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Force v. Facebook Inc.

United States District Court, E.D. New York

January 17, 2018

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



         Plaintiffs 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.

         On May 18, 2017, the court dismissed Plaintiffs' first amended complaint without prejudice for failure to state a claim upon which relief may be granted.[1] (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.

         I. BACKGROUND

         The 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)).


         A. Motion to Alter the Judgment

         Plaintiffs 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.)

         Plaintiffs 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.

         1. Legal Standard

         "A 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)).

         2. Application

         Plaintiffs 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.

         a."Focus " of Section 230

         Plaintiffs 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).

         Plaintiffs' 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, 1997)).

         Moreover, 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).)

         Plaintiffs' 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.

         b. The Scope of the CDA

         Plaintiffs 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.

         i. Facebook's Role as "Information Content Provider"

         Plaintiffs 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.)

         Plaintiffs' 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).

         ii. Facebook's Conduct as "Speaker or Publisher"

         Plaintiffs 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. (Id.)

         In the 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 ...

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