Brown v. Automattic

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

DORA I. BROWN,

Plaintiff,

-v.- 19 Civ. 6328 (KPF)

OPINION AND ORDER

TWITTER, AUTOMATTIC INC., and

BLUEHOST-ENDURANCE

INTERNATIONAL GROUP,

Defendants.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Dora I. Brown, proceeding pro se, brings this suit against

Twitter, Inc. (“Twitter”), Automattic Inc. (“Automattic”), and Bluehost-

Endurance International Group (“Bluehost,” and collectively with Twitter and

Automattic, “Defendants”), alleging unspecified claims arising from various

technical issues she experienced while using Defendants’ content-hosting

platforms.

Defendants now move to dismiss Plaintiff’s Third Amended Complaint

(the “TAC”). Twitter and Bluehost have each separately moved to dismiss the

TAC for lack of subject matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(1), and in the alternative, for failure to state a claim upon

which relief can be granted pursuant to Federal Rule of Civil Procedure

12(b)(6). Automattic has similarly moved to dismiss the TAC pursuant to

Federal Rule of Civil Procedure 12(b)(6), and in the alternative, requests that

Plaintiff be directed to provide a more definite statement of her claim pursuant

to Federal Rule of Civil Procedure 12(e). For the reasons that follow, the Court

denies Twitter’s and Bluehost’s motions to dismiss pursuant to Rule 12(b)(1),

and grants Defendants’ motions to dismiss pursuant to Rule 12(b)(6).

BACKGROUND1

A. Factual Background

1. Plaintiff’s Grievances with Automattic and Bluehost

Plaintiff maintains several websites on which she publishes materials

related to a book she has been writing for the past 40 years. (See July 28,

1 The facts in this Opinion are drawn from the allegations in the submissions and

statements the Court has deemed to comprise Plaintiff’s Third Amended Complaint. As

stated in the Court’s October 22, 2020 Order, given the liberality with which Plaintiff’s

claims must be viewed in light of her pro se status, the Court has construed Plaintiff’s

Second Amended Complaint (the “SAC” (Dkt. #41)), the document captioned her Third

Amended Complaint (the “TAC” (Dkt. #43)), and Plaintiff’s statements made during the

conference held on July 28, 2020 (Dkt. #39 (“July 28, 2020 Tr.”)), as the operative

pleadings in this action. (See Dkt. #44 (citing Tracy v. Freshwater, 623 F.3d 90, 101-

102 (2d Cir. 2010); Colon v. City of New York, No. 16 Civ. 6425 (KPF), 2018 WL 740992,

at *3 (S.D.N.Y. Feb. 6, 2018))). Additional facts come from Plaintiff’s briefing in

opposition to Defendants’ motions to dismiss. (See Dkt. #66). See infra Discussion

Section B.2 n.8. Although the Court has endeavored to reconcile Plaintiff’s various

submissions and statements, the pleadings are difficult to construe with precision.

Facts are also drawn from Twitter’s Terms of Service (Dkt. #52-1), and exhibits

appended to the Declaration of Melinda M. Morton in Support of Automattic’s Motion to

Dismiss (“Morton Decl., Ex. [ ]” (Dkt. #63)), which exhibits include documents that are

either publicly available or incorporated by reference in the TAC. “In considering a

motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court

may consider the facts alleged in the complaint, documents attached to the complaint

as exhibits, and documents incorporated by reference in the complaint.” DiFolco v.

MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Moreover “[w]here a document

is not incorporated by reference, the court may nevertheless consider it where the

complaint ‘relies heavily upon its terms and effect,’ thereby rendering the document

‘integral’ to the complaint.” Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398

(2d Cir. 2006)); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.

2002) (“[A party’s] reliance on the terms and effect of a document in drafting the

complaint is a necessary prerequisite to the court’s consideration of the document on a

dismissal motion.” (emphasis in original)); see generally Goel v. Bunge, Ltd., 820 F.3d

554, 559 (2d Cir. 2016) (discussing materials that may properly be considered in

resolving a motion brought under Fed. R. Civ. P. 12(b)(6)).

For ease of reference, the Court refers to Twitter’s opening brief in support of its motion

to dismiss as “Twitter Br.” (Dkt. #51); Bluehost’s opening brief in support of its motion

to dismiss as “Bluehost Br.” (Dkt. #55); Automattic’s brief in support of its motion to

dismiss or to require a more definite statement as “Automattic Br.” (Dkt. #61); Plaintiff’s

consolidated opposition brief as “Pl. Opp.” (Dkt. #66); Twitter’s reply brief as “Twitter

2020 Tr. 6:5-17, 6:25-7:4). Beginning in February 2017, Defendant Bluehost,

which provides domain name registrar and web-hosting services, served as the

host for one of Plaintiff’s websites, titled “Evergreen7.com.” (Id. at 6:5-17; see

also SAC 5). Plaintiff paid Bluehost a monthly fee in exchange for leasing

space on its servers. (See July 28, 2020 Tr. 28:10-12). In 2018, Plaintiff began

separately maintaining a blog, titled “EV7 Blog,” using the free website-hosting

services provided by WordPress.org. (Id. at 6:9-12, 8:2-7, 8:22-24; see also

SAC 5).2 Plaintiff later decided to “upgrade” her EV7 Blog and transferred its

contents to WordPress.com, a hosting platform owned and operated by

Defendant Automattic. (July 28, 2020 Tr. 6:9-17, 9:4-15; see also SAC 6-8).

She paid $96 for her “premium plan” with WordPress.com. (SAC 6).

Automattic is also a domain registrar, and in March 2018, Plaintiff appears to

have registered a separate domain with Automattic named

“www.thetranspersonalway.training.” (July 28, 2020 Tr. 6:14-17, 15:6-15; see

also SAC 6; TAC 1).

On or about September 17, 2018, Plaintiff paid approximately $70 to

“24/7 WordPress Support” to migrate the contents of the EV7 Blog from

Automattic’s servers to Bluehost’s servers. (TAC 1; July 28, 2020 Tr. 11:22-

13:8).3 Plaintiff alleges that she was concerned about site security and

Reply” (Dkt. #67); Bluehost’s reply brief as “Bluehost Reply” (Dkt. #71); and

Automattic’s reply brief as “Automattic Reply” (Dkt. #70).

2 Automattic represents that it does not own WordPress.org (Automattic Br. 2), and

WordPress.org is not a named defendant in this case.

