Case No. 3:17-CV-00230-JCS Defendants’ Motion to Dismiss 

Amended Complaint 

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SETH P. WAXMAN (pro hac vice)

seth.waxman@wilmerhale.com

PATRICK J. CAROME (pro hac vice)

patrick.carome@wilmerhale.com

ARI HOLTZBLATT (pro hac vice)

ari.holtzblatt@wilmerhale.com

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Avenue, NW

Washington, D.C. 20006

Telephone: (202) 663-6000

Facsimile: (202) 663-6363

Attorneys for Defendant

TWITTER, INC.

[Additional counsel for each defendant are 

included on the signature page.]

DAVID H. KRAMER (CA SBN 168452)

dkramer@wsgr.com

LAUREN GALLO WHITE (CA SBN 309075)

lwhite@wsgr.com

WILSON SONSINI 

 GOODRICH & ROSATI, P.C.

650 Page Mill Road

Palo Alto, CA 94304

Telephone: (650) 493-9300

Facsimile: (650) 565-5100

Attorneys for Defendant

GOOGLE INC.

KRISTIN A. LINSLEY (CA SBN 154148)

klinsley@gibsondunn.com

JEANA BISNAR MAUTE (CA SBN 290573)

jbisnarmaute@gibsondunn.com

SHELI R. CHABON (CA SBN 306739)

schabon@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: (415) 393-8200

Facsimile: (415) 393-8306

Attorneys for Defendant 

FACEBOOK, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

DEMETRICK PENNIE, RICK ZAMARRIPA

Plaintiffs,

v.

TWITTER, INC., GOOGLE INC., 

FACEBOOK INC.,

Defendants.

Case No. 3:17-CV-00230-JCS

NOTICE OF MOTION AND MOTION OF 

DEFENDANTS TWITTER, INC., GOOGLE 

INC., AND FACEBOOK, INC. TO 

DISMISS THE AMENDED COMPLAINT 

PURSUANT TO FED. R. CIV. P. 12(b)(6); 

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT THEREOF

Judge: Hon. Joseph C. Spero

[Fed. R. Civ. P. 12(b)(6)]

Hearing Date: Aug. 25, 2017

Case 3:17-cv-00230-JCS Document 43 Filed 06/23/17 Page 1 of 34
Case No. 3:17-CV-00230-JCS i Defendants’ Motion to Dismiss 

Amended Complaint

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii

NOTICE OF MOTION AND MOTION ........................................................................................1

STATEMENT OF REQUESTED RELIEF ....................................................................................1

STATEMENT OF ISSUES TO BE DECIDED .............................................................................1

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................1

FACTUAL BACKGROUND .........................................................................................................4

LEGAL STANDARDS ON A MOTION TO DISMISS ................................................................7

ARGUMENT...................................................................................................................................8

I. Section 230 Requires Dismissal Of All Of Plaintiffs’ Claims.............................................8

A. Section 230 Immunizes Interactive Service Providers From 

Liability For Third-Party Content............................................................................8

B. Plaintiffs’ Claims Meet All Elements Of § 230 Immunity......................................9

1. Defendants Provide “Interactive Computer Services”...............................10

2. Third Parties Provided The Allegedly Harmful Content 

Underlying Plaintiffs’ Claims....................................................................10

3. Plaintiffs’ Claims Seek To Treat Defendants As Publishers.....................12

II. All Of Plaintiffs’ Claims Also Fail On Their Own Terms.................................................15

A. The FAC Fails To Allege Facts Plausibly Establishing Proximate Cause 

(Counts III-IV).......................................................................................................15

B. Plaintiffs’ Secondary Liability Claims Fail (Counts I-II)......................................19

1. The Dallas Shooting Was Not An Act Of “International

Terrorism”..................................................................................................19

2. Plaintiffs Fail To Allege Facts Establishing That Hamas 

Committed, Planned, Or Authorized The Dallas Shooting........................21

3. The FAC Fails To Allege Facts Establishing That 

Defendants Aided And Abetted Or Conspired With 

Johnson ......................................................................................................22

C. Plaintiff Pennie Has Not Pled A Cognizable Injury (All Counts) .........................24

III. The FAC Should Be Dismissed With Prejudice ................................................................25

CONCLUSION..............................................................................................................................25

ATTORNEY ATTESTATION

CERTIFICATE OF SERVICE

Case 3:17-cv-00230-JCS Document 43 Filed 06/23/17 Page 2 of 34
Case No. 3:17-CV-00230-JCS ii Defendants’ Motion to Dismiss 

Amended Complaint

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TABLE OF AUTHORITIES

Page(s)

CASES

Al Haramain Islamic Found. v. Dep’t of Treasury, 

686 F.3d 965 (9th Cir. 2012) .............................................................................................19

AmerisourceBergen Corp. v. Dialysist West, Inc., 

465 F.3d 946 (9th Cir. 2006) .............................................................................................25

Arkansas Educ. Telev. Comm’n v. Forbes, 

523 U.S. 666 (1998)...........................................................................................................18

Ascentive, LLC v. Opinion Corp., 

842 F. Supp. 2d 450 (E.D.N.Y. 2011) ...............................................................................11

Ashcroft v. Iqbal, 

556 U.S. 662 (2009).................................................................................................8, 16, 21

Bank of Am. Corp. v. City of Miami, Fl., 

Nos. 15-1111, 15-1112, 2017 WL 1540509 (U.S. May 1, 2017)......................................16

Barnes v. Yahoo!, Inc., 

570 F.3d 1096 (9th Cir. 2009) .................................................................................2, 10, 13

Batzel v. Smith, 

333 F.3d 1018 (9th Cir. 2003) .............................................................................................9

Biton v. Palestinian Interim Self-Government Auth., 

310 F. Supp. 2d 172 (D.D.C. 2004)...................................................................................25

Boim v. Holy Land Found. for Relief & Dev., 

549 F.3d 685 (7th Cir. 2008) (en banc) .............................................................................16

Boim v. Quranic Literacy Inst., 

291 F.3d 1000 (7th Cir. 2002) ...........................................................................................24

Campos v. Ysleta Gen. Hosp., 

836 S.W.2d 791 (Tex. App. 1992).....................................................................................16

Caraccioli v. Facebook, Inc., 

167 F. Supp. 3d 1056 (N.D. Cal. 2016).........................................................................9, 13

Carafano v. Metrosplash.com, Inc., 

339 F.3d 1119 (9th Cir. 2003) .................................................................................9, 11, 12

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Case No. 3:17-CV-00230-JCS iii Defendants’ Motion to Dismiss 

Amended Complaint

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Cohen v. Facebook, Inc., 

2017 WL 2192621 (E.D.N.Y. May 18, 2017) .....................................................3, 9, 13, 14

Coto Settlement v. Eisenberg,

593 F.3d 1031 (9th Cir. 2010) .............................................................................................7

Couch v. Cate, 

379 F. App’x 560 (9th Cir. 2010) ......................................................................................16

Doe v. Backpage.com, LLC,

817 F.3d 12 (1st Cir. 2016)..................................................................................................9

Doe v. Internet Brands, Inc., 

824 F.3d 846 (9th Cir. 2016) ...............................................................................................9

Doe v. MySpace, Inc., 

528 F.3d 413 (5th Cir. 2008) .............................................................................................13

Erlich v. Menezes, 

21 Cal. 4th 543, 555 (1999) ...............................................................................................16

Estates of Ungar v. Palestinian Auth., 

304 F. Supp. 2d 232 (D.R.I. 2004).....................................................................................24

Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 

521 F.3d 1157 (9th Cir. 2008) (en banc) ...................................................2, 8, 9, 11, 12, 25

Fields v. Twitter, Inc., 

200 F. Supp. 3d 964 (N.D. Cal. 2016)...............................................3, 9, 10, 13, 14, 16, 18

Fields v. Twitter, Inc., 

2016 WL 6822065 (N.D. Cal. Nov. 18, 2016) ........................................3, 9, 13, 14, 16, 18

Freeman v. City of Pasadena, 

744 S.W.2d 923 (Tex. 1988)..............................................................................................24

Gilbrook v. City of Westminster, 

177 F.3d 839 (9th Cir. 1999) .............................................................................................24

Goddard v. Google, Inc., 

No. C 08-2738, 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008)...................................11, 13

Goldberg v. UBS AG, 

660 F. Supp. 2d 410 (E.D.N.Y. 2009) ...............................................................................25

Gonzalez v. Twitter, 

No. 4:16-CV-03282 (N.D. Cal.) ..........................................................................................5

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Case No. 3:17-CV-00230-JCS iv Defendants’ Motion to Dismiss 

Amended Complaint

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Halberstam v. Welch, 

705 F.2d 472 (D.C. Cir. 1983)...............................................................................22, 23, 24

Hemi Grp., LLC v. City of New York, 

559 U.S. 1 (2010)...............................................................................................................16

Hinton v. Amazon.com.dedc, LLC, 

72 F. Supp. 3d 685 (S.D. Miss. 2014)................................................................................11

Holder v. Humanitarian Law Project, 

561 U.S. 1 (2010)...............................................................................................................19

Holmes v. Sec. Inv’r Prot. Corp., 

503 U.S. 258 (1992)...........................................................................................................16

In re Gilead Scis. Sec. Litig.,

536 F.3d 1049 (9th Cir. 2008) .......................................................................................8, 17

In re Splash Tech. Holdings, Inc., 

160 F. Supp. 2d 1059 (N.D. Cal. 2001).............................................................................25

In re Terrorist Attacks on Sept. 11, 2001, 

349 F. Supp. 2d 765, 831 (S.D.N.Y. 2005), 

aff’d, 714 F.3d 118 (2d Cir. 2013).......................................................................................8

