Castronuova v. Meta Platforms, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CARA CASTRONUOVA,

MEMORANDUM AND ORDER

Plaintiff,

23-CV-7511(KAM)(AYS)

-against-

META PLATFORMS, INC.; X CORP.;

VIVEK MURTHY in his official capacity

as United States Surgeon General;

JOSEPH R. BIDEN, JR., in his official

capacity as President of the United

States;

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Cara Castronuova (“Plaintiff”), by her counsel,

filed the complaint in the instant case on October 7, 2023, seeking

declaratory relief, injunctive relief, and damages against

defendants Meta Platforms, Inc. (“Meta”), X Corp., Surgeon General

of the United States Vivek Murthy (“Murthy”), and President of the

United States Joseph R. Biden, Jr. (“Biden”) (Defendants Biden and

Murthy together, the “federal Defendants”). (See generally ECF

No. 1, Complaint (“Compl.”).) Plaintiff asserts claims arising

under the Constitution, 42 U.S.C. § 1983, and state law. (Id.)

Defendants Meta and X Corp. have moved to transfer the case to the

Northern District of California pursuant to 28 U.S.C. § 1404(a).

For the reasons that follow, Defendants’ motion to transfer is

GRANTED.

Separately, on March 22, 2024, the Court ordered Plaintiff to

show cause why the complaint should not be dismissed for failure

to properly serve defendants pursuant to Fed. R. Civ. P. 4(m).

Plaintiff responded on March 29, 2024, and April 8, 2024. (See

ECF Nos. 26-30.) For the reasons that follow, the Court DISMISSES

the action without prejudice against federal Defendants Biden and

Murthy due to Plaintiff’s failure to effectuate service within 90

days after the complaint was filed, as prescribed by Fed. R. Civ.

P. 4.

I. BACKGROUND

A. Factual Background

Plaintiff brings claims against Defendants arising under both

federal and state law. (See generally Compl.) Plaintiff alleges

in her complaint that she is a “public figure” who has moved into

journalism “as a reporter at The Gateway Pundit and Newsmax.” (Id.

at ¶19.) Plaintiff alleges that she has “become active

politically” and participated in a variety of political activities

from 2020 forward. (Id. at ¶¶20-25.) Plaintiff alleges that after

participating in a political rally, her “main Facebook1 account

1 Plaintiff refers to Defendant Meta as “Facebook” throughout the Complaint,

alleging that Meta was “formerly Facebook, Inc.” and operates the Facebook

platform. (Compl. at ¶¶10, 48.)

was suspended permanently without any warning.” (Id. at ¶25.)

Plaintiff alleges that the deactivation of her Facebook account

prevented her from connecting with other individuals and taking

advantage of economic opportunities. (Id. at ¶¶26-31.) Plaintiff

also alleges that she has been “shadow-banned2” by Twitter3 and

that none of her “postings or forwards are permitted to be seen.”

(Id. at ¶33.) Plaintiff alleges that “when she attempts to send

a message out, it is automatically flagged as ‘suspicious

content,’” among other complaints. (Id. at ¶34.) Plaintiff

alleges that “Defendants Biden and Murthy directed Defendants

Facebook and Twitter to remove [her] social media posts because

they disagreed with the viewpoints she espoused in them.” (Id. at

¶46.) Because of this alleged coordination between the federal

Defendants and Meta and X Corp., Plaintiff alleges that “Facebook

and Twitter engaged in state action when they removed posts like

[Plaintiff’s] at the request of Murthy and Biden based on the

viewpoint of those posts.” (Id. at ¶69.) For these alleged harms,

Plaintiff seeks declaratory and injunctive relief against all

defendants, as well as “compensatory and nominal damages” from

Meta and X Corp. (Id. at ¶¶75-76.)

2 Though Plaintiff does not define the term, she alleges that, as a result of

being shadow-banned by Twitter, “her posts cannot be seen by anyone who was not

already following her, and any post or information she sends from her Twitter

account is flagged as ‘dangerous’, are hidden, or simply blocked altogether.”

(Compl. at ¶8.)

3 Plaintiff refers to Defendant X Corp. as “Twitter” throughout the Complaint,

alleging that X Corp. was “formerly Twitter.” (Compl. at ¶11.)

