United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
the Court is Defendants Facebook, Inc., Google, LLC, and
Twitter, Inc.'s Motion to Dismiss Plaintiffs' Second
Amended Complaint (Doc. 38).
case is the latest in a string of lawsuits that
Plaintiffs' lawyers have brought in an attempt to hold
social media platforms responsible for tragic shootings and
attacks across this country-by alleging that the platforms
enabled international terrorist organizations to radicalize
the attacks' perpetrators. In fact, Plaintiffs'
lawyers brought a suit in the Northern District of
California, Pennie v. Twitter, Inc., 281 F.Supp.3d
874 (N.D. Cal. 2017), concerning the same Dallas shooting
this Court is confronted with here, albeit with different
plaintiffs. The court in that case dismissed the claims with
prejudice, finding that there was no connection between the
shooting and Hamas, the terrorist organization at issue.
Id. at 892. Yet, Plaintiffs' counsel made no
mention of that case in their briefing; counsel discussed the
case only after the Court questioned about it at oral
argument. See Unoff. Tr., 14:11-16:21.
Court dismisses this lawsuit with prejudice. Although the
complaint here alleges additional facts not found in
Pennie, the complaint nonetheless suffers from many
of the same deficiencies discussed in Pennie.
Plaintiffs here have not and after multiple attempts, clearly
cannot connect Hamas to the Dallas shooting.
reasons that follow, the Court GRANTS
Defendants' motion to dismiss (Doc. 38), and hereby
DISMISSES Plaintiffs' claims
facts here are taken from the Second Amended Complaint (SAC),
and disputed facts are noted as such. On July 7, 2016, Micah
Johnson attacked and killed five police officers, and injured
nine others, in Dallas, Texas. Doc. 36, Second Am. Compl,
¶ 1. Among those injured was Plaintiff Jesus Retana, who
was shot in his left arm and required surgery for the removal
of a bullet. Id. ¶ 16. Plaintiff Andrew Moss is
Retana's husband and has suffered severe emotional
distress from his husband's injuries. Id. ¶
allege that Defendants are liable for their injuries because
they provided material support to Hamas, which carried out
the Dallas attack by radicalizing Johnson. Id.
¶¶ 1, 8.
to Plaintiffs, Hamas was founded in December 1987 during the
First Intifada (or “uprising”) against Israel, as
an offshoot of the Muslim Brotherhood. Id.
¶¶ 23-24. As part of its mission, Hamas has
“carried out thousands of terrorist attacks in Israel,
the West Bank, and Gaza, murdering hundreds of Israeli and
U.S. citizens, ” as well as citizens from other
countries. Id. ¶ 28. Hamas was designated a
Foreign Terrorist Organization (FTO) under 8 U.S.C. §
1189 in 1997, and a Specially Designated Global Terrorist in
2001 pursuant to Executive Order 13224. Id.
allege that Defendants have given Hamas material support by
enabling it to recruit and spread its messages on
Defendants' social media sites. Id. ¶ 8.
Plaintiffs believe that “HAMAS reaches potential
recruits by maintaining accounts on Twitter, Youtube,
Facebook so that individuals across the globe may reach out
to them directly.” Id. ¶ 83. For example,
Hamas has three Twitter accounts: an English-language account
with 37, 000 followers, an Arabic-language account with 281,
000 followers, and another account with just under 10, 000
followers. Id. ¶ 10-12. Additionally,
Plaintiffs believe that Google shares revenue from
advertisements placed on Hamas videos with Hamas.
Id. ¶ 98. Thus, Plaintiffs allege that
“[t]hrough Defendants' Platforms and Services,
HAMAS leaders, operatives, and recruits are able to make
themselves available to HAMAS for HAMAS's terrorist
activities.” Id. ¶ 165.
connect Hamas-and by extension Defendants-to the Dallas
shooting, Plaintiffs allege that Defendants' social media
platforms have enabled Hamas to influence “black
separatist hate groups, ” who in turn radicalized Johnson.
See Id. ¶¶ 216-34. For example,
“HAMAS sympathizers and members” gave advice and
support to police protesters in Ferguson, Missouri.
Id. ¶ 217. As evidence of Hamas's influence
on these groups, Plaintiffs show a photograph of the
beheading of a police officer, which was apparently
photoshopped from a photograph of a Hamas member beheading
another individual. Id. ¶ 218. Moving on,
Plaintiffs allege that Hamas and the “black separatist
hate groups” communicated and met with each other. For
instance, Plaintiffs allege that members of different
“black separatist hate groups” went on a ten-day
trip to Palestinian territories and Israel in 2015, wherein
they participated in a riot against Israeli soldiers and
police officers. Id. ¶¶ 222-23.
Additionally, the Palestinian BDS Movement-which seeks
boycotts, divestments, and sanctions against
Israel-“reiterated its support for the growing Black
Lives Matter movement.” Id. ¶ 225.