In re Terrorist Attacks on Sept. 11, 2001, 

714 F.3d 118 (2d Cir. 2013).....................................................................................3, 16, 18

Jones v. Dirty World Entm’t Recordings LLC, 

755 F.3d 398 (6th Cir. 2014) .............................................................................................11

Kimzey v. Yelp! Inc., 

836 F.3d 1263 (9th Cir. 2016) .............................................................................................8

Klayman v. Zuckerberg, 

753 F.3d 1354 (D.C. Cir. 2014).................................................................................8, 9, 12

Lancaster v. Alphabet Inc., 

No. 15-CV-05299-HSG, 2016 WL 3648608 (N.D. Cal. July 8, 2016) .............................10

Lelchook v. Commerzbank AG, 

2011 WL 4087448 (S.D.N.Y. Aug. 2, 2011).....................................................................24

Levitt v. Yelp! Inc., 

2011 WL 5079526 (N.D. Cal. Oct. 26, 2011), 

aff’d, 765 F.3d 1123 (9th Cir. 2014)..................................................................................12

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Case No. 3:17-CV-00230-JCS v Defendants’ Motion to Dismiss 

Amended Complaint

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Linde v. Arab Bank, PLC, 

97 F. Supp. 3d 287 (E.D.N.Y. 2015), appeal pending, 2d Cir. No. 16-2134 ....................16

M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC, 

809 F. Supp. 2d 1041 (E.D. Mo. 2011)........................................................................11, 13

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 

591 F.3d 250 (4th Cir. 2009) ...............................................................................................8

Reed v. Town of Gilbert, 

135 S. Ct. 2218 (2015).......................................................................................................14

Rivera v. BAC Home Loans Servicing, 

756 F. Supp. 2d 1193 (N.D. Cal. 2010).............................................................................25

Rothstein v. UBS AG, 

708 F.3d 82 (2d Cir. 2013).......................................................................................8, 16, 18

Shrader v. Beann, 

503 F. App’x 650 (10th Cir. 2012) ....................................................................................13

Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 

144 F. Supp. 3d 1088 (N.D. Cal. 2015).............................................................................10

Smith v. Islamic Emirate of Afghanistan, 

262 F. Supp. 2d 217 (S.D.N.Y. 2003)................................................................................20

Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994)...........................................................................................................18

Universal Commc’n Sys., Inc. v. Lycos, Inc., 

478 F.3d 413 (1st Cir. 2007)..............................................................................................13

Zeran v. Am. Online, Inc., 

129 F.3d 327 (4th Cir. 1997) ...........................................................................................8, 9

STATUTES AND RULES

Immigration and Nationality Act, 8 U.S.C. § 1189 .......................................................................19

Clayton Act, 15 U.S.C. § 15 ..........................................................................................................16

RICO, 18 U.S.C. § 1964 ................................................................................................................16

18 U.S.C. 

§ 2331.................................................................................................................................20

§ 2333......................................................................................................................... passim

§ 2339A................................................................................................................................7

§ 2339B................................................................................................................................7

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Case No. 3:17-CV-00230-JCS vi Defendants’ Motion to Dismiss 

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Communications Decency Act, 47 U.S.C. § 230................................................................... passim

Sherman Act, 26 Stat. 209 (1890)..................................................................................................16

Justice Against Sponsors of Terrorism Act, Pub. L. No. 114-222...........................................19, 22

Fed. R. Civ. P. 12(b)(6)................................................................................................................1, 7

OTHER AUTHORITIES

H.R. Rep. No. 102-1040 (1992).....................................................................................................21

Restatement (Second) of Torts ................................................................................................23, 24

Facebook Community Standards, 

https://www.facebook.com/communitystandards#..............................................................7

The Twitter Rules,

https://support.twitter.com /articles/18311# .......................................................................6

YouTube Community Guidelines, 

https://www.youtube.com/yt/ policyandsafety/communityguidelines.html ........................7

Case 3:17-cv-00230-JCS Document 43 Filed 06/23/17 Page 7 of 34
Case No. 3:17-CV-00230-JCS 1 Defendants’ Motion to Dismiss

Amended Complaint

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NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that on August 25, 2017, at 9:30 a.m. in the U.S. District Court 

for the Northern District of California, Courtroom G, 450 Golden Gate Ave., San Francisco, 

California, Defendants Twitter, Inc., Google Inc., and Facebook, Inc. (collectively “Defendants”) 

shall and hereby do move for an order dismissing with prejudice all claims advanced in the First 

Amended Complaint (“FAC”). 

STATEMENT OF REQUESTED RELIEF

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants request that the Court 

dismiss with prejudice all of Plaintiffs’ claims.

STATEMENT OF ISSUES TO BE DECIDED

1. Whether the immunity for online intermediaries created by § 230 of the Communications 

Decency Act, 47 U.S.C. § 230 (“§ 230”), bars this action, which seeks to impose liability 

based on allegations that Defendants failed to block or remove content that third parties 

allegedly transmitted or posted through Defendants’ interactive computer services.

2. Whether Plaintiffs fail to state a claim under the civil remedy provision of the AntiTerrorism Act, 18 U.S.C. § 2333(a), (d) (“ATA”), because they fail to allege facts that 

would establish that any Defendant (a) proximately caused Plaintiffs’ alleged injuries

(Counts III-IV) or (b) knowingly provided substantial assistance to, or conspired with, 

Micah Johnson, the “person who committed” the alleged terrorist acts at issue (Counts III); or that (c) Plaintiff Pennie suffered a cognizable injury (Counts I-IV).

3. Whether Plaintiffs fail to state a claim for negligent infliction of emotional distress 

(Count V) because they fail to plead a cognizable injury or proximate causation.

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiffs claim to have suffered emotional distress resulting from the fatal shooting of 

five police officers in Dallas, Texas in July 2016. Rather than suing the shooter’s estate, or even 

any of the individuals or groups that Plaintiffs allege inspired the shooter’s crime, Plaintiffs in 

this suit have chosen to sue three companies—Defendants Twitter, Google, and Facebook—that 

provide broadly available online services used by billions of people around the world. In an 

Case 3:17-cv-00230-JCS Document 43 Filed 06/23/17 Page 8 of 34
Case No. 3:17-CV-00230-JCS 2 Defendants’ Motion to Dismiss

Amended Complaint

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effort to link the Defendants to the shooting (and to Plaintiffs’ alleged emotional distress), the 

FAC posits an elaborate and far-fetched chain reaction: (1) Plaintiffs experienced emotional 

distress; (2) as a result of the shootings by Micah Johnson of police officers in Dallas; 

(3) Johnson allegedly was prompted to commit that shooting because he was “radicalized” by 

viewing webpages created by individuals and groups that the FAC labels “black separatist hate 

groups,” including Black Lives Matter; (4) some of these so-called “black separatist hate groups” 

allegedly advocated the killing of police officers in retaliation for incidents of police violence; 

(5) some “black separatist hate groups” allegedly were inspired by Hamas, a designated terrorist 

organization in the Middle East, and other “pro-Palestinian” groups; and (6) Hamas and its 

supporters allegedly were provided “material support” by Defendants because they allegedly 

used Defendants’ broadly available online services to transmit content promoting their views and 

agenda. Plaintiffs assert that this attenuated chain of causation renders Defendants directly and 

secondarily liable for Plaintiffs’ alleged emotional injuries under the civil remedy provision of 

the federal Anti-Terrorism Act (“ATA”), 18 U.S.C. § 2333(a), (d), and under the state law tort of 

negligent infliction of emotional distress. 

Defendants have profound sympathy for those affected by the Dallas shooting and are 

committed to combating the spread of terrorist content online. But even assuming any such 

content somehow contributed to Micah Johnson’s motivations (a proposition not plausibly 

alleged in the Amended Complaint), Defendants are not liable for the consequences of his crime. 

Two overarching flaws render Plaintiffs’ claims legally baseless. 

First, Plaintiffs’ claims are barred by § 230 because they attempt to hold Defendants 

liable for the alleged effects of third-party content posted on Defendants’ online platforms. The 

Ninth Circuit repeatedly has held that § 230(c)(1) immunizes online service providers from 

liability for performing “traditional editorial functions” relating to third-party content, such as 

disseminating or failing to remove objectionable content created by their users. E.g., Fair Hous. 

Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1184 (9th Cir. 2008) 

(en banc); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009). Here, Plaintiffs’ claims 

all turn on the theory that third-party content published through Defendants’ online services—

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Case No. 3:17-CV-00230-JCS 3 Defendants’ Motion to Dismiss

Amended Complaint

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specifically, content created and transmitted by Hamas or its sympathizers—indirectly caused the 

Dallas shooting. As Judge Orrick in this District and Judge Garaufis in the Eastern District of 

New York have correctly concluded in dismissing similar claims filed against Twitter and 

Facebook, such a theory would improperly impose liability on Defendants for “deciding whether 

to publish” other people’s information—precisely the result that § 230 forbids. Fields v. Twitter, 

Inc., 2016 WL 6822065, at *5 (N.D. Cal. Nov. 18, 2016) (“Fields II”); Fields v. Twitter, Inc., 

200 F. Supp. 3d 964 (N.D. Cal. 2016) (“Fields I”); Cohen v. Facebook, Inc., 2017 WL 2192621, 

at *12-13 (E.D.N.Y. May 18, 2017).

Second, Plaintiffs fail to allege facts necessary for the essential elements of their claims. 

Their claims for direct liability under § 2333(a) of the ATA (Counts III-IV) and their state law 

claims for negligent infliction of emotional distress (Count V) fail because their allegations do

not establish that Plaintiffs’ alleged injuries were proximately caused by some unlawful act 

committed by the Defendants, as both legal theories require. See In re Terrorist Attacks on Sept. 