B. Procedural Background

Plaintiff initially instituted this action on October 7,

2023, but failed to provide a completed civil cover sheet to the

Clerk’s Office. The Clerk’s Office provided notification on the

docket to Plaintiff three times, warning in the final notice that

“[i]f in 30 days of the filing date (11/6/2023), we do not receive

the completed and needed form, this case will be administratively

closed.” (Docket Entry dated October 16, 2023.) Plaintiff

ultimately filed a civil cover sheet on October 27, 2023, but

failed to provide proposed summonses for each defendant. (ECF No.

2.) After notice from the Clerk’s office, Plaintiff provided

proposed summonses, which were issued on October 30, 2023, as to

each of the Defendants. (ECF Nos. 6-9.)

Plaintiff failed to file any proof of service on the docket

to show that the summons and complaint had been served, but

Defendants Meta and X Corp. nonetheless appeared on December 11,

2023, and December 6, 2023, respectively. (ECF Nos. 11-12, 16-

17.) After receiving extensions from the Court, Defendants Meta

and X Corp. both moved on January 24, 2024, for a pre-motion

conference to discuss an anticipated motion to transfer venue to

the Northern District of California. (ECF Nos. 20-21.) The Court

waived the pre-motion conference requirement, and set a briefing

schedule for the motion to transfer venue. (Docket Order dated

February 13, 2024.) Subsequently, Judge Nusrat Jahan Choudhury

was recused, and the case was reassigned to the undersigned for

all further proceedings. (Order of Recusal dated March 18, 2024.)

Prior to March 22, 2024, Plaintiff had failed to file any

proof of service of process with the Court regarding any of the

four defendants in this action. On March 22, 2024, this Court

ordered Plaintiff to show cause “why this case should not be

dismissed without prejudice against all Defendants for whom the

docket lacks proof of service of process because Plaintiff has

failed to serve defendants in accordance with [Fed. R. Civ. P.]

4(m)” and requesting proof of service on each Defendant, with a

response deadline of March 29, 2024. (Docket Order dated March

22, 2024.) Plaintiff’s counsel responded by filing four separate

affidavits of service as to each Defendant, including Defendants

Murthy and Biden, showing the federal Defendants were served on

November 15, 2023, within the time limit specified by Fed. R. Civ.

P. 4(m). (ECF Nos. 28, 29.)

On April 1, 2024, to clarify whether proper service was

effectuated upon the US Attorney for the Eastern District of New

York, as required by Fed. R. Civ. P. 4(i)(1)(A), the Court ordered

Plaintiff to file a supplemental response by April 8, 2024,

including “1) a letter to the Court from Plaintiff's counsel

explaining why service on the Surgeon General and President was

proper; and (2) documentary evidence in support, including, but

not limited to, the certified mail receipts showing the addresses

to which each copy of the summons and complaint were mailed.”

(Docket Order dated April 1, 2024.) Plaintiff’s counsel responded

on April 8, 2024, with a letter and several mail receipts. (ECF

No. 30.)

Also on April 8, 2024, Defendants Meta and X Corp. filed their

fully-briefed motions to transfer venue.4 (ECF No. 31, Defendant

Meta’s Motion to Change Venue; ECF No. 35, Defendant X Corp’s

Motion to Change Venue.) Plaintiff had previously filed her

opposition to Meta’s motion directly on the docket on March 22,

2024. (ECF No. 25, Plaintiff’s Memorandum in Opposition (“Pl.

Opp.”).) Plaintiff did not oppose X Corp.’s motion within the

deadline provided by the briefing schedule, and has not requested

an extension of time in which to oppose the motion. (ECF No. 36,

X Corp.’s Letter regarding Plaintiff’s Non-Opposition.)

II. LEGAL STANDARD

A. Motion to Transfer Venue

28 U.S.C. § 1404(a) provides that “[f]or the convenience of

parties and witnesses, in the interest of justice, a district court

may transfer any civil action to any other district or division

where it might have been brought or to any district or division to

which all parties have consented.” Although the typical § 1404(a)

4 This Court’s Memorandum and Order does not decide whether service on Meta and

X Corp. was proper, and does not address whether those defendants waived any

defenses relating to service.

analysis involves a balancing of various interests, “a proper

application of § 1404(a) requires that a forum-selection clause be

‘given controlling weight in all but the most exceptional cases.’”