“black separatist hate groups, ” in turn, called
for the shooting of police officers. Id.
¶¶ 226-30. Apparently “MAS leader Khalilah
Sabra” and Nihad Awad, leader of the Council on
American-Islamic Relations (CAIR) supported these protests.
Id. ¶¶ 231-32. Johnson was then allegedly
“radicalized, in part, by these organizations calling
for the murders of police officers” and by Hamas's
postings on Defendants' social media platforms.
Id. ¶¶ 234, 249. For example, Plaintiffs
allege that Johnson “liked” the Facebook pages of
the New Black Panther Party, Nation of Islam, and Black
Riders Liberation Army, “three groups which are listed
by the [Southern Poverty Law Center] as hate groups.”
Id. ¶ 250 (quotations omitted). Johnson also
liked the Facebook pages of the African American Defense
League, which called for the murder of police officers, and
Elijah Muhammed, the leader of the Nation of Islam.
Id. ¶¶ 252-53. Five days before the
shooting, Johnson posted on Facebook a “rant”
against white people, while a day before the shooting, the
African American Defense League said it was “time to
act.” Id. ¶¶ 255, 264. Thus,
according to Plaintiffs, “Micah Johnson was radicalized
by HAMAS's use of social media.” Id.
Plaintiffs also believe that Hamas directly radicalized
Johnson. Plaintiffs allege that in 2014, Johnson had a
conversation with a “Ms. X, ” whose name has been
withheld for security reasons. Id. ¶¶
235-36. In this conversation, Johnson allegedly told Ms. X
that he had just returned from serving in the army in
Afghanistan, and that he “was very much
pro-Gaza.” Id. ¶ 236. Johnson explained
that Palestinians were justified in their use of force
against Israel. Id. ¶ 237. He pointed Ms. X to
a Twitter page that contained Hamas messages and called for
the destruction of Israel, which led Ms. X to
“believe that he had been radicalized to the
Palestinian cause supporting violence against Israel.”
Id. ¶¶ 238-39. Based on these
conversations, Plaintiffs believe that “approximately
two years before the Dallas attack, Micah Johnson was
directly radicalized by Hamas.” Id. ¶
these allegations, Plaintiffs bring seven claims against
Defendants: (1) aiding and abetting acts of international
terrorism in violation of the Antiterrorist Act, 18 U.S.C.
§ 2333 (ATA)(secondary liability); (2) conspiring in
furtherance of acts of international terrorism in violation
of the ATA (secondary liability); (3) providing material
support in violation of 18 U.S.C. § 2339(a) and the ATA
(direct liability); (4) providing material support and
resources to a designated FTO in violation of 18 U.S.C.
§ 2339B(a)(1) and the ATA (direct liability); (5)
concealing material support and resources to a designated FTO
in violation of 18 U.S.C. § 2339C(c) and the ATA (direct
liability); (6) providing funds, goods, or services to or for
the benefit of specially designated global terrorists in
violation of Executive Order No. 13224, 31 C.F.R. Part 594,
50 U.S.C. § 1705, and the ATA (direct liability); and
(7) the negligent infliction of emotional distress (NIED).
Id. ¶¶ 292-332.
filed a motion to dismiss (Doc. 38). All briefing has been
submitted, and the Court held a hearing on the motion on
November 11, 2019. See Doc. 56. At the hearing, the
Court dismissed Plaintiffs' claims with prejudice. Unoff.
Tr., 65:5-9. This Order explains the Court's reasoning.
Federal Rule of Civil Procedure Rule 8(a)(2), a complaint
must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief . . . .”
Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) authorizes the Court to
dismiss a complaint for “failure to state a claim upon
which relief can be granted . . . .” Id.
12(b)(6). To survive a 12(b)(6) motion, “enough facts
to state a claim to relief that is plausible on its
face” must be pled. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted). At this
stage, a court “must accept all well-pleaded facts
alleged in the complaint as true and must construe the
allegations in the light that is most favorable to the
plaintiff.” J&J Sports Prods., Inc. v. Live Oak
Cty. Post No. 6119 Veterans of Foreign Wars, 2009 WL
483157, at *3 (S.D. Tex. Feb. 24, 2009) (quotation marks
omitted) (quoting Cent. Laborers' Pension Fund v.
Integrated Elec. Servs., 497 F.3d 546, 550 (5th Cir.
2007) (citation omitted)).
Fifth Circuit has held that dismissal is appropriate
“if the complaint lacks an allegation regarding a
required element necessary to obtain relief.”
Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th
Cir. 1995) (citation and quotation marks omitted).
Essentially, “the complaint must contain either direct
allegations on every material point necessary to sustain a
recovery . . . or contain allegations from which an inference
fairly may be drawn that evidence on these material points