Case 5:20-cv-07502-BLF Document 47 Filed 10/19/21 Page 1 of 13
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`JOHN DOE, et al.,
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`Plaintiffs,
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`v.
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`GOOGLE LLC, et al.,
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`Case No. 20-cv-07502-BLF
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`ORDER GRANTING MOTION TO
`DISMISS
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`[Re: ECF No. 40]
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`Defendants.
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`Before the Court is Defendants’ motion to dismiss Plaintiffs’ first amended complaint, which
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`alleges a First Amendment violation and breach of contract and the duty of good faith and fair
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`dealing based on Defendants’ suspension of Plaintiffs’ YouTube accounts on October 15, 2020.
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`ECF No. 30 (“FAC”) at 1. Plaintiffs are “conservative content creators” who post videos on
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`YouTube pursuant to the YouTube Terms of Service. Id. at 1, ¶ 4. Defendants own and operate
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`YouTube.
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`Having considered the parties’ briefs, the Court GRANTS Defendants’ motion to dismiss
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`Plaintiffs’ First Amendment claim WITH PREJUDICE. With Plaintiffs’ only federal claim
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`dismissed, the Court DECLINES to extend supplemental jurisdiction to Plaintiffs’ state law claims.
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`I. BACKGROUND
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`The factual background and procedural history of this case is substantially set forth in the
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`Court’s November 3, 2020 order denying Plaintiffs’ application for a temporary restraining order.
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`ECF No. 27 at 1-4. On November 17, 2020, Plaintiffs filed an amended complaint. See FAC. On
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`April 7, 2021, Defendants filed a motion to dismiss the first amended complaint. See ECF No. 40
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`(“Mot.”). On May 19, 2021, Plaintiffs filed an opposition. See ECF No. 43 (“Opp.”). On
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`June 23, 2021, Defendants filed a reply. See ECF No. 44 (“Rep.”). On August 26, 2021, the Court
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`Case 5:20-cv-07502-BLF Document 47 Filed 10/19/21 Page 2 of 13
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`granted the parties’ stipulation to submit the motion without hearing. See ECF No. 46.
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`II. LEGAL STANDARD
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`“A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a
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`claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” Conservation Force
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`v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732
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`(9th Cir. 2001)). In this inquiry, the Court accepts as true all well-pled factual allegations and
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`construes them in the light most favorable to the plaintiff. Reese v. BP Exploration (Alaska) Inc.,
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`643 F.3d 681, 690 (9th Cir. 2011). However, the Court needs not accept as true “allegations that
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`are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead
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`Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks and citations
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`omitted). While a complaint is not required to contain detailed factual allegations, it “must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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`(2007)). A claim is facially plausible when it “allows the court to draw the reasonable inference
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`that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. On a motion to
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`dismiss, the Court’s review is limited to the face of the complaint and matters judicially noticeable.
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`MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); N. Star Int’l v. Ariz. Corp.
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`Comm’n, 720 F.2d 578, 581 (9th Cir. 1983).
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`III. DISCUSSION
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`A. First Amendment
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`Plaintiffs assert that Defendants have deprived them of their First Amendment rights by
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`suspending their YouTube accounts.1 FAC ¶¶ 302-19. Defendants argue that Plaintiffs fail to plead
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`1 Plaintiffs appear to bring their First Amendment claim under § 1983. FAC ¶ 45. Claims for
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`violations of constitutional rights by federal government actors must be brought based on Bivens—
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`not § 1983. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
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`(1971). If this were the only deficit in Plaintiffs’ First Amendment claim, then the Court would
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`grant leave to amend. But other deficiencies make amendment of this claim futile. The Court
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`sufficient facts to plausibly allege state action, because Defendants are private companies.
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`Mot. at 7-12. Plaintiffs argue that they have pled sufficient facts to plausibly allege state action
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`under any of four theories: (1) public function, (2) compulsion, (3) joint action, and
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`(4) governmental nexus. Opp. at 8-15; FAC ¶¶ 44, 302-19. Plaintiffs allege that there is state action
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`here because of the actions of federal officials, including Rep. Adam Schiff, Speaker of the House
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`Nancy Pelosi, the U.S. House of Representatives, the U.S. Senate, and others. FAC ¶¶ 31-43.
