Colon v. Twitter, Inc.

• Decision Date: 27 September 2021
• Docket Number: No. 20-11283,20-11283
• Citation: 14 F.4th 1213
• Parties: Angel COLON, Norman E. Casiano-Mojica, Franchesska Mercado, Jeanette McCoy, Cesar Rodriguez, Corey Rivera, Rosamaria Febo, David Jourdenais, Emily Ann Portalatin, Rodney Sumter, Adrian Lopez, Javier Nava, Leonel Melendez, Joaquin Rojas, Kaliesha Andino, Carlos Muniz, Juan J. Cufino-Rodriguez, Ivan Dominguez, individually and on behalf of the estate of Eric Ivan Ortiz Rivera, Cassandra Marquez, Geoffrey Rodriguez, Donald Brown, individually and on behalf of the estate of Antonio Brown, Jose Diaz, Jammy Valentin Fernandez, individually and on behalf of the estate of Leroy Valentin Fernandez, Carlos J. Perez Anglero, Demetrius Polanco, Miguel Vega, Carmen N. Capo-Quinones, individually and on behalf of the estate of Luis Omar Ocasio-Capo, Cory Richards, Jonathan L. Garcia, Olga Maria Disla, individually and on behalf of the estate of Anthony Luis Laureano Disla, Nathan Orozco, Bettie Lindsey, Neredia Ribot, Yvens Carrenard, Sonia N. Cedeno, Kadim Ramos, Mercedes Garcia, Sandy Roberts, Mercedes A. McQuery, Javier Antonetti, Keinon Carter, Marissa Delgado, Mavelyn Merced, Juan Antonetti, Rolando J. Rodriguez, Christian Oriz-Cardona, Yorvis Jose Camargo-Romero, Joseph Negron, Christopher Hansen, Nelson Rodriguez, Roberto Texidor-Carrasquillo, Chriss Michael West, Jacobi Ceballo, Michael Gonzalez, Maritza Gomez, Mohammed S. Islam, Francisco G. Pabon Garcia, Bernice DeJesus Valazquez, individually and on behalf of the estate of Franky Jimmy DeJesus Valazques, Ismail Medina Morales, individually and on behalf of the estate of Angel Candelario Padro, Edwin Rivera Alvarez, Jose Pacheco, Lizmaryee Finol Viloria, Plaintiffs - Appellants, v. TWITTER, INC., Google, LLC, Facebook, Inc., Defendants - Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

14 F.4th 1213

Angel COLON, Norman E. Casiano-Mojica, Franchesska Mercado, Jeanette McCoy, Cesar Rodriguez, Corey Rivera, Rosamaria Febo, David Jourdenais, Emily Ann Portalatin, Rodney Sumter, Adrian Lopez, Javier Nava, Leonel Melendez, Joaquin Rojas, Kaliesha Andino, Carlos Muniz, Juan J. Cufino-Rodriguez, Ivan Dominguez, individually and on behalf of the estate of Eric Ivan Ortiz Rivera, Cassandra Marquez, Geoffrey Rodriguez, Donald Brown, individually and on behalf of the estate of Antonio Brown, Jose Diaz, Jammy Valentin Fernandez, individually and on behalf of the estate of Leroy Valentin Fernandez, Carlos J. Perez Anglero, Demetrius Polanco, Miguel Vega, Carmen N. Capo-Quinones, individually and on behalf of the estate of Luis Omar Ocasio-Capo, Cory Richards, Jonathan L. Garcia, Olga Maria Disla, individually and on behalf of the estate of Anthony Luis Laureano Disla, Nathan Orozco, Bettie Lindsey, Neredia Ribot, Yvens Carrenard, Sonia N. Cedeno, Kadim Ramos, Mercedes Garcia, Sandy Roberts, Mercedes A. McQuery, Javier Antonetti, Keinon Carter, Marissa Delgado, Mavelyn Merced, Juan Antonetti, Rolando J. Rodriguez, Christian Oriz-Cardona, Yorvis Jose Camargo-Romero, Joseph Negron, Christopher Hansen, Nelson Rodriguez, Roberto Texidor-Carrasquillo, Chriss Michael West, Jacobi Ceballo, Michael Gonzalez, Maritza Gomez, Mohammed S. Islam, Francisco G. Pabon Garcia, Bernice DeJesus Valazquez, individually and on behalf of the estate of Franky Jimmy DeJesus Valazques, Ismail Medina Morales, individually and on behalf of the estate of Angel Candelario Padro, Edwin Rivera Alvarez, Jose Pacheco, Lizmaryee Finol Viloria, Plaintiffs - Appellants,