3 Plaintiff alleges that she experienced “issues” with 24/7 WordPress Support, an entity

that is not named as a defendant in this case. (SAC 6). Plaintiff has appended to her

understood that Bluehost’s “Sitelock” feature would protect her website

materials. (July 28, 2020 Tr. 11:22-12:2). Plaintiff’s EV7 Blog was transferred

to Bluehost as a “subdomain” of Plaintiff’s website with Bluehost —

Evergreen7.com. (Id. at 12:6, 13:7-8). Although Plaintiff had expected that

www.thetranspersonalway.training would be transferred to Bluehost along with

the EV7 blog, she subsequently realized that the site had remained with

Automattic. (Id. at 16:21-17:5; see also SAC 8).4 Plaintiff was also “surprised”

to learn that Automattic was the “registrar” of the

www.thetranspersonalway.training domain, as she had not intended to register

that domain with Automattic. (July 28, 2020 Tr. 18:1-3, 20:19-22; see also

TAC 1; SAC 75-82 (February 2019 email exchanges with Automattic)). Plaintiff

filed a complaint with the Internet Corporation for Assigned Names and

Numbers (“ICANN”) regarding the issues with her website migration and her

unease with Automattic remaining the registrar of

www.thetranspersonalway.training. (See July 28, 2020 Tr. 21:1-5).

submissions various communications with “24x7wpsupport.com,” which the Court

understands to be 24/7 WordPress Support. (See SAC 10-33, 59-63). Those

communications appear to reflect various technical issues Plaintiff encountered when

she attempted to publish materials to “www.thetranspersonalway.training” and was

directed by 24x7wpsupport.com to instead publish materials to her EV7 Blog. (See id.).

In its briefing, Automattic submits that to the extent Plaintiff alleges claims against it

arising from the conduct of 24x7wpsupport.com, those claims fail because Automattic

has no affiliation with that entity. (Automattic Br. 9). And the very communications

Plaintiff has appended to her pleadings confirm that 24x7wpsupport.com was not

affiliated with Automattic or WordPress.com. (See SAC 18 (“[W]e are a 3rd party

technical team we are not from wordpress.com[.]”)). Moreover, 24x7wpsupport.com

discloses on its website that it is “not affiliated with Automattic … or WordPress.”

(Morton Decl., Ex. C at 5). Plaintiff has not provided any basis for attributing the

conduct of 24x7wpsupport.com to Automattic or any of the other Defendants.

4 Plaintiff was refunded $22 by WordPress.com as a result of these issues. (SAC 8).

Given her continuing concerns about site security and her disinterest in

having Automattic continue in its role as domain registrar, Plaintiff thereafter

contacted Bluehost and Automattic to begin the process of transferring

www.thetranspersonalway.training to Bluehost’s servers. (July 28, 2020

Tr. 19:2-22). In March 2019, Plaintiff paid Bluehost $150 to migrate the

contents of the www.thetranspersonalway.training site to the EV7 Blog. (Id. at

19:22-24, 21:20-22:6; see also TAC 1). But it appears that something went

wrong during the transfer. Approximately two weeks later, when Plaintiff

checked on the status of her sites with Bluehost, she found that the contents

of all three sites — the EV7 Blog, www.thetranspersonalway.training, and

Evergreen7.com — were indecipherable. (July 28, 2020 Tr. 22:25-23:5; see

also id. at 23:1-5 (“[E]verything of mine was [ ] scrambled eggs …. I couldn’t

make heads or tails of it.”)). As a result, Plaintiff has been unable to make

progress on her writing on any of the three websites. (Id. at 23:17-25). Her

understanding is that Bluehost is unable to fix whatever errors occurred in the

migration and consolidation of her websites, and she cannot afford to hire a

website developer to assist her with reorganizing the contents of her sites. (Id.

at 23:21-22, 24:6-7). Moreover, it appears that as of June 2019, the domain

for www.thetranspersonalway.training remained registered with Automattic.

(SAC 70 (June 2019 email exchange between Plaintiff and Automattic)).

2. Plaintiff’s Grievances with Twitter

Faced with these seemingly unresolvable issues with her websites,

Plaintiff turned to writing on an account hosted by Defendant Twitter, where

she encountered an unrelated series of issues. (July 28, 2020 Tr. 25:17-19;

see also Pl. Opp. 4). At some point after switching media, Plaintiff received an

email from Twitter regarding “[a] bug impacting [her] privacy.” (Pl. Opp. 4).

The email stated that Twitter had resolved an issue where certain location data

had been “inadvertently collected,” and that Plaintiff’s account had been

affected. (Id.). Plaintiff alleges that after receiving this email, her personal

Twitter page began receiving “all sorts of traffic.” (Id.). Plaintiff appears to

allege that her Twitter account improperly gained access to her “HP e-printer,”

and that she alerted HP Customer Support and Twitter’s Office of Data

Protection about this issue. (Id. at 4-5; July 28, 2020 Tr. 27:5-8).

It appears that around this time, Plaintiff began corresponding via

Twitter with another account holder who offered to assist her with her

“enterprise.” (Pl. Opp. 5). After providing the account holder with her passport

photo, email address, and phone number, and receiving no further

communication, she became concerned about identify theft. (Id.). The Court

understands that Plaintiff may have closed her bank account due to these

concerns. (See id.). Plaintiff also alleges that sometime after she commenced

the instant action, in or around July 2020, she learned that both of her Twitter

accounts had been blocked. (Id. at 6; TAC 1). At the time Plaintiff filed her

TAC in October 2020, she was still unable to access her Twitter account. (See

TAC 1).

Plaintiff has also detailed other technical difficulties that do not appear

to be attributed to any of the Defendants, including issues with the word

processing program on her computer and with her iPhone. (Pl. Opp. 5-6;

July 28, 2020 Tr. 26:3-22).

B. Procedural Background

Plaintiff initiated this action with the filing of her original complaint on

July 8, 2019. (Dkt. #2). The case was reviewed by then-Chief Judge Colleen

McMahon; in an order issued on September 20, 2019 (the “September 20

Order”), Judge McMahon ordered Plaintiff to file an amended pleading to

address various deficiencies in the complaint. (Dkt. #5). In particular, Judge

McMahon found that Plaintiff had failed to meet her burden of alleging subject

matter jurisdiction, and advised Plaintiff on the requirements for doing so. (Id.

at 2-6). The September 20 Order further observed that Plaintiff had filed eight

cases in this District “in a matter of weeks,” and warned Plaintiff against any

further vexatious or frivolous litigation. (Id. at 6). Plaintiff has since

represented that many of these cases related to her issues with Twitter, as well

as other technical issues referenced above. (Pl. Opp. 5-6).

