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Cohen v. Facebook, Inc.

United States District Court, E.D. New York

May 18, 2017

RACHELI COHEN, et al., Plaintiffs,
FACEBOOK, INC, Defendant. STUART FORCE, individually and as Administrator on behalf of the Estate of Taylor Force, et al, Plaintiffs,
FACEBOOK, INC, Defendant.


          NICHOLAS G. GARAUFIS, United States District Judge.

         Plaintiffs in the above-captioned related actions assert various claims against Facebook, Inc. ("Facebook") based on their contention that Facebook has supported terrorist organizations by allowing those groups and their members to use its social media platform to further their aims. The plaintiffs in the first action (the "Cohen Action") are roughly 20, 000 Israeli citizens (the "Cohen Plaintiffs"). (Cohen Am. Compl. ("Cohen FAC") (Dkt. 17), No. 16-CV-4453.) The second action (the "Force Action") is brought by victims, estates, and family members of victims of terrorist attacks in Israel (the "Force Plaintiffs" and, together with the Cohen Plaintiffs, "Plaintiffs"). (Force Am. Compl. ("Force FAC") (Dkt. 28), No. 16-CV-5158.)

         Before the court are Facebook's motions to dismiss the operative complaints in both actions pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6) (as to the Cohen Action) and 12(b)(2) and (6) (as to the Force Action). (Cohen Def. Mot. to Dismiss ("Cohen MTD") (Dkt. 23), No. 16-CV-4453; Force Def. Mot. to Dismiss ("Force MTD") (Dkt. 34), No. 16-CV-5158.) Because of the substantial similarity in facts and the legal issues raised, the court addresses these motions together in this Memorandum and Order.

         For the following reasons, the court GRANTS Facebook's motions to dismiss the operative complaints in both the Cohen Action and the Force Action.

         I. BACKGROUND

         A. Facebook's Social Media Platform

         Facebook's eponymous social media website allows users to create personalized webpages that contain information about themselves, including identifying information, photographs, videos, interests, recent activities, and links to content from other websites. (Cohen FAC ¶ 42; see also Force FAC ¶¶ 94-95, 522.) Once a user joins the website, they can engage with other Facebook users in a number of ways, including by adding those users as "friends" and providing feedback to content provided by other users by "sharing, " "liking" (i.e. applying a tag that is shared with other users), or commenting on that content. (Cohen FAC ¶ 42; Force FAC ¶ 523.) Additionally, users are able to view their contacts' activities on the website, including both information posted by those contacts as well as their contacts' interactions with other users and content. (See Cohen FAC ¶ 42; Force FAC ¶¶ 524, 527.)

         Facebook users are also able to create "groups" with other users, which allows multiple users to join a shared website which has its own profile and information. (Cohen FAC ¶ 43; Force FAC ¶ 525-26.) Members of a group can view, interact with, and share content posted in these group forums. (Cohen FAC ¶ 43.)

         Facebook collects data as to its users' activities through the website, including but not limited to information regarding contacts and group associations, content that users post and interact with, and use of third party websites. (Cohen FAC ¶ 44; Force Compl ¶ 528.) Using proprietary algorithms, Facebook generates targeted recommendations for each user, promoting content, websites, advertisements, users, groups, and events that may appeal to a user based on their usage history. (Cohen FAC ¶¶ 45-48; Force FAC ¶¶ 529-41.) In this way, Facebook connects users with other individuals and groups based on projected common interests, activities, contacts, and patterns of usage. (Cohen FAC ¶ 48; Force FAC ¶¶ 530-33.) Facebook also presents users with content posted by other users, groups, and third parties (e.g., advertisers) that is likely to be of interest to them, again based on prior usage history. (Cohen FAC ¶¶ 53-55; Force FAC ¶¶ 534-41.)

