Lloyd v. Facebook, Inc., 21-cv-10075-EMC

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtEDWARD M. CHEN, United States District Judge
PartiesSUSAN LLOYD, Plaintiff, v. FACEBOOK, INC., et al., Defendants.
Docket Number21-cv-10075-EMC
Decision Date03 October 2022

SUSAN LLOYD, Plaintiff,

FACEBOOK, INC., et al., Defendants.

No. 21-cv-10075-EMC

United States District Court, N.D. California

October 3, 2022


EDWARD M. CHEN, United States District Judge


Pro se plaintiff Susan Lloyd (“Plaintiff”) brings this action against Defendants Facebook, Inc., Meta Platforms Inc., and Mark Zuckerberg (collectively “Defendants”), alleging various violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, the Unruh Act, as well as for fraud, invasion of privacy, breach of contract, negligence, and negligent infliction of emotional distress. For the following reasons, the Court GRANTS Defendants' motion to dismiss.


A. Factual Background

Plaintiff alleges as follows in the First Amended Complaint (“FAC”).

Plaintiff is a Pennsylvania resident with “severe vision issues” who has been disabled under the ADA since 2006. Docket No. 16 (FAC) 5. Lloyd uses the Facebook platform, an online social media and networking service owned by Meta. Id. ¶ 6. Meta is a multinational technology conglomerate and the parent organization of Facebook, Instagram, and other subsidiaries. Id. ¶ 7. Meta collects revenue through the Facebook platform by using third-party


advertisements. Id. ¶ 8. Mr. Zuckerberg is the Co-Founder and CEO of Meta and also serves as Meta's Chairman and Controlling Shareholder. Id.

1. The Facebook Platform

According to Plaintiff, the Facebook platform is not accessible to disabled individuals with no arms or problems with vision because of the following reasons:

(1) The font cannot be made larger
(2) The platform cannot be viewed in both landscape and portrait orientations
(3) The color combinations are not high contrast enough to be used by individuals with vision impairments
(4) The text cannot be resized or readable when resized,
(5) The form fields do not have visible labels,
(6) Users are not made aware of missing, incorrect, or other errors entered into fields,
(7) Gifs and videos cannot be disabled to prevent seizures,
(8) Language tabs are not added,
(9) There is only an option to do dark mode or make the font smaller, and
(10) There is no accessibility statement.

See Id. ¶ 10.

Plaintiff further claims that Defendants track users even when the user is logged off Facebook when she is on third party websites such as Chewy.com or Target.com, for which she never gave permission. Id. ¶¶ 30-31. According to Plaintiff, she is aware of this alleged tracking because advertisements from these sites immediately appear for her on Facebook after visiting them. Id. ¶¶ 30-32. Meta's relationship with the users - including Plaintiff - is governed by its Terms of Service (formerly known as Statement of Rights and Responsibilities), to which all users must agree to create a Facebook account.[1]

2. Third-Party Harassment

Plaintiff alleges that Defendants have allowed “over 500 people to harass and bully [Plaintiff] on Facebook, led by Joshua Thornsbery” since 2016. Id. ¶ 23. Thornsbery and his friends, many of whom are from motorcycle gangs including the Hells Angels, do not use their


real names, create multiple accounts, share passwords and “have testified that they give. . . other people. . . [access to] their accounts.” Id. For over five years, these individuals threatened to rape and murder Plaintiff by shooting her with a gun, choking her to death, and blowing up her house. Id. Yet, “each time they have been reported, [Plaintiff] and others were told it does not violate community standards.” Id.

