The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
LUCIANO J. LAMA,
as Attorney o/b/o L.D.L., an Infant,
Plaintiff,
v. 3:23-CV-0462
(GTS/CFH)
META PLATFORMS, INC.; and INSTAGRAM, LLC,
Defendants.
_____________________________________________
APPEARANCES: OF COUNSEL:
LAMA LAW FIRM LUCIANO J. LAMA, ESQ.
Counsel for Plaintiff
2343 N. Triphammer Road
Ithaca, NY 14850
ORRICK, HERRINGTON & SUTCLIFFE LLP CAROLINE SIMONS, ESQ.
Counsel for Defendants
222 Berkeley Street, Suite 2000
Boston, MA 02116
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this personal injury action filed by Luciano J. Lama
(“Plaintiff”) against Meta Platforms, Inc. (“Meta”), and Instagram, LLC (“Instagram”)
(collectively “Defendants”), is Defendants’ motion to dismiss Plaintiff’s Amended Complaint for
failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).
(Dkt. No. 32.) For the reasons set forth below, Defendants’ motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff’s Amended Complaint
Generally, in his Amended Complaint, Plaintiff asserts claims for negligent and strict
products liability, both premised on an alleged defect in the design, testing, inspection,
manufacture, distribution, labeling, sale, and promotion of the Instagram app. (Dkt. No. 27.)
Specifically, Plaintiff alleges that Defendants failed “to implement a child protective procedure
whereby parents, school personnel, and other children[-]responsible persons would be able to
protect against online bullying wherein the defendants’ products were foreseeably weaponized to
facilitate online bullying,” and that, as a result of this failure, Plaintiff was harmed when he was
subjected to hateful and bullying comments that were made about him on the “nrcs.anythings”
Instagram account. (Id. at ¶¶ 16-25.) Plaintiff also alleges that, although his school had
requested (through “the app’s defective policies and procedures”) that Defendants remove this
account from the Instagram app, Defendants failed to do so, and that Defendants’ failure resulted
in Plaintiff’s injuries. (Id. at ¶¶ 18-25.)
B. Parties’ Briefing on Defendants’ Motion to Dismiss
1. Defendants’ Memorandum of Law
Generally, in their motion to dismiss, Defendants argue that Section 230 of the
Communications Decency Act bars Plaintiff’s claims. (Dkt. No. 32, Attach. 1.) In making this
overarching argument, Defendants make three sub-arguments: (1) they are “interactive computer
service providers” as defined by Section 230; (2) other information-content providers (here,
third-party users of Instagram who made the posts that allegedly injured Plaintiff), rather than
Defendants, supplied the content at issue; and (3) Plaintiff’s claims, even framed as being
premised on a theory of products liability, inherently seek to treat Defendants as the publishers of
that third-party content. (Id.)
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2. Plaintiff’s Opposition Memorandum of Law
Generally, in his response memorandum, Plaintiff makes four arguments. (Dkt. No. 33.)
First, Plaintiff argues that he has plead facts sufficient to state plausible claims for products
liability, and that, rather than assert that he has not done so, Defendants argue only that they are
entitled to immunity from suit pursuant to Section 230. (Id. at 8.)
Second, Plaintiff argues that the Court should not decide the question of whether
Defendants are entitled to immunity on a motion to dismiss because there “are no affidavits, no
affirmations, no corporate records, not even a clear definition of the relationships among Meta,
Instagram, and ‘nrcs.anythings,’ nor definitions of what each of these entities are.” (Id. at 9-10.)
Third, Plaintiff argues that Defendants have nonetheless failed to show that the Amended
Complaint either bases the claims on third-party content or treats Defendants as publishers in the
context of his claims. (Id. at 11-13.) Specifically, Plaintiff argues that his claims are not based
on the content of the relevant “vile” messages or on the fact that Defendants created, sponsored,
condoned, edited, corrected, enhanced, or modified those statements, but rather on the fact that
Instagram itself is “faulty, dangerous, and lends itself to horrid, dreadful and destructive use,
with no safeguards,” including a defective mechanism for requesting the removal of accounts or
content. (Id.)
