Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 1 of 19
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`
`19-CV-4034
`
`
`
`
`
`
`KAREN HEPP,
`
`
`
`
`v.
`
`Plaintiff,
`
`
`FACEBOOK, INC.; IMGUR, INC.,
`REDDIT, INC., GIPHY, INC.; WGCZ
`S.R.O., and DOES 1-10,
`
`
`Defendants.
`
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`MEMORANDUM OF LAW IN SUPPORT OF
`MOTION TO DISMISS BY DEFENDANT IMGUR, INC.
`
`
`
`I. INTRODUCTION
`
`Defendant Imgur, Inc. (“Imgur”; pronounced IMAGE-ur) operates www.imgur.com, a
`
`website where users can post images and share comments to them. The claims against Imgur in the
`
`First Amended Complaint (“FAC”) arise out of an innocuous photo of the Plaintiff which, she claims,
`
`was taken at a convenience store in New York, and which an unknown person posted to Imgur’s
`
`website in 2015. The photo, as purportedly posted to Imgur, is attached as Exhibit M to the FAC.
`
`All claims against Imgur must be dismissed because this Court lacks personal jurisdiction
`
`over Imgur. In the alternative, all claims against Imgur must be dismissed with prejudice because
`
`they are not actionable under Pennsylvania state law, and because in any event Imgur is immune
`
`from all liability by virtue of Section 230 of the Communications Decency Act, 47 U.S.C. §230(c).
`
` 1
`
`
`
`
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 2 of 19
`
`II. THIS COURT LACKS JURISDICTION OVER DEFENDANT IMGUR
`
`A. Legal Standard
`
`A defendant has the initial burden of challenging the Court’s personal jurisdiction. Provident
`
`National Bank v. California Fed. Savings & Loan Ass’n, 819 F.2d 434 (3d. Cir. 1987). Once a
`
`defendant challenges personal jurisdiction, “the burden shifts to the plaintiff to present a prima facie
`
`case establishing jurisdiction over the non-resident defendant in the forum.” Kurz v. Holiday
`
`Hospitality Franchising, LLC, No. CV 19-2129, 2019 WL 5068646, at *2 (E.D. Pa. Oct. 9, 2019)
`
`(citing further authority). “A plaintiff has the burden to show, ‘with reasonable particularity,’ enough
`
`contact between the defendant and the forum state to support the exercise of personal jurisdiction by
`
`the forum state.” Id.
`
`Rule 4(e) of the Federal Rules of Civil Procedure “authorizes personal jurisdiction over non-
`
`resident defendants to the extent permissible under the law of the state where the district court sits."
`
`Mellon Bank (East) PSFS, National Association v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992). In
`
`this case, that law is Pennsylvania's long-arm statute, 42 Pa.C.S. §5322.1, which authorizes
`
`jurisdiction over out-of-state defendants “coextensive with that permitted by the due process clause
`
`of the Fourteenth Amendment of the United States Constitution.” Batista v. O'Jays Gigs, Inc., No.
`
`CV 18-0636, 2019 WL 400060, at *3 (E.D. Pa. Jan. 30, 2019) (citing Remick v. Manfredy, 238 F.3d
`
`248, 255 (3d Cir. 2001), which refers to a prior version of the same statute). Fourteenth Amendment
`
`due process, in turn, is analyzed based on the “minimum contacts” rule established in Int’l Shoe Co.
`
`v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A defendant that is “not present
`
`within the territory of the forum [must] have certain minimum contacts with it such that the
`
`maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id.,
`
`326 U.S. at 316, 66 S. Ct. at 158 (citing further authority). As this Court has observed, “[t]he focus
`
` 2
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 3 of 19
`
`of the minimum contacts analysis is ‘the relationship among the defendant, the forum, and the
`
`litigation,’ such that the defendant has fair warning that it may be subject to suit in that forum.” Kurz,
`
`2019 WL 5068646, at *3 (internal citations omitted).
`
`Taking into account Fourteenth Amendment due process, there are two possible types of
`
`personal jurisdiction a court may exercise over a non-resident defendant under Pennsylvania’s long-
`
`arm statute and thus under Civil Rule 4(e): general jurisdiction and specific jurisdiction. “General
`
`jurisdiction exists when a defendant has maintained systematic and continuous contacts with the
`
`forum state. . . . Specific jurisdiction exists when the claim arises from or relates to conduct
`
`purposely directed at the forum state.” Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (citing
`
`Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)).
