Case No.: 3:20-Cv-05787-Si [Proposed] Order On Motion To Dismiss, Doc. 56-5 — Children's Health Defense v. Facebook Inc
- Date
- 2020-10-23
Summary
A proposed order on Facebook, Inc.'s and Mark Zuckerberg's motion to dismiss, filed October 23, 2020 as Document 56-5 in Children's Health Defense v. Facebook, Inc., et al., Case No. 3:20-cv-05787-SI, in the U.S. District Court for the Northern District of California. Submitted by Wilmer Cutler Pickering Hale and Dorr LLP as counsel for the defendants, it describes the plaintiff's four counts under Bivens, the Lanham Act (15 U.S.C. § 1125(a)(1)(B)), RICO (18 U.S.C. § 1962(c)) and for declaratory relief. The proposed text would dismiss Count I for lack of federal action and Counts II and III as protected by the First Amendment and barred by 47 U.S.C. § 230(c)(1) and (c)(2)(B), with further grounds for each count. It would grant the motion and dismiss the complaint with prejudice, with a signature line for Hon. Susan Illston left undated.
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Case 3:20-cv-05787-SI Document 56-5 Filed 10/23/20 Page 1 of 4
1 SONAL N. MEHTA (SBN 222086)
Sonal.Mehta@wilmerhale.com
2 WILMER CUTLER PICKERING
HALE AND DORR LLP
3 2600 El Camino Real, Suite 400
Palo Alto, California 94306
4 Telephone: (650) 858-6000
Facsimile: (650) 858-6100
5
ARI HOLTZBLATT (pro hac vice)
6 Ari.Holtzblatt@wilmerhale.com
MOLLY M. JENNINGS (pro hac vice)
7 Molly.Jennings@wilmerhale.com
ALLISON SCHULTZ (pro hac vice)
8 Allison.Schultz@wilmerhale.com
WILMER CUTLER PICKERING
9 HALE AND DORR LLP
1875 Pennsylvania Ave, NW
10 Washington, DC 20006
Telephone: (202) 663-6000
11 Facsimile: (202) 663-6363
12 Attorneys for Defendants
FACEBOOK, INC. and
13 MARK ZUCKERBERG
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17 UNITED STATES DISTRICT COURT
18 NORTHERN DISTRICT OF CALIFORNIA
19 SAN FRANCISCO DIVISION
20 CHILDREN’S HEALTH DEFENSE,
Case No. 3:20-cv-05787-SI
21 Plaintiff,
22 [PROPOSED] ORDER ON
v.
FACEBOOK, INC.’S AND MARK
23 FACEBOOK, INC., ET AL., ZUCKERBERG’S MOTION TO
DISMISS
24 Defendants.
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CASE NO.: 3:20-CV-05787-SI [PROPOSED] ORDER ON MOTION TO DISMISS
Case 3:20-cv-05787-SI Document 56-5 Filed 10/23/20 Page 2 of 4
1 [PROPOSED] ORDER ON FACEBOOK, INC.’S AND MARK ZUCKERBERG’S
2 MOTION TO DISMISS
3 Plaintiff Children’s Health Defense (“CHD”) brings four claims against Facebook, Inc. and
4 Mark Zuckerberg. Count I seeks damages under the implied cause of action recognized in Bivens v.
5 Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Count II
6 claims that Defendants violated the Lanham Act’s false-advertising provision, 15 U.S.C.
7 § 1125(a)(1)(B). Count III asserts that Defendants committed multiple acts of wire fraud in a manner
8 that gives CHD a civil claim under the Racketeer Influenced and Corrupt Organizations (“RICO”)
9 statute, 18 U.S.C. § 1962(c). And Count IV seeks declaratory relief associated with Counts I-III.
10 Count I is dismissed because CHD has not plausibly alleged federal action. Facebook and
11 Mr. Zuckerberg are private actors, and CHD has not sufficiently alleged that the “joint action”
12 doctrine applies. See Mathis v. Pacific Gas & Elec. Co., 75 F.3d 498, 503 (9th Cir. 1995). Count I
13 additionally fails because neither Facebook nor Mr. Zuckerberg is a proper Bivens defendant here.