v.TWITTER, INC., Google, LLC, Facebook, Inc., Defendants - Appellees.

No. 20-11283

United States Court of Appeals, Eleventh Circuit.

September 27, 2021

Keith L. Altman, The Law Office of Keith Altman, Farmington Hills, MI, for Plaintiffs-Appellants.

Ari Holtzblatt, Patrick Carome, Wilmer Cutler Pickering Hale & Dorr, LLP, Washington, DC, Jaclyn Clark, Bailey & Glasser, LLP, Petersburg, FL, Mary Ruth Houston, Shutts & Bowen, LLP, Orlando, FL, for Defendant-Appellee Twitter, Inc.

Nathan M. Berman, Zuckerman Spaeder, LLP, Tampa, FL, Brian M. Willen, Wilson Sonsini Goodrich & Rosati, New York, NY, Kelly M. Knoll, Wilson Sonsini Goodrich & Rosati, PC, Palo Alto, CA, Lauren Gallo White, Wilson Sonsini Goodrich & Rosati, PC, San Francisco, CA, for Defendant-Appellee Google LLC.

Kristin Andrea Linsley, Gibson Dunn & Crutcher, LLP, San Francisco, CA, David S. Wood, Akerman, LLP, Orlando, FL, Allyson Newton Ho, Gibson Dunn & Crutcher, LLP, Dallas, TX, Jacob T. Spence, Gibson Dunn & Crutcher, LLP, Washington, DC, for Defendant-Appellee Facebook Inc.

Before JORDAN, BRASHER, and JULIE CARNES, Circuit Judges.

JORDAN, Circuit Judge:

In the early morning hours of June 12, 2016, Omar Mateen entered Pulse, an LGBT nightclub in Orlando, Florida. He was armed with a SIG-Sauer MCX semi-automatic rifle and a 9mm Glock semi-automatic pistol. Unleashing a hail of gunfire, he murdered 49 people and injured 53 others. He then barricaded himself in a bathroom, called 911, and—referring to himself as an "Islamic soldier"—declared allegiance to The Islamic State of Iraq and Syria (ISIS), a designated foreign terrorist organization (FTO).

Following a stand-off, police shot and killed Mr. Mateen. ISIS later claimed responsibility for the mass shooting, which at the time was the deadliest massacre in the United States by a single gunman.¹

The estates of the some of the murder victims, along with some of the injured, filed a lawsuit in federal court in Michigan against several social media companies—Facebook, Twitter, and Google (YouTube). That action proved unsuccessful. See Crosby v. Twitter, Inc. , 303 F. Supp. 3d 564 (E.D. Mich. 2018), aff'd , Crosby v. Twitter , 921 F.3d 617 (6th Cir. 2018).

A second action—the present case—was filed in federal court in Florida against the same social media companies by different victims of the Pulse shooting. The plaintiffs here alleged in part that the companies aided and abetted Mr. Mateen in violation of the Anti-Terrorism Act, 18 U.S.C. §§ 2333(a) & (d)(2), by facilitating his access to radical jihadist and ISIS-sponsored content in the months and years leading up to the shooting. The plaintiffs also asserted claims against the companies under Florida law for negligent infliction of emotional distress and wrongful death. On the companies’ motions, the district court dismissed the ATA and state-law claims with prejudice under Rule 12(b)(6), and the plaintiffs appealed.