         B. The Plaintiffs

         The Cohen Plaintiffs are 20, 000 individuals residing in Israel who state that they "have been and continue to be targeted by" attacks by Palestinian terrorist organizations. (Cohen FAC ¶ 4.) The Cohen Plaintiffs claim that they are "presently threatened with imminent violent attacks that are planned, coordinated, directed, and/or incited by terrorist users of Facebook." (Id. ¶ 5.) In particular, they claim to be threatened by an outbreak of violence by Palestinian groups-which they sometimes refer to as the "Facebook Intifada"-and their Complaint recounts 54 separate attacks by Palestinian terrorists and terror groups in Israel since October 1, 2015. (Id ¶¶ 11-16.)

         Unlike the Cohen Plaintiffs, who claim to be threatened only by potential future attacks, the Force Plaintiffs are the estates of victims (and, in one case, the surviving victim) of past attacks by the Palestinian terrorist organization Hamas and the family members of those victims. (Force FAC ¶¶ 5-18). The victims were U.S. citizens, most of whom were domiciled in Israel at the time of the attacks. (See id.) In their Complaint, the Force Plaintiffs describe the attacks that harmed them, providing a detailed timeline of the events and Hamas's particular involvement in the attacks. (See generally Id. ¶¶ 156-499.)

         C. Allegations Against Facebook

         Plaintiffs in the two actions make substantially similar allegations as to Facebook's role in their alleged harms. Plaintiffs claim that Palestinian terrorists[1] "use Facebook's social media platform and communications services to incite, enlist, organize, and dispatch would-be killers to 'slaughter Jews.'" (Cohen FAC ¶ 18: see also Force FAC ¶ 362.) They further aver that Palestinian terrorist groups and associated individuals use their Facebook pages for general and specific incitements to violence and to praise past terrorist attacks. (See Cohen Compl ¶¶ 23-36; Force FAC ¶¶ 111-15.) Plaintiffs allege that Facebook's algorithms, used to connect users with other users, groups, and content that may be of interest to them, play a vital role in spreading this content, as Palestinian terrorist organizations are able to "more effectively disseminate [incitements to violence], including commands to murder Israelis and Jews, to those most susceptible to that message, and who most desire to act on that incitement." (Cohen FAC ¶ 56; see also Force FAC ¶¶ 530-41.)

         Plaintiffs allege that Facebook is aware of the use of its platform by Palestinian terrorist organizations and their members but has failed to take action to deactivate their accounts or prevent them from inciting violence. (Cohen FAC ¶ 40; Force FAC ¶ 502-04.) In the case of Hamas, the Force Complaint alleges that Facebook allows that organization, its members, and affiliated organizations to operate Facebook accounts in their own names, despite knowledge that many of them have been officially named as terrorists and sanctioned by various governments. (See Force FAC ¶¶ 118-25.) Plaintiffs claim that Facebook's approach to addressing this use of the platform has been piecemeal (intermittently deleting individual postings or barining users) and inconsistent (e.g., deleting offending posts from one individual without removing identical messages or banning users without taking steps to ensure that the same person does not subsequently rejoin the website under a different moniker). (Id ¶¶ 549-55; see also Cohen FAC ¶¶ 40, 61-62.)


         The Cohen Plaintiffs originally filed their action in the Supreme Court of New York, Kings County, and it was removed to this court by Facebook on August 10, 2016, on the basis of diversity of citizenship. (Not. of Removal (Dkt. 1), No. 16-CV-4453.) The operative complaint in this action is the First Amended Complaint, filed on October 10, 2016. (See generally Cohen FAC.) The Cohen Plaintiffs bring Israeli law claims of negligence, breach of statutory duty, and vicarious liability (id. ¶¶ 67-106), as well as New York law claims for prima facie tort, intentional infliction of emotional distress, aiding and abetting a tort, and civil conspiracy (id. ¶¶ 107-34). The Cohen Plaintiffs seek only declaratory and injunctive relief. (Id. ¶¶ 149-55.) Separate from their substantive claims for relief, the Cohen Complaint requests a judicial declaration that the causes of action noted above are not barred by Section 230(c)(1) of the Communications Decency Act, 47 U.S.C. § 230. (Id. ¶¶ 135-48)

