UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ashley Roberson

v. Civil No. 17-cv-749-JD Opinion No.

YouTube, et al.

O R D E R

Ashley Roberson, proceeding pro se, filed a complaint,

naming YouTube, Facebook, Twitter, Google, Blogspot.com, Patreon,

and GoFundMe as defendants.1 The defendants have filed motions

to dismiss, asserting that the court lacks subject matter

jurisdiction and personal jurisdiction, that Roberson fails to

state a claim, that Roberson impermissibly relies on DeLima’s

complaint, and other grounds. Some defendants also seek a change

of venue. Roberson did not respond to the motions.

1 Roberson was granted leave to proceed without paying the filing fee. With the complaint, Roberson filed a document titled “Durable Power of Attorney” in which she stated that she appointed Natasha DeLima to exercise the “powers and discretions” listed in the document. The magistrate judge ruled that DeLima, who is not a lawyer, could not represent Roberson in this action. Doc. no. 4. Roberson also moved to consolidate her case with cases filed in this court by DeLima and “other plaintiffs” but then moved to withdraw the motion to consolidate. The motion to withdraw was granted, and the motion to consolidate was denied as moot. I. Scope of Complaint

Roberson’s pro se complaint is cursory at best. As a

statement of her claims, Roberson provides the following:

“Consolidated Plaintiff’s Lawsuit for Violations of Civil Rights

Act, 1964, Election Rigging, Partner Compensation (YouTube and

Patreon), First Amendment Rights, Censorship, Illicit Shadow

banning of information, Cyberbullying, Copyright Infringement

Chapter 5, Illicit Monitoring, Unmasking, Defamation, NIED

Negligent Infliction of Emotional Distress.” Instead of

providing allegations to support her claims, Roberson refers to

“Lead Plaintiff Natasha DeLima, who has cited all of the like

issues from tampering w/ the election, harassing users,, [sic]

who suffered discrimination based on sexuality, political

beliefs, and popularity.” Roberson further states that she

“concurs with the lawsuit complaints of Natasha DeLima and has

suffered similar discrimination and harassment, and felt in

danger and unsafe, as though people could personally come after

her for her rights to use the internet, this should never be a

real fear, but it is.”

DeLima filed her complaint, DeLima v. YouTube, et al., 17-

cv-733-PB (D.N.H. Dec. 21, 2017), on the same day that Roberson

filed her complaint. As the defendants point out, Roberson

2 cannot rely on the allegations in DeLima’s complaint to support

her claims.

While Federal Rule of Civil Procedure 10(c) allows

incorporation by reference within a pleading or between filings

in the same case, the rule does not permit incorporation by

reference of allegations from an entirely separate case. See,

e.g., Kane v. R.J. Donovan State Prison,

, at *3

(S.D. Cal. Jan. 12, 2018); Crawford v. McFadden,

,

at *2 (D.S.C. May 4, 2017) (citing cases); Macias v. New Mexico

Dep’t of Labor,

(D.N.M. Mar. 31, 2014); 5A

Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1326 (3d ed. 2018).

Therefore, the only allegations considered for purposes of

the pending motions are those in Roberson’s complaint. The

allegations in DeLima’s complaint and in any other cases are not

incorporated by reference into Roberson’s complaint.

II. Subject Matter Jurisdiction

The court must determine whether subject matter jurisdiction

exists before considering the merits of the complaint. Acosta-

Ramirez v. Banco Popular de P.R.,

(1st Cir.

2013). The plaintiff generally bears the burden of showing

subject matter jurisdiction. Aversa v. United States,

(1st Cir. 1996). When jurisdiction is challenged

3 under Federal Rule of Civil Procedure 12(b)(1), the court takes

the factual allegations in the complaint as true, with reasonable

inferences in the plaintiff’s favor, and may also consider other

evidence that is submitted. Merlonghi v. United States,

(1st Cir. 2010).