Plaintiff filed her First Amended Complaint (the “FAC”) on October 22,

2019. (Dkt. #6). The matter was thereafter reassigned to this Court. On

April 16, 2020, Bluehost and Automattic submitted letters indicating that they

intended to move to dismiss the FAC. (Dkt. #22 (Bluehost); Dkt. #24

(Automattic)). On April 23, 2020, and June 24, 2020, the Court attempted to

hold initial pretrial conferences in this matter (Minute Entry for April 23, 2020;

Minute Entry for June 24, 2020), but on both occasions Plaintiff failed to

attend, later representing that she was unable to participate because she did

not have a functioning cellular phone (Dkt. #30, 36). On July 28, 2020, the

Court held an initial pretrial conference, attended by Plaintiff and counsel for

all Defendants. (See July 28, 2020 Tr.). During the conference, the Court

explained to Plaintiff that her FAC continued to suffer from certain deficiencies,

and noted in particular that the FAC failed to allege any conduct by Twitter.

(Id. at 42:25-43:16). The Court advised: “one of the things that would be

especially useful to [the Court] and to the defendants in this case is … to make

clear what each party did that you believe caused you harm.” (Id. at 42:25-

43:3). The Court accordingly granted Plaintiff leave to file a further amended

complaint. (Dkt. #37).

On September 15, 2020, Plaintiff filed the SAC. (Dkt. #41). The Court

sua sponte dismissed the SAC for failure to state a claim on September 17,

2020. (Dkt. #42). The Court explained that the SAC “remain[ed] largely

incomprehensible,” and was “primarily a collection of various

communications.” (Id. at 1). Given Plaintiff’s pro se status, the Court granted

Plaintiff “one final opportunity to file a proper complaint.” (Id. at 2). On

October 20, 2020, Plaintiff filed the TAC. (Dkt. #43). On October 22, 2020, the

Court issued an order (the “October 22 Order”) observing that while Plaintiff’s

submission did not fully address the deficiencies it had previously identified,

the Court would nonetheless consider the SAC, Plaintiff’s statements at the

July 28, 2020 conference, and the TAC as the operative pleadings. (Dkt. #44).

Pursuant to the Court’s October 22 Order, on November 13, 2020, all

three Defendants submitted letters indicating their intent to file motions to

dismiss Plaintiff’s claims. (Dkt. #45-47). On November 16, 2020, the Court

granted Defendants’ requests and set a briefing schedule on their motions to

dismiss. (Dkt. #48). Defendants’ opening briefs and supporting papers were

filed on December 16, 2020 (Dkt. #50-53 (Twitter); Dkt. #54-56 (Bluehost); Dkt.

#58 (Automattic));5 Plaintiff’s consolidated opposition brief was submitted on

January 28, 2021 (Dkt. #66); and briefing concluded with the filing of

Defendants’ reply briefs on February 11, 2021 (Dkt. #67 (Twitter); Dkt. #70

(Automattic); Dkt. #71 (Bluehost)).

DISCUSSION

Twitter and Bluehost have moved to dismiss the TAC under Federal Rule

of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. (Twitter Br. 2-

4; Bluehost Br. 8-9). All three Defendants have moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Twitter

Br. 4-10; Bluehost Br. 9-14; Automattic Br. 4-9).6

Plaintiff fails to respond to any of the grounds for dismissal in her

opposition brief, and instead tailors her response to refuting a reference in

Bluehost’s opening brief to the September 20 Order cautioning Plaintiff against

engaging in further frivolous and vexatious litigation. (See generally Pl. Opp.;

see also Bluehost Br. 2 (referencing September 20 Order 6)). In their replies,

5 Due to a filing deficiency, Automattic’s opening papers were re-filed on December 17,

2020. (Dkt. #60-64).

6 In the alternative, Automattic requests that Plaintiff be required to submit a more

definite statement of her claims under Rule 12(e). (Automattic Br. 9-10). The Court

need not reach this issue because, for the reasons discussed in the text, it finds that

Plaintiff has failed to state a claim against Automattic and that leave to amend would be

futile.

Defendants correctly observe that a failure to respond to an argument on an

issue may constitute abandonment of that issue. (See Twitter Reply 1;

Bluehost Reply 1-5; Automattic Reply 1-2). See Anti-Monopoly, Inc. v. Hasbro,

Inc., 958 F. Supp. 895, 907 n.11 (S.D.N.Y. 1997), aff’d, 130 F.3d 1101 (2d Cir.

1997) (per curiam); see also Jones v. Cuomo, No. 20 Civ. 4898 (KPF), 2021 WL

2269551, at *5 n.2 (S.D.N.Y. June 2, 2021) (considering certain claims

“conceded” where plaintiff’s briefing failed to respond to defendants’ arguments

in favor of dismissal (collecting cases)). However, “in recognition of the special

solicitude owed a pro se plaintiff,” the Court will not deem Plaintiff’s claims

abandoned, and will consider Defendants’ motions. See Warmin v. N.Y.C. Dep’t

of Educ., No. 16 Civ. 8044 (KPF), 2019 WL 3409900, at *4 (S.D.N.Y. July 29,

2019) (declining to find that plaintiff’s claims were abandoned and considering

“each of the properly repleaded claims in the SAC”).

A. The Court Denies Twitter’s and Bluehost’s Motions to Dismiss Under

Federal Rule of Civil Procedure 12(b)(1)

1. Standard of Review

Under Rule 12(b)(1), a defendant may move to dismiss a complaint for

lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “A case is properly

dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the

district court lacks the statutory or constitutional power to adjudicate it.”

Lyons v. Litton Loan Servicing LP, 158 F. Supp. 3d 211, 218 (S.D.N.Y. 2016)

(quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)).

“Subject-matter jurisdiction is a threshold issue that must be addressed

prior to the merits.” Allen v. N.Y.C. Hous. Auth., No. 15 Civ. 173 (ALC), 2016

WL 722186, at *4 (S.D.N.Y. Feb. 19, 2016). Federal courts have original

jurisdiction over civil actions in which the parties have diversity of citizenship

and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). This is

known as diversity jurisdiction, as contrasted with jurisdiction based on the

existence of a federal question. See 28 U.S.C. § 1331. Diversity jurisdiction

requires complete diversity between the parties, meaning that no plaintiff has

the same citizenship as any defendant. Exxon Mobil Corp. v. Allapattah Servs.,

Inc., 545 U.S. 546, 553 (2005).