Atlantic Marine Construction Co. v. U.S. Dist. Ct. for W. Dist. of

Texas, 571 U.S. 49, 59–60 (2013) (citation omitted) (hereafter,

“Atlantic Marine”). “When the parties have agreed to a valid

forum-selection clause, a district court should ordinarily

transfer the case to the forum specified in that clause.” Id. at

62. “Only under extraordinary circumstances unrelated to the

convenience of the parties should a § 1404(a) motion be denied.”

Id.

A forum-selection clause affects the typical § 1404(a)

analysis in three ways, beyond creating a presumption in favor of

transfer: (1) “the plaintiff's choice of forum merits no weight,”

and “the plaintiff bears the burden of establishing that transfer

to the forum for which the parties bargained is unwarranted”; (2)

“a court evaluating a defendant's § 1404(a) motion to transfer

based on a forum-selection clause should not consider arguments

about the parties' private interests” and may only consider the

public-interest factors, which “will rarely defeat a transfer

motion”; and (3) “when a party bound by a forum-selection clause

flouts its contractual obligation and files suit in a different

forum, a § 1404(a) transfer of venue will not carry with it the

original venue's choice-of-law rules.” Id. at 63–64.

“Factors relating to the parties' private interests include

relative ease of access to sources of proof; availability of

compulsory process for attendance of unwilling, and the cost of

obtaining attendance of willing, witnesses; possibility of view of

premises, if view would be appropriate to the action; and all other

practical problems that make trial of a case easy, expeditious and

inexpensive.” Id. at 62 n.6. (internal quotation marks and

citation omitted). “Public-interest factors may include the

administrative difficulties flowing from court congestion; the

local interest in having localized controversies decided at home;

and the interest in having the trial of a diversity case in a forum

that is at home with the law.” Id. (internal quotation marks and

citation omitted).

B. Dismissal Pursuant to Fed. R. Civ. P. 4(m)

“Federal Rule of Civil Procedure 4(m) governs both (1) the

dismissal of actions for untimely service of process and (2)

extensions of the time in which service may be effected.” Zapata

v. City of New York, 502 F.3d 192, 195 (2d Cir. 2007). Under the

rule,

If a defendant is not served within 90 days after the

complaint is filed, the court--on motion or on its own

after notice to the plaintiff--must dismiss the action

without prejudice against that defendant or order that

service be made within a specified time. But if the

plaintiff shows good cause for the failure, the court

must extend the time for service for an appropriate

period.

Fed. R. Civ. P. 4(m). A district court exercises discretion in

determining “whether good cause is present (and, if so, how long

an extension would be appropriate).” Zapata, 502 F.3d at 197. In

the absence of good cause, “a district court may grant an extension

. . . but it is not required to do so.” Id. “As indicated by the

plain language of Rule 4(m), notice to the plaintiff must be given

prior to a sua sponte dismissal [by the district court].” Thompson

v. Maldonado, 309 F.3d 107, 110 (2d Cir. 2002).

III. DISCUSSION

A. Motion to Transfer Venue

Defendants Meta and X Corp. both argue that their terms of

service5 contain a valid, mandatory, and enforceable forum

selection clause prescribing the Northern District of California

as the “exclusive” forum for disputes related to the use of their

services. (ECF No. 31-1, Defendant Meta’s Memorandum of Law (“Meta

Mem.”), at 4-7; ECF No. 35-1, Defendant X Corp.’s Memorandum of

Law (“X Corp. Mem.”), at 3.)

Defendant Meta states that “Plaintiff’s use of Facebook is

governed by Meta’s Facebook Terms of Service [], a fully-integrated

5 Plaintiff’s complaint relies extensively on, and incorporates by reference,

Facebook's Terms of Service and Community Standards. (Compl. at ¶¶52-54.) Both

Meta’s and X Corp.’s publicly available terms of service are subject to judicial

notice. See Fed. R. Evid. 201(b)(2); see also, e.g., Force v. Facebook, Inc.,

934 F.3d 53, 59, n.5 (2d Cir. 2019) (holding that Facebook’s publicly available

terms are subject to judicial notice); 23-34 94th St. Grocery Corp. v. N.Y.C.

