1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ABDUL KAREEM KHAN, Case No. 23-cv-00816-SI

8 Plaintiff, ORDER DISMISSING AMENDED 9 v. COMPLAINT WITHOUT LEAVE TO AMEND 10 TWITTER, INC., Re: Dkt. No. 22 11 Defendant.

12 13 On February 6, 2023, self-represented plaintiff Abdul Kareem Khan filed a complaint 14 against Twitter, Inc with a motion for leave to proceed in forma pauperis. Dkt. No. 1. On July 2, 15 2023, Magistrate Judge Beeler issued a Screening Order pursuant to

(e)(2)(B) 16 dismissing the case with leave to amend. Dkt. No. 17. Plaintiff did not amend by the deadline, and 17 because not all parties had agreed to have the case heard by a magistrate judge, Judge Beeler issued 18 an order reassigning the case along with a report and recommendation that the complaint be dismissed with prejudice. Dkt. No. 18. Plaintiff objected to the report and recommendation, and 19 the Court gave him another opportunity to amend his complaint to fix the deficiencies identified in 20 the Screening Order. Dkt. No. 21. On September 20, 2023, plaintiff filed an amended complaint 21 against Twitter, Inc. Dkt. No. 22. The complaint asserts numerous claims, many of which were not 22 asserted in the original complaint. The asserted claims include intentional infliction of emotional 23 distress1; breach of contract2; violation of

; violation of section 2 of the Sherman 24 25 1 The amended complaint includes two counts that do not allege causes of action but rather 26 damages: “irreparable injury of reduced health span and lifespan due to sleep deprivation” and “irreparable injury of time and energy lost.” The Court considers these counts under the IIED tort 27 claim. 1 Antitrust Act; violations of California Business and Professions Code § 17200; and violation of 15

and

The complaint also asserts a count of “liable for reparation” under 3

. Plaintiff seeks $15 million from Twitter for personal and economic injuries. 4 5 BACKGROUND 6 All factual allegations are taken from plaintiff’s amended complaint. Dkt. No. 22 7 (“Amended Compl.”). Plaintiff is “involved in business activities” and subscribed to be a user of 8 Twitter’s online networking platform on February 8, 2013.

. Plaintiff has shared some of his 9 activities on Twitter’s networking platform.

. 10 In April or May 2020, plaintiff came across a tweet or retweet from the Twitter handle of 11 Emma Watson.

. Plaintiff had been seeking funds for some projects and sent proposals to 12 Watson through her Los Angeles based talent agent.

. “While plaintiff was still expecting 13 to build a rapport with the artist,” around August 2020 and onwards, he began receiving “annoying” 14 Twitter email notifications on a daily basis about tweets by an anonymous Twitter handle “Emma 15 Watson Updates” that tweeted or retweeted content related to Watson.

. Plaintiff either 16 deleted these emails or left them in his email inbox, sometimes without opening them and sometimes 17 after reading them.

Plaintiff has replied to tweets or retweets by Watson on her official Twitter 18 handle but has never interacted with the “Emma Watson Updates” Twitter handle.

. Plaintiff 19 asked Watson’s agent to look into the issue of these email notifications and the agent assured 20 plaintiff in an email that he would, but nothing changed.

. 21 On August 29, 2021, plaintiff changed his email ID provided to Twitter for subscribing to 22 its online platform.

. He also checked his Twitter account settings to see if there was an 23 option to filter out unwanted email notifications.

. Plaintiff was not able to find a way to 24 limit email notifications to only desired notifications.

On February 5, 2022, plaintiff emailed a 25 notice to the former CEO of Twitter asking him to look into the sending of the unwanted 26 notifications and to take the necessary steps to filter out the “Emma Watson Updates” notifications 27 1 from other notifications Twitter was emailing him.

. Twitter didn’t respond.

. On 2 August 27, 2022, plaintiff sent a second notice via registered air mail; the envelope was returned to 3 plaintiff.

. On September 5, 2022, plaintiff sent a copy of the notice to Twitter’s former 4 Board Chairman via email and a hard copy to Twitter.

On November 10, 2022, after Elon Musk 5 acquired Twitter, plaintiff sent copies of the two notices to Musk through his attorney and to 6 Twitter’s major shareholders via email or postal service.