Plaintiff also alleges that Defendants allowed Thornsbery and his friends to post Lloyd's personal information, such as her address, her photos, and photos of her property, among other things, so that others know where she lives and can harass her. Id. Her harassers allegedly “even post that they will sit in front of Lloyds house to harass Lloyd.” Id. In addition, Plaintiff alleges that Defendants allow the harassers to “brag on Facebook that they pissed on Lloyd[']s fence, damaged Lloyds fence, blow cigarette smoke at Lloyd while she is on oxygen, post pictures of Lloyds cameras and state how the[y] can get around Lloyds security systems and how they can use signal jammers to block Lloyds cameras which they did, forcing Lloyd to reinstall wired cameras.” Id. Because many of the harassers are members of the Hells Angels, Plaintiff alleges that Defendants “allow[] the Hells Angels to have pages on their site where the[y] can organize and have gatherings” and threaten to have “the Hells Angels murder Lloyd.” Id.

“Thornsbery. . . admits to hacking into Lloyds Facebook page and found out where Lloyd is residing in the state of Pennsylvania where he admits to still having well over 500 of his friends organized through Facebook to harass Lloyd.” Id. Because of this harassment, Lloyd fled to Ohio for her safety. Id. ¶ 24.

B. Procedural Background

Plaintiff filed her original complaint on December 29, 2021, and a more detailed FAC on May 31, 2022. See Docket No. 1; FAC. On May 28, 2022, Plaintiff served discovery requests on Defendants, and Defendants' counsel informed Plaintiff that her discovery requests were considered untimely because the parties had not yet held a Rule 26(f) conference. Heath Decl., Ex. B.

Defendants moved to dismiss Plaintiff's FAC and requested judicial notice of its Terms of Service and Data Policy. Docket No. 18 (Mot.); Docket No. 19. However, Plaintiff did not file an


opposition to Defendants' motions, which were due to be filed by June 28, 2022, pursuant to Local Rule 7-3. Instead, Plaintiff filed a motion to strike Defendants' motion to dismiss. See Docket No. 23 (Motion to Strike). Plaintiff also filed a motion to compel a Rule 26(f) conference and a motion for administrative relief for sanctions against Defendants. See Docket Nos. 21, 29.


A. Judicial Notice and Incorporation by Reference

On a motion to dismiss, a court “must consider the complaint in its entirety, as well as . . . documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).

Under Federal Rule of Evidence 201, “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. Courts may take judicial notice on “undisputed matters of public record,” but generally may not take judicial notice of “disputed facts stated in public records.” Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001). Facts subject to judicial notice may be considered on a motion to dismiss. Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). “Proper subjects of judicial notice when a ruling on a motion to dismiss include . . . publicly accessible websites[.]” Perkins v. LinkedIn Corp., 53 F.Supp.3d 1190, 1204 (N.D. Cal. 2014) (citing Caldwell v. Caldwell, No. 05-4166, 2006 WL 618511, at *4 (N.D. Cal. Mar. 13, 2006); Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965-66 (C.D. Cal. 2005).

The doctrine of incorporation by reference is distinct, but related, to the doctrine of judicial notice. Under the doctrine of incorporation by reference, the Court may consider documents “whose contents are alleged in complaint and whose authenticity no party questions. But which are not physically attached to the. . . pleadings.” Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). The court may incorporate such a document “if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The Ninth Circuit in Knievel extended this doctrine to apply where


the plaintiff's claim depends on the contents of the document and the parties do not dispute the authenticity of the document. Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) (allowing the introduction of a website's contents that were seen alongside the disputed contents in a defamation suit that were not disputed for authenticity).

Therefore, the requirements for the documents that are relied on by the complaint to be incorporated are that: “(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (internal citations omitted). Such documents may be considered as “part of the complaint,” without converting a Rule 12(b)(6) motion into a motion for summary judgment. Ritchie, 342 F.3d at 908. The contents of such documents may be assumed to be true for purposes of deciding as Rule 12(b)(6) motion. Id.

B. Failure to State a Claim (Rule 12(b)(6))

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint that fails to meet this standard may be dismissed pursuant to Rule 12(b)(6). See Fed.R.Civ.P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss after the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), a plaintiff's “factual allegations [in the complaint] ‘must . . . suggest that the claim has at least a plausible chance of success.'” Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true and construe[s] the...

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