On a Rule 12(b)(1) motion, the challenge to subject matter jurisdiction

may be facial or fact-based. Carter v. Healthport Tech., LLC, 822 F.3d 47, 55

(2d Cir. 2016). When considering a facial challenge, a court must determine

whether the pleadings “allege[] facts that affirmatively and plausibly suggest

that” subject matter jurisdiction exists. Id. (quoting Amidax Trading Grp. v.

S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011)). For purposes of a Rule

12(b)(1) facial challenge, a court accepts all factual allegations as true and

draws all reasonable inferences in favor of the plaintiff asserting jurisdiction.

Id. (citing W.R. Huff Asset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d

100, 106 (2d Cir. 2008); Lunney v. United States, 319 F.3d 550, 554 (2d Cir.

2003)). In contrast, to support a fact-based Rule 12(b)(1) challenge, a

defendant may proffer evidence beyond the pleadings. Carter, 822 F.3d at 56-

57 (citing Amidax, 671 F.3d at 145). To oppose such a motion, a plaintiff must

present controverting evidence “if the affidavits submitted on a 12(b)(1)

motion ... reveal the existence of factual problems” with respect to jurisdiction.

Id. (quoting Exch. Nat’l Bank of Chi. v. Touche Ross & Co., 544 F.2d 1126, 1131

(2d Cir. 1976)).

2. Analysis

Twitter and Bluehost argue that Plaintiff has failed to allege subject

matter jurisdiction arising under either the Court’s diversity jurisdiction or its

federal question jurisdiction. (Twitter Br. 2-4; Bluehost Br. 8-9). While the

Court agrees with these Defendants that Plaintiff’s SAC and TAC fail to invoke

either basis for jurisdiction, Plaintiff’s FAC did represent that she sought to

allege subject matter jurisdiction based on diversity. (FAC 4). The FAC also

recited complete diversity among the parties, as Plaintiff resides in New York

and alleged that Automatic and Twitter are domiciled in California and

Bluehost in Massachusetts. (Id. at 3, 8). Plaintiff further alleged that it would

be a “costly enterprise” to “hir[e] web developers” to repair the damage to her

website, and that such costs would exceed $75,000. (Id. at 25). Given the

solicitude owed to pro se plaintiffs when construing their pleadings and motion

papers, the Court concludes that it may and will credit Plaintiff’s FAC

allegations in determining its subject matter jurisdiction. See Tracy v.

Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (“It is well established that a court

is ordinarily obligated to afford a special solicitude to pro se litigants. The

rationale underlying this rule is that a pro se litigant generally lacks both legal

training and experience and, accordingly, is likely to forfeit important rights

through inadvertence if he is not afforded some degree of protection.” (internal

citations omitted)).7

Bluehost argues that, even accepting the allegations in the FAC, Plaintiff

has failed to allege facts sufficient to find a “reasonable probability” that her

claim exceeds the $75,000 threshold requirement. (Bluehost Br. 8-9).

However, courts in this Circuit “customarily interpret a plaintiff’s allegations of

damages as sufficient to satisfy the amount-in-controversy requirement,”

except where “it is a ‘legal certainty’ that the plaintiff cannot recover the

damages [she] seeks.” Nwanza v. Time, Inc., 125 F. App’x 346, 348 (2d Cir.

2005) (summary order) (collecting cases); see also Colavito v. N.Y. Organ Donor

Network, Inc., 438 F.3d 214, 221 (2d Cir. 2006) (“[W]e recognize ‘a rebuttable

presumption that the face of the complaint is a good faith representation of the

actual amount in controversy[.]’” (quoting Wolde-Meskel v. Vocational

Instruction Project Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999))). Here, the

Court does not find it to be a “legal certainty” that Plaintiff’s alleged amount in

controversy is an impossibility.

7 Plaintiff has not alleged that the Court possesses subject matter jurisdiction pursuant

to federal question jurisdiction. The Court recognizes that Plaintiff’s pleadings — if read

generously — may attempt to assert a copyright or trademark infringement claim. (See

TAC 2; see also Twitter Br. 8; Bluehost Br. 12-14; Automattic Br. 5-6 (moving to

dismiss any copyright, trademark, or violation of intellectual property rights claim)).

However, to the extent any such claim is asserted, it is unclear whether it arises under

federal law, and thus does not provide a basis for federal question jurisdiction. See

Buday v. N.Y. Yankees P’ship, No. 11 Civ. 2628 (DAB), 2011 WL 13176013, at *3

(S.D.N.Y. Oct. 20, 2011) (“Plaintiff’s copyright claim, to the extent it is cognizable at all,

thus arises under state rather than federal law. Accordingly, this Court’s subject

matter jurisdiction will not lie under 28 U.S.C. § 1331, as no federal question is

present.”), aff’d, 486 F. App’x 894 (2d Cir. 2012) (summary order).

Affording Plaintiff particular leniency as a pro se litigant, the Court finds

that Plaintiff has adequately pleaded facts indicating that the Court may

exercise subject matter jurisdiction based on diversity. Accordingly, it denies

Twitter’s and Bluehost’s motions to dismiss under Rule 12(b)(1).

B. The Court Grants Defendants’ Motions to Dismiss Under Federal

Rule of Civil Procedure 12(b)(6)

1. Standard of Review

All three Defendants have moved for dismissal of the TAC under Rule

12(b)(6). To survive a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff

must plead sufficient factual allegations “to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

claim is facially plausible “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, 556 U.S. 662, 678 (2009). A complaint

that contains only “naked assertions” or “a formulaic recitation of the elements

of a cause of action” does not suffice. Twombly, 550 U.S. at 555. The Court

must accept as true all well-pleaded factual allegations in the complaint. See

Iqbal, 556 U.S. at 678.

“[C]ourts must construe pro se pleadings broadly, and interpret them ‘to

raise the strongest arguments that they suggest.’” Cruz v. Gomez, 202 F.3d

593, 597 (2d Cir. 2000) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.

1996)); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do

justice.”). “However inartfully pleaded, a pro se complaint may not be

dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of her claim which would entitle her to

relief.” Legeno v. Corcoran Grp., 308 F. App’x 495, 496 (2d Cir. 2009)

(summary order) (internal quotation marks and brackets omitted) (quoting Posr

v. Court Officer Shield No. 207, 180 F.3d 409, 413 (2d Cir. 1999)). With that

said, to survive a Rule 12(b)(6) motion to dismiss, a pro se plaintiff’s factual

allegations must at least “be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

In making Rule 12(b)(6) determinations, “a district court may consider

the facts alleged in the complaint, documents attached to the complaint as

exhibits, and documents incorporated by reference in the complaint.” DiFolco

v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010); accord Goel v. Bunge,

Ltd., 820 F.3d 554, 559 (2d Cir. 2016). “Even where a document is not

incorporated by reference, the court may nevertheless consider it where the

complaint ‘relies heavily upon its terms and effect,’ which renders the

document ‘integral’ to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d

147, 153 (2d Cir. 2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel.

Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)).

2. Plaintiff’s Claims8

Plaintiff’s pleadings fail to articulate any specific causes of action against

the named Defendants, despite repeated admonitions from the Court. In the

8 As noted, the Court must “afford … a special solicitude” to Plaintiff as a pro se

litigant, Tracy, 623 F.3d at 101, and read her submissions to “raise the strongest

arguments that they suggest,” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting

Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Plaintiff puts forth a number of

document captioned her TAC, Plaintiff asserts merely: “All three entities have

failed to honor the terms of service and in the process, and individually or

collectively violated my intellectual property rights. Found out the US does not

recognize ‘database rights,’ so unfortunately that is moot, but my copyrights

are.” (TAC 2).

From the TAC and Plaintiff’s prior submissions and statements,

Defendants have endeavored to discern the claims asserted against them, and

have structured their Rule 12(b)(6) motions as follows: (i) Twitter seeks to

dismiss any claims arising from breaches of its Terms of Service and violations

of Plaintiff’s intellectual property rights (Twitter Br. 6-9); (ii) Bluehost seeks to

dismiss claims arising from fraud, breach of contract, and violations of

Plaintiff’s intellectual property rights (Bluehost Br. 10-14); and (iii) Automattic

seeks to dismiss any claims asserted against it based upon copyright

infringement, breach of contract, conversion, and fraud (Automattic Br. 5-8).

Having carefully considered Plaintiff’s operative pleadings, the Court has

identified no additional potential claims.

new allegations in her opposition brief, despite having had three opportunities to cure

the deficiencies in her pleadings and having been instructed by the Court to “write

out … everything that happened [in] a single complaint.” (See July 28, 2020 Tr. 43:12-

13). The Court will consider new factual allegations in Plaintiff’s briefing where they are

consistent with the operative pleadings. See, e.g., Braxton v. Nichols, No. 08 Civ. 8568

(PGG), 2010 WL 1010001, at *1 (S.D.N.Y. Mar. 18, 2010); Coakley v. 42nd Pct. Case

458, No. 08 Civ. 6206 (JSR), 2009 WL 3095529 at *3 (S.D.N.Y. Sept. 28, 2009).

However, the Court will not consider wholly new claims raised for the first time in

Plaintiff’s opposition brief, particularly given that Plaintiff has now had three

opportunities to amend her pleadings. See Mira v. Argus Media, No. 15 Civ. 9990 (RJS),

2017 WL 1184302, at *3 (S.D.N.Y. Mar. 29, 2017); Pandozy v. Segan, 518 F. Supp. 2d

550, 554 n.1 (S.D.N.Y. 2007), aff’d, 340 F. App’x 723 (2d Cir. 2009) (summary order).

3. Choice of Law

In general, “[f]ederal courts exercising diversity jurisdiction apply the

choice-of-law rules of the forum state, here New York, to decide which state’s

substantive law governs.” Rothstein v. City of New York, No. 09 Civ. 5888 (LTS)

(HBP), 2011 WL 3296205, at *5 n.8 (S.D.N.Y. June 15, 2011) (quoting

Rocchigiani v. World Boxing Council, Inc., 131 F. Supp. 2d 527, 530 n.5

(S.D.N.Y. 2001)), report and recommendation adopted, 2011 WL 3273473

(S.D.N.Y. July 29, 2011); accord Fieger v. Pitney Bowes Credit Corp., 251 F.3d

386, 393 (2d Cir. 2001). However, “[w]here the parties agree that New York law

controls, this is sufficient to establish choice of law.” Fed. Ins. Co. v. Am. Home

Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011).

Bluehost’s and Automattic’s briefing assumes that New York law

controls Plaintiff’s potential state-law claims (see Bluehost Br. 10-12;

Automattic Br. 5-9), and Plaintiff does not proffer any alternative state

substantive law (see Pl. Opp.). Courts have held that “such implied consent is

sufficient to establish choice of law.” MIG, Inc. v. Paul, Weiss, Rifkind, Wharton

& Garrison, LLP, 701 F. Supp. 2d 518, 532 (S.D.N.Y. 2010) (internal citations

and modifications omitted) (quoting Motorola Credit Corp. v. Uzan, 388 F.3d 39,

61 (2d Cir. 2004)), aff’d, 410 F. App’x 408 (2d Cir. 2011) (summary order). The

Court will accordingly analyze Plaintiff’s state-law claims under New York law.

4. Plaintiff Fails to State an Intellectual Property Rights Claim

Plaintiff alleges that Defendants “individually or collectively violated [her]

intellectual property rights.” (TAC 2). Defendants argue that to the extent

Plaintiff seeks to allege a copyright claim, trademark infringement claim, or any

other violation of her intellectual property rights, any such claims fail. (Twitter

Br. 8; Bluehost Br. 12-14; Automatic Br. 5).

“The owner of a copyright has the exclusive right to — or to license

others to — reproduce, perform publicly, display publicly, prepare derivative

works of, and distribute copies of, [her] copyrighted work.” Arista Records, LLC

v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010) (citing 17 U.S.C. § 106). To state a

claim for copyright infringement, “a plaintiff must allege both [i] ownership of a

valid copyright and [ii] infringement of the copyright by the defendant.” Spinelli

v. Nat’l Football League, 903 F.3d 185, 197 (2d Cir. 2018) (internal quotation

marks omitted). Here, Plaintiff has not alleged ownership over any registered

copyright. Accordingly, at the outset, the Court must dismiss any copyright

infringement claim asserted against any of the Defendants. See LLM Bar Exam,

LLC, v. Barbri, Inc., 271 F. Supp. 3d 547, 588-89 (S.D.N.Y. 2017) (“[B]ecause

[plaintiff] did not even file an application for registration prior to instituting this

lawsuit, it cannot bring an infringement claim under the Copyright Act.”