. He did not receive a response. 7

8 Plaintiff alleges that after receiving the first notice, Twitter engaged in retaliatory action 9 because instead of taking corrective measures, Twitter engaged in “intentional infliction of 10 emotional damages by deliberately and aggressively spamming his inbox not only with more [Emma 11 Watson Updates] notifications but also with a cluster of email notifications about rubbish tweets by 12 a number of different Twitter handles.”

. After plaintiff emailed Twitter the first notice, the 13 titles of some of the notifications that plaintiff received in March and April of 2022 had the names 14 of geographical locations.

. 15 Plaintiff alleges that the “Emma Watson Updates” email notifications caused him 16 “emotional distress, sleep deprivation, cardiac arrhythmia, and other health issues.”

. 17 Additionally, “[l]ack of concentration on professional activities due to emotional distress and sleep 18 deprivation made him out of work and his personal funds and savings fully exhausted.”

Plaintiff 19 alleges that Twitter’s inaction regarding the notifications hindered his ability to earn a living.

20 ¶ 8. He further alleges that the “aggressive harassment” by Twitter adversely affected his Circadian 21 rhythm which in turn affected his creativity and productivity.

. For example, in March 2022, 22 plaintiff resumed video production of a song but “lost control over the project expenditure due to 23 the lack of concentration owing to emotional distress and sleep deprivation.”

He further alleges 24 that due to sleep deprivation caused by Twitter and “related frustrations,” he tripped on some steps 25 and fell on May 1, 2023, causing distal radial fracture in his right hand.

. 26 27 1 LEGAL STANDARD 2 The statute that authorizes courts to allow lawsuits to proceed without prepayment of the 3 filing fees also requires the Court to dismiss the case if the action is frivolous, malicious, fails to 4 state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is 5 immune from such relief.

(e)(2)(B). For purposes of

, a frivolous 6 claim is one that “lacks an arguable basis either in law or fact.” Neitzke v. Williams,

, 7 325 (1989). To state a claim for relief, the complaint must contain “a short and plain statement of 8 the claim showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The plaintiff must 9 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 10

(2007).4 The complaint need not contain “detailed factual allegations,” but the 11 plaintiff must “provide the grounds of his entitlement to relief,” which “requires more than labels 12 and conclusions”; a mere “formulaic recitation of the elements of a cause of action” is insufficient. 13

(internal quotations omitted). Pro se pleadings must be liberally construed. Balistreri v. 14 Pacifica Police Dep’t,

(9th Cir. 1990). 15 16 DISCUSSION 17 I. Intentional Infliction of Emotional Distress (IIED) 18 Plaintiff alleges that Twitter engaged in IIED by spamming his inbox with the Watson 19 notifications and a cluster of other email notifications about tweets by a number of different Twitter 20 handles. Amended Compl. ¶ 22. Plaintiff further alleges that Twitter “deliberately neglected” to 21 act upon the notices plaintiff sent and engaged in retaliatory action of IIED. Id. ¶¶ 35-36. 22 Under California law, the elements of an IIED claim are “(1) extreme and outrageous 23 conduct by the defendant with the intention of causing, or reckless disregard of the probability of 24 causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and 25 (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” 26 4 “The standard for determining whether a plaintiff has failed to state a claim upon which 27 relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 1 Hughes v. Pair,

(2009) (internal quotations omitted). A defendant’s conduct 2 is “outrageous” when it is “so extreme as to exceed all bounds of that usually tolerated in a civilized 3 community.”

(quoting Potter v. Firestone Tire & Rubber Co.,

(1993). 4 Additionally, the defendant’s conduct must be “intended to inflict injury or engaged in with the 5 realization that injury will result.”