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`To plead that a private defendant is liable for deprivation of constitutional rights, a plaintiff
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`must plead facts sufficient to plausibly allege that the conduct constituted state action.2 Gorenc v.
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`Salt River Project Agr. Imp. & Power Dist., 869 F.2d 503, 505 (9th Cir. 1989), cert. denied, 493
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`U.S. 899 (1989). The Supreme Court has articulated four approaches to the state action question:
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`(1) public function, (2) state compulsion, (3) governmental nexus, and (4) joint action. George v.
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`Pacific-CSC Work Furlough, 91 F.3d 1227, 1230 (9th Cir. 1996). The Supreme Court has not
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`indicated whether these approaches are merely factors or independent tests. Id.
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`i. Public Function
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`In their complaint, Plaintiffs assert state action based on a public function theory. FAC,
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`¶ 307. Defendants argue that the Ninth Circuit’s decision in the Prager case “precludes
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`constitutional scrutiny of YouTube’s content moderation.” Mot. at 7 (citing Prager Univ. v. Google
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`LLC, 951 F.3d 991, 999 (9th Cir. 2020)). In Plaintiffs’ opposition, they appear to drop any assertion
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`of a public function theory, and instead seem to concede that this theory is foreclosed by Prager.
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`Opp. at 9-11 (“Plaintiffs allege that Defendants’ censorship satisfies either the governmental nexus
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`test or the joint action test.”); id. at 18 (“Prager was premised on a state action theory that the Ninth
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`Circuit did not adopt – the platform as a public function theory.”)
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`To the extent Plaintiffs are still asserting state action under a public function theory, the
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`Court finds that this theory is indeed foreclosed by Prager. For there to be state action under a
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`construes Plaintiffs’ First Amendment claim as a Bivens claim throughout this order.
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`2 While a Bivens claim is based on actions of the federal government, the Court will refer to “state
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`action” throughout this order, since this is how the requirement generally appears in the case law.
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`Case 5:20-cv-07502-BLF Document 47 Filed 10/19/21 Page 4 of 13
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`public function theory, a private entity must exercise “powers traditionally exclusively reserved to
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`the State.” Manhattan Community Access Corp. v. Halleck, 139 S.Ct. 1921, 1924 (2019) (quoting
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`Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (2019)). Plaintiffs assert that “YouTube
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`performs an exclusively and traditionally public function by regulating free speech within a public
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`forum.” FAC ¶ 307. In Prager, the Ninth Circuit ruled that “YouTube…does not conduct a
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`quintessential public function through regulation of speech on a public forum.” 951 F.3d at 998.
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`Accordingly, Plaintiffs have not pled sufficient facts to support state action under a plausible public
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`function theory.
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`ii. Compulsion
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`Plaintiffs argue that they have adequately pled that Defendants’ alleged conduct was state
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`action under a compulsion theory. Opp. at 8-10. Plaintiffs’ First Amended Complaint cites
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`statements by U.S. Rep. Adam Schiff and Speaker of the House Nancy Pelosi and an October 2020
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`House Resolution, which “have pressed Big Tech” into censoring political speech with threats of
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`limiting Section 230 of the Communications Decency Act (“CDA”) and other penalties.
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`Opp. at 8-10, 15; FAC at 31-43. Defendants argue that Plaintiffs have failed to allege sufficient
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`facts to plausibly plead compulsion, because they have failed to plead that government actors
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`commanded a particular result in Plaintiffs’ specific cases or point to statements with any actual
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`legal force. Mot. at 8-12. Further, Defendants argue that Plaintiffs’ compulsion theory is foreclosed
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`by the Ninth Circuit’s decision in Sutton v. Providence St. Joseph Medical Center, which held that
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`“something more” is required for a compulsion claim against a private party. 192 F.3d 826, 838-39
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`(9th Cir. 1999); Mot. at 7-12. In response, Plaintiffs argue that they have adequately pled the
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`“something more” element required by Sutton by alleging that Defendants and the state were jointly
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`pursuing an unconstitutional end. Opp. at 10. Specifically, Plaintiffs point to public statements
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`regarding a “partnership” between Defendants and federal lawmakers. Id.
