1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 STEVEN M. MCCARTHY, Case No. 25-cv-00862-JSW

8 Plaintiff, ORDER GRANTING MOTION TO DISMISS WITHOUT LEAVE TO 9 v. AMEND AND DENYING AS MOOT MOTION TO STAY DISCOVERY 10 META PLATFORMS INC., et al., Re: Dkt. Nos. 35, 68 Defendants. 11

12 13 This matter comes before the Court upon consideration of the motions to dismiss and to 14 stay discovery filed by Meta Platforms, Inc. (“Meta”) and Mark Zuckerberg (“Mr. Zuckerberg”) 15 (collectively “Defendants”). The Court has considered the parties’ papers, relevant legal 16 authority, and the record in this case and HEREBY GRANTS Meta’s motion to dismiss and 17 DENIES AS MOOT the motion to stay discovery. 18 BACKGROUND 19 Plaintiff Steven M. McCarthy (“Mr. McCarthy”) alleges that he was an active user of 20 Facebook for many years. (First Amended Complaint (“FAC”) ¶ 17.) Mr. McCarthy describes 21 himself as an “armchair historian” and alleges that he would post political cartoons to his 22 Facebook account, including two that are reproduced in his Complaint. (Id. ¶¶ 18-19.) Mr. 23 McCarthy contends that after he posted those two cartoons, Defendants disabled his account. (Id. 24 ¶¶ 20-22, 26-27.) 25 Mr. McCarthy asserts claims for alleged violations of his First Amendment rights to 26 freedom of speech and freedom of association, conversion, trespass to chattels, negligence, and 27 violations of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”). Mr. McCarthy 1 also seeks a declaration that Section 230 of the Communications Decency Act is unconstitutional. 2 The Court will address additional allegations as necessary in the analysis. 3 A. Applicable Legal Standards. 4 On a Rule 12(b)(6) motion, the Court assumes “that all the allegations in the complaint are 5 true[.]” Bell Atlantic Corp. v. Twombly,

(2007). A plaintiff’s obligation to 6 provide the “grounds” of their “entitle[ment] to relief” requires more than labels and conclusions, 7 and a formulaic recitation of the elements of a cause of action will not do[.] … Factual allegations 8 must be enough to raise a right to relief above the speculative level[.]”

“A claim has facial 9 plausibility when the Plaintiff pleads factual content that allows the court to draw the reasonable 10 inference that the Defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

, 11 678 (2009) (citing Twombly,

). 12 B. The Court Grants Meta’s Motion to Dismiss. 13 1. The Court Dismisses the State Law Claims.1 14 Mr. McCarthy does not address Defendants’ arguments relating to his conversion, 15 negligence, and trespass to chattels claims. The Court has independently reviewed those claims. 16 Mr. McCarthy fails to allege any facts to show Defendants’ actions were “wrongful,” which 17 precludes him from stating a conversion claim. See, e.g., King v. Facebook, Inc.,

776, 792 (N.D. Cal. 2021) (granting motion to dismiss conversion claim on basis that the 19 defendant was not obliged to retain content associated with the plaintiff’s account). He also fails 20 to allege that Defendants owed him any duty of care, an essential element of his negligence claim. 21 See id. at 786. In his claim for trespass to chattels, Mr. McCarthy alleges Defendants deprived 22 him of “his political cartoons” but also alleges he has shared those images in other media. (FAC ¶ 23 54.) The tort of “trespass to chattels lies where an intentional interference with the possession of 24 personal property has proximately caused injury.” Intel Corp. v. Hamidi,

, 1351 25 (2003) (cleaned up). Mr. McCarthy’s allegations are insufficient to plausibly allege Defendants’ 26 conduct amounts to trespass to chattels. 27 1 Defendants also argue that the FDUPTA claim should be dismissed because California law 2 governs the parties’ relationship and, even if it did not, McCarthy fails to state a claim. 3 McCarthy’s only argument in response is that Meta’s terms of service are unconscionable. (See 4 Dkt. No. 44, Opp. Br. at 9-10.) Those arguments were rejected in conjunction with Defendants’ 5 motion to transfer, and Mr. McCarthy has not presented the Court with anything that would 6 require revisiting that decision. (Dkt. No. 45, Order Granting Motion to Transfer at 3-5).) In 7 addition, McCarthy alleges that Defendants violated Florida Statute 501.2041(2), which provides 8 for a private right of action only for violations of subparagraphs 2(b) and (2)(d)(1). Fla. Stat. 9 501.2041(6). 10 Accordingly, the Court GRANTS Meta’s motion to dismiss each of the state law claims. 11 2. The Court Dismisses the First Amendment Claims.2 12 The First Amendment “‘prohibits only governmental abridgment of speech’ and ‘does not 13 prohibit private abridgment of speech.’” Children’s Health Defense v. Meta Platforms, Inc., 112