11, 2001, 714 F.3d 118, 123-25 (2d Cir. 2013) (“Al Rajhi”). Plaintiffs’ convoluted story—

purportedly linking Defendants’ provision of broadly available online services; to the alleged use 

of those services by Hamas sympathizers; to a claimed connection between Hamas (and other 

pro-Palestinians groups), on the one hand, and “black separatist hate groups” (including Black 

Lives Matter), on the other; to a purported causal link between statements by those groups and 

Micah Johnson’s heinous acts in Dallas; and, finally, to emotional injuries Plaintiffs allegedly 

suffered as a result of the shooting—is far “too speculative [and] attenuated to raise a plausible 

inference of proximate causation.” Fields II, 2016 WL 6822065, at *10 n.3. Chaos theory may 

entertain the possibility that a butterfly flapping its wings in China could cause a hurricane in the 

Gulf of Mexico, but the doctrine of proximate cause does not. 

Plaintiffs’ claims for aiding and abetting and conspiracy under § 2333(d) of the ATA

(Counts I-II) also fail to state a claim because Plaintiffs have not pled, and cannot plead, that 

Defendants aided and abetted or conspired with “the person who committed” the alleged “act of 

international terrorism” from which Plaintiffs’ injury allegedly arose. Here, that person was 

Micah Johnson, and there are no plausible allegations that Defendants knowingly provided 

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Case No. 3:17-CV-00230-JCS 4 Defendants’ Motion to Dismiss

Amended Complaint

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substantial assistance to Johnson or entered into an unlawful agreement with him—or with 

anyone else, including Hamas or any so-called “black separatist hate groups”—regarding the 

Dallas shootings. Nor was the Dallas shooting an act of “international terrorism,” as required by 

the ATA. It was a crime committed on U.S. soil by a former U.S. soldier against U.S. victims, 

apparently in response to shootings of black men by police officers in the United States. Section 

2333(d) does not apply to such purely domestic events.

Finally, all of Plaintiff Pennie’s claims fail because he was not physically injured in the 

Dallas shooting and his theories of liability permit recovery for emotional distress only by a 

plaintiff who was both present during the attack and an immediate family member of a victim. 

For these reasons, as in Fields and Cohen, the FAC in this case must be dismissed. And 

because the defects identified cannot be cured (and were not cured by Plaintiffs’ recently 

amended complaint), dismissal should be with prejudice.

FACTUAL BACKGROUND

According to the FAC, Micah Johnson shot and killed five police officers and injured 

nine other police officers and two civilians in Dallas on July 7, 2016. FAC ¶¶ 1, 123. The FAC

describes Johnson as an independent actor who allegedly became “radicalized” by viewing 

Facebook pages of “[b]lack [n]ationalist” organizations. Id. ¶¶ 130-132. The FAC also contains 

conclusory allegations that Johnson was “radicalized, in part, by reviewing postings of Hamas

and other terrorist groups on the internet and Defendants’ social media sites.” Id. ¶¶ 129, 132. 

Plaintiff Rick Zamarripa is the father of one of Johnson’s victims. Id. ¶ 1, 9. Plaintiff Demetrick 

Pennie alleges that he is a police officer who “knew the officers wounded and killed,” was one of 

the first responders to the scene after the shootings, and allegedly “suffers severe emotional 

distress reliving the horrific scene.” Id. ¶¶ 1, 137. 

Defendants Twitter, Google (through its YouTube service), and Facebook each operates a 

global Internet platform for public self-expression and conversation that is free of charge and 

broadly available for use. See FAC ¶ 1. Each day, users of these platforms send and share 

hundreds of millions of posts, Tweets, videos, and messages touching on a broad range of 

topics—from political commentary to a favorite sports team to the birth of a child. See id. ¶ 68.

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Case No. 3:17-CV-00230-JCS 5 Defendants’ Motion to Dismiss

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Plaintiffs do not allege that any Defendant committed the Dallas shootings or assisted 

Johnson in committing them. Instead, they conjure up a series of tenuous connections purporting 

to link Johnson’s crime to content allegedly posted on Defendants’ services by Hamas. The 

alleged involvement of Hamas, a group based in the Middle East that the U.S. government has 

formally designated a “foreign terrorist organization,” provides the purported hook for Plaintiffs’

claims under the Anti-Terrorism Act, because the Act allows claims only for injuries caused by 

an “act of international terrorism.” Hamas is the only individual or group that Plaintiffs attempt 

to connect even indirectly to Johnson that has been designated a foreign terrorist organization.1

 

The FAC sets forth an elaborate construct to try to tie Defendants to Hamas and then 

Hamas to Plaintiffs’ alleged injuries. It first alleges that the shooter, Micah Johnson, viewed 

(and “liked”) the Facebook pages of various “black separatist hate groups”—a term the FAC

uses to lump together a disparate collection of groups and individuals, including “Black 

journalists, artists and organizers representing Ferguson, Black Lives Matter, Black Youth 

Project 100,” groups that the Southern Poverty Law Center has deemed “hate groups,” and 

individuals that have called for the murder of police. FAC ¶¶ 110, 114-121, 130-131. 

According to the FAC, Johnson was “radicalized” “in part” by viewing some of those groups’ 

webpages and thereby was inspired to carry out his shooting. Id. ¶¶ 122, 129. 

Next, the FAC posits a further (and even more tenuous) link between so-called “black 

separatist hate groups” in the United States, and Hamas—alleging that Hamas and other “proPalestinian” groups “inspired,” and expressed “solidarity” with, the “black separatist hate 

group[s].” FAC ¶¶ 103-113. The lone factual allegation that the FAC offers to try to show some

 1 Many allegations of the FAC—copied from the complaints in Gonzalez v. Twitter, No. 4:16-

CV-03282 (N.D. Cal.), which were themselves copied from complaints in Fields—describe the 

alleged use of Defendants’ platforms not by Hamas but by a different terrorist organization, ISIS, 

whose alleged content was at issue in those cases. E.g., FAC ¶¶ 2, 3, 26, 50, 51 & n.14, 52 & 

n.15, 68, 77-80, 88, 89, 101-102, 135, 164-165. These errant and irrelevant remnants—which 

Plaintiffs failed to fix even after Defendants’ prior motion flagged them—expose Plaintiffs’

careless and haphazard pleading. The FAC also engages in improper “group pleading”—

asserting broad claims against “Defendants” when the factual allegations allegedly supporting 

the point relate only to a single defendant. 

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inspirational link between Hamas and U.S.-based “black separatist hate groups” is a single piece 

of alleged “HAMAS inspired art” (portraying an imagined beheading of a white policeman by an 

unidentifiable person cloaked entirely in black) that an unspecified “black separatist hate group” 

allegedly used as “black separatist hate group propaganda.” Id. ¶¶ 106, 107, 117, & fig. 21. The 

FAC does not allege that Micah Johnson ever saw that “art” or, for that matter, anything else 

created by any “hate group” that allegedly disseminated it. The FAC also points to expressions 

of “solidarity” from groups and individuals allegedly “tied” to Hamas and meetings that “Black 

journalists, artists, and organizers representing” Black Lives Matter and others allegedly held 

with “Pro-Palestinian” individuals (although not Hamas itself). Id. ¶¶ 108-113. The FAC does 

not allege that Hamas or any of its proponents planned, authorized, funded, committed, or even 

claimed credit for Johnson’s crime.

Finally, the FAC attempts to link Defendants to this attenuated chain of connections by 

alleging that among the billions of persons who used Defendants’ online services were some 

individuals who used those platforms to transmit content promoting Hamas’s activities and/or

agenda. FAC ¶¶ 25-29, 34-40, 42, 45-46, 88, 100. According to the FAC, Defendants 

“knowingly and recklessly” allowed Hamas and its supporters to share this objectionable content 

and allegedly failed to take “meaningful action to stop” Hamas by “censor[ing] user content,” 

“shut[ting] down ... [Hamas]-linked account[s],” or blocking Hamas-related accounts from 

“springing right back up.” FAC ¶¶ 1, 43, 53, 69, 72; see also id. ¶¶ 55, 63, 76. The FAC

acknowledges that each Defendant has rules regarding types of content that are prohibited on 

their platforms. Id. ¶¶ 69, 76, 94. Those rules unequivocally ban content that threatens violence 

of any kind, including terrorism.2

 Plaintiffs nonetheless allege that Defendants did not do 

 2 Twitter has always banned “threats” and use of the platform “for any unlawful purposes or in 

furtherance of illegal activities” and, for the sake of clarity, has since April 2015 made the ban 

on terrorist content more explicit by expressly prohibiting “threats of violence ... including 

threatening or promoting terrorism.” The Twitter Rules, available at https://support.twitter.com 

/articles/18311# (last visited June 23, 2017). YouTube removes “videos that encourage others to 

do things that might cause them to get badly hurt,” “gory content that ... encourage[s] others to 

commit specific acts of violence,” content “inciting others to commit violent acts,” and 

promotions of “violence against individuals or groups based on race or ethnic origin, religion, ... 

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enough to enforce these rules and that, instead of reviewing and removing content and blocking

accounts when notified of a violation (id. ¶¶ 55, 69), Defendants should have “proactively” 

“monitor[ed]” hundreds of millions of tweets, posts, videos, and other content transmitted via 

their platforms each day (id. ¶ 69), and pre-emptively “delete[d]” accounts of Hamas or its 

sympathizers “as soon as they [were] created” (id. ¶¶ 65, 74). The FAC asserts that because 

Defendants allegedly failed to take these steps, they provided “material support” to Hamas and 

thereby became civilly liable for all injuries that can somehow be traced back to Hamas’s 

activities—including, supposedly, the emotional injuries that Plaintiffs allegedly suffered as a 

result of Johnson’s shooting in Dallas. 

