UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Ashley Roberson
v. Civil No. 17-cv-749-JD Opinion No. 2018 DNH 117 YouTube, et al.
O R D E R
Ashley Roberson, proceeding pro se, filed a complaint,
naming YouTube, Facebook, Twitter, Google, Blogspot.com, Patreon,
and GoFundMe as defendants.1 The defendants have filed motions
to dismiss, asserting that the court lacks subject matter
jurisdiction and personal jurisdiction, that Roberson fails to
state a claim, that Roberson impermissibly relies on DeLima’s
complaint, and other grounds. Some defendants also seek a change
of venue. Roberson did not respond to the motions.
1 Roberson was granted leave to proceed without paying the filing fee. With the complaint, Roberson filed a document titled “Durable Power of Attorney” in which she stated that she appointed Natasha DeLima to exercise the “powers and discretions” listed in the document. The magistrate judge ruled that DeLima, who is not a lawyer, could not represent Roberson in this action. Doc. no. 4. Roberson also moved to consolidate her case with cases filed in this court by DeLima and “other plaintiffs” but then moved to withdraw the motion to consolidate. The motion to withdraw was granted, and the motion to consolidate was denied as moot. I. Scope of Complaint
Roberson’s pro se complaint is cursory at best. As a
statement of her claims, Roberson provides the following:
“Consolidated Plaintiff’s Lawsuit for Violations of Civil Rights
Act, 1964, Election Rigging, Partner Compensation (YouTube and
Patreon), First Amendment Rights, Censorship, Illicit Shadow
banning of information, Cyberbullying, Copyright Infringement
Chapter 5, Illicit Monitoring, Unmasking, Defamation, NIED
Negligent Infliction of Emotional Distress.” Instead of
providing allegations to support her claims, Roberson refers to
“Lead Plaintiff Natasha DeLima, who has cited all of the like
issues from tampering w/ the election, harassing users,, [sic]
who suffered discrimination based on sexuality, political
beliefs, and popularity.” Roberson further states that she
“concurs with the lawsuit complaints of Natasha DeLima and has
suffered similar discrimination and harassment, and felt in
danger and unsafe, as though people could personally come after
her for her rights to use the internet, this should never be a
real fear, but it is.”
DeLima filed her complaint, DeLima v. YouTube, et al., 17-
cv-733-PB (D.N.H. Dec. 21, 2017), on the same day that Roberson
filed her complaint. As the defendants point out, Roberson
2 cannot rely on the allegations in DeLima’s complaint to support
her claims.
While Federal Rule of Civil Procedure 10(c) allows
incorporation by reference within a pleading or between filings
in the same case, the rule does not permit incorporation by
reference of allegations from an entirely separate case. See,
e.g., Kane v. R.J. Donovan State Prison, 2018 WL 400404, at *3
(S.D. Cal. Jan. 12, 2018); Crawford v. McFadden, 2017 WL 7689416,
at *2 (D.S.C. May 4, 2017) (citing cases); Macias v. New Mexico
Dep’t of Labor, 300 F.R.D. 529, 562 (D.N.M. Mar. 31, 2014); 5A
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1326 (3d ed. 2018).
Therefore, the only allegations considered for purposes of
the pending motions are those in Roberson’s complaint. The
allegations in DeLima’s complaint and in any other cases are not
incorporated by reference into Roberson’s complaint.
II. Subject Matter Jurisdiction
The court must determine whether subject matter jurisdiction
exists before considering the merits of the complaint. Acosta-
Ramirez v. Banco Popular de P.R., 712 F.3d 14, 18 (1st Cir.
2013). The plaintiff generally bears the burden of showing
subject matter jurisdiction. Aversa v. United States, 99 F.3d
1200, 1209-10 (1st Cir. 1996). When jurisdiction is challenged
3 under Federal Rule of Civil Procedure 12(b)(1), the court takes
the factual allegations in the complaint as true, with reasonable
inferences in the plaintiff’s favor, and may also consider other
evidence that is submitted. Merlonghi v. United States, 620 F.3d
50, 54 (1st Cir. 2010).
A. Diversity Jurisdiction
In the complaint, Roberson states that jurisdiction is based
on diversity of citizenship. She also states that the amount in
controversy exceeds $75,000.2 Some defendants move to dismiss on
the ground that Roberson has not shown that the case meets the
amount in controversy requirement, $75,000, under 28 U.S.C. §
1332(a).
The complaint, standing alone, does not show the value of
Roberson’s claims beyond her own statement. “The amount in
controversy alleged in a plaintiff’s complaint ‘is accepted if
made in good faith,’ Dart Cherokee Basin Operating CO., LLC v.
