omitted)). And in order to prevail on a claim of negligence, the plaintiff "must show: (1) that the defendant owed a duty to the plaintiff, (2) breach of that duty, and (3) injury to the plaintiff that was proximately caused by the breach." Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 793 (D.C. 2011); see also Juarez v. Boy Scouts of Am., Inc., 81 Cal.App.4th 377, 401, 97 Cal.Rptr.2d 12 (Cal.Ct.App.2000) (citing Nally v. Grace Cmty. Church, 47 Cal.3d 278, 292-93, 253 Cal.Rptr. 97, 763 P.2d 948 (1988)).
As to the assault claim, the plaintiff alleges that the defendants "marketed, used, and allowed [Facebook] to be used" to "intentionally, violently and without just cause" assault the plaintiff. Compl. ¶ 17. As to the negligence claim, the plaintiff alleges that the defendants "owed [him] a duty of care, which they violated and breached by allowing and furthering the death threats by the Third Palestinian Intifada, and ... refus[ing] ... to remove these postings." Id. ¶ 19. Accordingly, and with respect to both claims, the defendants' alleged conduct ascribed to them the status of publishers of information, whether by "using" the website to post certain content (i.e., publishing), id. ¶ 17, "allow[ing]" certain content to be posted to the website (i.e., deciding whether to publish), id. ¶¶ 17, 19, or by "refus[ing] ... to remove these postings," id. ¶ 19. The defendants' potential liability is thus "derive[d] from [their] status or conduct as a publisher or speaker." Barnes, 570 F.3d at 1102.
The plaintiff seems to acknowledge that "another information content provider," 47 U.S.C. § 230(c)(1) (emphasis added), created the information, Compl. ¶¶ 17, 19. He argues, however, that the defendants are subject to liability under the CDA because they are, themselves, information content providers. Pl.'s Opp'n at 6-8. The defendants reply that they cannot be categorized as information content providers because they "were not responsible for the `creation or development' of the offending content." Defs.' Reply at 8 (quoting 47 U.S.C. § 230(f)(3)).
While the defendants might well be information content providers as to some information on their website, other courts have framed the relevant question to be whether a defendant "function[s] as an `information content provider' for the portion of the statement or publication at issue." Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.2003); see also Roskowski v. Corvallis Police Officers' Ass'n, 250 Fed.Appx. 816, 816-17 (9th Cir.2007) ("To the extent that [the plaintiff] ... has not shown that [the defendant] made those postings itself, [the plaintiff] cannot hold [the defendant] liable for the content of the postings."); Nemet Chevrolet, Ltd., 591 F.3d at 260 (affirming district court's dismissal of complaint where plaintiff failed to show that defendant "was responsible for the creation or development of the allegedly defamatory content at issue" (emphasis added)). And another member of this Court has stated that "[§]230(c)(1) would not immunize [the defendant] with respect to any information [the defendant] developed or created entirely by itself and [] there are situations in which there may be two or more information content providers responsible
The plaintiff argues only that the "[d]efendants encouraged [the Third Palestinian Intifada Facebook page] ... by failing to remove" the page "in a timely manner." Pl.'s Opp'n at 8; see also Compl. ¶ 7 (alleging that the defendants "refused" to remove the page). Nowhere in his complaint or in his opposition brief does the plaintiff allege that the defendants contributed to the content of the Facebook page at issue. Rather, as described above, the plaintiff focuses on the role that the defendants played in publishing the Facebook page.
Because (1) the defendants provide an interactive computer service, (2) the plaintiff's complaint attempts to hold the defendants liable as publishers or speakers of a third party's information, and (3) the defendants are not, themselves, information content providers with respect to the information at issue, the defendants are immune to suit in accordance with the CDA, and the Court must grant the defendants' motion to dismiss.