Based on these allegations, Plaintiffs seek treble damages under the ATA and recovery 

under state law for emotional distress they attribute to the Dallas shooting. Counts I and II seek 

to hold Defendants secondarily liable under § 2333(d) on the theory that Defendants knowingly 

provided substantial assistance to, and conspired with, Hamas. Count III seeks to hold 

Defendants directly liable under § 2333(a) on the theory that Defendants provided “material 

support” to Hamas in violation of 18 U.S.C. § 2339A, and that, “but for” that support, the attack 

“would have been substantially more difficult to implement.” FAC ¶¶ 172-177. Count IV also 

asserts direct liability under § 2333(a) on a material support theory, relying on 18 U.S.C. 

§ 2339B. Finally, Count V asserts a state law claim for negligent infliction of emotional distress. 

LEGAL STANDARDS ON A MOTION TO DISMISS

Rule 12(b)(6) requires dismissal where a complaint fails to “contain sufficient factual 

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

 

[or] nationality.” YouTube Community Guidelines, https://www.youtube.com/yt/ 

policyandsafety/communityguidelines.html (last visited June 23, 2017). Facebook bars 

organizations engaged in “terrorist activity,” and “remove[s] content that expresses support for 

groups that are involved in the violent or criminal behavior,” including content “[s]upporting or 

praising leaders of those same organizations, or condoning their violent activities.” Facebook 

Community Standards, available at https://www.facebook.com/communitystandards# (last 

visited June 23, 2017). These rules are incorporated by reference into the Complaint because it 

“necessarily relies upon” and quotes portions of them (FAC ¶¶ 69, 76, 94), there is no basis to 

question their authenticity, and they are relevant. See Coto Settlement v. Eisenberg, 593 F.3d 

1031, 1038 (9th Cir. 2010).

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556 U.S. 662, 678 (2009) (internal quotation marks omitted). The court need not “accept as true 

allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 

inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). 

Section 230 requires dismissal where its applicability “is evident from the face of the 

complaint.” Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014); see also Kimzey v. 

Yelp! Inc., 836 F.3d 1263 (9th Cir. 2016). Because § 230 protects online service providers not 

only from “ultimate liability,” but also from “having to fight costly and protracted legal battles,” 

Roommates, 521 F.3d at 1175, the immunity must be resolved “at the earliest possible stage of 

the case,” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, 591 F.3d 250, 255 (4th Cir. 2009). 

Given the extreme nature of a claim of terrorism, the court in an action under the ATA, as 

a matter of fairness, should give “extra-careful scrutiny” to plaintiffs’ allegations. In re Terrorist 

Attacks on Sept. 11, 2001, 349 F. Supp. 2d 765, 831 (S.D.N.Y. 2005), aff’d, 714 F.3d 118 (2d 

Cir. 2013); accord Rothstein v. UBS AG, 708 F.3d 82, 93-98 (2d Cir. 2013). 

ARGUMENT

I. Section 230 Requires Dismissal Of All Of Plaintiffs’ Claims

Section 230 provides immunity to “interactive computer service” providers from claims 

deriving from third-party content available on their sites or from their performance or nonperformance of “editorial functions” regarding such content. This sweeping federal immunity 

bars all of Plaintiffs’ claims, which seek to impose liability based on content allegedly posted on 

Defendants’ platforms by Hamas or its sympathizers. 

A. Section 230 Immunizes Interactive Service Providers From Liability For 

Third-Party Content

The broad scope of § 230 is apparent on its face: “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.” 47 U.S.C. § 230. As the Ninth Circuit has explained, this 

provision “immunizes providers of interactive computer services against liability arising from 

content created by third parties.” Roommates, 521 F.3d at 1162; accord Zeran v. Am. Online, 

Inc., 129 F.3d 327, 330 (4th Cir. 1997) (“§ 230 creates a federal immunity to any cause of action 

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that would make service providers liable for information originating with a third-party user of the 

service.”). That includes any claim that seeks to assign liability to service providers based on 

whether or how they exercise “traditional editorial functions,” Batzel v. Smith, 333 F.3d 1018, 

1031 n.18 (9th Cir. 2003), such as any “efforts, or lack thereof, to edit, monitor, or remove user 

generated content,” Doe v. Internet Brands, Inc., 824 F.3d 846, 852 (9th Cir. 2016). 

Section 230 immunity serves two purposes: (1) “to encourage the unfettered and 

unregulated development of free speech on the Internet”; and (2) to eliminate disincentives for 

service providers to self-police their platforms, out of fear that such action might itself subject 

them to liability. Batzel, 333 F.3d at 1027-1028. Given these important interests and the broad 

statutory language, courts across the country “have treated § 230(c) immunity as quite robust.” 

Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). Section 230 has been 

applied to a broad swath of content, including material alleged to be discriminatory, Roommates, 

521 F.3d at 1173-1174; false and defamatory speech, Zeran, 129 F.3d at 327; vile and lawless 

advertisements posted by sex traffickers, Doe v. Backpage.com, LLC, 817 F.3d 12, 21 (1st Cir. 

2016); an abhorrent and explicit incitement to violence by a terrorist group, Klayman, 753 F.3d 

at 1356-1357; and acts allegedly constituting the negligent infliction of emotional distress, 

Caraccioli v. Facebook, Inc., 167 F. Supp. 3d 1056 (N.D. Cal. 2016).

Judge Orrick’s two decisions in Fields v. Twitter and the recent Cohen decision show 

why § 230 bars the claims here. The plaintiffs in Fields alleged that Twitter had provided 

“material support” to ISIS by permitting ISIS members and sympathizers to use its services and 

that that “support” had proximately caused plaintiffs’ injuries. The plaintiffs in Cohen alleged 

the same with respect to Facebook and Hamas. The courts held that § 230 barred the claims 

because they sought to hold Twitter and Facebook liable for a quintessential publisher 

function—making third-party content available on their platforms. See Fields I, 200 F. Supp. 3d 

at 970-974; Fields II, 2016 WL 6822065, at *5-7, *10-11; Cohen, 2017 WL 2192621, at *12-13. 

That conclusion is correct and the reasoning behind it applies with equal force here.

B. Plaintiffs’ Claims Meet All The Requirements Of § 230 Immunity

Section 230 mandates dismissal when (1) the defendant is a “provider ... of an interactive 

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computer service”; (2) the allegedly harmful content at issue was “provided by another 

information content provider,” and not the defendant; and (3) the claim seeks to hold the 

defendant liable as a “publisher or speaker” of that content. 47 U.S.C. § 230(c)(1); see also 

Barnes, 570 F.3d at 1100-1101. Each of these elements is met here. 

1. Defendants Provide “Interactive Computer Services”

An “interactive computer service” includes “any information service, system, or access 

software provider that provides or enables computer access by multiple users to a computer 

server.” 47 U.S.C. § 230(f)(2). It is undisputed that Defendants’ online platforms satisfy this 

definition because users access their servers to share information with others. FAC ¶ 1 

(describing Defendants’ platforms as “social networks”); accord Fields I, 200 F. Supp. 3d at 969 

(no dispute that Twitter is an interactive computer service); Lancaster v. Alphabet Inc., No. 15-

CV-05299-HSG, 2016 WL 3648608, at *3 (N.D. Cal. July 8, 2016) (finding that YouTube and 

Google are interactive computer services); Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc., 144 F. 

Supp. 3d 1088, 1093 (N.D. Cal. 2015) (same for Facebook). 

2. Third Parties Provided The Allegedly Harmful Content Underlying 

Plaintiffs’ Claims

The second element—that “another information content provider” provided the content at 

issue—also is met here. An “information content provider” is “any person or entity 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.” 47 U.S.C. § 230(f)(3). “[S]o long as a 

third party willingly provides the essential published content, the interactive service provider 

receives full immunity regardless of the specific editing or selection process.” Carafano, 339 

F.3d at 1124. Plaintiffs concede that third parties, not Defendants, created all of the Hamasrelated content that was allegedly posted on Defendants’ services. FAC ¶ 151.

This conclusion is unaffected by Plaintiffs’ allegation that Defendants derived revenue 

from displaying advertisements. FAC ¶¶ 90-92, 99-102. Plaintiffs’ concession that Defendants 

did not create the content of any such ads (id. ¶ 151) forecloses any argument based on them. 

The “fact that a website elicits online content for profit is immaterial.” Goddard v. Google, Inc., 

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No. C 08-2738, 2008 WL 5245490, at *3 (N.D. Cal. Dec. 17, 2008) (rejecting argument that 

§ 230 did not apply because Google earned ad revenue in conjunction with display of usergenerated content); accord Hinton v. Amazon.com.dedc, LLC, 72 F. Supp. 3d 685, 690 n.9 (S.D. 

Miss. 2014) (same for Amazon). There is no “for-profit exception to § 230’s broad grant of 

immunity.” M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC, 809 F. Supp. 2d 1041, 

1050 (E.D. Mo. 2011); accord Roommates, 521 F.3d at 1161, 1174-1175 (affirming immunity 

even though website derived “revenue from advertisers and subscribers”). 

Stripping providers of immunity merely because they make money through advertising

also would make no sense. It would improperly “elid[e] the crucial distinction between, on the 

one hand, taking actions (traditional to publishers) that are necessary to the display of 

unwelcome and actionable content and, on the other hand, assuming responsibility for what 

makes the displayed content illegal or actionable.” Jones v. Dirty World Entm’t Recordings 

LLC, 755 F.3d 398, 414 (6th Cir. 2014). And it would render § 230 a dead letter, as most service 

providers are able to operate only by generating revenue through advertising displayed alongside 

third-party user-created content.