`
`Neither general nor specific jurisdiction exists over Imgur here.
`
`B. There Is No General Jurisdiction Over Imgur
`
`A court may exercise general personal jurisdiction over a nonresident corporate defendant if
`
`the defendant's “continuous corporate operations within a state [are] so substantial and of such a
`
`nature as to justify suit against it on causes of action arising from dealings entirely distinct from
`
`those activities.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924, 131 S. Ct.
`
`2846, 2853, 180 L. Ed. 2d 796 (2011) (citing Int'l Shoe, 326 U.S. at 318, 66 S. Ct. at 159). “If general
`
`personal jurisdiction exists as a result of the defendant's activities in a forum, there is jurisdiction
`
`over that defendant regardless of whether the claim for relief has any relation to the forum.” Peek v.
`
`Golden Nugget Hotel & Casino, 806 F.Supp. 555, 557 (E.D. Pa. 1992). “Where the cause of action
`
`has no relation to a corporate defendant’s contacts with the forum, general jurisdiction may only be
`
`asserted over the corporate defendant if the corporate defendant’s ‘affiliations with the [s]tate are so
`
`“continuous and systematic” as to render them essentially at home in the forum [s]tate.’” Kurz, 2019
`
` 3
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 4 of 19
`
`WL 5068646 at *3 (citing further authority).
`
`Defendant Imgur is a Delaware corporation with its principal place of business in San
`
`Francisco, California. (Alan Schaaf Declaration, attached hereto as Exhibit A, at ¶ 2). Imgur has no
`
`continuous or systematic contact with Pennsylvania. Imgur has never registered to do business in
`
`Pennsylvania, has never paid taxes in Pennsylvania, has never owned or leased any real or personal
`
`property in Pennsylvania, has never maintained any bank accounts in Pennsylvania, has never signed
`
`a contract with any company in Pennsylvania, has never directed any advertising at Pennsylvania,
`
`has not transacted or conducted business operations of any kind within Pennsylvania, and has never
`
`previously litigated any case in or involving Pennsylvania. (See Schaaf Dec. ¶¶ 3-10).
`
`Because Defendant Imgur has no continuous or systematic contacts with the forum, this
`
`Court may not exercise general jurisdiction over Imgur.
`
`C. There Is No Specific Jurisdiction Over Imgur
`
`A court may exercise specific personal jurisdiction over a corporate defendant to the extent
`
`that the claims against it arise out of “the defendant’s contacts with the forum.” Helicopteros, 466
`
`U.S. at 414 n.8, 104 S.Ct. 1868; see also Telcordia Tech Inc. v. Telkom SA Ltd., 458 F.3d 172, 177 (3d
`
`Cir. 2006). Specific jurisdiction exists only “when a plaintiff's claim is related to, or arises out of, a
`
`defendant's contacts with the forum state.” Element Financial Corp. v. ComQi, Inc., 52 F.Supp.3d
`
`739, 743 (E.D. Pa. 2014) (citing Dollar Savings Bank v. First Sec. Bank of Utah, N.A., 746 F.2d 208,
`
`212 (3d Cir.1984) (emphasis added)).
`
`For Pennsylvania, the type of contacts upon which specific jurisdiction may be based are set
`
`forth in long-arm statute. They include: transacting business within Pennsylvania, contracting to
`
`supply services or things within Pennsylvania, causing tortious injury by an act or omission in
`
`Pennsylvania, having an interest in or possessing real property in Pennsylvania, engaging in
`
` 4
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 5 of 19
`
`insurance-related activities in Pennsylvania, accepting appointment as a fiduciary or personal
`
`representative within Pennsylvania, or committing a violation in Pennsylvania of a state or local law
`
`or regulation. See 42 Pa.C.S. §5322.
`
`Courts in the Third Circuit use a three-part test to determine whether to exercise specific
`
`jurisdiction over a nonresident defendant. “First, the defendant must have ‘purposefully directed [its]
`
`activities’ at the forum.” O’Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007)
`
`(quoting Burger King v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)).
`
`Second, the plaintiff’s claims “must also ‘arise out of or relate to’ at least one of those contacts.” Id.,
`
`at 318 (citing Helicopteros, 466 U.S. at 414 [note 9], 104 S.Ct. 1868).1 Third, even if both of the first
`
`two requirements are met, “a court may consider whether the exercise of jurisdiction otherwise
`
`‘comport[s] with “fair play and substantial justice.” ’ O'Connor, 496 F.3d at 317 (quoting Burger
`
`King, 471 U.S. at 476, 105 S.Ct. 2174, embedded quote from Int'l Shoe, 326 U.S. at 320, 66 S.Ct.