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`For a private party’s conduct to constitute state action under a compulsion theory, it must
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`involve “such significant encouragement, either overt or covert, that the choice must in law be
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`deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004-1005 (1982). To plead such
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`a claim, a party must allege that the government “commanded a particular result in, or otherwise
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`participated in, his specific case.” Heineke v. Santa Clara Univ., 965 F.3d 1009, 1014 (9th Cir.
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`2020). Plaintiffs must point to a “state regulation or custom having the force of law that compelled,
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`coerced, or encouraged” the alleged private conduct. Johnson v. Knowles, 113 F.3d 1114, 1120
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`(9th Cir. 1997). Further, a compulsion claim against a private party requires pleading “some
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`additional nexus that [makes] it fair to deem the private entity a governmental actor in the
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`circumstances.” Sutton, 192 F.3d at 839.
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`The Court finds that the statements by federal lawmakers Plaintiffs point to are insufficient
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`to plead that the government “commanded a particular result in, or otherwise participated in,
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`[Plaintiffs’] specific case.” Heineke, 965 F.3d at 1014; see also Daniels v. Alphabet, No. 20-cv-
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`04687-VKD, 2021 WL 1222166, at *6 (N.D. Cal. Mar. 31, 2021). Plaintiffs point to generalized
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`statements from lawmakers pertaining to “coronavirus-related misinformation,” “disinformation
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`proliferating online,” “QAnon-related speech,” and “conspiracy theories.” FAC, ¶¶ 31-43; id.,
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`Ex. F. None of the statements mention Plaintiffs’ names, their YouTube or Google accounts, their
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`channels, or their videos. Plaintiffs argue that state actors “commanded a particular result” in their
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`case because “Plaintiffs have alleged that Congress demanded that the unpopular speech dubbed
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`‘misinformation,’ and QAnon-related speech be limited and erased, which is precisely what
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`Plaintiffs allege Defendants did.” Opp. at 11. The Court disagrees that broad lawmaker
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`proclamations regarding “misinformation” or “QAnon-related speech,” for example, are sufficient
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`to show that the government “commanded” the suspension of Plaintiffs’ accounts. Even if
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`Defendants had complied with these lawmaker statements to the letter, they would still have had the
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`ultimate discretion on what videos or accounts fit into buckets like “misinformation” or “QAnon-
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`related speech.”
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`The Court also disagrees with Plaintiffs that they have alleged sufficient facts about the
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`content of their videos to link their removal to the broad categories of online content mentioned in
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`the lawmakers’ statements. For example, Plaintiffs plead no facts to indicate that their videos
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`pertained to COVID-19, so none of the statements from members of Congress relating to COVID-19
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`misinformation have any relevance to Defendants’ alleged conduct. See, e.g., FAC ¶ 8. Further,
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`Plaintiffs plead only vague facts about other subjects that leave open the question as to whether all
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`Plaintiffs posted about these subjects, or only some of them. Id. And none of the lawmaker
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`statements Plaintiffs cite contain clear action items relevant to Plaintiffs’ allegations. Id. ¶ 32
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`(encouraging YouTube to “display messages to any users who have engaged with harmful
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`coronavirus-related misinformation”); id. ¶ 34 (generally discussing “misconduct” related to “the
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`division and the disinformation proliferating online”); id., Ex. F at 81 (encouraging action on the
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`part of the FBI, intelligence community, and “all Americans”).
