Fyk v. United States
| Docket Number | Civil Action 22-01144 (RC),Re Document No.: 9 |
| Decision Date | 09 June 2023 |
| Parties | JASON FYK, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Jason Fyk asserts that Facebook[1] improperly restricted and removed his Pages from the social network. And so he brings a claim against the United States of America, seeking a declaratory judgment that Section 230 of the Communications Decency Act of 1996 (“CDA”) violates the U.S. Constitution. See Compl., ECF No. 2. The Government, as Defendant moves to dismiss for lack for subject-matter jurisdiction and failure to state a claim, and in the alternative, moves to strike the complaint as overly lengthy. See Def's Mot. to Dismiss (“Def's Mot.”), ECF No. 9. Because Mr. Fyk lacks standing, the Government's motion to dismiss for lack of subject-matter jurisdiction is granted.
This case arises from Mr. Fyk's interactions with the social media network Facebook, and it is not the first time that Plaintiff has taken his conflict with Facebook into the court system. The Complaint is circuitous and often omits critical details, but the following represents the Court's best attempt to summarize the factual allegations, which are largely found in the Complaint's Exhibit B.[2] Mr. Fyk was the owner and operator of WTF - Where's The Fun - Magazine (“WTF Magazine”), an online business that shared “humorous content” to receive user engagement. Compl., Ex. B. ¶ 2, ECF No. 2-2. It appears that WTF Magazine primarily operated through Pages on the Facebook platform.[3] Id. At peak, Mr. Fyk had more than 25,000,000 followers across his more than six Pages affiliated with WTF Magazine and was generating “hundreds of thousands of dollars a month” in revenue from advertising and lead generating activities. Id.; see also Compl. ¶ 203.
In the years between 2010 and 2016, Facebook implemented an optional program where Page operators could pay for greater promotion of their content to users. Compl. Ex. B. ¶ 3. At some point thereafter, a “high-ranking Facebook executive bluntly told Fyk that Fyk's business was disfavored compared to other businesses” that paid to promote their Pages. Id. ¶ 4. Mr. Fyk then reluctantly opted into Facebook's paid promotion program “at a relatively low amount of money” compared to an unnamed competitor business. Id. Nonetheless, on an unstated date, Facebook “reduced the reach” of Mr. Fyk's Pages “by over 99% overnight.” Id. After that, in October 2016, Facebook removed several of Mr. Fyk's Pages, totaling over 14,000,000 followers, under the guise of “content policing.”[4] Id. Mr. Fyk alleges that Facebook's content moderation justification was mere pretense, and that Facebook actually removed the Pages to favor a competitor that paid more for promotion. Id. ¶¶ 4-5. Mr. Fyk only briefly describes the content that Facebook removed. For example, “in or around the end of 2016,” Facebook deleted one of Mr. Fyk's Pages that had posted a screenshot of a character from Disney's “Pocahontas” movie, claiming the screenshot was racist. Compl. ¶ 252. Facebook also removed a photo of a child altered to have the head of a fictional character from the movie “The Goonies.” Id. ¶ 253.
In February and March of 2017, Mr. Fyk reached out to a prior business colleague and now competitor “who was favored by Facebook” for paying more in advertising and who had a dedicated Facebook representative. Compl. Ex. B. ¶ 5. It is unclear if this was the same “competitor” referenced previously. Mr. Fyk asked the competitor to request that Facebook restore his Pages. Id. When the competitor did so, Facebook declined the request unless the competitor took ownership of Mr. Fyk's Pages. Id. Thereafter, Mr. Fyk sold WTF Magazine and corresponding Pages to the competitor for an unknown sum. Id. Facebook then restored the Pages and the same content it had previously removed. Id. Mr. Fyk claims that because of these events, his “professional life was reduced to rubble” and “his online business destroyed” causing him to lose “hundreds of millions of dollars.” Pl.'s Opp'n to Mot. Dismiss (“Pl.'s Opp'n”) at 3, 16, ECF No. 11.