`
`154). The Plaintiff’s FAC fails all three parts of the test.
`
`1. The FAC does not allege that Imgur purposefully directed its activities at the
`forum.
`
`
`Nowhere in the FAC does the Plaintiff allege any fact indicating that Imgur purposefully
`
`directed its activities at Pennsylvania. Rather, the FAC merely recites generalized, conclusory
`
`jurisdictional allegations, lumping all fifteen defendants together: Defendants “are engaged in
`
`tortious conduct within the Commonwealth of Pennsylvania and in this District, including by using
`
`Plaintiff’s image without her authorization”; their “conduct causes injury to Plaintiff within the
`
`Commonwealth of Pennsylvania”; they “purposely avail themselves of conducting activities within
`
`the Commonwealth of Pennsylvania”; and their “websites actively engage Pennsylvania-based users
`
`
`1 Although as O’Connor points out, there are several different approaches for analyzing whether claims “arise out of or
`relate to” a defendant’s contacts with the forum, each approach requires that the defendant have at least some contacts
`with the forum.
`
` 5
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 6 of 19
`
`and offer a high degree of interactivity with same.” (FAC ¶4). Such recitations do not suffice for
`
`specific jurisdiction because a “court analyzes whether it has personal jurisdiction over each
`
`defendant separately.” Drayton v. Eastlink Prods., Inc., No. LA 17-CV-06408-VAP, 2018 WL
`
`5266870, at *5 (C.D. Cal. Mar. 20, 2018) (emphasis added).
`
`Having received multiple motions to dismiss for lack of jurisdiction in response to her
`
`original Complaint, Plaintiff has now attempted in the FAC to cure the jurisdictional defects. But the
`
`additional allegations in the FAC change nothing with respect to Imgur; they still allege nothing
`
`more than that Imgur operates a commercially active website. As the Third Circuit has stated, “the
`
`mere operation of a commercially interactive web site should not subject the operator to jurisdiction
`
`anywhere in the world. Rather, there must be evidence that the defendant ‘purposefully availed’ itself
`
`of conducting activity in the forum state, by directly targeting its web site to the state, knowingly
`
`interacting with residents of the forum state via its web site, or through sufficient other related
`
`contacts.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003) (citing Zippo Mfg.
`
`Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D. Pa. 1997)). See also, Britax Child Safety, Inc. v.
`
`Nuna Int'l B.V., 321 F.Supp.3d 546, 556 (E.D. Pa. 2018): “The mere operation of a commercially
`
`interactive website should not subject the operator to jurisdiction anywhere in the world. Instead, a
`
`plaintiff must provide evidence establishing a defendant's purposeful availment through direct
`
`targeting of a forum state on the corporation's website.” (internal quotation marks, edits, and citations
`
`omitted.)
`
`Notwithstanding the additional averments, the FAC is still devoid of factual allegations that
`
`would indicate that Imgur “purposely availed” itself of conducting activity in Pennsylvania:
`
`(i) FAC paragraphs 12 – 13: Plaintiff’s word search for “Pennsylvania”
`
`Plaintiff apparently conducted her own search on the Imgur website for the word
`
` 6
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 7 of 19
`
`“Pennsylvania,” and generated 1,272 hits. (FAC ¶12) Based on that result, she concludes: “On
`
`information and belief, many of the subjects on the images and copy related thereto relate to postings
`
`made by Imgur users who are Pennsylvania residents and/or Pennsylvania companies.” (FAC ¶13)
`
`Such speculation is as wildly inaccurate as it is jurisdictionally irrelevant. Imgur plays no role in
`
`determining what images are posted by its users, or what tags and comments are posted by its users
`
`related to those images. (Schaaf Dec. ¶16.) Imgur’s search function does not search anything other
`
`than those tags and comments. (Schaaf Dec. ¶21.) In other words, if 1000 Imgur users in Japan
`
`were to post comments including the word “Italy” on Imgur’s website, the search results would show
`
`1000 “hits” for “Italy.” None of the Plaintiff’s search activities on Imgur’s website is jurisdictionally
`
`relevant.
