Domen v. Vimeo, Inc.

• Decision Date: 15 January 2020
• Docket Number: 1:19-cv-08418 (SDA)
• Citation: 433 F.Supp.3d 592
• Parties: James DOMEN et al., Plaintiffs, v. VIMEO, INC. et al., Defendants.
• Court: U.S. District Court — Southern District of New York

433 F.Supp.3d 592

James DOMEN et al., Plaintiffs,

v.VIMEO, INC. et al., Defendants.

1:19-cv-08418 (SDA)

United States District Court, S.D. New York.

Date Filed: January 15, 2020

Jennifer Lynn Bursch, Robert H. Tyler, Nada Nassar Higuera, Tyler and Bursch LLP, Murrieta, CA, for Plaintiffs.

Michael A. Cheah, IAC/InterActiveCorp, New York, NY, Jean-Paul Jassy, Kevin L. Vick, Elizabeth Holland Baldridge, Jassy Vick Carolan LLP, Los Angeles, CA, for Defendants.

OPINION AND ORDER

STEWART D. AARON, United States Magistrate Judge:

Pending before the Court is a motion by Defendant Vimeo, Inc. ("Defendant" or "Vimeo"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the First Amended Complaint filed by Plaintiffs James Domen ("Domen") and Church United (collectively, the "Plaintiffs"). (10/11/19 Not. of Mot., ECF No. 42.)¹ For the following reasons, Defendant's motion is GRANTED.

PROCEDURAL HISTORY

This case was commenced by the filing of a Complaint on June 25, 2019 in the U.S. District Court for the Central District of California. (Compl., ECF No. 1.) The case arose out of the termination of Church United's account on Vimeo's video-sharing website, which account displayed (among others) videos of Domen, a "former homosexual" who now "identif[ies] as heterosexual." (See Compl. ¶¶ 16, 18, 25, 38.) The account was terminated because certain videos "allegedly violated the following Vimeo guideline: ‘Vimeo does not allow videos that harass, incite hatred, or include discriminatory or defamatory speech.’ " (Id. ¶ 38.) In their Complaint, Plaintiffs asserted "that Defendant violated California law by restraining Plaintiffs' speech and expression in violation of Article One, Section 2 of the California Constitution ... and by discriminating against Plaintiffs based on religious, sexual orientation, or other discriminatory animus in violation of the Unruh Civil Rights Act , section 51, et seq. of the California Civil Code (the ‘Unruh Act’)." (Id. at pp. 1-2 (italics in original).) Plaintiffs also asserted a "Free Speech Claim" under the First Amendment to the U.S. Constitution. (See id. , Second Cause of Action.)

Defendant moved to dismiss this case for improper venue under Fed. R. Civ. P. 12(b)(3) or 28 U.S.C. § 1406(a), or in the alternative to transfer to this Court, pursuant to 28 U.S.C. § 1404(a). (7/19/19 Motion, ECF No. 12.) Defendant argued that Plaintiffs were bound by the forum-selection clause in the Vimeo Terms of Service to which they assented upon creation of their video-sharing account and again upon upgrading their subscription, which called for any action arising out of or relating to "use of the Vimeo Service" to "be commenced in the state or federal courts located in New York County, New York." (Id. at 4-13; Terms of Service, ECF No. 12-1, at 30.)

District Judge Wilson granted Defendant's motion to transfer to this Court, and denied the motion to dismiss for improper venue. Domen v. Vimeo, Inc. , No. 19-CV-01278 (SVW) (AFM), 2019 WL 4998782, at *3 (C.D. Cal. Sept. 4, 2019). Judge Wilson added the following in a footnote to his Order: "Because this Court determined that venue transfer is appropriate under 1404(a), it notes but refrains from analyzing the substantive problems Plaintiffs may encounter in arguing that private actors ought to be liable for First Amendment violations." Id. at *1.

Upon transfer to this Court, this case was assigned to District Judge Torres. On October 1, 2019, the parties consented to conducting all proceedings in this case before me. (Consent, ECF No. 31.) On October 4, 2019, Plaintiffs filed a First Amended Complaint ("FAC"). (FAC, ECF No. 35.) Plaintiffs did not assert a First Amendment claim in the FAC, but added a "Sexual Orientation Non-Discrimination Act" claim under New York Executive Law § 296. (FAC, Second Cause of Action.)

On October 11, 2019, Defendant filed the instant motion to dismiss. (10/11/19 Not. of Mot.) Plaintiffs filed their opposition on November 1, 2019 (Pl. Opp.) and Defendant filed its reply on November 15, 2019. (Reply.) Oral argument was held on January 13, 2020.

RELEVANT FACTS ²

I. Parties

Church United, which was founded in 1994, is a "California non-profit Religious Corporation." (FAC ¶¶ 6-7.) "Church United aids pastors in advocating for public policy based on a biblical worldview." (Id. ¶ 11.) "Church United and its affiliated pastors desire to positively impact the State of California and the nation with hope and to preserve their individual rights as pastors to exercise their faith without unlawful infringement." (Id. ¶ 12.)