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`Plaintiffs claim that Defendants’ conduct is state action because it was in response to the
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`threat of various government penalties—the repeal of CDA Section 230 protections, “show trials”
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`in front of the U.S. Senate, and a DOJ antitrust suit against Google—allegedly linked to whether
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`Defendants appropriately moderated certain types of content. Opp. at 1, 15; FAC ¶¶ 10, 32. The
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`threats of penalties Plaintiffs point to are insufficient to convert private conduct into state action
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`here. The Ninth Circuit has found that pleading “a private actor’s conduct is subject to
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`penalties…is…insufficient to convert private action into that of the state.” Heineke, 965 F.3d at
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`1014. Moreover, Plaintiffs fail to point to any penalties that necessarily or even likely would have
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`followed if Defendants did not suspend their accounts. See, e.g., FAC ¶ 10 (citing a DOJ antitrust
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`case against Google with no alleged relationship to content moderation decisions); id. ¶ 34
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`(discussing generally that “social media executives…will be held accountable for [their]
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`misconduct”); id. ¶ 33 (discussing removal of CDA Section 230 protections without any clear action
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`item or ultimatum); Opp. at 12-13 (citing cases related to congressional subpoena and investigation
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`powers). These speculative “threats” to Defendants do not plausibly constitute “state regulation or
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`custom having the force of law.” Johnson, 113 F.3d at 1120.
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`Plaintiffs can point to no authority to support a compulsion theory of state action based on
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`penalties, particularly “threats” as speculative as the ones they point to here. See, e.g., Abu-Jamal
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`v. Nat’l. P. Radio, No. CIV. A. 96-0594, 1997 WL 527349, at *6 (D.D.C. Aug. 21, 1997) (pressure
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`from individual members of Congress did not bring about state action because “not one of these
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`people has any legal control over [defendant’s] actions.”); Daniels, 2021 WL 1222166, at *6
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`(“[S]peculative assertions about the possibility defendants will be subpoenaed to testify before
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`Congress or exposed to some other peril if they ignore letters from Congressional representatives
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`do not support a theory of government action.”) Courts have declined to find state action even
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`where government penalties are far less speculative than what Plaintiffs allege, like where a law or
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`regulation tied to state funding applies. Blum, 457 U.S. at 1010 (“[P]enalties imposed for violating
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`the regulations add nothing to respondents’ claim of state action.”); Heineke, 965 F.3d at 1013-14;
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`Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a business is subject
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`to state regulation does not by itself convert its action into that of the State[.]”); see also Halleck,
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`139 S. Ct. at 1928 (“Put simply, being regulated by the State does not make one a state actor.”)
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`Here, no law or regulation applies—in fact, the main “threat” Plaintiffs allege is the repeal of a law
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`(Section 230 of the CDA). Opp. at 3-5; FAC ¶¶ 10, 33.
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`Plaintiffs argue that the Court should decline to dismiss their compulsion claim here because
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`“Plaintiffs’ theory—that Speaker Nancy Pelosi and Rep. Adam Schiff coerced, substantially
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`encouraged, and threatened Defendants to remove the type of speech that Plaintiffs express—is
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`novel.” Opp. at 9. Defendants respond that Plaintiffs’ compulsion argument is “outlandish” and
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`contrary to settled law. Rep. at 1. The Court finds that whether Plaintiffs’ theory is novel or not,3
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`it is not supported by law, as outlined above.
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`The Court also finds that Plaintiffs have not pled facts sufficient to plausibly allege the
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`“something more” element required for a compulsion claim against a private defendant under
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`Sutton. 192 F.3d at 838-41. Plaintiffs claim that they have pled facts that Defendants and the
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`government “were jointly pursuing an unconstitutional end.” Opp. at 10 (citing Sutton, 192 F.3d at
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`840). But Plaintiffs rely primarily on a Twitter exchange between Rep. Schiff and YouTube CEO
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`Susan Wojnicki that has no alleged relevance to Plaintiffs’ content, since it pertains to COVID-19
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`misinformation. Id. Moreover, as discussed below, Plaintiffs have failed to allege facts sufficient
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`to plead that Defendants were engaged in joint action with the government.