A. Diversity Jurisdiction

In the complaint, Roberson states that jurisdiction is based

on diversity of citizenship. She also states that the amount in

controversy exceeds $75,000.2 Some defendants move to dismiss on

the ground that Roberson has not shown that the case meets the

amount in controversy requirement, $75,000, under

(a).

The complaint, standing alone, does not show the value of

Roberson’s claims beyond her own statement. “The amount in

controversy alleged in a plaintiff’s complaint ‘is accepted if

made in good faith,’ Dart Cherokee Basin Operating CO., LLC v.

Ownens,

(2014), and ‘[i]t must appear to a

legal certainty that the claim is really for less than the

jurisdictional amount to justify dismissal.’ St. Paul Mercury

Indem. Co. v. Red Cab Co.,

(1938).” Kersey v.

2 Although Roberson’s complaint mentions a “class”, she makes no allegations to show that a putative class would meet the amount in controversy requirement under the Class Action Fairness Act,

(d)(2).

4 Staples,

, at *2 (D. Mass. May 2, 2018). “Once

the damages allegation is challenged, however, the party seeking

to invoke jurisdiction has the burden of alleging with sufficient

particularity facts indicating that it is not a legal certainty

that the claim involves less than the jurisdictional amount.”

Spielman v. Genzyme Corp.,

(1st Cir. 2001)

(internal quotation marks omitted).

Roberson’s complaint includes no facts to show the amount in

controversy, and she filed nothing in response to the motions to

dismiss to support the amount in controversy. The defendants

plausibly argue that the claims do not meet the required amount.

Therefore, based on the record here, Roberson has not shown she

meets the amount in controversy requirement.

B. Federal Question

Although federal question jurisdiction is not raised by

Roberson, she mentions several potential federal causes of action

in the complaint: the Civil Rights Act of 1964, First Amendment

rights, and copyright infringement. Under

(a),

“[t]he district courts shall have original jurisdiction of all

civil actions arising under the Constitution, laws, or treaties

of the United States.” The defendants contend that federal

question jurisdiction under

does not exist

5 because the complaint does not state even a colorable claim for

relief under federal law or the constitution.

To sustain federal question jurisdiction, the federal claim

or claims must be colorable, that is the claim or claims must not

be “immaterial and made solely for the purpose of obtaining

jurisdiction” or “wholly insubstantial and frivolous.” Arbaugh

v. Y&H Corp.,

, 513 n.10 (2006). “[A] colorable

claim of a federal cause of action will confer subject matter

jurisdiction even though the claim itself may fail as a matter of

law on further examination.” Penobscot Nation v. Georgia-Pacific

Corp.,

(1st Cir. 2001). “Dismissal for lack of

subject-matter jurisdiction because of the inadequacy of the

federal claim is proper only when the claim is so insubstantial,

implausible, foreclosed by prior decisions of this Court, or

otherwise completely devoid of merit as not to involve a federal

controversy.” Steel Co. v. Citizens for a Better Env’t,

(1998).

While Roberson does not raise federal question as a basis

for jurisdiction, her list of claims clearly does. On the other

hand, however, she provides no facts to support the list of

claims. Based on her complaint, she alleges nothing that would

support a claim arising under federal law. Because Roberson did

not respond to the motions to dismiss, she offers nothing to

6 support her claim or claims or to show that she could amend her

complaint to allege facts that would support a federal cause of

action. Therefore, Roberson has not presented a colorable

federal question to support subject matter jurisdiction.

In the absence of subject matter jurisdiction, the case must

be dismissed.

Conclusion

For the foregoing reasons, the motions to dismiss (documents

nos. 13, 19, and 22) are granted on the ground that the court

lacks subject matter jurisdiction.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

June 12, 2018

cc: Joseph H. Aronson, Esq. Nolan C. Burkhouse, Esq. Timothy John McLaughlin, Esq. Ashley A. Roberson, pro se Matan Shacham, Esq. Travis Silva, Esq. Stephen J. Soule, Esq.

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