Bd. of Health, 685 F.3d 174, 183 n.7 (2d Cir. 2012) (taking judicial notice of

content of website whose authenticity was not in question).

written contract to which all Facebook users must agree as a

condition for their use of Facebook.” (Meta Mem. at 3.) The

Facebook Terms of Service, both in their current form and in the

form effective from October 22, 2020, to July 26, 2022,6 contain

a forum-selection clause prescribing the “U.S. District Court for

the Northern District of California or a state court located in

San Mateo County” as the exclusive venue for resolution of disputes

arising out of the Facebook Terms of Service or the Meta/Facebook

products. See Terms of Service, Facebook,

https://www.facebook.com/legal/terms (last visited April 11,

2024).

Defendant X Corp. states that “[b]y creating and using her

Twitter account, [Plaintiff] repeatedly agreed to Twitter’s Terms

of Service.” (X Corp. Mem. at 2.) X Corp. further explains that

“[a]t all relevant times7, the Twitter Terms of Service have

6 Meta’s Motion to Transfer Venue includes a declaration from a Meta employee

regarding Facebook’s Terms of Service, to which a copy of the October 22, 2020,

terms of service are annexed as Exhibit A. (ECF No. 31-2, Declaration of

Jennifer Pricer; ECF Nos. 31-3 and 31-4, Exhibits A and B to the Pricer

Declaration.) The declaration further explains that Facebook’s Terms of Service

include a clause stating that the terms may be updated, and that a user assents

to the modified terms by continuing to use the product. (Id. at ¶8.) It is

not clear from the Complaint whether Plaintiff subsequently attempted to utilize

her account after it was “suspended” in October 2021, (Compl. at ¶¶25, 30),

making her subject to the current terms of service, but regardless of whether

the October 22, 2020, or the July 26, 2022, terms apply, the forum selection

provision is the same.

7 X Corp’s Motion to Transfer Venue includes a declaration from X Corp.’s counsel

of record in the instant action, to which several versions of Twitter’s terms

of service, sign-up pages, and corporate documents she attests are “true and

accurate” copies are annexed. (ECF No. 35-2, Declaration of Emily Barnett; ECF

Nos. 35-3 – 35-13, Exhibits A through K to the Barnett Declaration.) Twitter’s

terms of service include a provision stating that any individual utilizing the

service agrees to be bound by the terms of service currently in effect. (See

included a forum-selection clause requiring any disputes related

to the Twitter service to be brought solely in the federal or state

courts located in San Francisco County, California.” (Id. at 3.)

In relevant part, Twitter/X’s current terms of service state that

“[a]ll disputes related to these Terms or the Services will be

brought solely in the federal or state courts located in San

Francisco County, California, United States, and you consent to

personal jurisdiction and waive any objection as to inconvenient

forum.” Terms of Service, X, https://twitter.com/en/tos (last

visited April 11, 2024).

Both Meta and X Corp. also argue, and Plaintiff does not

contest, that Plaintiff’s claims against both defendants could

“have been brought” in the Northern District of California, where

both companies are headquartered, as required for transfer under

28 U.S.C. § 1404(a). (Meta Mem. at 8; X Corp. Mem at 12.) Meta

and X Corp. also argue, and Plaintiff does not contest, that the

Northern District of California is an appropriate venue for

litigation against the federal defendants, pursuant to 28 U.S.C.

§ 1391(e). (Id.) The Court finds that the instant action could

have been brought in the Northern District of California, given

X Corp. Mem. at 7 n.8, n.9.) Plaintiff’s complaint alleges that the Twitter

“shadow-banning” has continued through the present day, (Compl. at ¶8), so the

Court will assume that the current terms of service apply, but X Corp. notes

that the forum selection clause in force throughout the entire period of

Plaintiff’s utilization of the service would have the same effect, (X Corp.

Mem. at n.9).

both Meta and X Corp. have their principal place of business in

the district.

Under Second Circuit law, a forum selection clause is

“presumptively enforceable” if it was (1) “communicated to the

resisting party,” (2) “has mandatory force,” and (3) “covers the

claims and parties involved in the dispute.” Martinez v. Bloomberg

LP, 740 F.3d 211, 217 (2d Cir. 2014). “A party can overcome this

presumption only by (4) ‘making a sufficiently strong showing that

enforcement would be unreasonable or unjust, or that the clause

was invalid for such reasons as fraud or overreaching.’” Id.

(quoting Phillips v. Audio Active Ltd., 494 F.3d 378, 383-84 (2d

Cir. 2007)).

