# Castronuova v. Meta Platforms, Inc.

> District Court, E.D. New York · April 15, 2024

URL: https://www.frixlaw.com/law-library/cases/10311637

## Case

- **Court:** District Court, E.D. New York
- **Decided:** April 15, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10311637

## How later opinions describe it (automated extraction)

- holding that Facebook’s publicly available terms are subject to judicial notice
- concluding that Plaintiff, an active user of Facebook, assented to the Facebook Terms of Use, and thus to the forum selection clause therein

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X

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.

--------------------------------------X

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311637. Public record. Not legal advice.