JASTA's statement of purpose explains:
The purpose of this Act is to provide civil litigants with the broadest possible basis, consistent with the Constitution of the United States, to seek relief against persons, entities, and foreign countries, wherever acting and wherever they may be found, that havе provided material support, directly or indirectly, to foreign organizations or persons that engage in terrorist activities against the United States.
JASTA § 2(b).
DISCUSSION
I. DIRECT LIABILITY UNDER ATA
Defendants argue that under the Ninth Circuit's Fields opinion Copeland's allegations do not and cannot plausibly allege proximаte cause as required to state a claim under § 2333(a) because they cannot allege a direct relationship between defendants' services and the Nice Attack. In Fields , the Ninth Circuit affirmed my decision dismissing a similar claim asserted under the ATA fоr lack of proximate cause. The panel explained that proximate cause under the ATA required a "direct relationship" between the defendant's conduct and the injury, and that Fields failed to plead that direct relationship based on "Twitter's provision of communication equipment to ISIS, in the form of Twitter accounts and direct messaging services." Fields ,
Copeland argues, first, that Fields was wrongly decided by the Ninth Circuit (citing to out-of-circuit cases adopting different causation standards) and, second, that Fields did not address JASTA, which fundamеntally altered the landscape. On the first argument, I will follow the binding precedent of Fields and the "direct" proximate cause standard. On the second argument, I agree with the numerous decisions that have concluded that JASTA did not address or undermine Fields's conclusion regarding the proximate cause required for direct liability. Instead, JASTA simply added a new cause of action under § 2333(d) for aiding and abetting secondary liability. See, e.g., Gonzalez v. Google, Inc. ,
More narrowly, Copeland asserts that in Fields the Ninth Circuit noted that:
the allegations in the SAC do not support a plausible inference of proximate cаusation between Twitter's provision of accounts to ISIS and the deaths of Fields and Creach. Plaintiffs allege no connection between the shooter, Abu Zaid, and Twitter. There are no facts indicating that Abu Zaid's attack was in any way impaсted, helped by, or the result of ISI's presence on the social network.
Fields ,
The general allegations that Bouhlel was "radicalized" because of the ISIS content on defendants' sites are no different from the allegations made аnd rejected by the Ninth Circuit in Fields , and in Gonzalez II , Pennie , Crosby . A direct connection has not been alleged to plausibly plead proximate cause between ISIS's use of defendants' platforms and the Nice Attack.
II. SECONDARY LIABILITY
Plaintiff argues that liability has nonetheless been adequately alleged under Section 2333(d) for aiding and abetting.
Even if Copeland only needed to allege facts showing that defendants aided and abettеd ISIS or ISIS terrorist attacks in general, there are no plausible allegations
Finally, even if these hurdles could be overcome, the "proper legal framework for how [aiding and abetting] liability should function" under the ATA is as identified in Halberstam v. Welch ,
Copeland has failed to allege the second and third elements. Rеgarding intent under the second element, the Second Circuit in Linde explained that while a plaintiff does not have to show that the defendant knew of the specific attack at issue, she has to show more than just a defendant's knowledge of the fоreign terrorist organization's connection to terrorism. Linde ,
Here, there are only allegations that defendants were "generally aware" that their services were used by ISIS, but no allegations that with that knowledge defendants were playing or assuming a role in ISIS's terrorist activities. See also Taamneh ,
The third element under Halberstam requires Copeland to plead facts showing "substantial assistance" оn the part of the defendant.
[F]actors relevant to determining how much encouragement or assistance is substantial enough to satisfy the third element: (1) the nature of the act encouraged, (2) the amount of assistance given by defendant, (3) defendant's presence or absence at the time of the tort, (4) defendant's relation to the principal, (5) defendant's state of mind, and (6) the period of defendant's assistance
Linde ,
As one more in-depth example, in Halberstam the D.C. Circuit indicated that for factor (2), the assistance given by the defendant should play a "major part in prompting the tort" or be "integral" to the tort to be considered substantial assistance. Halberstam ,
III. STATE LAW CLAIMS
That leaves Copeland's state law tort claims for negligent infliсtion of emotional distress (Fifth Cause of Action) and wrongful death (Eighth Cause of Action). Those claims also require allegations showing proximate cause between the acts of defendants and the Nice Attack. In Taamneh , Judge Chen concluded that even if these state law claim apply a lower, less demanding proximate cause standard than under the ATA, the materially similar allegations in that case failed to support proximate cause because allegations that thе terrorist "was radicalized through Defendants' social media networks, that allegation is entirely conclusory in nature and fails to establish proximate cause even under the more lenient standard." Taamneh v. Twitter, Inc. , No. 17-CV-04107-EMC,
The same is true here. There are no allegations as to how Bouhlel was radicalized through use of use of defendants' services.
CONCLUSION
The motion to dismiss the FAC is GRANTED. In light of Copeland's failure to identify any facts that she could plead to overcome the decisions from this and other сourts who have consistently rejected materially similar claims, the motion to dismiss is GRANTED without leave to amend and her claims are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Notes
As to the underlying ATA criminal acts, Copeland did not oppose dismissal of her Third Cause of Action (§ 2339A [provision of "material support or resources" by anyone "knowing or intending that they are to be used in preparation for, or in carrying out" terrorism] ) or her Sixth Cause of Action (§ 2339C(c) ["knowing concealment" by persons and entities in the United States or U.S. nationals of the "nature, location, source, ownership, or control of any material support or resources, or any funds or proceeds of such funds"] ). She opposed dismissal of her Fourth Cause of Action under § 2339B (providing "knowingly" provided "material support"). However, because I find that proximate cause has not and, given the discussion at the hearing on this motion, cannot be plausibly pleaded under the ATA for direct liability, I do not need to reach whether for purposes of direct liability plaintiff has also adequately alleged violation of § 2339B. If I did reach the issue, I would reject it for the same reasons as the materially relevant allegations in were rejected in Crosby v. Twitter, Inc. ,
Defendants note that under this section, liability can attach for "aiding and abetting" or "conspiracy" and that plaintiff pleaded, in her Second Cause of Action, a conspiracy claim under 2333(d). Copeland made no argument in opposition and did not point to allegations regarding conspiraсy in the FAC to show that she has adequately alleged a conspiracy claim. Therefore, only aiding and abetting is at issue and her Second Cause of Action is DISMISSED with prejudice.
Indeed, Copeland's own allegations show that defendants did take steps to "take-down" and otherwise block ISIS's efforts to use its platforms, see, e.g. , FAC ¶¶ 416, 519, 523, 535, 537, although she contends defendants could have and should have done more.