United States District Court, E.D. New York
STUART FORCE, individually and as Administrator on behalf of the Estate of Taylor Force, et al., Plaintiffs,
FACEBOOK, INC., Defendant.
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
in the above-captioned action are the victims, estates, and
family members of victims of terrorist attacks in Israel.
(1st Am. Compl. ("FAC") (Dkt. 28).) They assert
various claims against Facebook, Inc. ("Facebook")
based on their contention that Facebook has supported the
terrorist organization Hamas by allowing that group and its
members and supporters to use Facebook's social media
platform to further their aims.
18, 2017, the court dismissed Plaintiffs' first amended
complaint without prejudice for failure to state a claim upon
which relief may be granted. (May 18, 2017, Mem. & Order
("May 18 M&O") (Dkt. 48).) Before the court are
Plaintiffs' motions to alter the judgment dismissing the
first amended complaint (Mot. to Alter J. ("Recons.
Mot.") (Dkt. 50)) and for leave to file a second amended
complaint (Mot. for Leave to File 2d Am. Compl.
("Amendment Mot.") (Dkt. 52)). For the following
reasons, the court DENIES both motions.
court assumes familiarity with Plaintiffs' allegations
and the court's prior decision granting Facebook's
motion to dismiss Plaintiffs' first amended complaint.
(See May 18 M&O.) In that opinion, the court
specified that the dismissal was without prejudice.
(Id. at 28.) On June 15, 2017, Plaintiffs filed two
motions: first, a motion to alter the judgment,
"retracting [the May 18 M&O] and issuing a modified
opinion denying Facebook's motion to dismiss"
(Recons. Mot.); and second, a motion for leave to file a
second amended complaint, a copy of which Plaintiffs appended
to their memorandum in support of that motion (Amendment
Mot.; see also Proposed 2d Am. Compl.
("PSAC") (Dkt. 53-1)).
Motion to Alter the Judgment
ask the court to reconsider its dismissal of the first
amended complaint. The court concluded that all of the claims
contained therein were barred by Section 230(c)(1)
("Section 230") of the Communications Decency Act
("CDA"), 47 U.S.C. § 230(c)(1). That law
states 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). Examining the
myriad opinions considering the application of that law, the
court concluded that each of Plaintiffs' claims and
theories of liability sought to hold Facebook liable based on
its role as the "publisher or speaker" of social
media content generated by Hamas and affiliated individuals,
and so were barred by the defense afforded by Section 230.
(May 18 M&O at 17-23.) The court also held that applying
Section 230 to the claims and theories at issue did not
require an impermissible extraterritorial application of the
CDA, as the relevant location for its extraterritoriality
analysis was "the situs of the litigation."
(Id. at 26.)
contend that the court erred both in its determination that
Section 230 applied to the claims raised in the first amended
complaint and that the application of that law to those
claims was not impermissibly extraterritorial. They seek
reconsideration and rescission of the opinion dismissing
their complaint pursuant to Rule 59(e) of the Federal Rules
of Civil Procedure. For the reasons that follow, the court
sees no reason to reconsider its previous decision dismissing
the first amended complaint.
motion for reconsideration should be granted only when the
[moving party] identifies 'an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.'" Kolel Beth Yechiel Mechil of
Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104
(2d Cir. 2013) (quoting Virgin Atl. Airways v. Nat'l
Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
"It is well-settled that Rule 59 is not a vehicle for
relitigating old issues, presenting the case under new
theories, securing a rehearing on the merits, or otherwise
taking a 'second bite at the apple."'
Analytical Surveys. Inc. v. Tonga Partners, L.P.,
684 F.3d 36, 52 (2d Cir. 2012) (internal quotation marks and
citation omitted). "[T]he standard for granting a Rule
59 motion for reconsideration is strict, and reconsideration
will generally be denied unless the moving party can point to
controlling decisions or data that the court
overlooked." Id. (quoting Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995))
(alterations omitted). "The burden is on the movant to
demonstrate that the Court overlooked controlling decisions
or material facts that were before it on the original motion
and that might materially have influenced its earlier
decision." Schoolcraft v. City of New York, 248
F.Supp.3d 506, 508 (S.D.N.Y. 2017); see also Levin v.