First, the Court finds that the forum selection clause was

communicated to Plaintiff. Both Meta and X Corp. argue that

Plaintiff assented to their respective terms of service at the

time she registered her account with each platform. (Meta Mem. at

5, X Corp. Mem. at 6.) Plaintiff does not dispute this argument

in her opposition to Meta’s motion, and, as noted above, Plaintiff

failed to oppose X Corp.’s motion to transfer venue, and

“effectively concedes [X Corp.’s] arguments by [her] failure to

respond to them.” Felske v. Hirschmann, No. 10-CV-8899 (RMB),

2012 WL 716632, at *3 (S.D.N.Y. Mar. 1, 2012). Meta also provides

citations to other non-binding decisions from within the Second

Circuit finding a plaintiff’s agreement to the Facebook Terms of

Service “more than sufficient to establish that Plaintiffs

‘assented to the Terms of Use and therefore to the forum selection

clause therein.’” We Are the People, Inc. v. Facebook, Inc., No.

19-CV-8871 (JMF), 2020 WL 2908260, at *2 (S.D.N.Y. June 3, 2020)

(quoting Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 839-41

(S.D.N.Y. 2012)). The Court finds that the documentary evidence

provided by Defendants Meta and X Corp., which it may appropriately

consider either because the documents are incorporated into the

complaint by reference or by taking judicial notice of the contents

of public documents on the X Corp. and Meta websites that are not

in dispute, 23-34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health,

685 F.3d 174, 183 n.7 (2d Cir. 2012), establish that the forum

selection clause for each service was appropriately communicated

to Plaintiff when she signed up to use Meta and X Corp.’s services.

Second, the Court finds that both Meta and X Corp.’s forum

selection clauses are mandatory in nature. Meta’s clause states

that disputes “shall be resolved exclusively” in the stated forum,

Terms of Service, Facebook, https://www.facebook.com/legal/terms

(last visited April 11, 2024), and X Corp.’s clause states that

disputes “will be brought solely” in the stated forum, Terms of

Service, X, https://twitter.com/en/tos (last visited April 11,

2024). Plaintiff makes no argument that the forum selection clause

is permissive in her opposition to Meta’s motion.

Third, the Court finds that the Plaintiff’s claims are subject

to Meta and X Corp.’s forum selection clauses. Meta’s clause

states that it applies to “any claim, cause of action, or dispute

between us that arises out of or relates to these Terms or your

access or use of the Meta Products.” Terms of Service, Facebook,

https://www.facebook.com/legal/terms (last visited April 11,

2024). X Corp.’s clause states that it applies to “[a]ll disputes

related to these Terms or the Services,” and Services is defined

as “our various websites, SMS, APIs, email notifications,

applications, buttons, widgets, ads, commerce services, and our

other covered services . . . that link to these Terms.” Terms of

Service, X, https://twitter.com/en/tos (last visited April 11,

2024). Plaintiff’s complaint alleges that “Defendant Facebook,

Inc. . . . closed [Plaintiff’s] Facebook account” and “Twitter, in

more insidious fashion, has severely shadow banned [Plaintiff’s]

Twitter Account.” (Compl. at ¶¶6, 8.) Therefore, Plaintiff’s

claims are clearly related to her “use of” a Meta product—Facebook—

and to the X Corp./Twitter “services.” Accordingly, the Court

finds that Plaintiff’s claims are subject to her agreement to Meta

and X Corp.’s forum selection clauses.

Because the Court has found the forum selection clause to be

presumptively enforceable, it is Plaintiff’s burden “to rebut the

presumption” that the forum selection clause is enforceable “by

. . . making a sufficiently strong showing that enforcement would

be unreasonable or unjust, or that the clause was invalid for such

reasons as fraud or overreaching.” Martinez, 740 F.3d at 217

(internal quotation marks and citation omitted); see also Atlantic

Marine, 571 U.S. at 63 (“the plaintiff bears the burden of

establishing that transfer to the forum for which the parties

bargained is unwarranted”). Plaintiff fails to make such a

showing.

Plaintiff argues that she “did not have the benefit of

negotiating the terms of the [terms of service],” (Pl. Opp. at 3),

but that same argument has been considered, and rejected, numerous

times by courts evaluating the terms of service for internet-based

services. The Second Circuit discussed the topic in depth in

Register.com, Inc. v. Verio, Inc.:

While new commerce on the Internet has exposed courts to

many new situations, it has not fundamentally changed

the principles of contract. It is standard contract

doctrine that when a benefit is offered subject to stated

conditions, and the offeree makes a decision to take the

benefit with knowledge of the terms of the offer, the

taking constitutes an acceptance of the terms, which

accordingly become binding on the offeree. . . .