14 Bivens does not apply to corporations, like Facebook. Correctional Servs. Corp. v. Malesko, 534
15 U.S. 61, 70-71 (2001). And CHD has not alleged that Mr. Zuckerberg had any personal involvement
16 in any decision specific to CHD. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Finally, and in any
17 event, the Court declines to expand Bivens liability to the novel facts presented here. See Ziglar v.
18 Abbasi, 137 S. Ct. 1843, 1859 (2017).
19 Moreover, because Counts II and III arise out of activity by Facebook and Mr. Zuckerberg
20 that is fully protected by the First Amendment, CHD cannot hold Facebook or Mr. Zuckerberg liable
21 for those actions. Counts II and III accordingly must be dismissed.
22 Counts II and III are additionally barred by the Communications Decency Act (“CDA”), 47
23 U.S.C. § 230(c)(1) and (c)(2)(B) because they would treat Facebook and Mr. Zuckerberg “as the
24 publisher or speaker of … information provided by another information content provider,” id.
25 § 230(c)(1), and target actions by Facebook and Mr. Zuckerberg “taken to enable or make available
26 to information content providers or others the technical means to restrict access to material” that “the
27 provider or user considers to be … otherwise objectionable,” id. § 230(c)(2)(B). Counts II and III are
28 therefore dismissed on this ground as well.
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CASE NO.: 3:20-CV-05787-SI [PROPOSED] ORDER ON MOTION TO DISMISS
Case 3:20-cv-05787-SI Document 56-5 Filed 10/23/20 Page 3 of 4
1 Count II is also dismissed because CHD has not stated a false-advertising claim under the
2 Lanham Act, for two reasons. First, CHD does not allege the kind of commercial injury
3 cognizable under the Act. It alleges only injuries (1) arising out of its relationship to Facebook as a
4 customer, not competitor, and (2) to its position in the “marketplace of ideas.” These alleged
5 injuries are insufficient to confer statutory standing under the Lanham Act. See Animal Legal
6 Defense Fund v. HVFG LLC, 939 F. Supp. 2d 992, 1000 (N.D. Cal. 2013). Second, the complaint
7 nowhere alleges a promotional statement by Facebook or Mr. Zuckerberg that contained false
8 representations about CHD. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139
9 (9th Cir. 1997).
10 Count III is additionally dismissed because CHD has not stated a civil RICO claim. CHD
11 lacks statutory standing to bring a civil RICO claim, see 18 U.S.C. § 1964(c), because its injuries
12 were not the direct result of the alleged fraudulent scheme, see Anza v. Ideal Steel Supply Corp.,
13 547 U.S. at 451, 459 (2006). CHD also has not pleaded any predicate acts of wire fraud, both
14 because it has not pleaded that Facebook or Mr. Zuckerberg took money or property from CHD
15 through their purported fraud, see Monterey Plaza Hotel L.P. v. Local 483, 215 F.3d 923, 926-927
16 (9th Cir. 2000), and because it has not adequately pleaded false statements under Rule 9(b), see
17 Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065-1066 (9th Cir. 2004).
18 Count IV is dismissed because, while “the Declaratory Judgment Act creates a remedy for
19 litigants,” it “is not an independent cause of action.” County of Santa Clara v. Trump, 267 F.
20 Supp. 3d 1201, 1215-1216 (N.D. Cal. 2017).
21 In addition to the above failings, CHD has not stated any claim against Mr. Zuckerberg
22 because it has not adequately alleged his personal involvement in any of the conduct at issue.
23 These “deficiencies cannot be cured by amendment.” Cheung v. Wells Fargo Bank, N.A.,
24 987 F. Supp. 2d 972, 976 (N.D. Cal. 2013). Leave to amend the complaint would therefore be
25 futile.
26 Defendants Facebook, Inc.’s and Mark Zuckerberg’s Motion to Dismiss the Complaint is
27 GRANTED. CHD’s Complaint is DISMISSED WITH PREJUDICE in its entirety.
28
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CASE NO.: 3:20-CV-05787-SI [PROPOSED] ORDER ON MOTION TO DISMISS
Case 3:20-cv-05787-SI Document 56-5 Filed 10/23/20 Page 4 of 4
1 Dated: _______________________
2
3 _____________________________
4 By: Hon. Susan Illston
United States District Judge
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CASE NO.: 3:20-CV-05787-SI [PROPOSED] ORDER ON MOTION TO DISMISS
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