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Retana v. Twitter Inc

United States District Court, N.D. Texas, Dallas Division

December 5, 2019

JESUS RETANA and ANDREW MOSS, Plaintiffs,
v.
TWITTER, INC., FACEBOOK, INC., and GOOGLE, LLC, Defendants.

          MEMORANDUM OPINION AND ORDER

          JANE J. BOYLE UNITED STATES DISTRICT JUDGE

         Before the Court is Defendants Facebook, Inc., Google, LLC, and Twitter, Inc.'s Motion to Dismiss Plaintiffs' Second Amended Complaint (Doc. 38).

         This 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.

         The 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.

         For the reasons that follow, the Court GRANTS Defendants' motion to dismiss (Doc. 38), and hereby DISMISSES Plaintiffs' claims WITH PREJUDICE.

         I. BACKGROUND

         The 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. ¶ 17.

         Plaintiffs 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.[1]

         According 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. ¶¶ 78-80.

         Plaintiffs 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, [2] and 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.

         To 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, ”[3] 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.

         These “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.[4] 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. ¶ 278.

         Finally, 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.[5] Based on these conversations, Plaintiffs believe that “approximately two years before the Dallas attack, Micah Johnson was directly radicalized by Hamas.” Id. ¶ 240.

         From 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.

         Defendants 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.

         II. LEGAL STANDARD

         Under 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) (citation omitted).

         “A 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)).

         The 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 ...


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