Gallery 63 Antiques Corp., No. 04-CV-1504 (KMK), 2007 WL
1288641, at *2 (S.D.N.Y. Apr. 30, 2007) ("Motions for
reconsideration allow the district court to correct its own
mistakes, not those of the Parties." (internal quotation
marks and citations omitted)).
argue that the court erred in (1) determining that the
"focus" of Section 230 was on the "limitation
of liability;" and (2) applying Section 230 to the
claims against Facebook and, particularly, to claims raised
under the Anti-Terrorism Act ("ATA") and Israeli
law. (See generally Mem. in Supp. of Mot. for
Recons. ("Recons. Mem. (Dkt. 51).) The court addresses
these arguments in turn.
" of Section 230
first argue that the court erred in concluding that the
presumption against extraterritoriality did not preclude
application of Section 230 to the allegations raised in the
first amended complaint. Plaintiffs take particular issue
with the court's determination that Section 230's
"focus" was on that section's "limitation
on liability." (Recons. Mem. at 4 (quoting May 18
M&O at 25).) Plaintiffs argue both that the court's
identification of the statutory "focus" was based
on an overly narrow focus on the provision at issue in this
litigation, Section 230(c)(1) (Recons. Mem. at 4-5), and that
the court's conclusion that the statute's focus is on
liability "wrongly conflates the effect of a statute
with its focus, " which is on the actions of interactive
computer providers (id. at 5-8).
arguments on this point do not come close to meriting
reconsideration. The court notes that Plaintiffs at no point
attempted to raise either of these arguments in their
opposition to Facebook's motion to dismiss; in fact, the
portions of Plaintiffs' brief discussing
extraterritoriality do not even mention the word
"focus." (See Pls. Mem. in Opp'n to
Mot. to Dismiss ("Pls. MTD Opp'n") (Dkt. 40) at
30-31.) Plaintiffs provide no reason why they could not have
presented such arguments in their initial briefing, and such
new arguments have no place in a motion for reconsideration.
See, e.g., Schoolcraft, 248 F.Supp.3d at 508. While
Plaintiffs now seek to take a new tack, "[a] party
requesting reconsideration is not supposed to treat the
court's initial decision as the opening of a dialogue in
which that party may then use Rule [59(e)] to advance new
facts and theories in response to the court's
rulings." Id. at 509 (quoting Church of
Scientology Int'l v. Time Warner, Inc., No.
92-CV-3024 (PKL), 1997 WL 538912, at *2 (S.D.N.Y. Aug. 27,
Plaintiffs identify no contrary authority that the court
overlooked or misapplied, as is normally required to obtain
reconsideration. See Analytical Surveys, 684 F.3d at
52. Instead, Plaintiffs contend the court's approach is
generally at odds with Supreme Court and Second Circuit
opinions examining issues of extraterritoriality because the
court failed to adequately account for "statutory
context." (Recons. Mem at 4-6.) Plaintiffs plainly
misread the court's opinion, however, which was explicit
in basing its conclusion about the statute's focus on its
reading of Section 230 as a whole. (See May 18
M&O at 25-26 (exarriining policy statements and
substantive provisions of Section 230).)
second argument-that the court's holding that Section
230's focus is on limiting liability "wrongly
conflates the effect of a statute with its focus"
(Recons. Mem. at 6-7)-is likewise unsupported by any contrary
authority. Plaintiffs wave their hands at two recent Supreme
Court decisions contemplating statutes other than
the CDA and purport to draw from those decisions the
proposition that "no statute's focus can ever be to
simply limit liability." (Id. at 6-7 (citing
Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247
(2010), and Kiobel v. Royal Dutch Petroleum Co., 569
U.S. 108 (2013)).) However, those decisions offer no support
for such a broad generalization, as they examine only the
particular statutes before the Court while stressing that the
touchstone of extraterritoriality analysis must be on the
"focus of congressional concern" in enacting the
challenged statute. Morrison, 561 U.S. at 266. The
court sees nothing in those opinions that disturbs its
analysis of the CD A and certainly sees nothing that suggests
that Congress's focus in enacting a statute can
never be on limiting liability.