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`The Court finds that Plaintiffs have failed to allege either (1) compulsion or (2) the
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`3 The Court notes that the plaintiff in Daniels pointed to the same statements by individual
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`lawmakers in Plaintiffs’ complaint to support his theory of state action, which the court rejected.
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`Daniels, No. 20-cv-04687-VKD, ECF No. 1 ¶¶ 20-28; id., 2021 WL 1222166, at **5-7.
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`“something more” element necessary to bring a compulsion claim against a private actor under
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`Sutton.
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`iii.
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`Joint Action
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`Plaintiffs assert that there is state action under a joint action theory, pointing to a Twitter
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`exchange between Rep. Schiff and YouTube CEO Susan Wojnicki in which Ms. Wojnicki states,
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`“We appreciate your partnership and will continue to consult with Members of Congress as we
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`address the evolving issues around #COVID19.” FAC, Ex. E at 1; Opp. at 10-15. Plaintiffs argue
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`that this Twitter exchange shows Defendants and the federal government were in an “admitted
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`partnership.” Opp. at 13. Defendants argue that Plaintiffs fall short of plausibly pleading joint
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`action in light of the case law. Rep. at 5-7.
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`Joint action is present where the government has “so far insinuated itself into a position of
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`interdependence with [a private entity] that it must be recognized as a joint participant in the
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`challenged activity.” Gorenc v. Salt River Project Agr. Imp. and Power Dist., 869 F.2d 503, 507
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`(9th Cir. 1989) (quoting Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961)).
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`Further, a private defendant must be a “willful participant in joint action with the state or its agents.”
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`Dennis v. Sparks, 449 U.S. 24, 27 (1980). Joint action requires a “substantial degree of cooperative
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`action” between private and public actors. Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir.
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`1989).
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`As a threshold matter, the Schiff-Wojnicki Twitter exchange Plaintiffs point to in support of
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`their joint action claim clearly pertains to misinformation regarding COVID-19. FAC, Ex. E at 1.
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`As the Court discussed above, Plaintiffs have failed to allege any facts indicating that their posts
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`pertained to COVID-19. Accordingly, it is unclear how this Twitter exchange supports a joint action
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`theory pertaining to the suspension of Plaintiffs’ channels. Since the Twitter exchange appears to
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`be the fact Plaintiffs primarily rely on to allege joint action, Plaintiffs’ failure to plead the relevance
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`of this fact renders their joint action claim essentially unsupported. Further, it is simply implausible
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`to read a casual Twitter exchange between one member of Congress and YouTube’s CEO as joint
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`action. Plaintiffs’ theory would effectively cause companies to cease communicating with their
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`elected representatives for fear of liability, as Defendants compellingly argue. Mot. at 12.
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`Further, Plaintiffs’ allegations fail to plausibly plead a “substantial degree of cooperative
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`action” between Defendants and the government. Collins, 878 F.2d at 1154. Based on Plaintiffs’
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`allegations, their content was removed through the following series of events: federal lawmakers
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`publicly flagged general categories of content for Defendants to consider moderating and issued
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`threats to compel Defendants to comply, Defendants independently chose what content fit into the
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`lawmakers’ general categories, and Plaintiffs’ channels happened to be some of the content
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`Defendants decided to remove. See, e.g., FAC ¶ 10. Courts have dismissed cases for lack of state
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`action despite significantly more alleged cooperation between public and private actors compared
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`to what Plaintiffs allege here. Pinhas v. Summit Health, Ltd., 894 F.2d 1024, 1034 (9th Cir. 1989)
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`(affirming dismissal for lack of state action in decision by private hospital pursuant to review process
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`approved by state); Heineke, 965 F.3d at 1013-15 (affirming dismissal for lack of state action where
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`private actor “receives federal and state funds…conditioned on compliance with federal and state
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`anti-discrimination laws and regulations”); Abu-Jamal, 1997 WL 527349, at *5 (no plausible joint
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`action at pleading stage where defendant is alleged to have a “close relationship” with the
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`government); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 357-58 (1974) (affirming
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`dismissal for lack of state action where defendant “was a heavily regulated, privately owned
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`utility”); see also Daniels, 2021 WL 1222166, at **6-7; George, 91 F.3d at 1231 (affirming
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`dismissal for lack of state action where plaintiff and state were “acting in and as part of a conspiracy
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`and scheme”); Blum, 457 U.S. at 1010-11 (no state action with “state subsidization of the operating
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`and capital costs of the [private] facilities, payment of the medical expenses of more than 90% of
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`the patients in the facilities, and the licensing of the facilities by the State”).
