1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RONDA BALDWIN KENNEDY, et al., Case No. 23-cv-06615-HSG

8 Plaintiffs, ORDER GRANTING MOTION TO

DISMISS

9 v. Re: Dkt. No. 15 10 META PLATFORMS INC., et al., 11 Defendants.

12 13 Pending before the Court is Defendant Meta Platforms Inc.’s motion to dismiss. Dkt. No. 14 15. The Court finds this matter appropriate for disposition without oral argument and the matter is 15 deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed below, the Court GRANTS the 16 motion. 17 I. BACKGROUND 18 Pro se Plaintiff Ronda Baldwin-Kennedy and two of her political campaign entities1 19 initially filed this case in the District of Nevada against Defendants Meta Platforms, Inc., Hoang 20 Hai Mobile, and several unidentified “Doe” Defendants.2 See Dkt. No. 1 (“Compl.”). The parties 21 stipulated to transfer the case here. Dkt. Nos. 18–20. 22 Plaintiff Baldwin-Kennedy alleges that Hoang Hai Mobile and Does 1–10 gained 23 unauthorized access to her Facebook account, including Facebook Pages that she maintained for 24 1 The complaint names Plaintiff Baldwin-Kennedy’s campaign committees—Ronda Kennedy for 25 Senate and Ronda Kennedy for Congress 2020—as separate plaintiffs. However, the complaint also appears to acknowledge that the Facebook and Instagram accounts at issue in this case are 26 Plaintiff Baldwin-Kennedy’s. See Compl. at ¶¶ 1, 16–20, 43–45, 48. The Court therefore need not consider whether certain arguments apply to some but not all Plaintiffs. 27 2 As noted below, Defendant Hoang Hai Mobile has not appeared in this case and Plaintiff has not 1 her political campaign, and successfully locked her out of her own account. See Compl.at ¶¶ 1–2, 2 16–20. Plaintiff alleges that she reached out to Defendant for assistance, but it has still not helped 3 her restore her account. See id. at ¶¶ 4, 21–22, 24. Plaintiff contends that Defendant, which owns 4 the Facebook and Instagram services, is liable for the third-party breach as well as the delay in 5 restoring access to her account. See, e.g., id. at ¶¶ 12, 23–44. 6 Additionally, Plaintiff alleges that Defendant has denied her request to “verify” her 7 Instagram account, which still remains under her control, with a “Blue Checkmark of 8 Verification.” See id. at ¶¶ 45–46. As the parties appear to agree, such a “checkmark” or “badge” 9 confirms that an account is the authentic Instagram presence for that person or brand. See Dkt. 10 No. 15 at 2, & n.1. Plaintiff contends that Defendant has denied this verification for racially 11 discriminatory reasons. Specifically, Plaintiff asserts that Defendant has engaged in election 12 interference and violated Title II of the Civil Rights Act of 1964 by “not allowing the only Black 13 Candidate for U.S. Senate in Nevada a blue checkmark for verification but allowing her [] white 14 opponents to have a Blue Checkmark.” Id. at ¶ 48. As a result, Plaintiff states that her campaign 15 page appears less legitimate than her opponents, leading to less support and fewer donations. Id. 16 at ¶ 46. 17 Based on these allegations, Plaintiff brings multiple causes of action. See id. at ¶¶ 23–55. 18 She alleges that the loss of access to Facebook and the denial of the Instagram verification have 19 harmed her electoral chances in her ongoing political campaign, and claim that Defendants are 20 liable for $300,000 in connection with unspecified “injur[ies] in its business and property” and for 21 $1 million in punitive damages. See id. at ¶¶ 64–72. Defendant has moved to dismiss the 22 complaint in its entirety. Dkt. No. 15. 23 II. LEGAL STANDARD 24 Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain 25 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 26 defendant may move to dismiss a complaint for failing to state a claim upon which relief can be 27 granted under Rule 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 1 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 2 12(b)(6) motion, a plaintiff need only plead “enough facts to state a claim to relief that is plausible 3 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible 4 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 5 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 6 Rule 9(b) imposes a heightened pleading standard where fraud is an essential element of a 7 claim. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity 8 the circumstances constituting fraud or mistake.”); see also Vess v. Ciba–Geigy Corp. USA, 317 9 F.3d 1097, 1107 (9th Cir. 2003). A plaintiff must identify “the who, what, when, where, and how” 10 of the alleged conduct, so as to provide defendants with sufficient information to defend against 11 the charge. Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997). However, “[m]alice, intent, 12 knowledge, and other conditions of a person's mind may be alleged generally.” Fed. R. Civ. P. 13 Rule 9(b). 14 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 15 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 16 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nevertheless, 17 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 18 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 19 2008) (quoting Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 20 III. DISCUSSION 21 A. Limitation on Liability 22 As an initial matter, Defendant urges that all of Plaintiff’s claims and requested damages 23 are barred by Facebook’s Terms of Service and Instagram’s Terms of Use. See Dkt. No. 15 at 9– 24 10. Plaintiff, for her part, does not appear to deny that she agreed to the Terms of Service and 25 Terms of Use. See generally Dkt. No. 23. To the contrary, Plaintiff relies on them for some of 26 her causes of action. See id. at 8 (“Here Facebook through its terms created a contractual duty to 27 take action to stop a hacking in progress once they were notified by Plaintiff of the hacking.”) 1 incorporated into the Terms of Service); id. at ¶ 32 (“Facebook’s Terms of Service constitute a 2 binding contract.”); id. at ¶ 51 (alleging that Plaintiff “fulfilled all requirements to receive a blue 3 checkmark” on her Instagram account). The Court finds that it may consider the Terms of Service 4 and Terms of Use as incorporated by reference in the complaint. See United States v. Ritchie, 342 5 F.3d 903, 908 (9th Cir. 2003) (“Even if a document is not attached to a complaint, it may be 6 incorporated by reference into a complaint if the plaintiff refers extensively to the document or the 7 document forms the basis of the plaintiff's claim.”). 8 The Meta Terms of Service provide in relevant part: 9 Limits on Liability 10 Our Products, however, are provided “as is,” and we make no 11 guarantees that they always will be safe, secure, or error-free, or that they will function without disruptions, delays, or imperfections. To 12 the extent permitted by law, we also DISCLAIM ALL

WARRANTIES WHETHER EXPRESS OR IMPLIED,

13 INCLUDING THE IMPLIED WARRANTIES OF

MERCHANTABILITY, FITNESS FOR A PARTICULAR

14 PURPOSE, TITLE, AND NON-INFRINGEMENT. We do not control or direct what people and others do or say, and we are not 15 responsible for their actions or conduct (whether online or offline) or any content they share (including offensive, inappropriate, obscene, 16 unlawful, and other objectionable content).

17 We cannot predict when issues might arise with our Products. Accordingly, our liability shall be limited to the fullest extent 18 permitted by applicable law, and under no circumstance will we be liable to you for any lost profits, revenues, information, or data, or 19 consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Terms or the Meta Products 20 (however caused and on any theory of liability, including negligence), even if we have been advised of the possibility of such damages. Our 21 aggregate liability arising out of or relating to these Terms or the Meta Products will not exceed the greater of $100 or the amount you have 22 paid us in the past twelve months. 23 24 See Dkt. No. 15-2, Ex. A at § 4(3).3 The Terms, therefore, explicitly (1) disclaim any guarantee 25 that Facebook or Instagram will be safe, secure, or error-free, or operate without disruptions; and 26 3 The Instagram Terms of Use similarly limit Defendant’s liability. See Dkt. No. 15-4, Ex. C at 5. 