La'Tiejira v. Facebook, Inc., Civ. A. H–16–2574

• Decision Date: 07 August 2017
• Docket Number: Civ. A. H–16–2574
• Parties: Paree LA'TIEJIRA, Plaintiff, v. FACEBOOK, INC., Mark Zuckerberg, Kyle Anders and Fictitious Defendants A,B,C, Defendants.
• Court: U.S. District Court — Southern District of Texas

272 F.Supp.3d 981

Paree LA'TIEJIRA, Plaintiff,

v.FACEBOOK, INC., Mark Zuckerberg, Kyle Anders and Fictitious Defendants A,B,C, Defendants.

Civ. A. H–16–2574

United States District Court, S.D. Texas, Houston Division.

Signed August 7, 2017

Debra V. Jennings, Law Office of Debra Jennings, Missouri City, TX, Jimmie L J Brown, Jr., Attorney at Law, Missouri City, TX, for Plaintiff.

Ann Marie Painter, Hayden M. Schottlaender, Ann Marie Painter, Perkins Coie LLP, Dallas, TX, Ryan Spear, Perkins Coie LLP, Seattle, WA, William Wyatt Maxwell, Leon Capital Group LLC, Dallas, TX, for Defendants.

OPINION AND ORDER OF DISMISSAL

MELINDA HARMON, UNITED STATES DISTRICT JUDGE

Pending before the Court in the above referenced case, grounded in diversity jurisdiction, alleging defamation/libel, breach of implied contract based on Facebook Inc.'s bullying policy, and intentional infliction of emotional distress, and seeking to hold the Communications Decency Act ("CDA") unconstitutional as applied, is inter alia Facebook, Inc.'s ("Facebook's") and Mark Zuckerberg's ("Zuckerberg's")(collectively, "the Facebook Defendants’ ") motion to dismiss Plaintiff Paree La'Tiejira's ("Plaintiff's" or "La'Tiejira's") First Amended Complaint under § 27.003 of the Texas Citizens Participation Act ("TCPA") (instrument # 32). Section 27.003 ("Motion to Dismiss") provides,

(a) If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.

(b) A motion to dismiss a legal action under this section must be filed not later than the 60^th day after the date of service of the legal action. The court may extend the time to file a motion under this section on a showing of good cause.

(c) Except as provided by Section 27.006(b), on the filing of a motion under this section, all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.

A hearing was held on the motion on August 2, 2017. After careful review of the record and the applicable law, the Court concludes that the Facebook Defendants have correctly interpreted the law and applied it to the facts here, demonstrating that their motion to dismiss all of La'Tiejira's claims against them under the TCPA and the CDA should be granted with prejudice for the reasons stated below.

The First Amended Complaint (# 27) asserts that Plaintiff is a resident of Houston, Texas; Facebook is a Delaware corporation with its principal place of business in Menlo Park, California; and Zuckerberg is a resident of California and co-founder and CEO of Facebook. These facts are not contested. Because in nearly eleventh months' time Plaintiff was never able to identify or find the location of Defendants Kyle Anders, A, B, and C to serve them, and thus never able to establish subject matter or personal jurisdiction over them, after substantial notice the Court recently dismissed the claims against them (# 51).¹

Applicable Law

The TCPA

Defendants have requested that the Court address the TCPA motion first (# 32 at p.2; # 33 at p.1.).