Ownens, 135 S. Ct. 547, 553 (2014), and ‘[i]t must appear to a
legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal.’ St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).” Kersey v.
2 Although Roberson’s complaint mentions a “class”, she makes no allegations to show that a putative class would meet the amount in controversy requirement under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).
4 Staples, 2018 WL 2077598, at *2 (D. Mass. May 2, 2018). “Once
the damages allegation is challenged, however, the party seeking
to invoke jurisdiction has the burden of alleging with sufficient
particularity facts indicating that it is not a legal certainty
that the claim involves less than the jurisdictional amount.”
Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001)
(internal quotation marks omitted).
Roberson’s complaint includes no facts to show the amount in
controversy, and she filed nothing in response to the motions to
dismiss to support the amount in controversy. The defendants
plausibly argue that the claims do not meet the required amount.
Therefore, based on the record here, Roberson has not shown she
meets the amount in controversy requirement.
B. Federal Question
Although federal question jurisdiction is not raised by
Roberson, she mentions several potential federal causes of action
in the complaint: the Civil Rights Act of 1964, First Amendment
rights, and copyright infringement. Under 28 U.S.C. § 1331(a),
“[t]he district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties
of the United States.” The defendants contend that federal
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Ashley Roberson
v. Civil No. 17-cv-749-JD Opinion No. 2018 DNH 117 YouTube, et al.
O R D E R
Ashley Roberson, proceeding pro se, filed a complaint,
naming YouTube, Facebook, Twitter, Google, Blogspot.com, Patreon,
and GoFundMe as defendants.1 The defendants have filed motions
to dismiss, asserting that the court lacks subject matter
jurisdiction and personal jurisdiction, that Roberson fails to
state a claim, that Roberson impermissibly relies on DeLima’s
complaint, and other grounds. Some defendants also seek a change
of venue. Roberson did not respond to the motions.
1 Roberson was granted leave to proceed without paying the filing fee. With the complaint, Roberson filed a document titled “Durable Power of Attorney” in which she stated that she appointed Natasha DeLima to exercise the “powers and discretions” listed in the document. The magistrate judge ruled that DeLima, who is not a lawyer, could not represent Roberson in this action. Doc. no. 4. Roberson also moved to consolidate her case with cases filed in this court by DeLima and “other plaintiffs” but then moved to withdraw the motion to consolidate. The motion to withdraw was granted, and the motion to consolidate was denied as moot. I. Scope of Complaint
Roberson’s pro se complaint is cursory at best. As a
statement of her claims, Roberson provides the following:
“Consolidated Plaintiff’s Lawsuit for Violations of Civil Rights
Act, 1964, Election Rigging, Partner Compensation (YouTube and
Patreon), First Amendment Rights, Censorship, Illicit Shadow
banning of information, Cyberbullying, Copyright Infringement
Chapter 5, Illicit Monitoring, Unmasking, Defamation, NIED
Negligent Infliction of Emotional Distress.” Instead of
providing allegations to support her claims, Roberson refers to
“Lead Plaintiff Natasha DeLima, who has cited all of the like
issues from tampering w/ the election, harassing users,, [sic]
who suffered discrimination based on sexuality, political
beliefs, and popularity.” Roberson further states that she
“concurs with the lawsuit complaints of Natasha DeLima and has
suffered similar discrimination and harassment, and felt in
danger and unsafe, as though people could personally come after
her for her rights to use the internet, this should never be a
real fear, but it is.”
DeLima filed her complaint, DeLima v. YouTube, et al., 17-
cv-733-PB (D.N.H. Dec. 21, 2017), on the same day that Roberson
filed her complaint. As the defendants point out, Roberson
2 cannot rely on the allegations in DeLima’s complaint to support
her claims.
While Federal Rule of Civil Procedure 10(c) allows
incorporation by reference within a pleading or between filings
in the same case, the rule does not permit incorporation by
reference of allegations from an entirely separate case. See,
e.g., Kane v. R.J. Donovan State Prison, 2018 WL 400404, at *3
(S.D. Cal. Jan. 12, 2018); Crawford v. McFadden, 2017 WL 7689416,
at *2 (D.S.C. May 4, 2017) (citing cases); Macias v. New Mexico
Dep’t of Labor, 300 F.R.D. 529, 562 (D.N.M. Mar. 31, 2014); 5A
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1326 (3d ed. 2018).
Therefore, the only allegations considered for purposes of
the pending motions are those in Roberson’s complaint. The
allegations in DeLima’s complaint and in any other cases are not
incorporated by reference into Roberson’s complaint.