27 The Terms provide that Instagram “is provided ‘as is,’” and Defendant “can’t guarantee it will be 1 (2) disclaim liability for third-party acts or conduct. Id. The Terms also cap any liability 2 exceeding $100 arising out of or related to Facebook or the Terms of Use. Id. 3 The parties dispute whether and to what extent the Terms preclude any of Plaintiff’s causes 4 of action. Compare Dkt. No. 15 at 9–10, with Dkt. No. 23 at 13–14. Defendant, for its part, urges 5 that Plaintiff’s “hack[ing]-related claims” seek to hold Defendant responsible for third-party 6 conduct, which is explicitly disclaimed under the Terms of Service.4 Plaintiff, in turn, responds 7 that she “is not holding Meta [r]esponsible for third parties,” but rather is “holding Meta 8 responsible for not taking any action or responding to Plaintiff when alerted.” See Dkt. No. 23 at 9 13. 10 Despite Plaintiff’s urging, however, it is clear that several of her causes of action are based 11 at least in part on the alleged failure to keep her account secure and free from disruptions due to 12 the actions of Hoang Hai Mobile and Does 1–10, and are therefore precluded by the Terms of 13 Service and Terms of Use: 14 • Negligence. Plaintiff alleges that Defendant “had a duty to keep Plaintiff’s 15 account and pages safe.” See Compl. at ¶ 24. 16 • Computer Fraud and Abuse Act. Plaintiff alleges that Defendant’s “failure 17 to secure Plaintiff’s account from unauthorized access” violates the Computer 18 Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2). See id. at ¶ 26. 19 • Breach of Contract. Plaintiff alleges that Defendant violated its own Terms of 20 Service by “not adequately protecting Plaintiffs’ private information” and 21 “failing to provide a secure system.” Id. at ¶¶ 28, 32. 22 • Stored Communications Act. Plaintiff alleges that Defendant’s “fail[ure] to 23 secure the stored communications in Plaintiff’s account and failing to prevent 24 unauthorized access to those communications, violates the Stored 25 26 4 According to Defendant, such “hacking-related” claims include Plaintiff’s claims for negligence, 27 violation of the Computer Fraud and Abuse Act, breach of contract, trespass to chattels, fraud and 1 Communications Act, 18 U.S.C. § 2701(a).”5 Id. at ¶ 29. 2 • Trespass to Chattels. Plaintiff alleges that Hoang Hai Mobile and Does 1–10 3 “intentionally dispossess[ed] Plaintiffs of their digital property” and “us[ed] or 4 intermeddl[ed] with Plaintiffs’ digital property.” Id. at ¶ 35. 5 • Fraud and Misrepresentation. Plaintiff alleges that Hoang Hai Mobile and 6 Does 1–10 “used Fraud and Misrepresentation by presenting themselves as 7 [Plaintiff] in order to gain access to [Plaintiff’s] Facebook account and 8 SENATE page” and “by knowingly making false representations to Plaintiffs.” 9 Id. at ¶¶ 34, 36. 10 • Privacy Violations. Plaintiff alleges that “Doe Defendants have accessed and 11 likely shared Plaintiff’s private information making this a case of invasion of 12 privacy.” Id. at ¶ 38. 13 • Negligent Infliction of Emotional Distress. “Defendants’ wrongful actions 14 have caused extreme emotional distress to Plaintiff that has affected her mental 15 and physical health.” Id. at ¶ 41. 16 • Election Interference. Plaintiff alleges that Hoang Hai Mobile and Does 1–10 17 “targeted” Plaintiff’s campaign page “in order to cause election interference and 18 give [her] opponents an undue advantage.” Id. at ¶¶ 44, 53–55. 19 20 Plaintiff offers limited argument in response, but suggests that the Terms cannot waive 21 “certain protections.” See Dkt. No. 23 at 14. Specifically, Plaintiff suggests that “companies have 22 a legal duty to protect consumer’s data, which can be extended to include a duty to safeguard 23 social media accounts from unauthorized access.” See id. In support of this broad assertion, 24 Plaintiff offers a single out-of-circuit case, Federal Trade Commission v. Wyndham Worldwide 25 Corporation, 799 F.3d 236 (3d Cir. 2015). Id. But this case is inapposite. Even if it were 26