Fourth, Plaintiff argues that he has properly alleged a defect in Instagram through his
allegations that there was a “defect in the Instagram App mechanism that precluded the school
from stopping the attacks on a highly vulnerable teen student by other students using
‘nrcs.anythings.’” (Id. at 14-15.) He further argues that Defendants failed to provide a required
notification of available parental control precautions. (Id. at 15.)
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3. Defendants’ Reply Memorandum of Law
Generally, in reply to Plaintiff’s response, Defendants make three arguments. (Dkt. No.
34.) First, Defendants argue that the Court can and should determine whether Section 230 bars
Plaintiff’s claims at this stage because all the information necessary to do so is apparent on the
face of the Amended Complaint, and courts routinely decide this issue on a motion to dismiss.
(Id. at 5-7.)
Second, Defendants argue that Plaintiff’s claims treat them as the publisher of third-party
user content because, although ostensibly premised on a defect in the Instagram app, his
supporting allegations center around the statements made by and on the “nrcs.anythings” account
and Defendants’ failure to have an adequate procedure that would allow such content or account
to be removed. (Id. at 7-10.)
Third, Defendants argue that Plaintiff’s attempt to raise Section 230(d) as a source of
liability for the first time in his response memorandum should be rejected for two reasons: (1) the
attempt is improper because that provision does not create a private cause of action; and (2) the
attempt is undermined by his own pleadings because allegations regarding a failure to provide
notice are absent from the Amended Complaint and contradicted by the original Complaint
which attached evidence regarding features and tools Defendants provide for users to block and
restrict objectionable or bullying user material. (Id. at 11-12.)
II. GOVERNING LEGAL STANDARDS
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
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challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp.2d 204,
211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, some elaboration regarding
that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212 n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
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notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 560-61, 577. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 555-70. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 555. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
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relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks
and citations omitted). However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
III. ANALYSIS
After carefully considering whether 47 U.S.C. § 230 bars Plaintiff’s negligent and strict
products liability claims, the Court answers this question in the affirmative for the reasons stated
in Defendants’ memoranda of law. See supra Parts I.B.1. and 3 of this Decision and Order. To
those reasons, the Court adds the following analysis.
Section 230(c)(1) states that “[n]o provider or user of an interactive computer service
shall be treated as the publisher or speaker of any information provided by another information
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content provider.” 47 U.S.C. § 230(c)(1). This provision “shields a defendant from civil liability
when: (1) it is a ‘provider or user of an interactive computer service,’ as defined by § 230(f)(2);
(2) the plaintiff’s claims ‘treat[]’ the defendant as the ‘publisher or speaker’ of information [];
and (3) that information is ‘provided by’ an ‘information content provider,’ [] other than the
defendant interactive computer service.” Force v. Facebook, Inc., 934 F.3d 53, 63-64 (2d Cir.
2019) (internal citations omitted). The Second Circuit has indicated that “the text of Section
230(c)(1) should be construed broadly in favor of immunity” in light of Congress’ objectives in
passing the statute. Force, 934 F.3d at 64 (collecting cases). Moreover, it has recognized that
“[t]he majority of federal circuits have interpreted [Section 230] to establish broad federal
immunity to any cause of action that would make service providers liable for information
originating with a third-party user of the service.” Herrick v. Grindr LLC, 765 F. App’x 586,
589 (2d Cir 2019) (internal quotation marks omitted).
A review of some definitions is appropriate. The statute itself defines an “interactive
computer service” as “any information service, system, or access software provider that provides
or enables computer access by multiple users to a computer server, including specifically a
service or system that provides access to the Internet and such systems operated or services
offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2).