6 The Court accepts as true that plaintiff has suffered emotional distress from the unwanted 7 receipt of Twitter email notifications. However, plaintiff cannot meet the first element of an IIED 8 claim on these facts. While the inability to filter out unwanted email notifications is frustrating, it 9 does not rise to the level of extreme and outrageous conduct. Furthermore, there is no indication 10 that Twitter intended to cause plaintiff severe emotional distress through the email notifications or 11 realized that the email notifications, which plaintiff presumably opted into when he registered as a 12 Twitter user, would cause severe emotional distress. Plaintiff subscribed to be a user of Twitter’s 13 online networking platform on February 8, 2013. Amended Compl. ¶ 4. In his February 2022 email 14 notice to Twitter, plaintiff indicated that he is an active Twitter user. Dkt. No. 1 at 6. In the letter 15 plaintiff sent to Twitter in August 2022, plaintiff seems to admit that he could have unsubscribed to 16 the “highlights notifications” but chose not to. Id. at 8. Plaintiff has also inadequately pled the third 17 element, causation. He admits that he deleted some of the email notifications and sometimes did 18 not read them and does not explain how the email notifications caused him to suffer the extreme 19 emotional distress he alleges. Amended Compl. ¶ 9.5 20 21 II. Breach of Contract 22 Judge Beeler’s Screening Order indicated that plaintiff could perhaps plead a breach of 23 contract claim if he identified Twitter’s obligation to do something about the conduct under its terms 24 of service. Dkt. No. 17 at 4. In response, plaintiff alleges that Twitter failed to perform its 25

26 5 Plaintiff also alleges that due to the “arrogance, refusal, and failure on the part of Defendant Twitter, even under Mr. Elon Musk as its acquirer, to protect Plaintiff’s emotional and physical 27 well-being” he is entitled to punitive damages. Amended Compl. ¶ 40. Because the Court concludes 1 obligations under the 2018 Twitter User Agreement. Amended Compl. ¶¶ 41, 44, 47. The Twitter 2 User Agreement includes its Terms of Service, Privacy Policy, Twitter Rules, and associated 3 policies.6 Plaintiff specifically alleges that Twitter misused his email address, failed to prevent 4 spam, engaged in abusive behavior, and did not provide plaintiff an option to filter out and choose 5 what email notifications he wanted to receive. Id. at ¶¶ 44, 47, 48. 6 Under California law, the elements of a breach of contract claim are: “(1) the existence of 7 the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and 8 (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. Goldman,

(2011). “And if defendants were given the right to do what they did by the express provisions of 10 the contract there can be no breach.” Carma Devs. (Cal.), Inc. v. Marathon Dev. Cal., Inc.,

4th 342, 374 (1992). 12 Although plaintiff has now pointed the Court to the existence of a contract, plaintiff has 13 failed to allege a breach of the 2018 User Agreement (“Agreement”) by Twitter. The provisions of 14 the Agreement that plaintiff includes as exhibits to his amended complaint refer to what Twitter 15 users (such as plaintiff) can and cannot do: users “may not use Twitter’s services for the purpose of 16 spamming anyone,” Twitter prohibits “behavior that crosses the line into abuse…,” users “may not 17 engage in the targeted harassment of someone…”). See Dkt. No. 22-11, 22-12. Plaintiff includes 18 at Exhibit N one sentence under the “Spam and security” section of the Agreement; the full text 19 likewise lists actions Twitter users may not do or attempt to do. See

. The full Agreement 20 indicates: “You understand that by using the Services, you may be exposed to Content that might 21 be offensive, harmful, inaccurate… [w]e may not monitor or control the Content posted via the 22 Services and, we cannot take responsibility for such Content.” The Agreement further indicates that 23 users may deactivate their account at any time. The Court has reviewed the full Agreement and 24 cannot locate any provision that Twitter may have breached on the alleged facts. 25 26 6 Plaintiff references a 2018 Twitter User Agreement and includes screenshots of select 27 portions of that Agreement in his amended complaint. The Court has located a complete copy of 1 III.

2

– protection of nonpublic personal information – applies to financial 3 institutions and requires financial institutions to establish certain safeguards with respect to the 4 privacy of their customers. Because Twitter is not a financial institution as described in 15 U.S.C. 5 § 6805,

is inapplicable to the facts plaintiff alleges. 6 7 IV. Section 2 of the Sherman Antitrust Act (

) 8 Plaintiff alleges that because some of the email notifications he received in March and April 9 of 2022 had the names of geographical locations, Twitter must have tracked plaintiff’s IP address 10 or laptop activities, conduct plaintiff alleges is in violation of the Sherman Antitrust Act. Amended 11 Compl. ¶ 24. 12 As an initial matter, the Court notes that the 2018 Twitter User Agreement expressly 13 indicates in its Privacy Policy that “when you use Twitter… we receive some personal information 14 from you like the type of device you’re using and your IP address.” The Agreement further indicates 15 that Twitter “requires information about your signup and current location.” 16 Section 2 of the Sherman Act prohibits the monopolization of trade or commerce among the 17 states or with foreign nations.