27 5 Although not pled as a separate cause of action but rather under the “Breach of Contract” 1 somehow binding on this Court (which it is not), the case only discusses the regulatory authority 2 that the Federal Trade Commission (“FTC”) has under the Federal Trade Commission Act—a 3 statute not at issue here. See Wyndham, 799 F.3d at 240. In Wyndham, the FTC brought suit 4 against a company for inadequate cybersecurity practices. Id. at 240–42. Hackers had accessed 5 the company’s computer system on three separate occasions over a two-year period. Id. The FTC 6 sued the company, alleging that it had engaged in “unfair” and “deceptive” practices in violation 7 of 15 U.S.C. § 45(a). Id. at 242. At least as alleged, the company had failed to use any firewalls, 8 restrict any specific IP addresses, use any encryption for certain customer files, or require 9 customers to change default passwords. Id. at 256. The court in Wyndham simply did not address 10 the enforceability of any limitation of liability clause. Plaintiff has thus failed to offer any support 11 for her suggestion that the Terms are inapplicable to her causes of action here. 12 The Court therefore GRANTS the motion to dismiss Plaintiff’s causes of action to the 13 extent they are based on the alleged failure to keep Plaintiff’s account secure and free from 14 disruptions due to Hoang Hai Mobile and Does 1–10’s third-party conduct. Accord Damner v. 15 Facebook Inc., No. 20-CV-05177-JCS, 2020 WL 7862706, at *1–9 (N.D. Cal. Dec. 31, 2020) 16 (dismissing claims based on allegations that the plaintiff’s Facebook account was hacked such that 17 he lost access and control over the account and that Facebook refused to assist him in restoring 18 access). 19 B. Failure to State a Claim 20 Even if the Court were to find that some alleged conduct fell outside the limitation of 21 liability in the Terms of Service, Plaintiff has still failed to state a plausible claim against 22 Defendant.6 23 i. Negligence 24 To state a claim for negligence, Plaintiff must allege that (i) Defendant owed a duty of care 25 to her; (ii) Defendant breached that duty; (iii) the breach proximately caused Plaintiff injury; and 26 6 The Terms of Service and Terms of Use both indicate, and the parties appear to agree, that 27 California law governs the claims in this case. See Dkt. No. 15-2, Ex. A at § 4(4); Dkt. No. 15-4, 1 (iv) Plaintiff suffered damages as a result. See Conroy v. Regents of Univ. of California, 45 Cal. 2 4th 1244, 1250 (Cal. 2009). “The existence of a duty of care owed by a defendant to a plaintiff is 3 a prerequisite to establishing a claim for negligence.” Nymark v. Heart Fed. Sav. & Loan Assn., 4 231 Cal. App. 3d 1089, 1095 (Cal. Ct. App. 1991). 5 As noted above, Plaintiff alleges that Defendant “had a duty to keep Plaintiff’s account and 6 pages safe.” See Compl. at ¶ 24. This falls squarely within the limitation on liability in the Terms, 7 and the Court has therefore dismissed this theory of liability. Nevertheless, Plaintiff further argues 8 that “at the very least, [Defendant] had a duty to work with Plaintiffs to restore Plaintiffs[’] 9 Facebook account and SENATE page,” and Defendant “breached that duty.” Id. She contends 10 that this duty to help her reclaim access to her account is found in the Terms themselves. See Dkt. 11 No. 23 at 8–9. She points out that the Terms list the “services” that Defendant provide as 12 including “promot[ing] the safety, security, and integrity of our services, combat[ing] harmful 13 conduct and keep[ing] our community of users safe.” See id. at 8 (citing Dkt. No. 15-2, Ex. A at 14 § 1). The Terms also state that “[w]e work hard to maintain the security (including the 15 availability, authenticity, integrity, and confidentiality) of our Products and services.” Id. And 16 based on Defendant’s review of potentially violating conduct or content, Defendant “may take 17 appropriate action,” such as “notifying you, offering help, removing content, removing or 18 restricting access to certain features, disabling an account, or contacting law enforcement.” Id. 19 (emphasis added). 20 Critically, however, nothing in the Terms promises or guarantees that Defendant will work 21 with a user to restore access to an account at all, let alone on a specific timeline. The Terms only 22 state that Defendant may take certain actions in response to harmful conduct or violating content. 23 Dkt. No. 15-2, Ex. A at § 4(3). And as already explained, the Terms specifically disclaim that the 24 services “always will be safe, secure, or error-free, or that they will function without disruptions, 25 delays, or imperfections.” Id. In short, Plaintiff has not identified any provision of the Terms that 26 imposes a duty on Defendant to assist Plaintiff in regaining access to her account. 