Domen, a California resident who is a pastor and has a "masters of divinity degree," is the President and Founder of Church United. (FAC ¶¶ 2, 13.) "For three years, James Domen was a homosexual[; h]owever, because of his desire to pursue his faith in Christianity, he began to identify as a former homosexual." (Id. ¶ 15.) Domen "is like many others in California who were formerly homosexual but now identify as heterosexual." (Id. ¶ 17.)

Vimeo is a Delaware corporation with a principal place of business in New York. (FAC ¶ 21-22.) Vimeo is an online forum that "allows users to upload, view, share, and comment on videos." (Id. ¶ 24.)

The FAC also names as Defendants "Does 1 through 25" (FAC ¶ 28), but contains no substantive allegations against them. During oral argument, Plaintiffs explained that Does 1 through 25 were named as place-holders for potential, yet unknown, parties, in accordance with counsel's normal practice in California courts. (1/13/2020 Tr., ECF No. 54, at 23.) Plaintiffs also acknowledged that no additional parties had been identified. (1/13/2020 Tr. 23-24.)

II. Plaintiffs' Vimeo Account And Videos

In or about October 2016, Plaintiffs created a Vimeo account "for the purpose of hosting various videos, including videos addressing sexual orientation as it relates to religion." (FAC ¶ 29.) Plaintiffs initially had created their account with a free basic membership, but later "upgraded to a Pro Account." (Id. ¶ 31.) Plaintiffs used Vimeo's video hosting service to publish about 89 videos. (Id. ¶ 30.)

On November 23, 2018, Vimeo sent an email to Church United (addressed to jim@churchunited.com ) stating:

Hello Church United,

A Vimeo moderator marked your account for review for the following reason:

Vimeo does not allow videos that promote Sexual Orientation Change Efforts (SOCE)

You need to take the following action as soon as possible:

Please download your videos within the next 24 hours, as this will assure that you will be able to keep them upon closure of your account.

After 24 hours, we will review your account again to make sure this action has been taken. lf not, your videos and/or your account may be removed by a Vimeo moderator.

For more information on our content and community policies, please visit https://vimeo.com/help/guidelines

lf you have questions or believe you received this warning in error, please respond to this message and a Vimeo Community Manager will get back to you.

(FAC, Ex. A, ECF No. 35-1.)

Plaintiffs allege that the foregoing email "cited five (5) videos ‘that espouse this theory,’ " presumably referring to SOCE, and that these five videos were "flagged for review." (See FAC ¶¶ 33-38.)³ The five videos, which Plaintiffs allege "involved an effort by Church United to challenge California Assembly Bill 2943 ..., which aimed to expand California's existing prohibition on SOCE to apply to talk therapy and pastoral counseling" (id. ¶ 41), are as follows:

1) Video "wherein [Domen] briefly explained his life story, his preferred sexual orientation, the discrimination he faced, and his religion." (FAC ¶ 34; see also Jud. Not. Req. at 2 (containing embedded link to video).)

2) A "promotional video for Freedom March Los Angeles. Freedom March is a nationwide event where individuals like [Domen], who identify as former homosexuals, former lesbians, former transgenders, and former bisexuals, assemble with other likeminded individuals." (FAC ¶ 35 see also Jud. Not. Req. at 2 (containing embedded link to video).)

3) An "NBC produced documentary segment titled, Left Field, which documented and addressed SOCE." (FAC ¶ 36; see also Jud. Not. Req. at 2 (containing embedded link to video entitled, "One Man[']s quest to Ban Conversion Therapy NBC Left Field").)

4) A "press conference with Andrew Comiskey, the founder of Desert Stream, relating to his religion and sexual orientation." (FAC ¶ 37; see also Jud. Not. Req. at 2 (containing embedded link to video in which Comiskey "ask[s] that [California Assembly Bill 2943] would be struck down before it comes into law" (6:29-6:33)).)

5) An "interview with Luis Ruiz, a survivor of the horrific attack at the Pulse Nightclub in Florida in March 2018. In the video, Luis Ruiz shares his background as a former homosexual and his experience as a survivor of the attack." (FAC ¶ 38; see also Jud. Not. Req. at 2 (containing embedded link to video).)

On December 6, 2018, Vimeo sent an email to Church United advising that Plaintiffs' account had been removed by the Vimeo staff for violating Vimeo's "Guidelines." (FAC, Ex. B, ECF No. 35-2.)⁴ The email states as the reason for removal: "Dear Church United, ... Vimeo does not allow videos that harass, incite hatred, or include discriminatory or defamatory speech." (Id. ) Although the email does not refer to the five videos above, the FAC alleges that Vimeo found that these videos violated the foregoing "Vimeo guideline." (FAC ¶ 39.) Plaintiffs challenge the decision by Vimeo to remove their account, alleging that "Vimeo restricted and censored Plaintiffs' videos because those videos were based on a viewpoint regarding sexual orientation and religion with which Vimeo disagrees." (FAC ¶ 47.)

III. Vimeo's Terms of Service And Guidelines

Vimeo's Terms of Service, which are referenced in the FAC (FAC ¶ 3), prohibit, among other things, content that "[c]ontains hateful, defamatory, or discriminatory content or incites...