In 2018, Mr. Fyk took his dispute with Facebook to the courts. Compl. Ex. B. ¶ 6; Fyk v. Facebook, Inc., No. C 18-05159, 2019 WL 11288576, at *1 (N.D. Cal. June 18, 2019), aff'd, 808 Fed.Appx. 597 (9th Cir. 2020). Mr. Fyk sued Facebook in the Northern District of California, alleging “fraud, unfair competition, extortion, and tortious interference with his economic advantage based on Facebook's anti-competitive animus.” Compl. Ex. B. ¶ 6. Facebook moved to dismiss the claims. Id. The U.S. District Court agreed with Facebook, dismissing the lawsuit and holding that Section 230(c)(1) of the CDA immunized Facebook from liability. Fyk, 2019 WL 11288576, at *3. Mr. Fyk appealed to the Ninth Circuit, which affirmed the District Court's decision. Fyk v. Facebook, Inc., 808 Fed.Appx. at 598. Undeterred, Mr. Fyk filed a petition for hearing en banc, which was denied. Compl. Ex. B. ¶ 7. In 2020, Mr. Fyk sought review at the Supreme Court. Again, Mr. Fyk's attempt was denied. Fyk v. Facebook, Inc., 141 S.Ct. 1067 (2021) (cert. denied). The following year, Mr. Fyk unsuccessfully moved to vacate the District Court's judgment. Fyk v. Facebook, Inc., No. 18-cv-05159, 2021 WL 5764249, at *1 (N.D. Cal. Nov. 1, 2021) (), aff'd, No. 21-16997, 2022 WL 10964766 (9th Cir. Oct. 19, 2022), cert. denied, No. 22-753, 2023 WL 2959399 (U.S. Apr. 17, 2023).
Now, after these previous unfruitful efforts against Facebook, Mr. Fyk brings this suit against the United States, alleging that Section 230 of the CDA violates the First and Fifth Amendments, as well as other legal tenets. Compl. ¶¶ 332-342. The Government seeks to dismiss the Complaint on the grounds that the Plaintiff lacks subject-matter jurisdiction and has failed to state a claim. Def.'s Mot. at 1.
To survive a motion to dismiss under Rule 12(b)(1), the plaintiff has the burden of proving that the Court has subject-matter jurisdiction to hear his claims. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court has an “affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority.” Grand Lodge of the Fraternal Ord. of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C. 2001). For this reason, “the [p]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Id. at 13-14 (quotations removed). Additionally, under Rule 12(b)(1), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
Rule 12(b)(6) provides for the dismissal of an action where a complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Although “detailed factual allegations” are not required to withstand a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). The Court must “treat the complaint's factual allegations as true . . . and must grant plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparrow, 216 F.3d at 1113 (citations and internal quotation marks omitted). A claim is plausible if “it contains factual allegations that, if proved, would allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C. Cir. 2017) (quotation omitted). The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quotation omitted).
When “faced with motions to dismiss under Rule 12(b)(1) and Rule 12(b)(6), a court should first consider the Rule 12(b)(1) motion because [o]nce a court determines that it lacks subject-matter jurisdiction, it can proceed no further.” Ctr. for Biological Diversity v. Jackson, 815 F.Supp.2d 85, 90 (D.D.C. 2011) (citations and internal quotation marks omitted).
Mr. Fyk advances an array of arguments that Section 230 of the CDA is unconstitutional. However, before the Court can hear the merits of these claims, Mr. Fyk must show that he has a “case” or “controversy” within the parameters of Article III. See Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013). One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. Id. Such standing to sue is a necessary “predicate to any exercise of [the Court's] jurisdiction.” Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996).
To establish the “[t]he ‘irreducible constitutional minimum'” of standing, “(i) the party must have suffered a concrete and particularized injury in fact (ii) that was caused by or is fairly traceable to the actions of the defendant, and (iii) is capable of resolution and likely to be redressed by judicial decision.” Sierra Club v. EPA, 755 F.3d 968, 973 (D.C. Cir. 2014) (quoting Lujan, 504 U.S. at 560-61). If a plaintiff fails any of these three prongs, the Court has no jurisdiction to hear the case and must dismiss under Rule 12(b)(1). Int'l Acad. of Oral Med. & Toxicology v. FDA, 195 F.Supp.3d 243, 253 (D.D.C. 20...
To continue reading
Request your trial