Following oral argument, we affirm. We are deeply saddened by the deaths and injuries caused by Mr. Mateen's rampage, but we agree with the district court that the plaintiffs failed to make out a plausible claim that the Pulse massacre was an act of "international terrorism" as that term is defined in the ATA. And without such an act of "international terrorism," the social media companies—no matter what we may think of their alleged conduct—cannot be liable for aiding and abetting under the ATA. As for the state-law claims, the plaintiffs have failed to adequately brief proximate cause under Florida law, and have therefore abandoned their challenge to the district court's ruling.

I

Our review of the district court's dismissal order is plenary. In conducting that review we accept the factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs’ favor. See Williamson v. Travelport, LP , 953 F.3d 1278, 1284 n.1 (11th Cir. 2020). The question is whether the plaintiffs have pled facts sufficient to make their claims "substantive[ly] plausibl[e]." Johnson v. City of Shelby , 574 U.S. 10, 12, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014).

The plaintiffs have only appealed the dismissal of their ATA aiding and abetting claims and their Florida-law tort claims, so we confine our discussion accordingly. In the sections which follow, we set out the legal framework for those claims and then address the relevant allegations of the complaint. We begin with the ATA aiding-and-abetting claim and then turn to the Florida-law claims.

II

The ATA provides that any "national of the United States injured in his or her person ... by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees." 18 U.S.C. § 2333(a). In an action under § 2333(a) "for an injury arising from an act of international terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist organization [FTO] under [8 U.S.C. § 2119], ... liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance[.]" § 2333(d)(2). Aiding and abetting liability under the ATA, therefore, requires an act of "international terrorism" that is "committed, planned, or authorized" by a foreign terrorist organization (FTO).

The term "international terrorism" has a three-part definition under the ATA. It "means activities that ... (A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear intended ... (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear to be intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum[.]" § 2331(1)(A)-(C) (emphasis added).

Before turning to the allegations in the plaintiffs’ complaint, we pause to recognize that the term "international terrorism" can mean different things at different times to different people. As one journalist put it, "[w]hile most people can agree that terrorism exists, few can agree on what it is." Brian Whitaker, "The Definition of Terrorism," The Guardian (May 7, 2001). Accord United States v. Yousef , 327 F.3d 56, 107 n.42 (2d Cir. 2003) (explaining that terrorism can be defined according to the "perpetrators’ motives, methods, targets, and victims"). Indeed, Congress has defined the term "international terrorism" differently throughout the U.S. Code. See, e.g., 22 U.S.C. § 2656f(d)(1) ; 22 U.S.C. 2708(k)(1) ; 34 U.S.C. § 20144(j)(1) ; 50 U.S.C. § 1701 Note (Iran and Libya Sanctions Act of 1996, Pub. L. 104-172, 110 Stat. 1541, § 14(1)); 50 U.S.C. § 1801(c). In some instances, Congress has linked (or limited) the term to certain specific acts. See 22 U.S.C. § 262d(a)(2) (hijacking of aircraft). And in others, Congress has seemingly left the term undefined. See, e.g., 22 U.S.C. § 2371 (delegating to the Secretary of State the responsibility for determining whether foreign governments have provided support for acts of international terrorism but leaving the term itself undefined); 42 U.S.C. § 2158(b)(3)(B) (delegating to the President the authority to determine whether a foreign government has provided adequate assurance that it will cease support for "acts of international terrorism" but leaving the term undefined).

Here, because the ATA includes a definition of "international terrorism," that definition is the one that matters and our opinion is necessarily limited to the ATA: "When a statute includes an explicit definition, we must follow that definition, even if it varies from that term's ordinary meaning." Stenberg v. Carhart , 530 U.S. 914, 942, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). See also Western...