Equally without merit is Plaintiffs’ contention that, by allegedly displaying ads on the 

same page as alleged terrorist content, Defendants created new, composite content as to which

Defendants themselves were “information content providers.” FAC ¶¶ 91-92, 96-100, 148-155. 

Courts, including the Ninth Circuit, have uniformly rejected this gambit, holding that § 230 

immunity is not forfeited merely because the third-party content at issue was displayed alongside 

other third-party content (or even other content created by the service provider itself). The

provider’s conduct falls outside § 230 only where it “materially contribut[ed]” to the alleged 

unlawfulness of the content. Roommates, 521 F.3d at 1167-1168; accord Jones, 755 F.3d at 410

(“material contribution” means “being responsible for what makes the displayed content 

allegedly unlawful”). Here, Plaintiffs do not (and cannot) allege that Defendants, by allegedly 

displaying ads near the challenged postings, either materially contributed to the illegality of, or 

“change[d] the meaning and purpose” of, any Hamas-related content. Ascentive, LLC v. Opinion 

Corp., 842 F. Supp. 2d 450, 474 (E.D.N.Y. 2011).

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Nor does it matter that Defendants allegedly “target[ed] advertisements based on viewers 

and content” through the use of “proprietary algorithms.” FAC ¶¶ 91-92, 149. The technical 

processes by which those ads were placed do not change the application of § 230. The Ninth 

Circuit and other courts have held that the use of tools that filter or arrange third-party content 

does not involve the “creation” or “development” of information under § 230. Roommates, 521 

F.3d at 1167-1168; Carafano, 339 F.3d at 1124 (classifying user information into categories); 

Levitt v. Yelp! Inc., 2011 WL 5079526, at *6-9 (N.D. Cal. Oct. 26, 2011), aff’d, 765 F.3d 1123 

(9th Cir. 2014) (aggregating ratings based on user-generated data); see also Roommates, 521 

F.3d at 1169 (neutral tools do not affect § 230 immunity even if used to “carry out what may be 

unlawful or illicit” activities).

3. Plaintiffs’ Claims Seek To Treat Defendants As Publishers

Finally, Plaintiffs’ claims seek to hold Defendants liable as the “publisher or speaker” of 

allegedly harmful third-party content within the meaning of § 230. Plaintiffs seek to hold 

Defendants liable for the emotional distress they allegedly suffered as a result of the Dallas 

shooting because, they allege, Defendants “knowingly and recklessly” permitted Hamas or its 

allies to use their platforms to spread propaganda, raise funds, and recruit followers, and failed to 

take “meaningful action to stop” this activity by “censor[ing] user content” or “shut[ting] down 

... [Hamas]-linked account[s]” (FAC ¶¶ 1, 43, 53, 69, 72)—omissions that, Plaintiffs allege, 

constituted “material support” for Hamas, which in turn triggered a circuitous, multi-step chain 

reaction that ultimately led Micah Johnson to fire a gun at police officers in Dallas. The only 

alleged acts by Defendants in this attenuated chain—allegedly allowing content to be published 

or failing to censor it—are “traditional editorial functions,” and therefore are “precisely the kind 

of activity for which Congress intended to grant absolution with the passage of section 230.” 

Roommates, 521 F.3d at 1171-1172, 1184 (provider not liable for “failing to detect and remove” 

unlawful content); see also Klayman, 753 F.3d at 1355, 1358, 1359 (rejecting claims against 

Facebook for allegedly “refus[ing]” to take down “Intifada” pages that “called for Muslims to 

rise up and kill the Jewish people”). “[R]emoving content is something publishers do, and to 

impose liability on the basis of such conduct necessarily involves treating the liable party as a 

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publisher of the content it failed to remove.” Barnes, 570 F.3d at 1103. 

Because this same theory underlies all Plaintiffs’ claims, § 230 mandates dismissal of the 

entire FAC. A plaintiff cannot avoid § 230 simply by placing a different “labe[l]” on “an action 

that is quintessentially that of a publisher.” Barnes, 570 F.3d at 1103. For that reason, courts 

have dismissed exactly the sort of claims alleged here, including claims for providing material 

support to terrorists, Fields I, 200 F. Supp. 3d 964, Fields II, 2016 WL 6822065, Cohen, 2017 

WL 2192621, negligent infliction of emotional distress, Caraccioli, 167 F. Supp. 3d 1056, aiding 

and abetting, Goddard, 2008 WL 5245490, at *7, M.A. ex rel. P.K., 809 F. Supp. at 1041, and 

conspiracy, Shrader v. Beann, 503 F. App’x 650, 653 n.1, 654 (10th Cir. 2012).

Nor can Plaintiffs avoid this result by reformulating their claims as resting on 

Defendants’ “provision of the infrastructure which provides material support to HAMAS,” rather 

than on the “content of HAMAS’ social media postings.” FAC ¶ 7. The courts in Fields and 

Cohen rejected a nearly identical argument—that plaintiffs’ claims turned on the “provision of 

accounts” and not on the provider having published ISIS- or Hamas-related content. See Fields 

I, 200 F. Supp. 3d at 970-974; Fields II, 2016 WL 6822065, at *5-7; Cohen, 2017 WL 2192621, 

at *12-13. And federal appellate courts have rejected attempts outside the context of terrorism to 

evade § 230 by casting claims as concerning only the provision of accounts. See Universal 

Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 416, 420, 422 (1st Cir. 2007) (platform’s 

decision “not [to] prevent a single individual from registering under multiple screen names”—an 

act that allegedly “ma[de] it possible for individuals to spread misinformation more credibly”—

was “as much an editorial decision with respect to that misinformation as a decision not to delete 

a particular posting”); Doe v. MySpace, Inc., 528 F.3d 413, 419-420 (5th Cir. 2008) (allegations 

premised on failure to screen users when opening an account was “merely another way of 

claiming that MySpace was liable for publishing [users’] communications”). 

The principal problem, as Judge Orrick noted, is that a theory of liability for providing 

infrastructure would be just another way of penalizing a protected publishing decision: “the 

decision to permit third parties to post content.” Fields I, 200 F. Supp. 3d at 972. A decision 

about who may use an online communications platform is just as much a decision about what

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content may be posted as a decision to withdraw or alter specific content directly. See Fields I, 

200 F. Supp. 3d at 972-973; Cohen, 2017 WL 2192621, at *12 (“Facebook’s choices as to who 

may use its platform are inherently bound up in its decisions as to what may be said on its 

platform.”); cf. Reed v. Town of Gilbert, 135 S. Ct. 2218, 2230 (2015) (restrictions based on 

speaker’s identity often are ‘“simply a means to control content’”). Fields II reinforced this 

point: “[P]rohibit[ing] ISIS members and affiliates from acquiring accounts ... [is] a policy that 

necessarily targets the content, ideas, and affiliations of particular account holders.” 2016 WL 

6822065, at *6. The only difference between an infrastructure-provision theory and a failure-toremove theory is that the former would hold Defendants “liable for granting permission to post 

... instead of for allowing postings that have already occurred.” Fields I, 200 F. Supp. 3d at 972. 

Both target publisher activity, and both are barred by § 230. Id.

Not only is the infrastructure theory insufficient to avoid immunity, but it also is not even 

an accurate description of Plaintiffs’ claims. Despite Plaintiffs’ disclaimers, their FAC plainly 

seeks to hold Defendants liable for third-party content made available through their services. 

Like the Fields pleadings from which it borrows, the FAC is “riddled with detailed descriptions”

of Hamas-related “messages, images, and videos”—exactly what was alleged in Fields with 

respect to ISIS. Fields I, 200 F. Supp. 3d at 971; see also Fields II, 2016 WL 6822065, at *7. Its 

premise—and sole basis for attempting to connect Defendants to the underlying events—is that 

Hamas and its supporters allegedly used Defendants’ sites to spread hateful messages and 

Defendants should have done more to remove such material. Fields II, 2016 WL 6822065, at *7; 

Cohen, 2017 WL 2192621, at *13. That is a content-based theory. Indeed, Plaintiffs allege no 

other basis than the content of specific postings for asserting that Defendants’ platforms 

supported Hamas and thereby somehow caused the Dallas shooting. If Hamas had simply been 

granted access to Defendants’ “infrastructure” (i.e., services) but had never used that 

infrastructure to disseminate content, Plaintiffs could not possibly claim that Defendants “ha[ve] 

been instrumental to the rise of HAMAS”—let alone that Defendants “enabled [Hamas] to ... 

incite others to carry out terrorist attacks, including” the Dallas shooting. FAC ¶ 1. Such a

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theory necessarily seeks to hold Defendants liable for the alleged consequences of content 

transmitted through their services. 

This conclusion is unaffected by Plaintiffs’ assertions that Defendants could have used 

various (supposedly content-neutral) strategies to block more terrorist-related accounts. FAC

¶¶ 70-87. Because the necessary objective of such strategies would have been to exclude 

objectionable content, holding Defendants liable for not employing them would run afoul of 

§ 230. Moreover, Plaintiffs’ suggestion that these strategies would not have required Defendants 

to monitor or review third-party content (id. ¶¶ 82-85) is simply wrong. For example, Plaintiffs

fault Defendants’ alleged failure to develop and employ an automated mechanism to block new 

accounts with the same “name root” (and incremental “numerical suffix[es]”) as accounts that 

Defendants previously removed due to a suspected ISIS connection. Id. ¶¶ 82-83. But the only 

way to discover that a particular “name root” is associated with suspect content would be based 

on suspect content posted by a prior account. E.g., id. ¶ 81 (“The day after the attacks, he is now 

DriftOne0151 and he posts pictures of those individuals who conducted the [ISIS] attacks.”