`
`(ii) FAC paragraphs 14-16: Imgur’s advertising
`
`Plaintiff alleges that “Imgur actively solicits advertisers and advertising on its website,”
`
`(FAC ¶14) and that “Imgur’s advertising solicitation form includes a box to designate the
`
`geographical ‘location’ of the potential advertiser.”2 (FAC ¶15). But allowing potential customers
`
`to disclose their location on an online “contact-us” form does not indicate deliberate targeting or
`
`purposeful availment. Even where an out-of-state defendant goes beyond advertising and actually
`
`sells merchandise throughout the U.S., including Pennsylvania, that fact alone does not constitute
`
`purposeful availment: “[Plaintiff] points out that Pennsylvania is one of a number of shipping
`
`destinations that may be selected from the drop-down menu on the [defendant’s] web site. But the
`
`fact that the [defendant’s] web site lists Pennsylvania as a shipping destination does not demonstrate
`
`targeted activity toward Pennsylvania residents. . . . Pennsylvania is included generally with all of
`
`the other possible shipping destinations. . . . No additional facts have been advanced to show how the
`
`
`2 The form, attached as Exhibit C to the FAC, has a blank space for “location” rather than “state.”
`
` 7
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 8 of 19
`
`[defendant’s] web site specifically targets Pennsylvania. The fact that the [defendant’s] web site lists
`
`Pennsylvania as one in a list of general shipping destinations, standing alone, does not demonstrate
`
`the purposeful availment of doing business in Pennsylvania.” Hershey Co. v. Pagosa Candy Co., No.
`
`1:07-CV-1363, 2008 WL 1730538, at *7 (M.D. Pa. Apr. 10, 2008) (emphasis in original; internal
`
`reference omitted).
`
`(iii) FAC paragraph 17: Data mining
`
`Plaintiff alleges, on “information and belief,” that “Imgur targets age-specific Pennsylvanians
`
`through advertising based upon personal data mined and/or obtained through information provided
`
`by its users.” (FAC ¶17). Such unsupported and speculative allegations are false. Imgur does not
`
`engage in data mining of any kind, and does not obtain or use any personal information about its
`
`users.3 (See Schaaf Dec. ¶¶ 18-20.)
`
`(iv) FAC paragraphs 18 -19: Online merchandising
`
`Plaintiff points to Imgur’s “online sale of merchandise (including clothing and mugs)” (FAC
`
`¶18) and states: “On information and belief, Imgur is targeting and merchandising its wares to
`
`Pennsylvania residents on its ‘Imgurian Store’ page.” (FAC ¶19) Such conclusory and unsupported
`
`allegations made on mere “information and belief” are insufficient to show purposeful availment. In
`
`any event, selling merchandise online throughout the U.S. does not constitute “targeting” of
`
`Pennsylvania residents and cannot support the exercise of specific personal jurisdiction. Offering
`
`goods for sale on a national market that necessarily includes Pennsylvania is insufficient to show
`
`purposeful availment. Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 780 (3d Cir. 2018) See also,
`
`Hershey Co., supra, 2008 WL 1730538 at *7. The “purposeful availment requirement ensures that a
`
`
`3 The minor exception is Imgur’s “Secret Santa” program, where Imgur allows users to exchange personal addresses for
`the purpose of exchanging gifts. Secret Santa participants do provide their addresses to Imgur, but Imgur does not use
`those addresses in any way; it merely relays them between participants. (Schaaf Dec.¶ 19.)
`
` 8
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 9 of 19
`
`defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated
`
`contacts, or of the unilateral activity of another party or a third person.” Burger King, 471 U.S. at
`
`475, 105 S. Ct. at 2183 (citing further authority; internal citations and quotations omitted). Yet that is
`
`precisely what Plaintiff is attempting to do: claiming that the unilateral activity of a third person
`
`(whoever posted the photo to Imgur), along with virtually no contacts with the forum, suffices for
`
`jurisdiction. Where, as here, a “plaintiff relies on little other than generalized, conclusory allegations
`
`to demonstrate the existence of personal jurisdiction,” there is no purposeful availment, and
`
`dismissal of the action for lack of personal jurisdiction is appropriate. Roulhac v. Lawler, No. 1:12-
`
`CV-311, 2013 WL 2418219, at *6 (M.D. Pa. June 3, 2013).
`
`2. Plaintiff does not raise any claims against Imgur that arise out of or relate to any
`purported contact with the forum by Imgur.