, 753 (2024) (“CHD”) (quoting Manhattan Cmty. Access Corp. v. Halleck,

, 15 808 (2019)). Defendants argue these claims must be dismissed because Mr. McCarthy fails to 16 allege any governmental action. The Court agrees. 17 In CHD, the court noted that private parties will be considered federal actors only in 18 “exceptional cases” and addressed the requirements necessary to establish private parties are 19 federal actors. Those requirements are: 20 (1) the “state policy” requirement and (2) the “state actor” requirement. … 21 To satisfy the state policy requirement, the alleged constitutional 22 deprivation must result from the exercise of some right or privilege created by the State or a rule of conduct imposed by the State or by a 23 person for whom the State is responsible. … 24 To satisfy the state actor requirement, the party must fairly be said to be a state actor, which requires that it meet one of four tests: (1) the 25 private actor performs a traditionally public function, …; (2) the 26 2 Mr. McCarthy argues his First Amendment claims arise under Section 1983 but his claims 27 are focused on federal government actors. Accordingly, the Section 1983 claims should be 1 private actor is a willful participant in joint activity with the government, …; (3) the government compels or encourages the 2 private actor to take a particular action, …; or (4) there is a sufficiently close nexus between the government and the challenged 3 action[.] 4

(internal citations and quotations omitted). 5 Mr. McCarthy’s allegations relating to both the state policy and state actor prongs are 6 insufficient under CHD to plausibly allege that the government is responsible for Defendants’ 7 decision to disable his account. See id. at 754. For example, Mr. McCarthy does not sufficiently 8 allege that that his account was disabled based on a state policy, rather than Defendants’ terms of 9 service. Although he vaguely alleges that congressional legislators, the Department of Health and 10 Human Services, and the Center for Disease Control urged Defendants to engage in censorship 11 through “threatened detrimental legislation,” fails to include any facts about those threats or how 12 they connect to his posts. (FAC ¶ 16.) Mr. McCarthy also alleges that the protections Defendants 13 are afforded by the Communications Decency Act support the inference that they can be 14 considered federal actors. However, the Ninth Circuit rejected that theory in CHD. CHD, 112 15 F.4th at 761-63. 16 Because the Court concludes Mr. McCarthy fails to allege facts to satisfy the tests 17 articulated in CHD, the Court GRANTS the motion to dismiss the First Amendment claims. 18 C. The Court Dismisses the Declaratory Judgment Claim. 19 Mr. McCarthy also sought a declaration that Section 230(c) of the Communications 20 Decency Act is unconstitutional but did not address this claim in his opposition. Mr. McCarthy 21 raised this issue in anticipation of Defendants’ reliance on Section 230(c) to defend against his 22 claims. Because the Court has disposed of his claims on other grounds, the Court does not reach 23 this argument and dismisses the claim on that basis. Cf. Huber v. Biden, No. 21-cv-6580, 2022

, at *10 (N.D. Cal. Mar. 18, 2022) (dismissing declaratory relief claim regarding 25 constitutionality of Section 230 on similar grounds). 26 D. The Court Denies Leave to Amend. 27 In general, the Court should grant leave to amend. Mr. McCarthy amended his claims ] once as a matter of right, and the arguments raised by Defendants demonstrate that further 2 |} amendment would be futile. See Fed. R. Civ. P. 15. Accordingly, the Court will dismiss the 3 claims with prejudice. 4 CONCLUSION 5 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss and 6 || dismisses Mr. McCarthy’s claims with prejudice. In light of this ruling, the Court DENIES the 7 || motion to stay discovery as moot and VACATES the case management conference. 8 The Court shall issue a separate judgment, and the Clerk shall close the file. 9 IT IS SO ORDERED. a | 10 || Dated: April 28, 2025 fo Ly Tike 1] JEFEREY 9. WHITE |." 12 United Stafes/District/udge if €yV

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