Sections 27.001 – 27.011 of the Texas Civil Practices and Remedies Code Ann. (West 2011), constitute the TCPA, which "is an anti-SLAPP statute² that allows a motion "designed to protect the defendant from having to litigate meritless cases aimed at chilling First Amendment expression." NCDR, LLC v. Mauze & Bagby, PLLC , 745 F.3d 742, 751 (5th Cir. 2014), citing Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a). The TCPA "protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." Tex. Civ. Prac. & Rem. Code §§ 27.001 –.011. The protection consists of the availability of a special motion for an expedited consideration of any suit that appears to stifle the defendant's communication on a matter of public concern." In re Lipsky , 460 S.W.3d 579, 584, 586 (Tex. 2015). Usually the motion "must be filed within sixty days after the service of the legal action, although the TCPA provides that a court can extend the filing deadline on a showing of good cause." NCDR , 745 F.3d at 746, citing § 27.003(b). Its "purpose is to identify and summarily dispose of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious lawsuits." Id. at 589, citing § 27.002³ (balancing "the constitutional rights of persons to petition, speak freely, and otherwise participate in government to the maximum extent permitted by law" against "the right of a person to file meritorious lawsuits for demonstrable injury."). In addition, the statute also requires a "prima facie case," which traditionally means the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Lipsky , 460 S.W.3d at 590, citing In re E.I. DuPont de Nemours & Co. , 136 S.W.3d 218, 223 (Tex. 2004). See also Serafine v. Blunt , 466 S.W.3d 352, 358 (Tex. App.–Austin June 26, 2015) ("Prima facie evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in issue. In other words, a prima facie case is one that will entitle a party to recover if no evidence to the contrary is offered by the opposition party.")(citing Rehak Creative Services, Inc. v. Witt , 404 S.W.3d 716, 726 (Tex. App.–Houston [14th Dist.] 2013, petition denied) ). Although the TCPA is a state law, it applies to Texas law claims in a federal court sitting in diversity. NDCR , 745 F.3d at 752–53 ; Brown v. Wimberly, 477 Fed.Appx. 214, 216 (5th Cir. 2012).

Section 27.003 of the Texas Civil Practice and Remedies Code describes the triggering motion to dismiss,

(a) If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.

(b) a motion to dismiss a legal action under this section must be filed not later than the 60^th day after the date of service of the legal action. The court may extend the time to file a motion under this section on a showing of good cause.

(c) Except a provided by Section 27.006(b) on the filing of a motion under this section, all discovery in the legal action system is suspended until the court has ruled on the motion to dismiss.

Section 27.006, entitled "Evidence," provides

(a) In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the fact on which the liability or defense is based.

(b) On a motion by a party or on the court's own motion and on a showing of good cause, the court may allow specified and limited discovery relevant to the motion.

By filing such a motion to dismiss under the TCPA, a defendant, who believes that the plaintiff's lawsuit is a response to the defendant's legal exercise of his First Amendment rights, commences a two-step process. Id. at 586. First the defendant must show by a preponderance of the evidence that the plaintiff's cause of action "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Id. at 586–87, citing Tex. Civ. Prac. Rem. Code § 27.005(b). "The ‘right of free speech’ refers to communications related to ‘a matter of public concern’ which is defined to include an issue related to: ‘(A) health or safety; (B) environmental, economic, or community well-being; (C) the government; (D) a public official or public figure; or (E) a good, product or service in the marketplace.’ " Id. at 586 n.4., citing § 27.001(3), (7)(A)–(E). "The ‘right to petition’ refers to a wide range of communications relating to judicial, administrative, or other governmental proceedings.’ " Id. n.5, citing § 27.001(4). "The ‘right of association’ refers to people ‘collectively express[ing], promot[ing], pursu[ing], or defend[ing] common interests.’ " Id. n.6, citing § 27.001(2). If the movant succeeds on the first step, on the second step the burden shifts to the plaintiff to " ‘establish [ ] by clear and convincing evidence a prima facie case for each essential element of the claim in question.’ " Id. at 587, citing § 27.005(c). The statute does not define "clear and specific evidence" and the courts are split over its meaning. Id. at 587. The Texas Supreme Court has opined,

The applicable evidentiary standard is generally determined by the nature of the case or the applicable claim. Criminal cases require proof beyond a reasonable doubt, a near certainty, whereas civil cases typically apply the preponderance-of-the-evidence standard, that is, a fact-finder's determination that the plaintiff's version of the events is more likely than not true. Some civil claims, including some defamation claims, elevate the evidentiary standard to require proof by clear-and-convincing evidence. Bentley v. Bunton , 94 S.W.3d 561, 596 (Tex. 2002). This standard requires that the strength of the plaintiff's proof produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation.

Id. at 589. At the hearing counsel for the Facebook Defendants argued that as movants they satisfied the three steps in their analysis: (1) they showed that their the dispute with La'Tiejira related to activity dealing with free speech (defamation, intentional infliction of emotional distress,⁴ implied breach of contract)⁵ (2) about a matter of public concern (defamation claims and publishing on the internet) (3) that is related to a public figure (La'Tiejira as a adult entertainment actress who made substantial sums of money at the time).

While deciding if the plaintiff's claim should be dismissed, the court should consider the pleadings and any supporting affidavits. Id. at 587, citing § 27.006(a).

The filing of the motion usually stays discovery, § 27.003(c)...