II. Subject Matter Jurisdiction
The court must determine whether subject matter jurisdiction
exists before considering the merits of the complaint. Acosta-
Ramirez v. Banco Popular de P.R., 712 F.3d 14, 18 (1st Cir.
2013). The plaintiff generally bears the burden of showing
subject matter jurisdiction. Aversa v. United States, 99 F.3d
1200, 1209-10 (1st Cir. 1996). When jurisdiction is challenged
3 under Federal Rule of Civil Procedure 12(b)(1), the court takes
the factual allegations in the complaint as true, with reasonable
inferences in the plaintiff’s favor, and may also consider other
evidence that is submitted. Merlonghi v. United States, 620 F.3d
50, 54 (1st Cir. 2010).
A. Diversity Jurisdiction
In the complaint, Roberson states that jurisdiction is based
on diversity of citizenship. She also states that the amount in
controversy exceeds $75,000.2 Some defendants move to dismiss on
the ground that Roberson has not shown that the case meets the
amount in controversy requirement, $75,000, under 28 U.S.C. §
1332(a).
The complaint, standing alone, does not show the value of
Roberson’s claims beyond her own statement. “The amount in
controversy alleged in a plaintiff’s complaint ‘is accepted if
made in good faith,’ Dart Cherokee Basin Operating CO., LLC v.
Ownens, 135 S. Ct. 547, 553 (2014), and ‘[i]t must appear to a
legal certainty that the claim is really for less than the
jurisdictional amount to justify dismissal.’ St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938).” Kersey v.
2 Although Roberson’s complaint mentions a “class”, she makes no allegations to show that a putative class would meet the amount in controversy requirement under the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).
4 Staples, 2018 WL 2077598, at *2 (D. Mass. May 2, 2018). “Once
the damages allegation is challenged, however, the party seeking
to invoke jurisdiction has the burden of alleging with sufficient
particularity facts indicating that it is not a legal certainty
that the claim involves less than the jurisdictional amount.”
Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001)
(internal quotation marks omitted).
Roberson’s complaint includes no facts to show the amount in
controversy, and she filed nothing in response to the motions to
dismiss to support the amount in controversy. The defendants
plausibly argue that the claims do not meet the required amount.
Therefore, based on the record here, Roberson has not shown she
meets the amount in controversy requirement.
B. Federal Question
Although federal question jurisdiction is not raised by
Roberson, she mentions several potential federal causes of action
in the complaint: the Civil Rights Act of 1964, First Amendment
rights, and copyright infringement. Under 28 U.S.C. § 1331(a),
“[t]he district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or treaties
of the United States.” The defendants contend that federal
question jurisdiction under 28 U.S.C. § 1331 does not exist
5 because the complaint does not state even a colorable claim for
relief under federal law or the constitution.
To sustain federal question jurisdiction, the federal claim
or claims must be colorable, that is the claim or claims must not
be “immaterial and made solely for the purpose of obtaining
jurisdiction” or “wholly insubstantial and frivolous.” Arbaugh
v. Y&H Corp., 546 U.S. 500, 513 n.10 (2006). “[A] colorable
claim of a federal cause of action will confer subject matter
jurisdiction even though the claim itself may fail as a matter of
law on further examination.” Penobscot Nation v. Georgia-Pacific
Corp., 254 F.3d 317, 322 (1st Cir. 2001). “Dismissal for lack of
subject-matter jurisdiction because of the inadequacy of the
federal claim is proper only when the claim is so insubstantial,
implausible, foreclosed by prior decisions of this Court, or
otherwise completely devoid of merit as not to involve a federal
controversy.” Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 89 (1998).
While Roberson does not raise federal question as a basis
for jurisdiction, her list of claims clearly does. On the other
hand, however, she provides no facts to support the list of
claims. Based on her complaint, she alleges nothing that would
support a claim arising under federal law. Because Roberson did
not respond to the motions to dismiss, she offers nothing to
6 support her claim or claims or to show that she could amend her
complaint to allege facts that would support a federal cause of
action. Therefore, Roberson has not presented a colorable
federal question to support subject matter jurisdiction.
In the absence of subject matter jurisdiction, the case must
be dismissed.
Conclusion
For the foregoing reasons, the motions to dismiss (documents
nos. 13, 19, and 22) are granted on the ground that the court
lacks subject matter jurisdiction.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________ Joseph A. DiClerico, Jr. United States District Judge
June 12, 2018
cc: Joseph H. Aronson, Esq. Nolan C. Burkhouse, Esq. Timothy John McLaughlin, Esq. Ashley A. Roberson, pro se Matan Shacham, Esq. Travis Silva, Esq. Stephen J. Soule, Esq.