2021 DNH 25
D.N.H.2021Background
- Pro se plaintiff Natasha DeLima operates YouTube channels, Twitter accounts, and Google-hosted blogs and alleges defendants (Google LLC and Twitter, Inc.) suppressed, removed, or suspended her accounts and view/monetization data, causing lost revenue and infringement of "virtual property" rights.
- DeLima previously sued the same defendants in 2017–2018; that action was dismissed and her appeals failed. She filed the present amended complaint in 2019–2020 asserting multiple claims arising largely from 2018–2020 conduct.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6) (and sought judicial notice of the prior action), and alternatively to transfer under forum-selection clauses in their terms of service.
- The complaint asserted a mélange of theories: civil-rights/§1983 and Title VII claims, First Amendment viewpoint-discrimination, defamation, Sherman Act/antitrust, copyright and "fair use" issues, intentional infliction of emotional distress, and an unpaid-earnings/breach-of-contract theory.
- The court found res judicata did not categorically bar all claims because many alleged post-date the prior suit, but dismissed nearly all claims for failure to state a claim, applying state-action First Amendment principles and CDA § 230 immunity where applicable.
- The court dismissed all claims with prejudice as futile except a breach-of-contract/payment claim against Google, which was dismissed without prejudice with leave to amend and subject to Google’s forum-selection clause (Northern District of California). Motions to transfer and for preliminary injunctive relief were denied as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Res judicata | Prior dismissal doesn’t bar claims arising from 2018–2020 conduct | Prior final judgment bars claims that arise from the same nucleus of operative facts | Res judicata did not bar all claims because many allegations post-date the prior suit; cannot apply blanket bar |
| First Amendment / state action | Social-media moderation is government-like censorship violating First Amendment | Platforms are private actors; no state action alleged | Dismissed: no state action, so no First Amendment claim |
| CDA § 230 / Defamation & third-party content | Defendants’ moderation and publication decisions defamed DeLima or allowed defamatory third-party content | § 230 immunizes providers/users from being treated as publisher/speaker of third-party content | Defamation claims dismissed: account moderation isn’t a defamatory "statement," third-party defamation barred by § 230 and by res judicata where overlapping |
| Copyright / Fair Use | Defendants infringed or misapplied fair-use rules to her content | Prior copyright claims were raised earlier; plaintiff failed to allege a registered copyright or requisite facts | Copyright claims dismissed: barred by res judicata where overlapping; plaintiff failed to allege registration or required facts; "fair use" is a defense not a standalone claim |
| Sherman Act / Antitrust | Defendants unlawfully restrained trade or monopolized in violation of Sherman Act | Plaintiff pleads only conclusory assertions, no facts showing anticompetitive conduct | Antitrust claims dismissed for failure to plead requisite facts |
| Breach of contract / right to payment (Google) | Google owes monetization payments (alleged 68% share) and suppressed views to avoid payment | Terms of service do not clearly show the alleged payment contract; Google invokes forum clause | Contract/payment claim dismissed without prejudice; plaintiff may amend (but any AdSense-type claim must be brought in N.D. Cal. per forum-selection clause) |
| Civil-rights (§1983/Title VII) & IIED | Defendants discriminated or caused severe emotional distress by content moderation and account actions | Defendants are private actors, insufficient facts to show state action or outrageous conduct | Civil-rights claims and IIED dismissed: no §1983 liability, Title VII inapplicable; IIED fails New Hampshire "outrageousness" and severity requirements |
Key Cases Cited
- Martinez v. Petrenko, 792 F.3d 173 (1st Cir. 2015) (pleading standard requires factual content permitting a reasonable inference of liability)
- A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77 (1st Cir. 2013) (complaint must do more than allege conclusions)
- In re Colonial Mortg. Bankers Corp., 324 F.3d 12 (1st Cir. 2003) (elements and application of federal res judicata)
- Silva v. City of New Bedford, 660 F.3d 76 (1st Cir. 2011) (transactional test for identity of causes of action)
- Hudgens v. NLRB, 424 U.S. 507 (1976) (First Amendment restricts government action, not private conduct)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (§ 230 does not necessarily bar contract or promissory-estoppel claims but bars treating provider as publisher of third-party content)
- Latin Am. Music Co. v. Media Power Grp., Inc., 705 F.3d 34 (1st Cir. 2013) (copyright registration is precondition to suit)
- Computer Assocs. Int’l, Inc. v. Altai, Inc., 126 F.3d 365 (2d Cir. 1997) (res judicata does not bar claims based on transactions that occurred after the earlier action was filed)
- Moss v. Camp Pemigewassett, Inc., 312 F.3d 503 (1st Cir. 2002) (New Hampshire standard for intentional infliction of emotional distress)