(emphasis added)). The same is true of Plaintiffs’ proposed strategy of blocking new accounts 

that immediately seek and receive large numbers of followers. Id. ¶¶ 84-86. This strategy, too, 

relies on third-party content to decide whether an account is suspicious—namely, a Tweet 

containing a request such as, “Please F0ll0w & Retweet This Post!” (id. ¶ 77 fig. 11, ¶ 78 fig. 12, 

¶ 79 fig. 13), and/or the responses of other users, (id. ¶ 85). 

In sum, as in Fields and Cohen, Plaintiffs’ effort to impose liability based on Defendants’ 

handling of third-party content is barred by § 230.

II. All Of Plaintiffs’ Claims Also Fail On Their Own Terms

Even apart from § 230, each of Plaintiffs’ claims fail as a matter of law because the 

FAC’s allegations do not establish the essential elements of their claims. 

A. The Complaint Fails To Allege Facts Plausibly Establishing Proximate Cause 

(Counts III-V) 

As an initial matter, Plaintiffs’ claims for direct liability under the ATA and state law

(Counts III-V) fail because Plaintiffs cannot causally link their injuries to Defendants’ alleged 

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wrongful conduct. A plaintiff asserting a claim for direct liability under the ATA must plead and 

prove injury “by reason of”—that is, proximately caused by—“an act of international terrorism” 

committed by the defendant. 18 U.S.C. § 2333(a); see Al Rajhi, 714 F.3d at 123-125 (“by reason 

of” language imposes proximate cause requirement); Rothstein, 708 F.3d at 95. Congress 

borrowed this proximate cause language from the civil remedy provisions of the Sherman Act, 

26 Stat. 209 (1890), the Clayton Act, 15 U.S.C. § 15(a), and RICO, 18 U.S.C. § 1964(c). See 

Rothstein, 708 F.3d at 95. Because Congress “used the same words,” we “assume it intended 

them to have the same meaning”—namely, that plaintiffs must show “some direct relation 

between the injury asserted and the injurious conduct alleged.” Holmes v. Sec. Inv’r Prot. Corp., 

503 U.S. 258, 268 (1992); see also Bank of Am. Corp. v. City of Miami, Fl., Nos. 15-1111, 15-

1112, 2017 WL 1540509, at *9 (U.S. May 1, 2017) (“[D]irectness principles [apply] to statutes 

with ‘common-law foundations’”).3 Proximate causation likewise is an essential element of a 

claim for negligent infliction of emotional distress. See, e.g., Campos v. Ysleta Gen. Hosp., 836 

S.W.2d 791, 795 (Tex. App. 1992); Erlich v. Menezes, 21 Cal. 4th 543, 555 (1999).

Plaintiffs’ attenuated chain of causation does not come close to establishing a “direct 

relation” between their alleged injuries and Defendants’ allegedly unlawful conduct. Beyond 

insufficient conclusory assertions (FAC ¶¶ 165, 182), see Iqbal, 556 U.S. at 681; Rothstein, 708 

F.3d at 95, 97; Al Rajhi, 714 F.3d at 124-125, the FAC piles speculation upon speculation:

 3 Some out-of-circuit courts have read § 2333(a) to allow a looser causal connection than the 

Holmes test. E.g., Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 697 (7th Cir. 

2008) (en banc) (applying a more “relaxed” causation standard, at least in cases involving 

monetary donations funneled knowingly to a terrorist group); Linde v. Arab Bank, PLC, 97 F. 

Supp. 3d 287, 328 (E.D.N.Y. 2015) (requiring plaintiff to establish that defendant’s acts were “a 

substantial factor in causing plaintiffs’ injuries” and that “such injuries were a foreseeable result 

of those acts”), appeal pending, 2d Cir. No. 16-2134. These approaches ignore the express 

requirement that the injury be “by reason of” the defendant’s actions—language that, as shown 

above, had an established meaning when § 2333(a) was enacted. See Holmes, 503 U.S. at 267. 

Under a statutory “by reason of” test, there must be a “direct ... connection” between the 

defendant’s conduct and Plaintiffs’ injury. See Hemi Grp., LLC v. City of New York, 559 U.S. 1, 

11-12 (2010); Couch v. Cate, 379 F. App’x 560, 565 (9th Cir. 2010). In any event, as the Fields 

court held in rejecting the ATA claims in that case, the causal “connection” alleged here is 

“tenuous at best” and so insufficient “[e]ven under ... [a] ‘substantial factor’ test.” Fields I, 200 

F. Supp. 3d at 974; see also Fields II, 2016 WL 6822065, at *9.

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(1) Plaintiffs allegedly suffered emotional distress because of their connections to persons killed 

or injured by Johnson’s crime (FAC ¶¶ 137-138); (2) Johnson allegedly was inspired to commit 

his crime after becoming “radicalized, in part” by viewing the Facebook pages of certain “black 

separatist hate groups” (id. ¶¶ 129-132, 136); (3) some “black separatist hate groups” have 

posted content online calling for the killing of police officers in retaliation for unjustified 

shootings by police officers (id. ¶¶ 114-118, 121); (4) Hamas and others supposedly “tied” to 

Hamas allegedly “inspired,” and expressed “solidarity” with, “black separatist hate groups” onand off-line (id. ¶¶ 103-109, 110-113, 120); (5) Hamas and/or its sympathizers allegedly used 

Defendants’ services to transmit content to strengthen its organization (id. ¶¶ 1-2, 25-42), and 

(6) this claimed use was made possible by Defendants’ alleged failure to block Hamas and/or its 

sympathizers from using their platforms (id. ¶¶ 1, 43, 53, 69, 72).

4

 

The insufficiency of this extremely attenuated chain of causation is compounded by the 

weakness of each link. Inspiration alone—rather than money, weapons, or other tangible aid—

purportedly connects each critical step: Plaintiffs posit that Hamas and its sympathizers (or 

simply “pro-Palestinian” groups) “inspired,” or expressed “solidarity” with, certain of the socalled “black separatist groups,” some of whose messages allegedly “radicalized” Johnson. FAC

¶¶ 103, 132, 142. Plaintiffs fail even to link each step to the next: The FAC nowhere alleges 

that the specific Facebook pages Johnson supposedly viewed or “liked” called for murdering 

police officers or that the “black separatist” groups who created those pages are even the same 

groups or individuals who allegedly may have been inspired by Hamas. See id. ¶¶ 106-107, 114-

118, 121 (referring to posts by users with no alleged affiliation to any group whose page Johnson 

viewed). Instead, the FAC lumps together an array of different groups and individuals, including 

Black Lives Matter, seemingly on the theory that they all shared the same undefined “black 

separatist hate group” ideology and support of violence. 

 4 A trio of unsupported allegations also state that Johnson was “radicalized, in part, by reviewing 

postings of HAMAS and other terrorist groups on the internet and Defendants’ social media 

sites.” FAC ¶ 129; see also id. ¶¶ 132, 142. Such conclusory allegations must be disregarded on

a motion to dismiss. See In re Gilead Scis. Sec. Litig., 536 F.3d at 1055. And even if 

considered, the allegations do not cure the myriad other flaws in Plaintiffs’ causation theory. 

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Courts repeatedly have rejected far less attenuated theories of causation. The Second 

Circuit dismissed allegations that “providing routine banking services to organizations and 

individuals said to be affiliated with al Qaeda ... proximately caused the September 11, 2001 

attacks or plaintiffs’ injuries.” Al Rajhi, 714 F.3d at 124. That court likewise found insufficient 

allegations that UBS provided a state sponsor of terrorism with cash that would be used to cause 

and facilitate terrorist acts, Rothstein, 708 F.3d at 97, and allegations that defendants “provided 

funding to purported charity organizations known to support terrorism that, in turn, provided 

funding to al Qaeda and other terrorist organizations,” Al Rajhi, 714 F.3d at 124. In Fields, 

Judge Orrick rejected as too “expansive” the theory that Twitter’s alleged “provision of accounts 

to ISIS” rendered Twitter responsible for a terrorist attack allegedly carried out by an ISIS 

member. Fields II, 2016 WL 6822065, at *9. Each of those alleged causation theories was 

deemed “too speculative [and] attenuated to raise a plausible inference of proximate causation.” 

Fields I, 200 F. Supp. 3d at 974 n.4; Fields II, 2016 WL 6822065, at *10 n.3. The same is true 

here, where the chain of inferences is even more attenuated and less plausible.

Accepting Plaintiffs’ unbounded causation theory would have staggering consequences,

potentially exposing every online platform to liability for violence anywhere in the world simply 

because the perpetrator allegedly was inspired by hateful messages from a person or group who

in turn was inspired by a terrorist organization (or groups with objectives similar to that terrorist 

organization) that included members or sympathizers who may have been among the platforms’ 

billions of users. See Fields II, 2016 WL 6822065, at *9 (“Under such an expansive proximate 

cause theory, any plaintiff could hold [Defendants] liable for any ISIS-related injury without 

alleging any connection between a particular terrorist act and [Defendants’] provision of 

accounts.”). Such a theory would raise serious First Amendment concerns, essentially exposing 

Internet providers to liability merely for providing a neutral forum on which some actors engage 

in offensive or hateful speech.5 Indeed, Plaintiffs’ expansive theory would require platforms to 

 5 The First Amendment protects an intermediary’s editorial judgments regarding what third-party 

speech to transmit. E.g., Turner Broad. Sys. v. FCC, 512 U.S. 622, 636 (1994)); Arkansas Educ. 

Telev. Comm’n v. Forbes, 523 U.S. 666, 674 (1998). In addition, recognizing the tension 

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detect and remove not only incitements to violence, but also the plainly protected speech of 

“[b]lack journalists, artists and organizers representing Ferguson, [and] Black Lives Matter,” 

FAC ¶ 110, to name just a few. No principle of law or logic supports that result.