. This provision is inapplicable to the facts plaintiff 18 alleges. Section 1 of the Sherman Act is likewise inapplicable because that section prohibits 19 agreements that restrain trade or reduce competition in the market.

. 20 Plaintiff separately alleges that Twitter is liable for reparation under

due to 21 the sunk costs of plaintiff’s song. Amended Compl. ¶ 46. This section of the U.S. Code is also part 22 of the Sherman Act and applies to persons injured in their business or property by anything 23 forbidden under the antitrust laws of the United States. This provision is likewise inapplicable to 24 the facts plaintiff alleges. 25 26 V. California Business and Professions Code § 17200 27 Plaintiff alleges that Twitter committed a deceptive and unfair business practicing by 1 failing to respond to the notices plaintiff sent. Id. ¶¶ 43, 45. 2 California Business and Professions Code § 17200 provides: “As used in this chapter, unfair 3 competition shall mean and include any unlawful, unfair or fraudulent business act or practice and 4 unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 5 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” 6 The scope of this provision is broad, and the California Legislature intended this language to include 7 “anything that can properly be called a business practice and that at the same time is forbidden by 8 law.” Bank of the West v. Superior Court,

(1992); Cel-Tech Communications, 9 Inc. v. Los Angeles Cellular Telephone Co.,

(1999). However, an action under 10 this provision “is not an all-purpose substitute for a tort or contract action” and the remedies 11 provided are limited. Cortez v. Purolator Air Filtration Products Co.,

(2000). 12 “It is well established that individuals may not recover damages.” Korea Supply Co. v. Lockheed 13 Martin Corp., 29 Cal 4th 1134, 1150 (2003) (citation omitted). 14 Plaintiff is seeking compensation for personal and economic injury, which are individual 15 damages. Because the relief plaintiff seeks is not available under this provision, the Court does not 16 reach the issue of whether the alleged facts make out a plausible claim. 17 18 VI.

and

19 Plaintiff alleges that Twitter “misled and breached its public assurance” in violation of 15

(a)(4)(A)(ii) (unfair methods of competition) and

(a)(b) (dissemination 21 of false advertisements) by failing to act upon the notices plaintiff sent to Twitter regarding the 22 unwanted email notifications. Amended Compl. ¶ 45. 23

prohibits “unfair methods of competition in or affecting commerce, and 24 unfair or deceptive acts or practices in or affecting commerce.” Plaintiff does not allege that the 25 receipt of unwanted email notifications affects commerce. Thus, this provision of the U.S. Code is 26 inapplicable to the alleged facts. 27

prohibits the dissemination of false advertisements by United States mail and 1 or likely to induce the purchase of food, drugs, devices, services, or cosmetics.

(a). 2 || The dissemination of a false advertisement within the provisions of subsection (a) “shall be an unfair 3 or deceptive act or practice in or affecting commerce within the meaning of section 45 of this title.” 4 ||

at § 52(b). Plaintiff does not allege that he received any false advertisements through United 5 States mail, much less advertisements for the purpose of inducing or likely to induce the purchase 6 of food, drugs, devices, services, or cosmetics. Thus, this provision of the U.S. Code is inapplicable 7 || to plaintiff's alleged facts. 8 9 CONCLUSION 10 For the reasons stated in this order, pursuant to

(e)(2), the Court concludes 11 that the complaint fails to state a claim, and that the deficiencies cannot be cured by amendment. 12 || Accordingly, the Court DISMISSES the complaint without leave to amend.

IT IS SO ORDERED. 3 15 Dated: October 3, 2023

5 SUSAN ILLSTON nited States District Judge 18 19 20 21 22 23 24 25 26 27 28