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`The cases Plaintiffs cite also indicate that far more is necessary to plead joint action than
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`what they have alleged here. Plaintiffs cite US v. Price, Opp. at 11, which involved a scheme
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`between state officers and private citizens where “[s]tate officers participated in every phase of the
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`alleged venture: the release from jail, the interception, assault and murder. It was a joint activity,
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`from start to finish.” 383 U.S. 787, 795 (1966). Plaintiffs have failed to plead anything close to the
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`Price scheme. Ms. Wojnicki’s tweet about “partnership” and “continu[ing] to consult with
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`Members of Congress” does not suggest that government officials were involved at every step of
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`Plaintiffs’ suspension. FAC ¶ 21. At most, Plaintiffs appear to allege that government officials
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`identified categories of information Defendants should consider removing—there is no allegation
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`that government officials were in the room or somehow directly involved in the decision to suspend
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`Plaintiffs. Further, Plaintiffs cite Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Opp. at 11.
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`In that case, the Supreme Court found joint action where a private party “invok[ed] the aid of state
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`officials to take advantage of state-created attachment procedures.” Lugar, 457 U.S. at 942. In the
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`present case, there are no allegations that Defendants invoked state or federal procedure to bring
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`about the suspension of Plaintiffs’ accounts. Defendants merely suspended Plaintiffs from
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`Defendants own private platform. Plaintiffs also cite to the Collins and Brunette v. Humane Soc’y
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`of Ventura Cty. cases, even though the Ninth Circuit did not find joint action in either case. Collins,
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`878 F.2d at 1154-56; Brunette, 294 F.3d 1205, 1210-14 (9th Cir. 2002).
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`Accordingly, the Court finds that Plaintiffs have failed to allege facts sufficient to plead state
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`action under a joint action theory.
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`iv. Governmental Nexus
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`Plaintiffs assert that they have pled facts sufficient to support that Defendants’ alleged
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`conduct was state action under a governmental nexus theory. Opp. at 10-15. Defendants argue that
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`any sufficiently close nexus between Defendants and government officials is missing from
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`Plaintiffs’ pleadings. Rep. at 2.
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`State action under a governmental nexus theory requires there to be “such a close nexus
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`between the State and the challenged action that the seemingly private behavior may be fairly treated
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`as that of the State itself.” Kirtley v. Rainey, 326 F.3d 1088, 1094-95 (9th Cir. 2003). “The purpose
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`of this requirement is to assure that constitutional standards are invoked only when it can be said
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`that the State is responsible for the specific conduct of which plaintiff complains.” Blum, 457 U.S.
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`at 1004-1005.
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`Plaintiffs appear to raise the same arguments and plead the same facts to support their joint
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`action and governmental nexus theories. Opp. at 10-15; FAC ¶¶ 34. Further, the Ninth Circuit has
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`analyzed the joint action and governmental nexus theories in tandem. See, e.g., Rawson v. Recovery
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`Innovations, Inc., 975 F.3d 742, 748 (9th Cir. 2020). Accordingly, the Court finds that given its
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`Case 5:20-cv-07502-BLF Document 47 Filed 10/19/21 Page 11 of 13
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`above analysis finding Plaintiffs’ joint action theory insufficiently pled, Plaintiffs have also failed
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`to alleged state action under a governmental nexus theory. Further, the Court notes that Plaintiffs
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`have failed to point to a single case in which governmental nexus was found. And as outlined above,
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`courts have found no state action in cases where public officials were substantially more involved
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`in private conduct than Defendants allegedly were in the present case. George, 91 F.3d at 1231
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`(finding plaintiff “failed to plead a nexus” where “[t]he contract between the County and [private
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`defendant] does show that the County regulates [defendant’s] employees to some degree.”); Blum,
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`457 U.S. at 1010-12; see also Daniels, 2021 WL 1222166, at *7. Accordingly, the Court finds that
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`Plaintiffs have failed to plead state action under a plausible governmental nexus theory.