27 Plaintiff also points to “principles in product liability,” including “the duty to warn users of 1 23 at 10–14. But Plaintiff’s negligence claim is not based on an alleged failure to warn her of the 2 risks to her account. See Compl. at ¶¶ 23–24. Rather, it is based solely on Defendant’s alleged 3 failure to restore access after Plaintiff’s Facebook account was hacked. And as the Court has 4 already explained, the Terms specifically caution users that Defendant does not guarantee that 5 Facebook will be “secure.” Dkt. No. 15-2, Ex. A at § 4(3). It is not clear what additional warning 6 Plaintiff believes was necessary under the circumstances or how such warnings relate to her 7 negligence claim at all. Plaintiff has not offered any legal support for her suggestion that 8 Defendant had a legal duty to restore access to her Facebook account. The Court therefore 9 GRANTS the motion to dismiss Plaintiff’s negligence claim. 10 ii. Computer Fraud and Abuse Act 11 Plaintiff alleges that Defendant “violated the Computer Fraud and Abuse Act” by failing to 12 secure her account from “unauthorized access” and by failing to “restore access to Plaintiff.” 13 Compl. at ¶ 26. Defendant points out that the Computer Fraud and Abuse Act (“CFAA”) makes it 14 unlawful to “intentionally access[] a computer without authorization or exceed[] authorized 15 access.” 18 U.S.C. § 1030(a)(2). But here, Plaintiff does not allege that Defendant unlawfully 16 accessed her Facebook account without authorization. She only alleges that Hoang Hai Mobile 17 and Does 1–10 unlawfully accessed her account. Plaintiff, therefore, cannot state a claim under 18 the CFAA. Plaintiff does not respond to this argument at all, seeming to acknowledge that she 19 cannot state a CFAA claim against Defendant. The Court GRANTS the motion to dismiss this 20 claim. 21 iii. Breach of Contract 22 Plaintiff next alleges that Defendant violated its own Terms of Service by “not adequately 23 protecting Plaintiffs’ private information” and “failing to provide a secure system.” Id. at ¶¶ 28, 24 32. To state a claim for breach of contract, Plaintiff must allege (i) the existence of a contract; 25 (ii) Plaintiff’s performance under the contract or excuse for nonperformance; (iii) Defendant’s 26 breach; and (iv) damages to Plaintiff as a result of the breach. See, e.g., Richman v. Hartley, 224 27 Cal. App. 4th 1182, 1186 (Cal. Ct. App. 2014). 1 Defendant to prevent unauthorized account access by third parties or to restore access following a 2 breach. See Dkt. No. 23 at 14–16. Instead, she urges that her breach of contract claim “goes 3 beyond the explicit language of these documents and focuses on the implicit and reasonable 4 expectations of users.” Id. at 14. She contends that given the nature of the services Defendant 5 provides, a user would expect Defendant “to take reasonable steps to secure user accounts” and “to 6 act responsibly and effectively in response to [] breaches.” See id. at 14–15. Plaintiff appears to 7 ask the Court to override the explicit language of the Terms of Service and Terms of Use to be 8 consistent with a user’s alleged but unwritten expectations. This is impermissible. Plaintiff offers 9 no authority for the suggestion that a user’s unilateral expectations may override or rewrite the 10 terms of a contract, and the Court is unaware of any. The Court thus GRANTS the motion to 11 dismiss the breach of contract claim. Accord Damner, 2020 WL 7862706, at *7 (dismissing 12 breach of contract claim for failing to identify contractual provision requiring Facebook to 13 safeguard user’s account); Ebeid v. Facebook, Inc., No. 18-CV-07030-PJH, 2019 WL 2059662, at 14 *7 (N.D. Cal. May 9, 2019) (same). 