Dangaard v. Instagram, LLC

• Court: District Court, N.D. California
• Decided: September 13, 2022
• Docket: 3:22-cv-01101
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8

10 DAWN DANGAARD, KELLY GILBERT, and JENNIFER ALLBAUGH, 11 No. C 22-01101 WHA Plaintiffs, 12

v.

13 ORDER RE MOTIONS TO DISMISS INSTAGRAM, LLC, FACEBOOK 14 OPERATIONS, LLC, FENIX INTERNET, LLC, FENIX INTERNATIONAL, LTD., 15 META PLATFORMS, INC., LEONID RADVINSKY, and JOHN DOES 1–10. 16 Defendants. 17

18 19 Plaintiffs will be allowed to re-plead their complaint to meet the issues raised on the 20 motions to dismiss. Plaintiffs must plead their best case. 21 First, as revealed at the hearing, plaintiffs have the benefit of information outside the 22 pleadings that may support their claims. So plaintiffs could have pled more, but they chose 23 not to. For example, plaintiffs state that both a BBC news article and tips from confidential 24 sources support the allegations in the complaint. Plaintiffs refer to the BBC article in the 25 complaint, but they do not include the actual article in the pleading. As to the confidential 26 sources, plaintiffs make no mention of them in the complaint. Rather, plaintiffs should have 27 laid out such information to support reasonable inferences of misconduct. It is plaintiffs’ 1 to “nudge[] their claims across the line from conceivable to plausible.” Bell Atl. Corp. v. 2 Twombly, 550 U.S. 544, 570 (2007). 3 Second, plaintiffs make many allegations “on information and belief.” True, “[t]he 4 Twombly plausibility standard does not prevent a plaintiff from pleading facts alleged upon 5 information and belief where the facts are peculiarly within the possession and control of the 6 defendant.” But, where that is not the case, an allegation on information and belief must be 7 “based on factual information that makes the inference of culpability plausible.” Soo Park v. 8 Thompson, 851 F.3d 910, 928 (9th Cir. 2017). 9 Here, it is not clear that all the allegations on information and belief are based on facts 10 peculiarly within defendants’ possession. For example, plaintiffs allege: “[o]n information 11 and belief, [adult entertainment performers] who had only promoted [their content on] 12 OnlyFans online or the Radvinsky-affiliated sites, and [who] had never . . . affiliated online 13 with any of OnlyFans’ competitors, appeared to be unaffected by [the] automated takedowns 14 and reduced traffic” (First Amd. Compl. ¶ 36). That information is not peculiarly within 15 defendants’ possession. Plaintiffs could have gathered such information from those adult 16 entertainment performers themselves. Although plaintiffs provide a graph showing an increase 17 in traffic to OnlyFans, the alleged lack of automated takedowns is only one potential 18 explanation for such a trend. Thus, plaintiffs need to provide factual information that makes 19 such an inference plausible. 20 Third, plaintiffs’ allegations of harm are vague. For example, plaintiff Dangaard alleges 21 that her account was deleted but reinstated at an unspecified time thereafter (see First Amd. 22 Compl. ¶ 45). Moreover, while she “remained a popular performer, so that increasing numbers 23 of potential customers followed her on Instagram,” she alleges that her lack of viewership on 24 Instagram “adversely affected [her] revenue” (id. ¶ 46) (emphasis added). The other two 25 plaintiffs make similar allegations. But such allegations lack specificity. Plaintiffs should 26 provide more detailed allegations regarding the extent of their injuries. 27 Rather than slug through all of plaintiffs’ claims and defendants’ myriad defenses, the 1 Moreover, plaintiffs are to identify, by name, all adult entertainment platforms allegedly 2 included in Meta defendants’ terrorist lists. Plaintiffs should be mindful of all other objections 3 raised by defendants and plead their best case to overcome them. Thereafter, we will permit 4 another round of motions to dismiss. A further pleading will not be allowed in all likelihood. 5 (Personal jurisdiction need not be re-briefed in such motions. That issue is already set for 6 separate briefing after the close of jurisdictional discovery.) 7 Plaintiffs shall file an amended complaint WITHIN TWO WEEKS of this order. Defendants 8 shall refile their motions to dismiss WITHIN TWO WEEKS of plaintiffs’ filing. Plaintiffs shall 9 have TWO WEEKS to oppose, and defendants shall have ONE WEEK thereafter to reply. 10 A hearing on the motions shall be held on NOVEMBER 16, 2022, at 11:30 A.M. 11 12 IT IS SO ORDERED.

14 Dated: September 13, 2022.

WILLIAM ALSUP = 16 UNITED STATES DISTRICT JUDGE = 17 18 19 20 21 22 23 24 25 26 27 28