Case 3:21-cv-01644-MMC Document 64 Filed 05/11/21 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`TWITTER, INC.,
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`Plaintiff,
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`v.
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`KEN PAXTON, in his official capacity as
`Attorney General of Texas,
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`Defendant.
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`Case No. 21-cv-01644-MMC
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`ORDER GRANTING DEFENDANT'S
`MOTION TO DISMISS ACTION
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`Before the Court is defendant Ken Paxton's ("Paxton") "Motion to Dismiss or, in
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`the Alternative, Motion to Transfer," filed March 29, 2021, pursuant to Rules 12(b)(1),
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`12(b)(2), and (b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1404.
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`Plaintiff Twitter, Inc. "("Twitter") has filed opposition, to which Paxton has replied. Having
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`read and considered the parties' respective written submissions,1 the Court rules as
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`follows.2
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`BACKGROUND
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`In its Complaint, Twitter, which "operates an online platform where users can
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`share short messages ('Tweets') and other content" (see Compl. ¶ 2), alleges it has
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`established "content moderation policies, practices, and techniques that, among other
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`things, are designed to minimize the reach of harmful or misleading information" posted
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`1 Twitter has filed a motion for preliminary injunction, which Paxton has opposed.
`To the extent the parties, in those filings, address the issues presented in the motion to
`dismiss, the Court has considered those arguments as well.
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`2 By order filed May 3, 2021, the Court took the matter under submission.
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 64 Filed 05/11/21 Page 2 of 7
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`on its platform (see Compl. ¶ 15). Twitter further alleges that, "in the months surrounding
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`the January 6, 2021[,] attack on the United States Capitol, Twitter decided to suspend or
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`restrict numerous accounts for violating its policies against glorifying or inciting violence,
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`and against manipulating or interfering in elections or other civic processes," that
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`"[a]mong the users whose accounts were permanently suspended in the immediate
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`aftermath of the deadly attack was President Donald Trump" (see Compl. ¶ 2), and that
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`Paxton, the Attorney General of Texas, "did not agree with these content moderation
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`decisions" (see Compl. ¶ 42).
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`As set forth in the Complaint, the Consumer Protection Division of the Office of the
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`Attorney General of Texas issued to Twitter, on January 13, 2021, a "Civil Investigative
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`Demand" ("CID") (see Compl. Ex. 1), by which the Consumer Protection Division seeks
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`from Twitter specified documents described as "relevant to the subject matter of an
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`investigation of possible violations of sections 17.46(a) and (b) of the DTPA [the Texas
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`Deceptive Trade Practices – Consumer Protection Act] in Twitter's representations and
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`practices regarding what can be posted on its platform" (see id.). Twitter alleges Paxton
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`"initiated" the investigation and "issued the CID" to "punish Twitter for making content
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`moderation decisions that he did not like." (See Compl. ¶ 61.)
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`Based on the above allegations, Twitter asserts a single Claim for Relief, brought
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`pursuant to 42 U.S.C. § 1983, and titled "The First Amendment Bars the Attorney
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`General's Retaliatory Investigation and Civil Investigative Demand." As relief, Twitter
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`seeks (1) an injunction prohibiting Paxton, as well as his "officers, agents, servants,
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`employees, and attorneys," from "initiating any action to enforce the CID or to further the
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`unlawful investigation into Twitter's internal editorial policies and practices" (see Compl.
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`¶¶ 69-70), and (2) a declaration that the "First Amendment bars . . . Paxton's January 13,
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`2021 CID and the investigation into Twitter's internal editorial policies announced on that
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`same date, because they are unlawful retaliation against Twitter for its moderation of its
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`platform, including its decision to permanently suspend President Trump's account" (see
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`Compl. ¶ 68).
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 64 Filed 05/11/21 Page 3 of 7
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`DISCUSSION
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`In the instant motion, Paxton argues that he is not subject to personal jurisdiction
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`in California, see Fed. R. Civ. P. 12(b)(2), that venue is improper in this district, see Fed.
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`R. Civ. P. 12(b)(2), and that the Court lacks subject matter jurisdiction for the reason that
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`Twitter's claims are not ripe for review, see Fed. R. Civ. P. 12(b)(1). The Court considers
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`each such argument in turn.3
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`First, for the reasons set forth by Twitter (see Pl.'s Opp. at 3:17-6:24, 7:1-10:12),
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`the Court finds Paxton is subject to personal jurisdiction in California. Twitter's
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`allegations, in particular, that Paxton, in his official capacity as Attorney General of
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`Texas, engaged in retaliatory conduct expressly aimed at chilling the speech of a
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`California resident, suffice to support the exercise of personal jurisdiction. See Calder v.