15 iv. Stored Communications Act 16 To the extent that Plaintiff alleges that Defendant’s failure to secure her account violated 17 the Stored Communications Act, Compl. at ¶ 29, this claim also fails. The Stored 18 Communications Act “has a ‘narrow scope’” and “‘is not a catch-all statute designed to protect the 19 privacy of stored Internet communications.’” Damner, 2020 WL 7862706, at *5 (quoting In re 20 Google, Inc. Priv. Pol’y Litig., No. C-12-01382-PSG, 2013 WL 6248499, at *12 (N.D. Cal. Dec. 21 3, 2013)). Much like the Computer Fraud and Abuse Act, it only imposes liability on those who 22 “intentionally access[]” or “intentionally exceed[] an authorization to access” stored internet 23 communications. See 18 U.S.C. § 2701(a). Because Plaintiff does not allege that Defendant 24 unlawfully accessed her Facebook account without authorization, the Court GRANTS the motion 25 to dismiss this claim. 26 v. Trespass to Chattels 27 Under the heading “Trespass to Chattels” Plaintiff alleges that Hoang Hai Mobile and 1 intermeddl[ed] with Plaintiffs’ digital property.” Compl. at ¶ 35. To state a claim for trespass to 2 chattels, Plaintiff must allege that Defendant (i) intentionally interfered with the possession of her 3 personal property; and (ii) this interference proximately caused Plaintiff damage. See Intel Corp. 4 v. Hamidi, 30 Cal. 4th 1342, 1350–51 (Cal. 2003). In opposition, Plaintiff suggests—without any 5 legal support—that she does not need to allege that Defendant intentionally interfered with access 6 to her account. See Dkt. No. 23 at 16–18. She urges that the “claim considers the evolving 7 understanding of personal property in the digital age.” See id. at 16. Evolving technology, 8 however, does not excuse Plaintiff from pleading the basic requirements of a claim. She has not 9 done so here, and the Court GRANTS the motion to dismiss this claim. 10 vi. Fraud and Misrepresentation 11 Plaintiff alleges that Hoang Hai Mobile and Does 1–10 “used Fraud and Misrepresentation 12 by presenting themselves as [Plaintiff] in order to gain access to [Plaintiff’s] Facebook account 13 and SENATE page.” Compl. at ¶¶ 34, 36. To state a claim for fraud and misrepresentation, 14 Plaintiff must allege “(1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to 15 induce reliance; (4) justifiable reliance; and (5) resulting damage.” See Shafer v. Berger, Kahn, 16 Shafton, Moss, Figler, Simon & Gladstone, 107 Cal. App. 4th 54, 74 (Cal. Ct. App. 2003), as 17 modified on denial of reh’g (Apr. 8, 2003). The complaint does not allege any of these elements 18 as to Defendant. It only repeats the elements in conclusory fashion that “Defendants engaged in 19 fraud and misrepresentation by knowingly making false representations to Plaintiffs, which 20 Plaintiffs reasonably relied upon to their detriment.” Id. at ¶ 36. In opposition, Plaintiff attempts 21 to amend the complaint to include allegations that Defendant made misrepresentations about the 22 security of its platform. See Dkt. No. 23 at 18–19. She asserts that “[u]sers inherently trust that 23 platforms like Facebook will maintain a reasonable level of security to protect their accounts from 24 unauthorized access.” Id. at 19. But Plaintiff may not amend her complaint through arguments in 25 her opposition brief. Moreover, as already discussed at length, the Terms explicitly state that 26 Facebook will not necessarily be secure. Plaintiff makes no effort to explain how Defendant made 27 any misrepresentations about the security of its services, let alone in light of the explicit language 1 vii. Privacy Violations 2 Plaintiff alleges that “Doe Defendants have accessed and likely shared Plaintiff’s private 3 information making this a case of invasion of privacy.” Compl. at ¶ 38. To the extent Plaintiff 4 intends to assert a claim for intrusion into private matters, she must allege (i) “intrusion into a 5 private place, conversation or matter” and (ii) “in a manner highly offensive to a reasonable 6 person.” See Taus v. Loftus, 40 Cal. 4th 683, 725 (Cal. 2007). But the complaint does not include 7 any allegations regarding how Defendant invaded her privacy at all. Again, Plaintiff improperly 8 attempts to amend her complaint in her opposition brief. Plaintiff concedes that she “do[es] not 9 allege that [Defendant] directly intruded into private matters,” but rather that its “inadequate 10 security measures allowed for such intrusion by third parties.” Dkt. No. 23 at 21 (emphasis 11 added). Plaintiff appears to acknowledge that this is insufficient to state a claim for intrusion into 12 private matters. She states that she is appealing to a “broader principle of protecting an 13 individual’s privacy rights” and “obligations that extend beyond the conventional understanding of 14 privacy to include proactive measures in safeguarding user data against unauthorized access.” See 15 id. at 21–22. But even if the Court were to consider these new arguments, she offers no support 16 for her suggestion that she can state a viable cause of action based on such broad principles. 