         The Force Plaintiffs filed their action in the United States District Court for the Southern District of New York on July 10, 2016. (See generally Force Compl. (Dkt. 1), No. 16-CV-5158.) The case was subsequently transferred to this court as related to the Cohen Action on September 16, 2016. (Sept. 16, 2016, Order Reassigning Case (Dkt. 15).) The operative complaint is the First Amended Complaint, filed on October 10, 2016. (Force FAC.) Like the Cohen Complaint, the Force Complaint brings claims for negligence, breach of statutory duty, and vicarious liability under Israeli law. (Id. ¶¶ 586-620.) The Force Complaint also raises claims under the civil enforcement provisions of the federal Anti-Terrorism Act ("ATA") and the Justice Against Sponsors of Terror Act for aiding and abetting acts of international terrorism, conspiracy in furtherance of acts of international terrorism, and providing material support to terrorist groups in violation of 18 U.S.C. §§ 2339A and 2339B. (Id ¶¶ 561-85.) The Force Plaintiffs seek $1 billion in compensatory damages, punitive damages to be determined at trial, and treble damages for violations of the federal anti-terrorism statutes. (Id. at ECF p. 123.)

         III. Discussion

         Before the court are Facebook's motions to dismiss the operative complaints in each of the two actions. (Cohen MTD; Force MTD.) Facebook moves to dismiss the Cohen Complaint for lack of subject matter and personal jurisdiction and for failure to state a claim upon which relief may be granted pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure. (Cohen MTD; see also Mem. in Supp. of Def. Mot. to Dismiss ("MTD Mem.") (Dkt. 24), No. 16-CV-4453.)[2] Facebook separately moves to dismiss the Force Complaint for lack of personal jurisdiction and failure to state a claim upon which relief may be granted pursuant to Rules 12(b)(2) and (6). (Force MTD; see also MTD Mem.)

         A court facing challenges as to both its jurisdiction over a party and the sufficiency of any claims raised must first address the jurisdictional question. See Arrowsmith v. United Press Int'l 320 F.2d 219, 221 (2d Cir. 1963). However, there is no such required ordering as between questions of personal and subject matter jurisdiction. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586-87 (1999); Carver v. Nassau Cty. Interim Fin. Auth.. 730 F.3d 150, 156 (2d Cir. 2013) (holding that courts "are not bound to decide any particular jurisdictional question before any other").

         The court concludes that the Cohen Plaintiffs lack standing to bring their claims and so dismisses their Complaint in its entirety for lack of subject matter jurisdiction. The court finds that it has personal jurisdiction over Facebook with respect to the claims in the Force Complaint but that the action must be dismissed for failure to state a claim, as Facebook makes out a sufficient affirmative defense pursuant to Section 230(c)(1) of the Communications Decency Act.

         A. Subject Matter Jurisdiction

         Facebook first argues that the Cohen Plaintiffs lack standing to bring their challenges in federal court, as they fail to point to an injury which is either distinguishable from the harm faced by the public at large, fairly traceable to Facebook's actions, or redressable through relief against the company. (See MTD Mem. at 30-32.) The court does not address the potential traceability or redressability issues, as it concludes that the Cohen Plaintiffs do not allege a cognizable "injury-in-fact" and so fail to establish standing.

         1. Legal Standard

         "A case is properly dismissed for lack of subject matter jurisdiction... when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "The plaintiff bears the burden of alleging facts that affirmatively and plausibly suggest that it has standing to sue, " Cortlandt St. Recovery Corp. v. Hellas Telecomms. S.a.r.L, 790 F.3d 411, 417 (2d Cir. 2015) (internal quotation marks, alterations, and citation omitted), a burden which it must satisfy by a preponderance of the evidence, Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002). Courts must "accept as true all material factual allegations in the complaint.... [but] jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Shipping Fin. Servs. Corp. v. Drakos. 140 F.3d 129, 131 (2d Cir. 1998); accord Morrison v. Nal'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff'd. 561 U.S. 247 (2010).