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`Jones, 465 U.S. 783, 789-90 (1984) (holding defendants, whose "intentional, and
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`allegedly tortious, actions were expressly aimed at California" and who "knew that the
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`brunt of [the] injury would be felt by [the plaintiff] in California," were subject to personal
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`jurisdiction in California).4
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`Additionally, and again for the reasons set forth by Twitter (see Pl.'s Opp. at 11:5-
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`11:16), the Court finds venue in this district is proper. In particular, Twitter's allegations
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`that it resides in this district and that the issuance of the CID injured it in this district
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`suffice. See 28 U.S.C. § 1391(b)(2) (providing venue proper in "district in which a
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`substantial part of the events or omissions giving rise to the claim occurred"); Myers v.
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`Bennett Law Offices, 238 F.3d 1068, 1075-76 (9th Cir. 2001) (holding "substantial part" of
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`3 In the alternative, Paxton argues venue is inconvenient in this district, see 28
`U.S.C. § 1404(a), and that the Court should abstain from considering Twitter's claims
`under the doctrine set forth in Railroad Commission of Texas v. Pullman Co., 312 U.S.
`496 (1941). In light of the findings set forth below, the Court has not addressed those
`additional arguments herein.
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`4 As Paxton, in support of the instant motion, does not rely on evidence to
`contradict the allegations in the Complaint, the above-referenced allegations "must be
`taken as true" for purposes of personal jurisdiction. See Boschetto v. Hansing, 539 F.3d
`1011, 1015 (9th Cir. 2008).
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`3
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 64 Filed 05/11/21 Page 4 of 7
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`events giving rise to tort claim occurs in district where plaintiff alleges "harms" were
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`"felt").
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`As the instant action is not subject to dismissal or transfer based on lack of
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`personal jurisdiction or improper venue, the Court next considers whether Twitter's claims
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`for injunctive and declaratory relief are, as Paxton argues, premature, and thus subject to
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`dismissal for lack of subject matter jurisdiction.
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`In that regard, Paxton relies on a series of cases in which the plaintiff received
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`from a government agency a summons that is "not self-executing," i.e., the recipient "may
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`refrain from complying with it, without penalty, until directed otherwise by a court order."
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`See Jerry T. O'Brien, Inc. v. Securities and Exchange Comm'n, 704 F.2d 1065, 1067 (9th
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`Cir. 1983). In such cases, as explained by the Supreme Court in Reisman v. Caplin, 375
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`U.S. 440 (1964), a challenge to the issuance of the summons, by way of a claim for
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`injunctive or declaratory relief, is subject to dismissal "for want of equity." See id. at 441-
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`43, 446 (1964) (affirming dismissal where plaintiffs sought to enjoin enforcement of
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`challenged summons; finding plaintiff had "adequate remedy at law," as "enforcement
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`action" by agency "would be an adversary proceeding affording a judicial determination of
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`the challenges to the summons"); see also, e.g., Mobil Exploration & Producing U.S., Inc.
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`v. Department of Interior, 180 F.3d 1192, 1200-01 (10th Cir. 1999) (holding district court
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`properly declined to "address an anticipatory challenge" to summons; relying on "principle
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`against pre-enforcement review when a party seeks injunctive relief from an agency
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`subpoena"); Atlantic Richfield Co. v. Federal Trade Comm'n, 546 F.2d 646, 650 (5th Cir.
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`1977) (holding challenge to subpoenas not "ripe[ ] for review"; noting plaintiff could "not
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`be forced to comply with the subpoenas nor subjected to any penalties for
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`noncompliance until ordered to comply pursuant to appropriate enforcement proceedings
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`in which [plaintiff] may assert its . . . objections").
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`Paxton argues the above-discussed line of cases is applicable here, as the CID is
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`not self-executing, and, if the Office of the Attorney General were to seek enforcement of
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`the CID, it would be required to file a court action, in which Twitter's challenges would be
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 64 Filed 05/11/21 Page 5 of 7
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`heard and determined. See Texas Bus. & Com. § 17.62(b). In opposition, Twitter argues
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`Paxton's reliance on such cases is unavailing, in light of Twitter's allegation that the
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`issuance of the CID is part of a retaliatory investigation, and, as Twitter points out, the
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`Ninth Circuit, in several cases, has found First Amendment retaliation claims cognizable
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`where based on a theory that the defendant subjected the plaintiff to, inter alia, a
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`retaliatory investigation. The Court, as set forth below, finds Twitter's argument
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`unpersuasive.5
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`The elements of any First Amendment retaliation claim are that (1) the plaintiff
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`"engaged in a constitutionally protected activity," (2) the defendant's "actions would chill a
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`person of ordinary firmness from continuing to engage in the protected activity," and
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`(3) "the protected activity was a substantial or motivating factor in [the defendant's]
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`conduct." See Sampson v. County of Los Angeles, 974 F.3d 1012, 1019 (9th Cir. 2020).