17 Plaintiff’s causes of action must be premised on existing law and not “broad principles.” The 18 Court GRANTS the motion to dismiss this claim. 19 viii. Negligent Infliction of Emotional Distress 20 In support of her negligent infliction of emotional distress claim, Plaintiff offers nothing 21 but a conclusory statement that “Defendants’ wrongful actions have caused extreme emotional 22 distress to Plaintiff that has affected her mental and physical health.” Compl. at ¶ 41. Under 23 California law, negligent infliction of emotional distress is “not an independent tort but the tort of 24 negligence to which the traditional elements of duty, breach of duty, causation and damages 25 apply.” See Wong v. Jing, 189 Cal. App. 4th 1354, 1377 (Cal. Ct. App. 2010). As already 26 explained, Plaintiff has failed to identify any legal duty that Defendant breached. Plaintiff’s 27 suggestion in opposition that there is an “implicit duty for digital platforms like Meta to protect 1 by any legal authority. Like her negligence claim, her claim for negligent infliction of emotional 2 distress similarly fails. The Court GRANTS the motion to dismiss this claim. 3 ix. Election Interference 4 Plaintiff appears to allege both a claim for “election interference” and a claim for “foreign 5 election interference” under 22 U.S.C. § 2708(k)(4). See Compl. at ¶¶ 42–46, 52–55. She alleges 6 that Defendant is “participating in Election interference” because it has not taken action to prevent 7 third parties from making changes to Plaintiff’s campaign page on Facebook and because it has 8 denied her “a verification blue checkmark” on Instagram. See id. at ¶¶ 43, 45–46. Defendant 9 points out that there is no common law claim for election interference. See Dkt. No. 15 at 17. 10 Defendant also points out that § 2708(k)(4) does not create a private cause of action for foreign 11 election interference. See id. at 19. Instead, it only identifies a Department of State rewards 12 program “designed to assist in the prevention of,” among other things, “foreign election 13 interference.” See 22 U.S.C. § 2708(a)(2). Plaintiff appears to implicitly acknowledge this, and 14 instead suggests that these claims are “grounded in the broader implications of [Defendant’s] 15 actions on the democratic process and the fair conduct of elections.” See Dkt. No. 23 at 25–27. 16 She also suggests that the “spirit” of § 2708 should be extended to circumstances such as those 17 alleged here given “the evolving nature of election interference in the digital age . . . .” See id. at 18 30–31. This is insufficient to state a plausible claim for relief. Plaintiff cannot sue Defendant 19 based on what she thinks the law should—but does not—say. 20 Plaintiff also appears to reinvent her claim entirely in opposition, stating that Defendant’s 21 conduct actually “constitute[s] discriminatory practices in violation of the Commerce Clause” and 22 the “innkeeper rule.” See id. at 25–27. Critically, this is not alleged in the complaint. Plaintiff 23 may not evade Defendant’s motion to dismiss by entirely changing the theory of liability in 24 opposition. The Court GRANTS the motion to dismiss these claims. 25 x. Title II of the Civil Rights Act of 1964 26 Lastly, Plaintiff alleges that Defendant is violating Title II by “not allowing the only Black 27 Candidate for U.S. Senate in Nevada a blue checkmark for verification but allowing her [] white 1 persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, 2 privileges, advantages, and accommodations of any place of public accommodation, as defined in 3 this section, without discrimination or segregation on the ground of race, color, religion, or 4 national origin.” 42 U.S.C. § 2000a(a). Plaintiff’s single, conclusory allegation that Defendant 5 discriminated against her because of her race is clearly deficient. 