         Federal jurisdiction is constitutionally constrained to "cases" and "controversies, " one element of which requires plaintiffs before the court to establish standing: a "genuinely personal stake" in the outcome of a case sufficient to "ensure[] the presence of 'that concrete adverseness which sharpens the presentation of issues upon which [a] court so largely depends.'" Cortland St. Recovery. 790 F.3d at 417 (quoting Baker v. Carr. 369 U.S. 186, 204 (1962)). "In its constitutional dimension, standing imports justiciability, " Warth v. Seldin, 422 U.S. 490, 498 (1975), and objections to standing are properly made under Rule 12(b)(1), as they are directed at the court's ability to adjudicate an issue as to parties before it, see, e.g., Tasini v. N.Y. Times Co., 184 F.Supp.2d 350, 354-55 (S.D.N.Y. 2002).

         2. Standing

         In order to meet the "irreducible constitutional minimum" of standing, a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo. Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (internal quotation marks and citations omitted). "To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting Luian v. Defenders of Wildlife. 504 U.S. 555, 560 (1992)). Additionally, Plaintiffs must demonstrate a "present case or controversy" with respect to claims seeking prospective, injunctive relief, City of L.A. v. Lyons, 461 U.S. 95, 102-03 (1983), and "past injuries cannot satisfy the injury-in-fact requirement" for such claims, Vaccariello v. XM Satellite Radio. Inc.. 295 F.R.D. 62, 72 (S.D.N.Y. 2013) (citing Shain v. Ellison. 356 F.3d 211, 215 (2d Cir. 2004)).

         Plaintiffs may, under some circumstances, rely on the risk of a future harm to support their injury in fact, see Deshawn E. v. Safir. 156 F.3d 340, 344 (2d Cir. 1998); however, such injuries are only "actual or imminent" where "the threatened injury is 'certainly impending, ' or there is a 'substantial risk' that the harm will occur."[3] Susan B. Anthony List v. Driehaus. 134 S.Ct. 2334, 2341 (2014) (quoting Clapper v. Amnesty Int'l USA. 133 S.Ct. 1138, 1147 (2013)). A plaintiff alleging only an "objectively reasonable possibility" that it will sustain the cited harm at some future time does not satisfy this requirement. Clapper. 133 S.Ct at 1147-48. For this reason, courts are generally hostile to "standing theories that require guesswork as to how independent decisionmakers will exercise their judgment, " Id. at 1150, which almost by definition require speculation as to the likelihood of injury resulting from the third party's actions.

         Moreover, plaintiffs cannot evade the required showing of an "actual or imminent" injury by alleging present harms incurred as a result of their "fear[] of a hypothetical future harm that is not certainly impending, " as doing so would allow parties to "repackage" their conjectural injury to "manufacture standing." Id. at 1151. Instead, the focus of the standing inquiry remains whether "the threat creating the fear is sufficiently irnminent." Hedges v. Obama, 724 F.3d 170, 195 (2d Cir. 2013); see also Lyons, 461 U.S. at 107 n.8 ("It is the reality of the threat... that is relevant to the standing inquiry, not the plaintiffs subjective apprehensions.").

         Courts have broadly rejected claims based on the risk of falling victim to a future terrorist attack, concluding that such harms are impermissibly speculative and so insufficient to confer standing. See, e.g., Tomsha v. Gen. Servs. Admin., No. 15-CV-7326 (AJN), 2016 WL 3538380, at *2-3 (S.D.N.Y. June 21, 2016); Bernstein v. Kerry.962 F.Supp.2d 122, 127-28 (D.D.C. 2013): People of Colo, ex rel. Suthers v. Gonzales. 558 F.Supp.2d 1158, 1162 (D. Colo. 2007): cf. George v. Islamic Rep, of Iran. 63 F.App'x. 917, 918 (7th Cir. 2003) (holding that plaintiffs were ...

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