(alterations, quotation marks, and emphasis omitted) (quoting Psihoyos v. John

Wiley & Sons, Inc., 748 F.3d 120, 125 (2d Cir. 2014))).9

9 For similar reasons, any trademark infringement claim also fails, as Plaintiff has not

alleged that she owns a registered trademark. See Pulse Creations, Inc. v. Vesture Grp.,

154 F. Supp. 3d 48, 53-54 (S.D.N.Y. 2015) (observing that in analyzing a trademark

infringement claim under either Section 32 of the Lanham Act, 15 U.S.C. § 1114, or

New York law, courts look to “whether the plaintiff’s mark is entitled to protection”

(citing Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 102 (2d Cir. 2010); Smith v. Mikki

More, LLC, 59 F. Supp. 3d 595, 616 (S.D.N.Y. 2014))).

Moreover, the TAC does not include any specific allegations of

infringement by any of the Defendants. Plaintiff alleges that Automattic, via

WordPress.com, “appropriated” the www.thetranspersonalway.training domain

and “claimed to have ‘created’ the domain in its ICANN registration.” (TAC 1).

However, Plaintiff’s pleadings themselves indicate that she authorized the

registration of her domain with Automattic, inasmuch as she has submitted a

number of communications that appear to reference the “upgrade” of her

website to Automattic’s WordPress.com server. (See, e.g., SAC 7 (stating that

she “upgraded thetranspersonalway.training to WordPress.com”); id. (quoting

email from WordPress.com stating “we need you to complete a few preliminary

steps to initiate and authorize the domain transfer”); id. at 45-47 (email from

WordPress.com discussing Plaintiff’s domain name registration of

thetranspersonalway.training); id. at 50 (chat with WordPress.com support in

which Plaintiff states that she received an email regarding the purchase of “a

domain transfer upgrade” and that she had “upgraded

thetranspersonalway.training.”)). While Plaintiff has represented that she was

“surprised” to later learn that Automattic was the domain registrar (July 28,

2020 Tr. 18:1-2), such surprise does not amount to a copyright infringement

claim, particularly where Plaintiff appears to have consented to the initial

registration of her domain with Automattic. Further, under Automattic’s Terms

of Service, Plaintiff granted a license to Automattic for the use of her content

hosted on its servers. (See Morton Decl., Ex. A at § 1 (Automattic’s

January 31, 2018 Terms of Service); id., Ex. B at § 1 (Automattic’s May 14,

2018 Terms of Service)).

Plaintiff otherwise fails to plead any allegations with respect to Bluehost

or Twitter that could support a claim for violations of Plaintiff’s intellectual

property rights. Plaintiff’s allegations regarding Bluehost’s transfer of her

website content do not appear to have any bearing on any intellectual property

rights claims. (See, e.g., TAC 1). And Plaintiff’s allegations regarding her

various issues with her Twitter account similarly do not appear to give rise to

any intellectual property rights violation. (See id.; Pl. Opp. 4-6). Moreover, as

with Automattic, under Twitter’s Terms of Service Plaintiff granted Twitter a

license to display her content. (See Twitter Terms of Service § 3). Accordingly,

the Court dismisses these claims. See Ochre LLC v. Rockwell Architecture

Planning & Design, P.C., No. 12 Civ. 2387 (KBF), 2012 WL 6082387, at *5

(S.D.N.Y. Dec. 3, 2012) (deeming copyright claims insufficiently pleaded where

plaintiff “fails to allege facts constituting copyright infringement,” and

“improperly ‘lumps’ together the allegations against the various defendants”),

aff’d, 530 F. App’x 19 (2d Cir. 2013) (summary order).

5. Plaintiff Fails to State a Breach of Contract Claim

Defendants next argue that Plaintiff has failed to allege either a breach of

contract claim or any other claim arising from alleged violations of their terms

of service. (Twitter Br. 6-8; Bluehost Br. 11-12; Automattic Br. 5-6). “Under

New York law, the elements of a breach of contract claim are [i] the formation of

an agreement, [ii] performance by one party, [iii] breach of agreement by the

other party, and [iv] damages.” Berman v. Sugo LLC, 580 F. Supp. 2d 191, 202

(S.D.N.Y. 2008) (citing First Investors Corp. v. Liberty Mut. Ins. Co., 152 F.3d

162, 168 (2d Cir. 1998)).10

Plaintiff’s TAC alleges that “all three entities have failed to honor [their]

terms of service,” but fails to identify what provisions of Defendants’ terms of

service they allegedly breached. (TAC 1).11 As identifying specific contractual

provisions that were breached by a defendant’s conduct is “an essential

requirement for a breach of contract claim,” this omission compels dismissal of

Plaintiff’s breach of contract claims. Orange Cnty. Choppers, Inc. v. Olaes

Enters., Inc., 497 F. Supp. 2d 541, 554 (S.D.N.Y. 2007) (collecting cases); see

also Lopez v. Aeropostale, Inc., No. 11 Civ. 4166 (RMB), 2012 WL 13059794, at

10 Both Automattic’s and Twitter’s Terms of Service provide that the agreements are

governed by the laws of the state of California. (See Morton Decl., Ex. A at § 16; id.,

Ex. B at § 16; Twitter Terms of Service § 6). However, Automattic’s briefing assumes

that New York law governs any breach of contract claims (see Automattic Br. 5-6), and

Twitter’s briefing does not indicate that California law should control any state-law

claims (see generally Twitter Br.). Moreover, given Plaintiff’s threadbare allegations, the

Court submits that the outcome on this issue would be no different under California

law. Accordingly, the Court will apply New York law when considering Plaintiff’s

potential breach of contract claims against Defendants. See Fed. Ins. Co. v. Am. Home

Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011) (“Under New York choice of law rules,

the first inquiry in a case presenting a potential choice of law issue is whether there is

an actual conflict of laws on the issues presented. If not, no choice of law analysis is

necessary.” (citing Fieger v. Pitney Bowes Credit Corp., 251 F.3d 386, 393 (2d Cir.

2001))).

11 In her opposition brief, Plaintiff observes that Twitter’s Terms of Service provide: “You

retain your rights to any content you submit, post or display on or through our

services.” (Pl. Opp. 8 (quoting Twitter Terms of Service § 3)). But even were the Court

willing to accept this allegation, Plaintiff has not alleged any breach of this provision by

Twitter, as she must to state a breach of contract claim. And as noted above, the very

same provision cited in Plaintiff’s briefing grants Twitter a license to display her

content. (See Twitter Terms of Service § 3 (“By submitting, posting or displaying

Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-

free license ….”)).