Returning to the apple stand8, the visitor, who sees

apples offered for 50 cents apiece and takes an apple,

owes 50 cents, regardless whether he did or did not say,

“I agree.” The choice offered in such circumstances is

to take the apple on the known terms of the offer or not

to take the apple. As we see it, the defendant in

Ticketmaster and Verio in this case had a similar choice.

Each was offered access to information subject to terms

of which they were well aware. Their choice was either

8 A metaphor previously discussed in the opinion. Register.com, Inc., 356 F.3d

at 401.

to accept the offer of contract, taking the information

subject to the terms of the offer, or, if the terms were

not acceptable, to decline to take the benefits.

Id., 356 F.3d 393, 403 (2d Cir. 2004); see also Fteja v. Facebook,

Inc., 841 F. Supp. 2d 829, 841 (S.D.N.Y. 2012) (concluding that

Plaintiff, an active user of Facebook, assented to the Facebook

Terms of Use, and thus to the forum selection clause therein).

Plaintiff’s makes no further arguments to attempt to rebut

the validity or enforceability of the forum selection clause, and

argues only that public and private interest factors militate

against transfer. (Pl. Opp. at 2-4.) This Court may not consider

Plaintiff’s arguments that the private interest factors weigh

against transfer. Atlantic Marine, 571 U.S. at 64 (“a court

evaluating a defendant's § 1404(a) motion to transfer based on a

forum-selection clause should not consider arguments about the

parties’ private interests”). Instead, the Court may only

“consider arguments about public-interest factors” which “will

rarely defeat a transfer motion.” Id. Plaintiff argues that her

case is a “special situation, as it implicates infringement of

constitutional rights,” (Pl. Opp. at 1), but fails to state why a

federal district court in California, which is equally competent

to decide questions of Constitutional law, would be unable to

adjudicate her claims. The Court is unaware of any other public

interest that militates in favor of keeping Plaintiff’s case in

New York, given “[t]he only apparent nexus between the facts

alleged in this lawsuit and the state of New York is Plaintiff's

personal proximity.” Melwani v. Amazon.com, Inc., No. 20-CV-09739

(AJN), 2021 WL 4429604, at *5 (S.D.N.Y. Sept. 27, 2021).

Plaintiff’s remaining arguments implicate only the private-

interest factors, arguing that transfer would be “unduly

prejudicial” and that “most witnesses and relevant documents” are

located “on the East Coast.” (Pl. Opp. at 2-3.) As noted supra,

the Court may not consider private-interest factors, and Plaintiff

fails to show that her case is the uncommon case in which public-

interest factors defeat a transfer motion. Therefore, the Court

must, and will, transfer the instant case to the Northern District

of California under 28 U.S.C. § 1404(a).

B. Failure to Serve Federal Defendants

Plaintiff filed the Complaint in the instant case on October

7, 2023. (See generally Compl.) Pursuant to Federal Rule of Civil

Procedure 4(m), Plaintiff was required to serve each Defendant in

the instant action with a summons and complaint by no later than

January 5, 2024. Plaintiff failed to properly serve Defendants

Murthy and Biden, and the action is dismissed against both

Defendants.

As discussed supra, Plaintiff failed to file proof of service

on any of the Defendants in this action prior to the Court’s March

22, 2024, Order to Show Cause. Subsequently, Plaintiff filed

affidavits of service as to all four defendants, representing that

Defendant Meta was served on November 22, 2023, Defendant X Corp.

was served on November 17, 2023, Defendant Biden was served on

November 15, 2023, and Defendant Murthy was served on November 15,

2023. (ECF Nos. 26-29.) Plaintiff’s supplemental response dated

April 8, 2024, (ECF No. 30), makes clear that the Affidavits of

Service filed as to Defendant Murthy, (ECF No. 29), and Defendant

Biden, (ECF No. 28), were factually inaccurate.