The Scope of the CDA
next argue that the court misapplied Section 230 to their
claims against Facebook. (Recons. Mem. at 8-17.) Plaintiffs
make two separate arguments: first, that the court failed to
consider Plaintiffs' allegations and arguments that
Facebook acted as an "information content provider,
" independent of content provided by Hamas-affiliated
users (id. at 11-14); and second, that the court incorrectly
extended Section 230's coverage to "valuable
services" provided by Facebook (id. at 14-17). The court
examines these arguments separately.
Facebook's Role as "Information Content
first contend that the court failed to address their
contention that Facebook acted as an "information
content provider" within the meaning of Section 230 and
could not claim protection under that section. As noted in
the court's original decision, the protection afforded by
Section 230 applies only to claims "based on information
provided by [an] information content provider" other
than the defendant. (May 18 M&O at 18-19 (quoting FTC
v. LeadClick Media. LLC, 838 F.3d 158, 173 (2d Cir.
2016)).) Plaintiffs now maintain that their claims have, in
fact, always sought to hold Facebook liable for its own
content, and not that generated by another "information
content provider, " Le. Hamas and related entities,
based on Facebook's alleged role in
"networking" and "brokering" links among
terrorists. (Recons. Mot. at 12.)
contention is completely disingenuous. In the current motion,
Plaintiffs acknowledge in a footnote that "perhaps
plaintiffs could have made their reliance on Facebook's
productive conduct clearer in their briefing" but
attribute this oversight to Facebook's supposed failure
to argue that it was not a content provider. (Recons. Mot. at
12 & n.9.) Plaintiffs' contention is flatly refuted
by Facebook's briefing on the original motion to dismiss,
which clearly argued that all of the offending content cited
in Plaintiffs' complaint was "provided by another
information content provider, not by Facebook itself."
(Def. Mem. in Supp. of MTD (Dkt. 35) at 17-18.) Plaintiffs
did not respond to this argument at any point, and in fact
began their opposition memorandum by stating that
"[t]hese cases do not concern speech or content."
(Pls. MTD Opp'n at 1.) For Plaintiffs to now turn around
and argue that its allegations are largely about content that
Facebook itself created borders on mendacious. More to the
point, this entirely new argument in support of liability is
not suitably considered on a motion for reconsideration,
which "may not be used to advance new facts, issues or
arguments not previously presented to the Court." See
Montblanc-Simplo GmbH v. Colibri Corp., 739
F.Supp.2d 143, 147 (E.D.N.Y. 2010) (internal quotation marks
and citations omitted).
Facebook's Conduct as "Speaker or
next contend that the court "misapprehended" the
scope of their claims in failing to consider Plaintiffs'
allegation that Facebook "provided ... terrorists with
valuable services unrelated to publication... that do not
fall within the traditional role of a publisher."
(Recons. Mem. at 16.) In particular, Plaintiffs contend that
they are suing Facebook for "developing, encouraging,
and facilitating connections between terrorists, " and
not simply based on its failure to "police its
accounts" and remove terrorist-affiliated users.
court's view, however, it has already addressed
Plaintiffs' argument and need not revisit its conclusions
on that point. It is true that the court's previous
opinion focused largely on whether Facebook's provision
of accounts to Hamas-affiliated users could meaningfully be
separated from its role as a "publisher or speaker"
of content produced by users, with the court concluding that
"Facebook's choices as to who may use its platform
are inherently bound up in its decisions as to what may be
said on its platform, and so liability imposed based on its
failure to remove users would equally "derive from
[Facebook's] status or conduct as a 'publisher or
speaker.'" (May 18 M&O at 21 (quoting
LeadClick Media, 838 F.3d at 175).) While Plaintiffs
now seek to distinguish between "making [Facebook's]
system available to terrorists and a terrorist
organization" and "provid[ing] [ ] terrorists with
valuable services" through such access (Recons. Mem. at
16), this is a distinction without a difference: the
"valuable services" at issue are part and parcel of
access to a Facebook account, and so imposing liability on
that basis would again effectively turn on
"Facebook's choices as to who may use its
platform." (May 18 M&O at 21.) Plaintiffs are merely
attempting to rehash ...