`
`
`Plaintiff’s entire case against Imgur is predicated on a single factual allegation with no
`
`jurisdictional significance: That in 2015, someone, somewhere, posted to Imgur an innocuous photo
`
`of Plaintiff taken at a convenience store in New York, along with someone’s comment “Milf.”4 That
`
`single factual allegation is expressed in four paragraphs in the FAC:
`
`• “The photo was featured on Imgur under the heading ‘milf’ ....” 5 (FAC, ¶47)
`
`• “ . . . Defendants have appropriated Plaintiff’s likeness, which has commercial value, and
`
`used same for commercial purposes without Plaintiff’s written consent.” (FAC, ¶60)
`
`• “Defendants knew . . . that the Photo depicted Plaintiff. . . .” (FAC, ¶61)
`
`• “Defendants’ sexualization of Plaintiff’s image and use for prurient and illicit purposes is
`
`
`4 That allegation, in paragraph 47 of the Complaint, does not allege that Imgur created the content, but rather is stated in
`passive voice: “The photo was featured on Imgur under the heading ‘milf’. . . .”
`
` 5
`
` The Complaint cites a non-existent web page address on Imgur. Because the purported posting was years ago, in 2015,
`Imgur cannot confirm that the image in question was ever posted to Imgur – i.e., whether Exhibit M is genuine – and if
`so, when and how it was deleted. (Schaaf Dec. ¶ 22).
`
` 9
`
`
`
`
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 10 of 19
`
`abhorrent and disgusting.” (FAC, ¶63)
`
`Assuming for purposes of this Motion that such averments are true, the FAC fails to allege a
`
`single act by Imgur that arises out of or relates to any purported contact with Pennsylvania. Indeed,
`
`the FAC makes no forum-specific averments at all. Because the jurisdictional recitations are nothing
`
`more than threadbare, conclusory statements, and because the single factual allegation raised against
`
`Imgur is devoid of any jurisdictional component, the FAC fails to allege any claims that “arise out of
`
`or relate to” any purported contact with the forum by Defendant Imgur. For that reason alone, all
`
`claims against Imgur must be dismissed.
`
`The only discernible connection with the forum averred in the FAC is that the Plaintiff resides
`
`here. That, however, is not sufficient for specific jurisdiction. As the Third Circuit has pointed out,
`
`personal jurisdiction sometimes can be exercised over a nonresident defendant that commits “an
`
`intentional tort outside the forum, the unique effects of which cause damage to the plaintiff within
`
`the forum.” IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 256 (3d Cir. 1998) (citing Calder v.
`
`Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984)). However, “for Calder to apply, the
`
`plaintiff must allege facts sufficient to meet a three-prong test. First, the defendant must have
`
`committed an intentional tort. Second, the plaintiff must have felt the brunt of the harm caused by
`
`that tort in the forum, such that the forum can be said to be the focal point of the harm suffered by the
`
`plaintiff as a result of the tort. Third, the defendant must have expressly aimed his tortious conduct at
`
`the forum, such that the forum can be said to be the focal point of the tortious activity.” Id. However,
`
`the “mere allegation that the plaintiff feels the effect of the defendant's tortious conduct in the forum
`
`because the plaintiff is located there is insufficient to satisfy Calder.” Id. at 263. Applying these
`
`principles, there is no basis to exercise specific jurisdiction over Imgur.
`
`
`
`
`
`
`10
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 11 of 19
`
`3. This Court’s exercise of jurisdiction would not comport with fair play and
`substantial justice.
`
`
`Plaintiff is bringing this action against Imgur, located in California, based on a single
`
`photograph of her, by her own account taken in public in New York back in 2015. That single photo
`
`was purportedly posted to Imgur by an unknown user somewhere in the world, and apparently
`
`deleted from Imgur at some point but, in any event, is currently nowhere to be found on Imgur’s
`
`website. Plaintiff would have Imgur travel 2,875 miles to Philadelphia to fend off her demand for
`
`millions of dollars based on that single innocuous photo. No evidence is located in Pennsylvania.
`
`No witnesses other than Plaintiff are located in Pennsylvania. No events in Pennsylvania gave rise to
`
`this action.