First, contrary to the assertions by Plaintiff’s process

server that, for each federal Defendant, he “[s]erved [the] Civil

Process Clerk for the US Attorney via Certified Mail” on November

15, 2023, Plaintiff’s supplemental response states that the

process server did not send the summons and complaint via

registered mail to the US Attorney until January 30, 2024.9 (See

ECF Nos. 28, 29, 30.) Plaintiff offers no explanation for the

factual discrepancy between the affidavit and the proof of mailing.

In any event, Plaintiff’s service is untimely pursuant to Fed. R.

Civ. P. 4(m), which required service on or before January 5, 2024,

and Plaintiff provides no explanation or good cause for the delay

in mailing the US Attorney’s office’s civil process clerk, a

9 Though the Federal Rules of Civil Procedure permit service via registered mail

or certified mail, certified mail is generally favored for service of process

because it allows the sender to “[s]ee when it was delivered or that a delivery

attempt was made,” whereas registered mail instead offers “maximum security for

[] valuable items” and can be “insured for up to $50,000.” USPS, Insurance &

Extra Services, https://www.usps.com/ship/insurance-extra-services.htm (last

visited April 9, 2024).

required task in serving a federal officer in an action against

the United States and/or its officials.

Second, contrary to the assertion of Plaintiff’s process

server that the Attorney General was served “via Certified Mail”

on November 15, 2023, as required by Fed. R. Civ. P. 4(i)(1)(B),

Plaintiff provides no proof of any mailing to the Attorney General.

Again, Plaintiff has provided no explanation for the inconsistency

between the affidavit of service and the supplemental response, or

for the apparent failure to serve the Attorney General as clearly

required by the Federal Rules of Civil Procedure when serving the

United States and/or its officials named in their official

capacities. See Fed. R. Civ. P. 4(i)(1)(b), 4(i)(2). “In order

to serve process on the United States, a party must deliver a copy

of the summons and complaint to the United States Attorney for the

district in which the action is brought, and . . . send a copy of

the summons and complaint by registered or certified mail to the

Attorney General.” Kurzberg v. Ashcroft, 619 F.3d 176, 184 (2d

Cir. 2010) (citing Fed. R. Civ. P. 4(i)(1)(A–B)); see also Fed. R.

Civ. P 4(i)(2). Because Plaintiff failed to serve the Attorney

General, she failed to properly serve the United States officials

named as Defendants, as required for both of the federal

Defendants.

Third, contrary to the assertion of Plaintiff’s process

server that both Defendant Murthy and Defendant Biden were served

via certified mail on November 15, 2023, Plaintiff admits in the

supplemental response that Defendant Biden was not served via

certified mail until March 27, 2024, long after the 90 days

prescribed by Fed. R. Civ. P. 4 and after the Court requested proof

of service on all Defendants. (ECF No. 30 at 1.) Furthermore,

Plaintiff admits that Defendant Murthy has yet to be served at

all. (Id.)

Plaintiff’s discussion of attempted personal service on the

President and Surgeon General is of no moment and does not

establish good cause for the failure to serve process. Plaintiff

brought the instant action against both Defendants in their

official capacities. (See Compl. at ¶¶12, 13.) To serve a United

States officer or employee in an official capacity, “a party must

serve the United States and also send a copy of the summons and of

the complaint by registered or certified mail to the . . . officer,

or employee.” Fed. R. Civ. P. 4(i)(2). Plaintiff cites to Fed.

R. Civ. P. 4(i)(3), but that subsection of the rule applies only

to officers or employees “sued in an individual capacity.” As

such, Plaintiff’s efforts to serve the individual Defendants via

personal service would not have constituted proper service even if

service had been effectuated, given both federal Defendants were

sued “only in an official capacity.” Fed. R. Civ. P. 4(i)(2).

Pursuant to “Rule 4(m), notice to the plaintiff must be given

prior to a sua sponte dismissal [by the Court].” Thompson v.

Maldonado, 309 F.3d 107, 110 (2d Cir. 2002). The Court provided

notice to Plaintiff on March 22, 2024, when it ordered the

Plaintiff to show cause “why this case should not be dismissed

without prejudice against all Defendants for whom the docket lacks

proof of service . . . in accordance with Rule 4(m).” (Docket

Order dated March 22, 2024.) Plaintiff’s response consisted of

affidavits of service which are demonstrably false, and a

subsequent supplemental response which offers no explanation for

the Plaintiff’s inconsistent representations regarding service and

no “good cause” for the failure to serve the federal Defendants

beyond, at best, a failure to understand the process for serving

a United States officer or employee in their official capacity.