The statute further defines an “information content provider” as “any person or entity that
is responsible, in whole or in part, for the creation or development of information provided
through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). “[A]
defendant will not be considered to have developed third-party content unless the defendant
directly and ‘materially’ contributed to what made the content itself ‘unlawful.’” Force, 934
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F.3d at 68 (quoting Fed. Trade Commisssion v. LeadClick Media, LLC, 838 F.3d 158, 174 [2d
Cir. 2016]).
A “publisher” for the purposes of this statute has been defined as including a party that
maintains a website that acts as a forum for third-party speech and communication and has the
ability to, among other actions, remove content from such website (or, in the converse, choose
not to remove such content). Force, 934 F.3d at 65. The mechanisms by which an interactive
computer service makes decisions regarding whether to allow or remove content has no impact
on whether it is entitled to immunity; “‘so long as a third party willingly provides the essential
published content, the interactive service provider receives full immunity regardless of the
specific edit[orial] or selection process.’” Force, 934 F.3d at 67 (quoting Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1124 [9th Cir. 2003]). Where a products liability or
failure-to-warn claim is “inextricably related to [a defendant’s] role in editing or removing
offensive content,” such claims are “precisely” those for which Section 230 is intended to
provide immunity. Herrick v. Grindr, LLC, 306 F.Supp.3d 579, 588 (S.D.N.Y. 2018), aff’d
Herrick, 765 F. App’x at 589-90.
A. Whether Defendants Are Providers or Users of an Interactive
Computer Service
Courts within the Second Circuit have routinely found that social media websites and
online matching services are interactive computer services. See Mosha v. Facebook, Inc., 20-
CV-2608, 2021 WL 230180, at *3 (S.D.N.Y. Jan. 22, 2021) (collecting cases); Herrick v.
Grindr, LLC, 306 F.Supp.3d 579, 588 (S.D.N.Y. 2018) (collecting cases), aff’d Herrick, 765 F.
App’x at 589-90; Cohen v. Facebook, Inc., 252 F. Supp. 3d 140, 156 n.10 (E.D.N.Y. 2017)
(collecting cases). In the Amended Complaint, Plaintiff alleges that Defendant Meta is the
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owner and operator of Defendant Instagram, which he characterizes as a “social media platform”
and “an application that is widely available to users throughout the United States and New York
State.” (Dkt. No. 27, at ¶ 3.) The other allegations plausibly suggest that Defendants “have been
engaged in the business of the manufacture, production, and sale, license, lease, or otherwise
granted use of social media apps to ultimate consumers such as the plaintiff and did, in fact,
produce, manufacture, production and sale [sic], license, lease, and otherwise grant use of the
app known as Instagram to the plaintiff and other children at his school.” (Dkt. No. 27, at ¶ 14.)
These allegations are sufficient on their face to plausibly suggest that Defendants (to the extent
that it is the Instagram app solely and specifically that is the subject of his claims) are an
interactive computer service for the purposes relevant to this action.
Although he does not directly argue that Defendants are not an interactive computer
service, Plaintiff appears to suggest as much in his response brief through multiple pages of
quotations to various sources about the goals and uses of Defendants Meta and Instagram, the
definition of an application, and a quotation from In re Google Digital Advertising Antitrust
Litig., 627 F.Supp.3d 346 (S.D.N.Y. 2022), all causing Plaintiff to draw the apparent conclusion
that “an ‘App’ such as Instagram is a product, [and] META is ‘akin to a wholesaler’ of that
product” rather than an interactive computer service. This argument is as baffling as it is
misplaced for two reasons. Firstly, the fact that Defendant Meta provides services or products
other than hosting social media sites like Instagram is of little relevance to this action because the
harm Plaintiff alleges occurred only through Defendant Instagram, not any of Defendant Meta’s
other products, and indeed Defendant Instagram is the only of Defendant Meta’s products that
Plaintiff names in his Amended Complaint as being defectively manufactured or designed.