*5 (S.D.N.Y. Feb. 10, 2012) (dismissing breach of contract claim where pro se

plaintiff failed to identify any provision of the agreement barring defendant’s

conduct).12

6. Plaintiff Fails to State a Fraud Claim

Bluehost and Automattic next move to dismiss any fraud claims alleged

against them by Plaintiff. (Bluehost Br. 10-11; Automattic Br. 8). To state a

claim for common-law fraud under New York law, a plaintiff must allege facts

showing: “[i] a misrepresentation or a material omission of fact which was false

and known to be false by defendant, [ii] made for the purpose of inducing the

other party to rely upon it, [iii] justifiable reliance of the other party on the

misrepresentation or material omission, and [iv] injury.” Premium Mortg. Corp.

v. Equifax, Inc., 583 F.3d 103, 108 (2d Cir. 2009) (quoting Lama Holding Co. v.

Smith Barney Inc., 88 N.Y.2d 413, 421 (1996)). Moreover, “[i]n a federal

diversity action, such a claim must be pleaded with particularity” pursuant to

Rule 9(b). Id. Specifically, “the [claim] must: [i] specify the statements that the

12 Moreover, Automattic observes that to the extent that Plaintiff is alleging that it

infringed upon her copyright, under its Terms of Service, it possessed “a world-wide,

royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the

Content solely for the purpose of displaying, distributing, and promoting [Plaintiff’s]

blog.” (Automattic Br. 5 (quoting Morton Decl., Ex. A at § 1; id., Ex. B at § 1)).

Automattic also had the right to make any public content available to third parties to

distribute. (Id.).

With respect to Plaintiff’s allegations about difficulties accessing her Twitter account

and other issues with her Twitter account usage, Twitter argues that under its Terms of

Service, it had the right to suspend her account access, and that it disclaimed any

responsibility for the various privacy-related issues alleged by Plaintiff. (Twitter Br. 7

(citing Twitter Terms of Service §§ 4, 5)). Twitter further argues that it is entitled to

exercise editorial discretion over its platform under Section 230 of the Communications

Decency Act, 47 U.S.C. § 230(c), as well as the First Amendment. (Id. at 7-8). While the

Court need not reach these issues in light of the deficiencies in Plaintiff’s pleadings, it

agrees that Automattic’s and Twitter’s Terms of Service appear to contemplate and bar a

number of Plaintiff’s grievances.

plaintiff contends were fraudulent, [ii] identify the speaker, [iii] state where and

when the statements were made, and [iv] explain why the statements were

fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (citing

Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)). Additionally,

to satisfy Rule 9(b), a claim must “allege facts that give rise to a strong

inference of fraudulent intent.” Berman v. Morgan Keenan & Co., 455 F. App’x

92, 95 (2d Cir. 2012) (summary order) (quoting Acito v. IMCERA Grp., 47 F.3d

47, 52 (2d Cir. 1995)).

Here, the Court cannot make out any claim for fraud in Plaintiff’s

pleadings, let alone one that satisfies the rigorous pleading standards of

Federal Rule of Civil Procedure 9(b). Plaintiff fails to identify any false

statements by any of the Defendants, or to allege justifiable reliance on any

putative misstatements. See Walia v. Veritas Healthcare Sols., L.L.C., No. 13

Civ. 6935 (KPF), 2015 WL 4743542, at *8 (S.D.N.Y. Aug. 11, 2015) (dismissing

fraud claim where “even taking into account the solicitude due Plaintiff as a pro

se litigant, it is not possible for the Court to determine what statement forms

the basis of his fraud claim”). Moreover, Plaintiff puts forth no allegations

demonstrating fraudulent intent. In particular, none of Plaintiff’s submissions

identifies any discernable motive on the part of Defendants to mislead Plaintiff,

either with respect to the transfer of her website content or with respect to the

various technical issues she encountered with her Twitter account.13 For all of

these reasons, Plaintiff has failed to state a claim against Defendants for fraud.

7. Plaintiff Fails to State a Conversion Claim

Lastly, Automattic moves to dismiss any conversion claim arising from

its alleged “appropriation” of Plaintiff’s domain

www.thetranspersonalway.training. (Automattic Br. 7-8; see also TAC 1).

Under New York law, to plead a claim of conversion, a plaintiff must establish

that “[i] the property subject to conversion is a specific identifiable thing;

[ii] plaintiff had ownership, possession[,] or control over the property before its

conversion; and [iii] defendant exercised an unauthorized dominion over the

thing in question, to the alteration of its condition or to the exclusion of the

plaintiff’s rights.” Ellington Credit Fund, Ltd. v. Select Portfolio Servicing, Inc.,

837 F. Supp. 2d 162, 204 (S.D.N.Y. 2011) (quoting Moses v. Martin, 360 F.

Supp. 2d 533, 541 (S.D.N.Y. 2004)).

Automattic argues that under New York law, a domain name is not

personal property and thus cannot be the subject of a conversion claim.

(Automattic Br. 7 (citing Wornow v. Register.Com, Inc., 778 N.Y.S.2d 25 (1st

Dep’t 2004))). In support, it relies upon a decision from the First Department

finding that the automatic renewal of a plaintiff’s domain name registrations

did not violate the notice requirement of Section 5-903 of New York General

Obligations Law. See Wornow, 778 N.Y.S.2d at 26. In so holding, the Wornow

13 While Plaintiff alleges that “WordPress.com/Automattic had a different agenda,” she

provides no further detail as to what that agenda was. (See SAC 9).

court observed that “[w]e are in accord with authorities holding that a domain

name that is not trademarked or patented is not personal property, but rather

a contract right that cannot exist separate and apart from the services

performed by a [domain name] registrar such as defendant.” Id.

Significantly, however, following the Wornow decision, the New York

Court of Appeals determined that “electronic records that were stored on a

computer and were indistinguishable from printed documents” were “subject to

a claim of conversion.” Thyroff v. Nationwide Mut. Ins. Co., 8 N.Y.3d 283, 292-

93 (2007). Relying upon Thyroff, courts in this District have indicated that

intangible property such as websites and account information can be the object

of conversion under New York law. See Triboro Quilt Mfg. Corp. v. Luve LLC,

No. 10 Civ. 3604 (VB), 2014 WL 1508606, at *9 (S.D.N.Y. Mar. 18, 2014) (“New

York courts recognize exceptions when the rightful owner of intangible property

is prevented from creating or enjoying a ‘legally recognizable and protectable

property interest in his idea’ such as by being prevented from registering the

domain name for a website or being denied access to a database he created.”);

Ardis Health, LLC v. Nankivell, No. 11 Civ. 5013 (NRB), 2011 WL 4965172, at

*1, 3 (S.D.N.Y. Oct. 19, 2011) (finding that defendant’s “unauthorized

retention” of information including “passwords and other login information for

websites, email accounts, and social media accounts, as well as for third-party

servers where plaintiffs stored content,” could form the basis of a claim of

conversion).