`
`To determine whether “fair play and substantial justice” would be offended by exercising
`
`jurisdiction, “the burden on the defendant is a ‘primary concern’ in any case.” O'Connor, 496 F.3d at
`
`324. In O’Connor, the court recognized that forcing a defendant to travel thousands of miles to
`
`Pennsylvania, along with the fact that the witnesses and evidence would be located mostly outside of
`
`Pennsylvania, and the fact that a foreign forum had a “considerable substantive interest in
`
`determining the rights and liabilities of its own domestic corporations” were a substantial burden on
`
`the defendant. Id. at 324-25. O’Connor is applicable here, and for this Court to exercise jurisdiction
`
`over Imgur under such circumstances would not remotely comport with fair play and substantial
`
`justice. For all of the aforestated reasons, all claims against Imgur should be dismissed for lack of
`
`personal jurisdiction.
`
`III. THE COMPLAINT STATES NO VALID CLAIMS AGAINST IMGUR
`
`Even if there were some valid basis for jurisdiction over Imgur, the FAC must still be
`
`dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(6), because the FAC fails to state a claim
`
`upon which relief can be granted.
`
`
`
`
`11
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 12 of 19
`
`A. Legal Standard
`
`To survive a 12(b)(6) motion for failure to state a claim upon which relief may be granted, “a
`
`complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
`
`plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
`
`(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed.2d 929
`
`(2007)). A complaint should be dismissed under Rule 12(b)(6) when, accepting the allegations of
`
`the complaint as true and drawing all reasonable factual inferences in favor of the plaintiff, it appears
`
`certain that a plaintiff will be unable to support his claim. DiMeo v. Max, 248 Fed.Appx. 280 (3d
`
`Cir. 2007) (dismissing defamation claim as barred by 47 U.S.C. § 230).
`
`Even if one presumes for purposes this Motion that all facts as alleged in the FAC are true,
`
`and that there is jurisdiction, nothing in the FAC states a claim against Imgur upon which relief can
`
`be granted.6 This is not only because Counts I and II, considered on their own merits, fail to state any
`
`claim against Imgur, but also because all of Plaintiff’s claims are barred by Section 230 of the
`
`Communications Decency Act (“CDA”).
`
`B. Count I Of The FAC Fails To State A Claim Against Imgur
`
`Count I of the FAC is based on a Pennsylvania state statute, 42 Pa.C.S. § 8316, the
`
`“unauthorized use of name or likeness” statute. That statute states, in relevant part:
`
`Any natural person whose name or likeness has commercial value and is
`used for any commercial or advertising purpose without the written
`consent of such natural person or the written consent of any of the parties
`authorized in subsection (b) may bring an action to enjoin such
`unauthorized use and to recover damages for any loss or injury sustained
`by such use.
`
`The complaint avers that Plaintiff is a natural person and that her name or likeness has
`
`
`6 Imgur submits its Rule 12(b)(6) arguments without waiver of its threshold argument that this Court lacks personal
`jurisdiction over Imgur.
`
`
`
`
`12
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 13 of 19
`
`commercial value. The FAC also avers that her likeness was used without her written consent. Thus,
`
`the issue is whether the FAC avers that Imgur used her likeness for a “commercial or advertising
`
`purpose.” Section 8316(e) of the same statute provides the definition:
`
` Definitions.--As used in this section, the following words and phrases shall have the
`meanings given to them in this subsection:
`
`“Commercial or advertising purpose.”
`
`(1) [T]he term shall include the public use or holding out of a natural person's name or
`likeness:
`
`(i) on or in connection with the offering for sale or sale of a product, merchandise,
`goods, services or businesses;
`
`(ii) for the purpose of advertising or promoting products, merchandise, goods or
`services of a business; or
`
`(iii) for the purpose of fundraising.
`
`
`
`Nothing in the FAC avers that Defendant Imgur publicly used or held out the Plaintiff’s
`
`likeness in connection with the offering for sale of a product, merchandise, good, services, or
`
`businesses, or for the purpose of advertising same, or for fundraising purposes. As averred in the
`
`FAC, Imgur merely hosted a photo posted by a user.
`
`
`
`The same statute also states:
`
`(2) The term shall not include the public use or holding out of a natural
`person's name or likeness in a communications medium when:
`
`(i) the natural person appears as a member of the public and the
`natural person is not named or otherwise identified . . . .
`
`
`
`The FAC states that the photograph in question was taken at a convenience store in New
`
`York. As can be seen on Exhibit M to the FAC, that photograph of Plaintiff as purportedly posted on
`
`Imgur’s website does not name or otherwise identify her. Thus, the FAC itself makes clear that (a) in
`
`the photo in question, the Plaintiff appeared as a member of the public, and (b) nothing in the photo
`
`as posted to Imgur named or otherwise identified her.