B. Plaintiffs’ Secondary Liability Claims Fail (Counts I-II)

Plaintiffs’ claims for secondary liability under 18 U.S.C. § 2333(d) also fail. Section 

2333(d), added to the ATA last year by the Justice Against Sponsors of Terrorism Act, Pub. L. 

No. 114-222 (enacted Sept. 28, 2016) (“JASTA”), provides a limited cause of action for aiding 

and abetting and conspiracy:

In an action under subsection (a) for an injury arising from an act of international 

terrorism committed, planned, or authorized by an organization that had been 

designated as a foreign terrorist organization under section 219 of the 

Immigration and Nationality Act (8 U.S.C. 1189) ..., as of the date on which such 

act of international terrorism was committed, planned, or authorized, liability may 

be asserted as to any person who aids and abets, by knowingly providing 

substantial assistance, or who conspires with the person who committed such an 

act of international terrorism.

Id. Section 2333(d) requires, at a minimum, (1) that plaintiffs’ injuries have “aris[en]” from “an 

act of international terrorism” that was (2) “committed, planned, or authorized” by a designated 

“foreign terrorist organization,” and (3) that defendants have aided and abetted (by “knowingly 

providing substantial assistance” to) or conspired with (by agreeing to and acting in furtherance 

of a common illegal enterprise) “the person who committed” the alleged “act of international 

terrorism.” Id. The FAC here does not satisfy any of these elements. 

1. The Dallas Shooting Was Not An Act Of “International Terrorism”

Under § 2333(d), aiding and abetting and conspiracy are actionable only where the 

primary violation (the act from which plaintiffs’ injuries allegedly arose) was an “act of 

 

between the First Amendment and a broad reading of the material support statutes on which 

Plaintiffs’ principal claims rest, the Supreme Court and Ninth Circuit have applied the avoidance 

canon to narrow the reach of those statutes. Liability for alleged “material support” by means of 

speech-related activity may therefore be imposed only where the speech bears a direct, nonspeculative relationship to terrorist purposes and the defendant actually coordinated or acted in 

concert with the terrorist group, see Holder v. Humanitarian Law Project, 561 U.S. 1, 23-25, 31-

32 (2010); Al Haramain Islamic Found. v. Dep’t of Treasury, 686 F.3d 965, 995-1001 (9th Cir. 

2012)—requirements that Plaintiffs cannot satisfy.

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international terrorism.” 18 U.S.C. § 2333(d) (emphasis added). “[I]international terrorism,” id.

§ 2331(1), as distinguished from the separate defined term “domestic terrorism,” id. § 2331(5), 

means terrorism that occurs “primarily outside ... the United States,” or “transcend[s] national 

boundaries” in the “means by which [it is] accomplished, the persons [it] appear[s] intended to 

intimidate or coerce, or the locale in which [its] perpetrators operate or seek asylum.” Id. 

§ 2331(1)(C). The statute does not authorize any form of civil liability (including secondary 

liability) for instances of domestic terrorism.

Here, the Dallas attack plainly was not an act of “international terrorism.” The shooting 

occurred entirely within the United States, as Plaintiffs admit, in Dallas, Texas; the 

“perpetrator[],” Johnson, was a former U.S. soldier (FAC ¶ 130 n.36); and the victims (the 

people Johnson “intended to intimidate or coerce,” 18 U.S.C. § 2331(1)(C)) all were Dallas law 

enforcement officers or bystanders (id. ¶¶ 1, 8). Plaintiffs do not allege that Johnson’s actions 

were directed or funded by any international terrorist group, that he traveled overseas to train for 

or plan the attack, or that there was any other relevant international connection. Rather, the FAC

alleges that Johnson was radicalized by viewing content online that had been created by “black 

separatist hate groups” and that he was angry that other U.S. police officers had killed black 

individuals in the United States. Id. ¶¶ 129-132 & 130 n.36. In short, nothing material about the 

Dallas shooting occurred outside the United States or transcended national boundaries. 

No court has suggested that an attack committed by an American in the United States 

constitutes “international terrorism” under § 2331(1). See Smith v. Islamic Emirate of 

Afghanistan, 262 F. Supp. 2d 217, 221-222 (S.D.N.Y. 2003) (warning that “an expansive 

interpretation of ‘international terrorism’ might render ‘domestic terrorism’ superfluous”). 

Indeed, to accept Plaintiffs’ suggestion—that an attack in the United States that was allegedly 

inspired by domestic “hate groups” who themselves were allegedly inspired by a foreign terrorist 

organization constitutes “international terrorism” (FAC ¶¶ 126-132, 139-147)—would radically 

expand the definition of “international” terrorism and disrupt a deliberate legislative choice. 

Congress created a federal civil remedy exclusively for injuries arising from acts of international

terrorism because it was filling a perceived gap in the law: before the ATA, U.S. victims of 

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terrorist acts that occurred abroad or in ways that transcended national boundaries may have 

lacked adequate remedies under existing domestic laws. See, e.g., H.R. Rep. No. 102-1040 

(1992) (§ 2333 would “facilitate civil actions” against terrorist attacks “occurring” in “locale[s]” 

that “might not have been subject to civil action in the U.S.”). But existing domestic law—

including state tort law—already provided and continues to provide remedies for victims of 

violence and terrorism within the United States. Here, Plaintiffs have invoked those domestic 

laws, and although their state law claim fails for reasons unrelated to geography, their assertion 

of that claim further confirms that their theory of liability does not satisfy the “international 

terrorism” element of § 2333(d).

2. Plaintiffs Fail To Allege Facts Establishing That Hamas Committed, 

Planned, Or Authorized The Dallas Shooting 

Section 2333(d) allows secondary liability only where the relevant act of international 

terrorism was “committed, planned, or authorized” by an entity that the U.S. government has

formally designated as a foreign terrorist organization. That is not the case here. 

Although Hamas is a designated foreign terrorist organization, the FAC fails to allege 

facts establishing that Hamas “committed, planned, or authorized” the Dallas shooting. Instead, 

it asserts—in a series of wholly conclusory allegations—that Johnson was radicalized by 

“reviewing postings of HAMAS and other terrorist groups,” that Hamas’s “stated goal” was to 

foment attacks by radicalizing individuals through social media, and that accordingly “an attack 

in the United States to which HAMAS’s use of social media caused or contributed constitutes an 

action by HAMAS.” FAC ¶¶ 129, 132, 139, 141-142. But Congress did not create a cause of 

action for attacks carried out by a lone wolf with no connection to a designated terrorist 

organization other than being “radicalize[d]” by “reviewing [its online] postings.” FAC ¶¶ 129, 

139. Rather, Congress carefully limited § 2333(d) to attacks “committed, planned, or 

authorized” by a designated foreign terrorist organization—terms that all require direct,

deliberate, and advance involvement by the terrorist organization with the attack. Thus, even if 

credited, the FAC’s unsubstantiated factual allegations about Hamas are insufficient. 

The FAC’s allegations about “black separatist hate groups” are even further removed 

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from what the statute requires. Plaintiffs offer vague claims that a “movement” allegedly “tied to 

Hamas” had “impl[ied] a connection between Hamas goals and black revolutionaries” and that 

some “Black journalists, artists and organizers representing Ferguson, Black Lives Matter, [and] 

Black Youth Project 100” had taken a delegation to “the occupied Palestinian Territories and 

Israel.” Id. ¶¶ 108-113. None of this provides any basis, much less a plausible one, for even 

suggesting that Hamas “committed,” “planned,” or “authorized” what happened in Dallas. And, 

as the FAC implicitly acknowledges by focusing on Hamas, neither Black Lives Matter nor any 

of the other alleged “black separatist hate groups” is a designated terrorist organization within 

the meaning of § 2333(d), even if the FAC could allege (which it does not, and cannot) that any 

of these organizations “committed, planned, or authorized” the Dallas shootings. Conspicuously 

missing from the FAC is any suggestion that Hamas knew of Johnson, communicated with or 

instructed him regarding the attack, knew about or approved his plan, or provided any direct 

assistance to him in connection with the attack. As such, the FAC falls far short of alleging that 

the Dallas shooting was “committed, planned, or authorized” by Hamas.

3. The FAC Fails To Allege Facts Establishing That Defendants Aided 

And Abetted Or Conspired With Johnson

Finally, Plaintiffs have not pled and cannot plead the essential substantive elements of 

aiding and abetting or conspiracy. By its terms, § 2333(d) requires that the defendant have 

“knowingly” provided “substantial assistance” to or conspired with “the person who committed 

[the] act of international terrorism” that injured the plaintiff. Here, the person who committed 

the acts that allegedly injured Plaintiffs was Micah Johnson (although, as shown above, those 

acts did not meet the definition of “international” terrorism), and the FAC does not come close to 

alleging the critical elements of secondary liability relating to Johnson’s acts. 

As for aiding and abetting, Plaintiffs offer not a single factual allegation to suggest that 

Defendants “knowingly” provided any aid to Johnson (or, indeed, to anyone else supposedly 

connected to the Dallas attack). See generally Halberstam v. Welch, 705 F.2d 472, 488 (D.C. 

Cir. 1983) (defendant must “knowingly and substantially assist the principal violation”), cited by

JASTA § 2(a)(5), Pub. L. No. 114-222. Plaintiffs’ only references to Defendants’ supposed 

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knowledge of Johnson’s crime are threadbare recitals not entitled to a presumption of truth. See 

Iqbal, 556 U.S. at 678. And even those are insufficient. For example, the FAC asserts without 

support that “Defendants knowingly provided substantial assistance and encouragement to 

HAMAS ... in committing, planning, or authorizing” the Dallas shooting. FAC ¶ 162. Not only 

does this establish no connection between Defendants and Johnson, but it also offers nothing to 

support the conclusion that Defendants had advance knowledge of the Dallas shooting, much less 

that they intended to assist or encourage that act. 