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Secondly, In re Google Digital Advertising Antitrust Litigation has no relevance to this case.
That case involved questions regarding whether Google violated the Sherman Act and state
antitrust laws in its agreements with online advertising companies related to its provision of ad
server and ad exchange services; it had nothing to do with whether Google or any other party
was an interactive computer service under Section 230, nor does the specific selection Plaintiff
quoted in his response brief support the conclusion he asserts. In re Google Digital Advertising
Antitrust Litig., 627 F.Supp.3d at 361.
For the above reasons, Defendants are correct that the face of the Amended Complaint
sufficiently shows that they are an interactive computer service for the purposes of Section 230.
B. Whether the Information that Is Allegedly Spoken or Published Was
Provided by an Information Content Provider Other Than
Defendants
In the Amended Complaint, Plaintiff alleges that he suffered an injury as a result of
careless design, testing, inspection, manufacture, distribution, labeling, sale, or promotion of
Instagram, specifically because that app was used by others, including the “nrcs.anythings”
account and various users who commented on a post by that account, to harass and bully him.
(Dkt. No. 27, at ¶¶ 15-28, 34-37.) The allegations indicate that such harassment and bullying
was in the form of comments written on the app. (Id.) Plaintiff’s claims, despite being couched
in the terms of products liability, therefore clearly allege that it was the posting (or hosting) of
the third-party statements, not Instagram itself, that caused his harm; had those statements not
been made on the app, the alleged harm would have never come about.
Although Plaintiff attempts to argue that his claims are not “based upon the content of the
vile text messages” posted to Instagram, he promptly shows that he cannot sustain that argument
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by stating that the claim is premised on the theory that “the Instagram “App” is faulty,
dangerous, and lends itself to horrid, dreadful and destructive use, with no safeguards.” (Dkt.
No. 33, at 11 [emphasis added].) Even in attempting to argue otherwise, Plaintiff himself cannot
escape admitting that it was that “horrid, dreadful, and destructive use” (i.e., the comments
posted by third-party users) that caused his harm, and the only defect is that Instagram facilitates
users to post such things. Try as he might to make his claims about the way Instagram is
designed, his claims are inherently grounded in third-party content posted to the app. Plaintiff
further makes no arguments and includes no allegations in the Amended Complaint to suggest
that Defendants either created or developed that content as opposed to merely hosting it as a
social media site.
For these reasons, the Court agrees with Defendants that the face of the Amended
Complaint sufficiently shows that Plaintiff’s claims are based on content provided by internet
content providers other than Defendants.
C. Whether Plaintiff’s Claims Treat Defendants as Publishers or
Speakers of the Information
For many of the same reasons that Plaintiff’s Amended Complaint can be construed only
as being inherently based on third-party content, it also can be construed only as treating
Defendants as the publisher or speaker of such content. See Herrick, 765 F. App’x at 590-91
(finding claims that app was defective treated the defendant as a publisher and were barred by
Section 230 because the “alleged lack of safety features ‘is only relevant to Herrick’s injury to
the extent that such features would make it more difficult for his former boyfriend to post
impersonating profiles or make it easier for Grindr to remove them,’” and thus the claims were
nothing more than an attempt to hold the defendant liable for its failure to prevent or remove
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such third-party content). Again, the harm that allegedly flows from the third-party statements
posted by and to the “nrcs.anythings” account, and the defect that allegedly exists in the design
of the Instagram app is related to the policies and procedures regarding requesting the removal of
offensive content and/or accounts. (Dkt. No. 27, at ¶¶ 16-25, 27; Dkt. No. 33, at 11-12.)