6 Plaintiff has also offered no relevant authority supporting her contention that Facebook and 7 Instagram are places of public accommodation for purposes of Title II. The Ninth Circuit has 8 explained that Title II “covers only places, lodgings, facilities and establishments.” See Clegg v. 9 Cult Awareness Network, 18 F.3d 752, 756 (9th Cir. 1994). Courts to consider the question have 10 reasoned that as a result, Title II only applies to physical locations. See, e.g., Lewis v. Google 11 LLC, 461 F. Supp. 3d 938, 957 (N.D. Cal. 2020), aff’d, 851 F. App’x 723 (9th Cir. 2021) 12 (rejecting argument that YouTube is a place of public accommodation under Title II); Ebeid v. 13 Facebook, Inc., No. 18-CV-07030-PJH, 2019 WL 2059662, at *6 (N.D. Cal. May 9, 2019) 14 (rejecting same argument that Facebook’s online platform is a place of public accommodation); 15 Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 540–45 (E.D. Va. 2003), aff’d, No. 03- 16 1770, 2004 WL 602711 (4th Cir. Mar. 24, 2004) (rejecting argument that AOL chat rooms are 17 places of public accommodation). The Court finds the reasoning in these cases persuasive, and 18 Plaintiff has offered no legal basis for distinguishing them. Instead Plaintiff appeals to policy 19 considerations that do not undermine these decisions and their interpretations of Title II. 20 Plaintiff’s unsupported suggestion that the meaning of public accommodation should be “re- 21 evaluated in light of the growing important of digital platforms in public and political life,” Dkt. 22 No. 23 at 29, may be an argument for Congress, but not this Court. The Court GRANTS the 23 motion to dismiss. 24 IV. CONCLUSION 25 Accordingly, the Court GRANTS the motion to dismiss in its entirety. Dkt. No. 15. 26 Because Plaintiff has not stated a plausible claim for relief, she has not established that a 27 preliminary injunction is warranted either. See, e.g., Winter v. Nat. Res. Def. Council, 555 U.S. 7, 1 DENIES her motion for preliminary injunction. Dkt. No. 2. 2 Given the nature of Plaintiff's claims, the Court is very skeptical that Plaintiff could amend 3 || her complaint to state a plausible claim for relief against Defendant. Nevertheless, out of an 4 abundance of caution, the Court will grant Plaintiff one opportunity to plead her best case. 5 Throughout Plaintiff's complaint, she suggests that she is relying on the “evolving nature” of the 6 law. See, e.g., Dkt. No. 23 at 16, 18, 26, 28, 31. But it is not enough for Plaintiff to argue that the 7 || law should hold Defendant responsible here. It is not the Court’s role to expand existing law. 8 Plaintiff must rely on specific, existing legal authority and must provide factual support for each 9 of her claims. Plaintiff shall file her amended complaint by November 25, 2024. 10 The Court further notes that Defendant Hoang Hai Mobile has never appeared and Plaintiff 11 has never identified any of the additional “Doe” Defendants. Under Federal Rule of Civil 12 Procedure 4(m), a plaintiff must serve each defendant with a summons and complaint within 13 ninety days of filing the complaint. See Fed. R. Civ. P. 4(m). Ifa plaintiff fails to do so, the 14 || Court, on its own after notice to the plaintiff, “must dismiss the action without prejudice,” or order 3 15 that service be made within a specified time. Jd. Nearly a year after the case was filed, however, a 16 || Plaintiff has not filed a proof of service as to Defendant Hoang Hai Mobile or any new “Doe” 3 17 Defendants, and no one else has appeared in this case. It is not clear whether Plaintiff intends to 18 || pursue this case against any other Defendants at all. 19 Accordingly, the Court ORDERS Plaintiff to SHOW CAUSE why the case should not be 20 || dismissed without prejudice as to Defendant Hoang Hai Mobile and all remaining Doe Defendants 21 for failure to serve them as required by Rule 4(m). Plaintiff is directed to file her response, of two 22 || pages or less, by November 15, 2024. The Court cautions Plaintiff that this is not an opportunity 23 to relitigate any issues related to Defendant Meta Platforms, Inc. and its motion to dismiss. 24 IT IS SO ORDERED. 25 || Dated: 10/23/2024 Aleywerl 8

HAYWOOD S. GILLIAM, JR.

27 United States District Judge 28