(ECF Nos. 28, 29, 30.) “Attorney error does not constitute good

cause under Rule 4(m).” Counter Terrorist Grp. U.S. v. New York

Mag., 374 F. App'x 233, 235 (2d Cir. 2010) (Summary order).10 The

10 As set forth in the “court ordered disclosure” annexed to the Complaint,

Plaintiff’s counsel has been sanctioned pursuant to Fed. R. Civ. P. 11 by United

States District Judge Lewis J. Liman of the Southern District of New York in

Gong v. Sarnoff et al, Docket 23-cv-343 (LJL). While it was not the sole reason

for sanctions, Judge Liman noted in his opinion and order that Plaintiff’s

counsel failed to serve all defendants within 90 days as required by Fed. R.

Civ. P. 4(m). Gong v. Sarnoff et al, ECF No. 72, at 33 (S.D.N.Y. August 22,

2023). The Court notes that Plaintiff’s counsel was also ordered by Judge Liman

in the same case to “show cause why his assertion in the motion and in the

memorandum that service was properly effectuated . . . did not violate Rule

11(b)(3) when (1) the person who was served is not the individual identified in

the complaint; [and] (2) Plaintiff had been informed by the affidavit of service

of the appearance of the person who was served [and] that person does not

resemble the person who committed the torts alleged in the complaint.” Id.,

ECF No. 90 (S.D.N.Y. November 6, 2023). Judge Liman declined to issue separate

sanctions for the assertions related to service but dismissed the complaint

against the defendant without prejudice pursuant to Fed. R. Civ. P 4(m). Gong

v. Sarnoff, 2023 WL 8096970, at *3 (S.D.N.Y. Nov. 21, 2023).

Second Circuit has held that “a district court may grant an

extension in the absence of good cause, but it is not required to

do so.” Zapata v. City of New York, 502 F.3d 192, 197 (2d Cir.

2007).

As such, “[i]n the absence of good cause, the Court's

authority to grant an extension of the time for service of process

‘is purely discretionary.’” Deptula v. Rosen, 558 F. Supp. 3d 73,

89 (S.D.N.Y. 2021) (quoting Counter Terrorist Grp. U.S., 374 F.

App'x at 235). Here, the Court declines to grant an extension of

the time to serve federal Defendants Murthy and Biden, and they

are dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m).

As discussed previously, Plaintiff’s counsel’s allegations that

his efforts at personal service were stymied is irrelevant to the

matter at hand, given personal service is neither specifically

authorized nor deemed sufficient for federal officers or employees

sued in an official capacity. Fed. R. Civ. P. 4(i)(2). Any

prejudice Plaintiff will suffer based on the dismissal without

prejudice of the federal Defendants is outweighed by Plaintiff’s

ongoing neglect and questionable candor with the Court regarding

the ongoing failure to properly serve either federal Defendant

with process more than three months after the deadline set forth

in Fed. R. Civ. P. 4(m).11

11 The Court notes that Plaintiff’s 42 U.S.C. § 1983 claim against the federal

defendants is fatally flawed, and could not proceed because “Section 1983 does

Iv. CONCLUSION

For the foregoing reasons, Defendants Meta and X Corp.’s

motions to transfer venue are GRANTED, and Plaintiff’s action is

DISMISSED without prejudice against Defendants Biden and Murthy

for failure to serve either defendant within 90 days as required

by Fed. R. Civ. P. 4(m).

The Clerk of Court is respectfully directed to terminate

Defendants Biden and Murthy, and transfer this case to the Northern

District of California.

SO ORDERED

Dated: April 15, 2024

Brooklyn, New York b =

yny f? a,

“V9 - eo we Ss □□□

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

not provide a cause of action against the federal government” or its officials.

Guettlein v. United States Merch. Marine Acad., 577 F. Supp. 3d 96, 102 (E.D.N.Y.

2021); see also Arar v. Ashcroft, 585 F.3d 559, 568 (2d Cir. 2009) (“A federal

officer who conspires with a state officer may act under color of state law,

but since federal officials typically act under color of federal law, they are

rarely deemed to have acted under color of state law.”) (internal quotation

marks and citation omitted); 42 U.S.C. § 1983 (“Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws .. .”) (emphasis added).

23