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`Based on the inapplicability of any of the four state action tests outlined by the Supreme
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`Court, George, 91 F.3d at 1230, the Court finds that Plaintiffs have failed to plead a proper First
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`Amendment claim due to their failure to sufficiently allege that Defendants’ conduct constituted
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`state action.
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`B.
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`State Law Claims
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`Plaintiffs also assert state law claims for breach of contract and the duty of good faith and
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`fair dealing. Plaintiffs assert that the Court has supplemental jurisdiction over these claims under
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`28 U.S.C. § 1367, pendent to the First Amendment claim. FAC ¶ 46. Plaintiffs do not assert that
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`this court has subject matter jurisdiction over their state law claims based on diversity jurisdiction,
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`id., and it appears that they cannot do so due to lack of diversity. Id. ¶¶ 48, 50. With the First
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`Amendment claim dismissed with prejudice, there is a question as to whether this Court should
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`exercise supplemental jurisdiction over the state law claims.
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`A federal court’s exercise of supplemental jurisdiction is governed by 28 U.S.C. § 1367.
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`Section 1367(a) provides that “in any civil action of which the district courts have original
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`jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so
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`related to claims in the action within such original jurisdiction that they form part of the same case
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`or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A district
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`court may, in its discretion, decline to exercise supplemental jurisdiction over a state law claim
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`where one or more of the following circumstances exists: “(1) the claim raises a novel or complex
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`Case 5:20-cv-07502-BLF Document 47 Filed 10/19/21 Page 12 of 13
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`issue of State law, (2) the claim substantially predominates over the claim or claims over which the
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`district court has original jurisdiction, (3) the district court has dismissed all claims over which it
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`has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for
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`declining jurisdiction.” 28 U.S.C. § 1367(c).
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`“[E]xercising discretion and deciding whether to decline, or to retain, supplemental
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`jurisdiction over state law claims when any factor in subdivision (c) is implicated is a responsibility
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`that district courts are duty-bound to take seriously.” Acri v. Varian Assocs., Inc., 114 F.3d 999,
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`1001 (9th Cir. 1997). The district court’s decision is informed by the “values of economy,
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`convenience, fairness, and comity” articulated by the United States Supreme Court in United Mine
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`Workers v. Gibbs, 383 U.S. 715 (1966). Acri, 114 F.3d at 1001 (internal quotation marks and
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`citation omitted). Where subject matter jurisdiction is based on federal question jurisdiction, the
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`Ninth Circuit has held that “[i]n the usual case in which all federal-law claims are eliminated before
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`trial, the balance of factors to be considered under the pendent jurisdiction doctrine – judicial
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`economy, convenience, fairness, and comity – will point toward declining to exercise jurisdiction
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`over the remaining state-law claims.” Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir.
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`2010) (internal quotation marks, citation, and alteration omitted).
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`The Court finds that the facts do not favor the Court exercising supplemental jurisdiction
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`over the state law claims in this case. The Court has only preliminarily considered the merits of
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`Plaintiffs’ state law claims in considering Plaintiffs’ application for a temporary restraining order,
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`ECF No. 27, so there is little judicial economy that would be hindered by dismissing these claims.
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`Plaintiffs’ state law claims are hereby DISMISSED WITHOUT PREJUDICE.
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`C.
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`Section 230
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`Defendants argue that to the extent Plaintiffs have stated a viable claim, Defendants would
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`be protected from liability by Section 230 of the CDA. Mot. at 17-20. Since the Court has dismissed
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`Plaintiffs’ federal claim and declined to exercise supplemental jurisdicti