`
`
`
`
`13
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 14 of 19
`
`Accordingly, the facts as alleged in Count I of the FAC do not meet any of the statutory
`
`requirements of Section 8316 with respect to Defendant Imgur. For that reason alone, Count I fails to
`
`state a cause of action against Imgur.
`
`The statute upon which Count I is based also contains an immunity provision, section
`
`8316(d):
`
`
`
` Immunity.--No person, firm or corporation, including their employees
`and agents, in the business of producing, manufacturing, publishing or
`disseminating material for commercial or advertising purposes by any
`communications medium shall be held liable under this section unless
`they had actual knowledge of the unauthorized use of the name or
`likeness of a natural person as prohibited by this section.
`
`
`Even if Imgur could be considered to be disseminating material for “commercial or
`
`advertising purposes,” it is impossible that Imgur could have had “actual knowledge” that the use of
`
`the Plaintiff’s likeness was unauthorized, or even that a photo of Plaintiff had been posted at all:
`
`Imgur does not review any of the millions of photos that are uploaded to its site each day (Schaaf
`
`Dec. ¶15), nor does it play any role in determining what images are posted. (Schaaf Dec. ¶16). For
`
`this reason as well, Count I fails to state a claim upon which relief can be granted.
`
`C. Count II Of The FAC Fails To State A Claim Against Imgur
`
`Count II is based on purported Pennsylvania common law. It alleges that defendant Imgur
`
`appropriated Plaintiff’s valuable likeness, and that “[u]nder the common law in Pennsylvania,
`
`Plaintiff maintains an exclusive entitlement to control the commercial value of her name and/or
`
`likeness.” Such averments do not state a cause of action in Pennsylvania. As this Court stated in a
`
`2007 case, “[t]o the extent that there was ever a common law cause of action for misappropriation of
`
`identity in Pennsylvania, it was subsumed by Pennsylvania statute prohibiting unauthorized use of
`
`name or likeness.” Facenda v. N.F.L. Films, Inc., 488 F.Supp.2d 491 (E.D. Pa. 2007), aff ’d in part,
`
`vacated in part on other grounds, 542 F.3d 1007 (3d. Cir. 2008).
`
`
`
`
`14
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 15 of 19
`
`Accordingly, Count II likewise fails to state a claim against Imgur upon which relief can be
`
`granted.
`
`D. All of Plaintiff’s Claims Against Imgur Are Barred
`By Section 230 Of The Communications Decency Act
`
`Section 230 of the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), bars all of
`
`Plaintiff’s claims against Imgur. Section 230 pre-empts the claims raised in Count I of the FAC
`
`(based on Pennsylvania statute) and Count II of the FAC (based on Pennsylvania common law).
`
`Section 230(c) of the CDA states:
`
`(1) No provider or user of an interactive computer service shall be treated as
`the publisher or speaker of any information provided by another
`information content provider.[7]
`
`(2) No provider or user of an interactive computer service shall be held liable
`on account of . . . any action voluntarily taken in good faith to restrict
`access to or availability of material that the provider or user considers to be
`obscene, lewd, lascivious, filthy, excessively violent, harassing, or
`otherwise objectionable, whether or not such material is constitutionally
`protected. . . .
`
`
`
`Section 230(e)(3) directs that “No cause of action may be brought and no liability may be
`
`imposed under any State or local law that is inconsistent with this section.”
`
`A 12(b)(6) motion is an appropriate means of raising Section 230 immunity, which, “like
`
`other forms of immunity, is generally accorded effect at the first logical point in the litigation
`
`process.” It is “is an immunity from suit rather than a mere defense to liability” and “is effectively
`
`lost if a case is erroneously permitted to go to trial.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
`
`Inc., 591 F.3d 250, 254–55 (4th Cir. 2009) (quotations omitted) (emphasis in original). Section 230
`
`“protects websites not only from ultimate liability, but also from having to fight costly and protracted
`
`
`7 Section 230(e)(3) of the CDA defines “information content provider” to mean “any person . . .that is responsible, in
`whole or in part, for the creation or development of information provided through the Internet or any other interactive
`computer service.”
`
`
`
`
`15
`
`

`

`Case 2:19-cv-04034-JMY Document 53-1 Filed 03/02/20 Page 16 of 19
`
`legal battles.” Id. (internal quotations omitted; citing further authority).
`
`There can be no question that Section 230(