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`Here, as noted, the allegedly retaliatory acts on which Twitter bases its claim are
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`an investigation and issuance of a CID in connection therewith. Although, with respect to
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`the second of the above-listed elements, "[v]arious kinds of . . . actions may have an
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`impermissible chilling effect," see Coszalter v. City of Salem, 320 F.3d 968, 974-75 (9th
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`Cir. 2003), Twitter cites no case holding the institution of an allegedly retaliatory
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`investigation, by itself, constitutes a cognizable adverse action, and, as Paxton points,
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`some courts have found it does not, see, e.g., Benningfield v. City of Houston, 157 F.3d
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`369, 376 (5th Cir. 1998) (finding employer's institution of investigation into employee's job
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`performance, "by itself, was not an adverse employment action"). As the matter has not
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`been decided by the Ninth Circuit, however, the Court next turns to the question of
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`5 To the extent Twitter makes an argument based on McNeese v. Board of
`Education, 373 U.S. 668, 670-74 (1963), such argument has no bearing on the issues
`raised here by Paxton. In McNeese, the Supreme Court rejected the defendant's
`argument that, because state law provided an alternative remedy, the plaintiffs therein
`could not seek an injunction under § 1983. See id. at 670-74. Here, unlike the
`defendants in McNeese, Paxton is not contending a claim ripe for review need not be
`heard in federal court where a state forum is available, but, rather, that Twitter's claims
`are not yet ripe for review.
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 64 Filed 05/11/21 Page 6 of 7
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`whether the particular retaliatory investigation claim here at issue entitles Twitter to avoid
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`the holding in Reisman and to seek, at this time, injunctive and declaratory relief.
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`In reviewing the authorities on which Twitter relies, the Court notes they fall into
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`two separate groups, those in which a government employer initiated an investigation of
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`an employee and those in which the government initiated an investigation of an individual
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`who was not an employee.
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`First, to the extent Twitter cites to cases in which a government employer instituted
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`an investigation of an employee, see Greisen v. Hanken, 925 F.3d 1097, 1105-06 (9th
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`Cir. 2019); Coszalter, 320 F.3d at 971; Ulrich v. City and County of San Francisco, 308
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`F.3d 968, 972 (9th Cir. 2002), Twitter's reliance thereon is misplaced. Although, in one of
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`those cases, the Ninth Circuit did suggest an investigation "considered individually" might
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`be sufficient to support a retaliation claim, see Coszalter, 320 F.3d at 976, there exists in
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`all such cases involving an employment relationship the potential for loss of employment.
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`Consequently, an investigation into a government employee's job performance, or even a
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`seemingly inconsequential but unfavorable act, such as not holding "a birthday party for
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`[that] public employee," see Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 n.8
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`(1990), reasonably may be perceived as a "threat of dismissal," which, in turn,
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`"unquestionably inhibits" protected speech, see Elrod v. Burns, 427 U.S. 347, 359 (1976).
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`Here, by contrast, no employment or similar type of relationship exists between Twitter
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`and Paxton, and, as discussed below, the instant investigation carries no comparable
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`threat.
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`In each of the non-employment cases cited by Twitter, the potential consequences
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`of the investigation were serious, for example, imposition of a substantial fine, see White
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`v. Lee, 227 F.3d 1214, 1222, 1228 (9th Cir. 2000) (noting defendants had advised
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`plaintiffs they could be fined $100,000 upon conclusion of investigation; providing, as
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`example of cognizable adverse action, "threat of invoking legal sanctions"), arrest, see
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`Lacey v. Maricopa County, 693 F.3d 896, 909-10, 917 (9th Cir. 2012) (noting prosecuting
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`attorney had issued subpoenas and authorized plaintiffs' arrests; holding, "to state
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`Northern District of California
`United States District Court
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`Case 3:21-cv-01644-MMC Document 64 Filed 05/11/21 Page 7 of 7
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`arresting someone in retaliation for their exercise of free speech rights is sufficient to chill
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`speech is an understatement") (internal quotation and citation omitted), or loss of custody
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`of a child, see Sampson v. County of Los Angeles, 974 F.2d 1012, 1016-17, 1021 (9th
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`Cir. 2020) (noting "threat of losing custody of a child would ordinarily chill First
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`Amendment activity of both biological parents and legal guardians"). Here, as Paxton
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`points out, Twitter faces no such consequence. Unlike the defendants in the cases on
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`which Twitter relies, the Office of the Attorney General has no authority to impose any
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`sanction for a failure to comply with its investigation. Rather, the Office of the Attorney
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`General would be required to go to court, where the only possible consequence adverse
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`to Twitter would be a judicial finding that the CID, contrary to Twitter's assertion, is
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`enforceable.
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`Accordingly, as, to date, no action has been taken to enforce the CID, the Court
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`finds Twitter's lawsuit is premature, and, as such, is subject to dismissal pursuant to Rule
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`12(b)(1) of the Federal Rules of Civil Procedure.
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`CONCLUSION
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`For the reasons stated above, Paxton's motion to dismiss is hereby GRANTED,
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`and the above-titled action is hereby DISMISSED.
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`IT IS SO ORDERED.
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`Northern District of California
`United States District Court
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`Dated: May 11, 2021
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`MAXINE M. CHESNEY
`United States District Judge
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