In an attempt to get around this fact, Plaintiff argues that “[t]he claim against these
defendants is not that they created, sponsored, condoned, edited, corrected, enhanced or modified
the horrible statements aimed at one highly vulnerable child; the claim is that the product made
and sold to the public–the Instagram “App” is faulty, dangerous, and lends itself to horrid,
dreadful and destructive use, with no safeguards.” (Dkt. No. 33, at 11.) He further argues that
he “does not complain in this action of the contents of the Instagram App, but properly and
clearly complains of the defect in the Instagram App mechanism that precluded the school from
stopping the attacks on a highly vulnerable teen student by other students using
‘nrcs.anythings.’” (Id. at 14.) Yet both of these arguments inescapably return to the ultimate
conclusion that Instagram, by some flaw of design, allows users to post content that can be
harmful to others (and which was harmful to the minor Plaintiff in this case) and does not have a
mechanism to require Defendants to remove such content when reported. Nowhere in Plaintiff’s
Amended Complaint (or even his arguments in his response brief) does Plaintiff allege that it
was the defect in Instagram that alone caused his alleged injuries; rather, the alleged harm
occurred as result of content posted by third-party users on the app that Defendants did not
remove or did not allow others to remove. As a result, contrary to Plaintiff’s attempts to frame
them otherwise, his claims are based on statements made by content-providers other than
Defendants and seek to essentially treat Defendants as the publishers of that information based
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on their failure to prevent or remove such statements. The Court therefore finds that the
Amended Complaint also supports the third prong of the immunity test and that Defendants are
entitled to such immunity from Plaintiff’s claims pursuant to Section 230.
Finally, Plaintiff additionally argues that he has claimed that “Defendants produced a
faulty product, with deficient mechanisms, lack of warnings and non-compliant with Title 47
section 230(d), among other things.” (Dkt. No. 33, at 15.) Section 230(d) states that “[a]
provider of an interactive computer service shall, at the time of entering an agreement with a
customer for the provision of interactive computer service and in a manner deemed appropriate
by the provider, notify such customer that parental control protections (such as computer
hardware, software, or filtering services) are commercially available that may assist the customer
in limiting access to material that is harmful to minors.” 47 U.S.C. § 230(d). To the extent
Plaintiff appears to seek to rely on some failure of Defendants to provide such notice, that
argument does not save his claims.
As an initial matter, and most importantly, Plaintiff does not make any such claim in the
Amended Complaint related to a failure to provide any required notice and cannot (as a party
represented by counsel) constructively amend the Amended Complaint merely by making
arguments in a response brief. Moreover, Plaintiff’s argument ignores the fact that the
notification required by Section 230(d) must be made only to a “customer,” not to the general
public at large. Plaintiff notably does not allege that he had an Instagram account or otherwise
had ever used the app as a “customer” who had entered into an agreement with Defendant
Instagram such that he would have been entitled to such notice. Rather, he alleges that he saw
the injurious messages when “children brandished to the plaintiff, in person, the . . . harmful and
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bullying conduct using said app.” (Dkt. No. 27, at § 25.) The only allegations he has provided
to even remotely suggest he was entitled to notification is a generic allegation that Defendants
are “engaged in the business of the manufacture, production and sale, license, lease, and
otherwise grant use of social media apps to ultimate customers such as the plaintiff and did, in
fact, produce, manufacture, production and sale [sic], license, lease, and otherwise grant use of
the app known as Instagram to the plaintiff and other children at his school. (Dkt. No. 27, at §
14.) However, even taken as true as it must be at this stage, this allegation falls short of
plausibly suggesting that Plaintiff was a “customer” of Instagram as discussed by Section 230(d).
Plaintiff has therefore not alleged sufficient facts to plausibly suggest there would be a basis for
any such claim (assuming that Section 230[d] provides a private cause of action for its violation,
which the Court need not address in this Decision and Order) even if it had been pled in the
Amended Complaint.
For all of the above reasons, Plaintiffs claims based on negligent and strict products
liability are barred by 47 U.S.C. § 230(c)(1), and his Amended Complaint must be dismissed.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss (Dkt. No. 32) is GRANTED; and it is
further
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 27) is DISMISSED.
Dated: May 6, 2024
Syracuse, New York
U.S. District Judge
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