Nor does the FAC plead facts establishing that Defendants “substantially assisted” 

anyone (much less Johnson) in connection with the Dallas shooting. In Halberstam, the court 

looked to the five Restatement factors to assess whether assistance to another’s unlawful act was

“substantial” enough for aiding and abetting liability: “the nature of the act encouraged, the 

amount of assistance given by the defendant, his presence or absence at the time of the tort, his 

relation to the other [tortfeasor] and his state of mind.” 705 F.2d at 478 (quoting Restatement 

(Second) of Torts § 876, cmt. d). The court also looked to a sixth factor, the “duration of the 

assistance provided.” Id. at 484. These factors assume that the defendant must have acted in 

some deliberate way to assist the perpetrator in carrying out the “principal violation.” But the 

FAC asserts nothing remotely like that. It does not allege Defendants played any role in 

assisting Johnson’s plan for the attack, much less a “substantial” or “essential” one, or one that 

lasted for a meaningful duration or involved any culpable state of mind. Plaintiffs allege only 

that Defendants provided social media services to the public, and that Hamas sympathizers or 

affiliates might have been among the billions who used those services. And Plaintiffs admit that, 

far from promoting Hamas content, each Defendant had a practice of removing Hamas content 

and accounts from its platform. E.g., FAC ¶¶ 55, 69, 72, 75-76, 79. None of this supports a 

conclusion that Defendants provided “substantial assistance” to the acts that allegedly injured the

Plaintiffs here. See Halberstam, 705 F.2d at 478, 488. 

Plaintiffs also fail to allege facts supporting a conspiracy claim under § 2333(d). Civil 

conspiracy requires: “an agreement to do an unlawful act or a lawful act in an unlawful 

manner,” “an overt act in furtherance of the agreement,” and “injury caused by the act.” 

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Halberstam, 705 F.2d at 487; see also Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th 

Cir. 1999) (“To prove a civil conspiracy, the plaintiff must show that the conspiring parties 

‘reached a unity of purpose or a common design and understanding, or a meeting of the minds in 

an unlawful agreement.’”). Plaintiffs do not and cannot allege that any Defendant formed an 

unlawful agreement with anyone concerning the Dallas shooting, much less with Johnson, as 

would be required for liability under § 2333(d). At most, Plaintiffs assert that Defendants 

broadly agreed to provide their users with social media services, and that some of those users 

were Hamas members or sympathizers. That is not remotely a basis for a civil conspiracy claim. 

C. Plaintiff Pennie Has Not Pled A Cognizable Injury (All Counts)

All of Plaintiff Pennie’s claims suffer from a further and fatal defect: his failure (and 

inability) to allege an injury cognizable under the ATA or the state law that governs his claim for 

negligent infliction of emotional distress. The ATA permits an action by “[a]ny national of the 

United States injured in his person, property, or business,” 18 U.S.C. § 2333(a), and incorporates 

“general common law tort principles,” Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1010 (7th 

Cir. 2002); accord Lelchook v. Commerzbank AG, 2011 WL 4087448, at *2 (S.D.N.Y. Aug. 2, 

2011); Estates of Ungar v. Palestinian Auth., 304 F. Supp. 2d 232, 238 (D.R.I. 2004). Under 

traditional tort law, to recover for intentional or reckless infliction of emotional distress—the tort 

most analogous to Mr. Pennie’s ATA claims—where conduct was directed not at the plaintiff but 

at another person, the plaintiff must be “a member of such person’s immediate family who is 

present at the time.” Restatement (Second) of Torts § 46(2)(a). Similarly, for someone who, like 

Mr. Pennie, was not a “direct victim” of a tort to recover for negligent infliction of emotional 

distress under Texas law, the plaintiff must be “closely related” to the victim and his injury must 

result from the plaintiff’s “contemporaneous observance” of the incident. Freeman v. City of 

Pasadena, 744 S.W.2d 923, 923-924 (Tex. 1988) (no “bystander recovery for mental anguish” 

by a stepfather who witnessed aftermath of car accident in which stepsons were injured). “Th[is] 

limitation may be justified by the practical necessity of drawing the line somewhere, since the 

number of persons who may suffer emotional distress” from an unsettling event “is virtually 

unlimited.” Restatement (Second) of Torts § 46, cmt. 1. 

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Mr. Pennie satisfies none of these bedrock requirements. He alleges that he suffered 

emotional distress—but no bodily harm—after observing the aftermath of the Dallas shooting, in 

which officers he allegedly knew “individually and personally” were killed or injured. FAC 

¶ 137. But he does not allege he was present during the shooting or that anyone killed or hurt in 

the shooting was a member of his family. He thus meets neither the family nor the presence 

requirements—both of which are essential to his claim.6

III. The FAC Should Be Dismissed With Prejudice 

This action should be dismissed with prejudice, as any further attempt to amend would be 

futile. See AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). 

Plaintiffs have already amended once—after having had the benefit of Defendants’ initial 

motion—yet added little of substance and failed to cure any of the defects in the original 

complaint. See Rivera v. BAC Home Loans Servicing, 756 F. Supp. 2d 1193, 1200 (N.D. Cal. 

2010); In re Splash Tech. Holdings, Inc., 160 F. Supp. 2d 1059, 1071-1072 (N.D. Cal. 2001). 

And putting Defendants to the time and expense of having to move again to dismiss would 

disregard the nature of § 230 as an “immunity statute” that is meant to protect online service 

providers, like Defendants, “not merely from ultimate liability, but from having to fight costly 

and protracted legal battles.” Roommates, 521 F.3d at 1175.

CONCLUSION

For the foregoing reasons, the FAC should be dismissed with prejudice. 

 6 Defendants reserve the right to argue later that Plaintiff Zamarripa’s non-presence during the 

Dallas shooting is yet another reason why all of his claims must be dismissed. But because this 

motion does not advance that argument as to Mr. Zamarripa, this motion does not call for the 

Court to decide whether (1) (as some out-of-circuit courts have held) the ATA relaxes the 

presence requirement to permit surviving immediate family members to bring claims arising from 

a family member’s death in a terrorist attack, cf. Biton v. Palestinian Interim Self-Government 

Auth., 310 F. Supp. 2d 172, 181-182 (D.D.C. 2004); Goldberg v. UBS AG, 660 F. Supp. 2d 410, 

426 (E.D.N.Y. 2009), or (2) applicable state law recognizes an NIED claim under Mr. 

Zamarripa’s circumstances.

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Dated: June 23, 2017 Respectfully submitted,

/s/ Kristin A. Linsley

KRISTIN A. LINSLEY (CA SBN 154148)

klinsley@gibsondunn.com

JEANA BISNAR MAUTE (CA SBN 290573)

jbisnarmaute@gibsondunn.com

SHELI R. CHABON (CA SBN 306739)

schabon@gibsondunn.com

GIBSON, DUNN & CRUTCHER LLP

555 Mission Street, Suite 3000

San Francisco, CA 94105-0921

Telephone: (415) 393-8200

Facsimile: (415) 393-8306

Attorneys for Defendant 

FACEBOOK, INC.

/s/ Brian M. Willen

BRIAN M. WILLEN (pro hac vice)

bwillen@wsgr.com

WILSON SONSINI 

 GOODRICH & ROSATI, P.C.

1301 Avenue of the Americas 

New York, NY 10019 

Telephone: (212) 999-5800

Facsimile: (212) 999-5899

DAVID H. KRAMER (CA SBN 168452)

dkramer@wsgr.com

LAUREN GALLO WHITE (CA SBN 309075)

lwhite@wsgr.com

WILSON SONSINI 

 GOODRICH & ROSATI, P.C.

650 Page Mill Road

Palo Alto, CA 94304

Telephone: (650) 493-9300

Facsimile: (650) 565-5100

Attorneys for Defendant

GOOGLE INC.

/s/ Patrick J. Carome

SETH P. WAXMAN (pro hac vice)

seth.waxman@wilmerhale.com

PATRICK J. CAROME (pro hac vice)

patrick.carome@wilmerhale.com 

ARI HOLTZBLATT (pro hac vice)

ari.holtzblatt@wilmerhale.com

WILMER CUTLER PICKERING

 HALE AND DORR LLP

1875 Pennsylvania Avenue, NW

Washington, D.C. 20006

Telephone: (202) 663-6000

Facsimile: (202) 663-6363

MARK D. FLANAGAN (CA SBN 130303)

mark.flanagan@wilmerhale.com

WILMER CUTLER PICKERING

 HALE AND DORR LLP

950 Page Mill Road

Palo Alto, CA 94304

Telephone: (650) 858-6000

Facsimile: (650) 858-6100

Attorneys for Defendant

TWITTER, INC.

Case 3:17-cv-00230-JCS Document 43 Filed 06/23/17 Page 33 of 34
Case No. 3:17-CV-00230-JCS 27 Defendants’ Motion to Dismiss

Amended Complaint

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ATTORNEY ATTESTATION

I, Patrick J. Carome, am the ECF User whose ID and password are being used to file this 

Notice of Motion, Motion, and Memorandum. In compliance with N.D. Cal. Civil L.R. 5-

1(i)(3), I hereby attest that concurrence in the filing of the document has been obtained from 

each of the other signatories.

By: /s/ Patrick J. Carome 

 Patrick J. Carome

CERTIFICATE OF SERVICE

I hereby certify that on June 23, 2017, I electronically filed the above document with the 

Clerk of the Court using CM/ECF which will send electronic notification of such filing to all 

registered counsel.

By: /s/ Patrick J. Carome 

 Patrick J. Carome

Case 3:17-cv-00230-JCS Document 43 Filed 06/23/17 Page 34 of 34