More recently, two sister courts in this District have found that domain

names may be the subject of a conversion claim. In Salonclick LLC v. SuperEgo

Management LLC, Judge Wood declined to dismiss a conversion claim arising

from the seizure of domain names or social media accounts, distinguishing

Wornow as “focus[ing] exclusively on the domain name registration service, as

opposed to possession and control of a website.” No. 16 Civ. 2555 (KMW),

2017 WL 239379, at *3 (S.D.N.Y. Jan. 18, 2017). Judge Broderick similarly

concluded, upon a review of the aforementioned precedent, that “New York law

does permit a plaintiff to sue for conversion based on interference with a

domain name.” Am. Lecithin Co. v. Rebmann, No. 12 Civ. 929 (VSB), 2020 WL

4260989, at *19-20 (S.D.N.Y. July 24, 2020). Consistent with this evolving

jurisprudence, the Court will not dismiss Plaintiff’s conversion claim against

Automattic merely because it involves alleged interference with a domain name.

However, Plaintiff’s conversion claim nonetheless fails because she has

not alleged any “unauthorized” interference by Automattic that resulted in the

“alteration of [her property’s] condition” or that operated “to the exclusion of [ ]

[her] rights.” Ellington Credit Fund, Ltd., 837 F. Supp. 2d at 204 (quoting

Moses, 360 F. Supp. 2d at 541). As discussed above, the various

communications appended to Plaintiff’s pleadings indicate that she authorized

the registration of her domain with Automattic. (See, e.g., SAC 7, 45-47, 50).

Moreover, Plaintiff does not allege that she suffered any injury as a result of her

registration with Automattic.14 Automattic did not seize control of Plaintiff’s

domain name, but rather permitted Plaintiff to transfer the contents associated

with her domain name to Bluehost. (See July 28, 2020 Tr. 19:22-24, 21:20-

22:6; TAC 1; see also SAC 70 (June 8 email from WordPress.com Support

stating “Even though you’ve pointed your domain thetranspersonalway.training

to your Bluehost site now, the domain is still registered with us.”)). Cf.

Salonclick LLC, 2017 WL 239379, at *4 (“Plaintiff has not alleged that

Defendants’ trespass has caused injury to the chattel — that is, the domain

names or social media accounts — particularly now that Plaintiff has

possession of most, if not all, of the accounts[.]” (emphasis omitted)). While

Bluehost’s transfer of Plaintiff’s website content allegedly resulted in other

issues (see July 28, 2020 Tr. 21:20-23:5), those issues — at least on the face of

Plaintiff’s submissions — are not attributed to Automattic and do not provide

the basis for any conversion claim against Automattic.

8. The Court Denies Leave to Amend

“Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that a

court ‘should freely give leave [to amend] when justice so requires.’” Gorman v.

Covidien Sales, LLC, No. 13 Civ. 6486 (KPF), 2014 WL 7404071, at *2 (S.D.N.Y.

Dec. 31, 2014) (quoting Fed. R. Civ. P. 15(a)(2)). Consistent with this liberal

14 In the July 28, 2020 conference, Plaintiff stated that she had security concerns with

maintaining a domain name with Automattic, and wished to transfer her content to

Bluehost, as Bluehost offered the “Sitelock” security feature. (July 28, 2020 Tr. 11:22-

12:2). However, Plaintiff does not allege that she has encountered any security

breaches or associated issues while using Automattic’s services. Thus, Plaintiff’s

concerns with Automattic’s retention of her domain do not rise to the level of alleging

any injury.

amendment policy, “‘[t]he rule in this Circuit has been to allow a party to

amend its pleadings in the absence of a showing by the nonmovant of prejudice

or bad faith.’” Id. (alteration in Gorman) (quoting Block v. First Blood Assocs.,

988 F.2d 344, 350 (2d Cir. 1993)). That being said, “it remains ‘proper to deny

leave to replead where ... amendment would be futile.’” Id. (quoting Hunt v. All.

N. Am. Gov’t Income Tr., Inc., 159 F.3d 723, 728 (2d Cir. 1998)).

Plaintiff has not requested to amend her complaint, and the Court

concludes that any amendment would be futile. While the Court sympathizes

with Plaintiff’s frustrations at the myriad technical issues she appears to have

encountered in recent years, some of which have rendered her writing

inaccessible to her, the Court nonetheless fears that granting Plaintiff a fourth

amendment would only bring more of the same. Plaintiff has thrice amended

her complaint, has received two rounds of pre-motion letters from Defendants,

has had the benefit of both written and oral guidance from the Court (see

September 20 Order; see also Dkt. #42; July 28, 2020 Tr.), and nonetheless

has continued to fail to adequately state a claim for which relief can be

granted. Moreover, Plaintiff was forewarned when granted leave to file the TAC

that she would be afforded “one final opportunity to file a proper complaint.”

(Dkt. #42 at 2). Cf. Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, 898

F.3d 243, 257-58 (2d Cir. 2018) (“When a plaintiff was aware of the deficiencies

in his complaint when he first amended, he clearly has no right to a second

amendment even if the proposed second amended complaint in fact cures the

defects of the first. Simply put, a busy district court need not allow itself to be

imposed upon by the presentation of theories seriatim.” (alteration, footnote,

and internal quotation marks omitted)); Binn v. Bernstein, No. 19 Civ. 6122

(GHW) (SLC), 2020 WL 4550312, at *34 (S.D.N.Y. July 13, 2020) (“To grant

Plaintiffs leave to amend would be allowing them a ‘third bite at the apple,’

which courts in this district routinely deny.” (collecting cases)), report and

recommendation adopted, 2020 WL 4547167 (S.D.N.Y. Aug. 6, 2020)).

Accordingly, the TAC is dismissed with prejudice.

CONCLUSION

For the reasons stated in this Opinion, Defendants’ motions to dismiss

are GRANTED in part and DENIED in part. The Court denies Twitter’s and

Bluehost’s motions to dismiss for lack of subject matter jurisdiction, and

grants Defendants’ motions to dismiss for failure to state a claim. The Clerk of

Court is directed to terminate all pending motions, adjourn all remaining dates,

and close this case. The Clerk of Court is further directed to mail a copy of this

Opinion to Plaintiff.

SO ORDERED.

Dated: August 31, 2021 Kathe Mal. fild-

New York, New York

KATHERINE POLK FAILLA

United States District Judge

29