Thomas v. Twitter Corporate Office

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

CAZE D. THOMAS,

Plaintiff,

22 Civ. 5341 (KPF)

-v.-

OPINION AND ORDER

TWITTER CORPORATE OFFICE and

NATIONAL TWITTER HEADQUARTERS,

Defendants.

KATHERINE POLK FAILLA, District Judge:

Plaintiff Caze Thomas, proceeding pro se, brings claims against

Defendants National Twitter Headquarters and Twitter Corporate Office,

otherwise known as Twitter, Inc., and referenced herein as “Twitter.”1 Plaintiff

seeks recourse for a myriad of alleged harms inflicted upon him by Twitter’s

decision to remove Plaintiff’s posts, also referenced herein as “tweets,” from its

platform. For the reasons set forth below, the Court grants Twitter’s motion to

dismiss Plaintiff’s Complaint in full without leave to amend.

1 Neither “Twitter Corporate Office” nor “Twitter National Headquarters” is a unit of

Twitter, Inc., the entity at which Plaintiff’s Complaint is presumably directed.

Assuming as much, Twitter, Inc. defends this action. (See Dkt. #44 at 3 n.5).

The Court acknowledges that between the filing of Defendants’ opening and reply

submissions, Twitter, Inc. changed its name to X Corp. (See Dkt. #60 at 9). However,

for consistency, the Court will refer to the entity as Twitter in this Opinion.

BACKGROUND2

A. Factual Background

The instant dispute arises out of Twitter’s alleged suspension of Plaintiff’s

Twitter account @Zay_Cipher and his subsequent efforts to recover the

contents of that account. (See generally Compl.). According to Plaintiff,

Twitter’s suspension of his account rendered “up to 3[,]500 [of his] [p]ost[s]

[f]rom the date of suspension” inaccessible to him. (Compl. 6). Further, “[a]fter

[p]roperly [r]equesting, and [p]roviding the necessary documents for his entire

[T]witter Data Archive from 2009-[p]resent, the Plaintiff has not properly

[r]eceived his intellectual properties [f]rom [T]witter.” (Id. at 5). While

acknowledging that “Twitter has sent [Plaintiff] emails with links to his entire

[T]witter Archive,” Plaintiff alleges that these links have all been “defective.”

(Id.).

Plaintiff’s Complaint makes two other allegations, both of which relate to

the contents of Plaintiff’s now-defunct Twitter archive. First, on November 10 of

an unidentified year, Plaintiff “posted [his] music on [Y]outube and [T]witter.”

(Compl. 5). Two days later, popular recording artist Billie Eilish and her

brother posted music allegedly infringing upon the work that Plaintiff had

2 This Opinion draws its facts from the Complaint (“Compl.” (Dkt. #1)), the well-pleaded

allegations of which are taken as true for purposes of this Opinion. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). In this Opinion, the Court maintains Plaintiff’s citing

and spelling conventions as they are presented in his submissions.

For ease of reference, the Court refers to Defendants’ memorandum of law in support of

their motion to dismiss as “Def. Br.” (Dkt. #44), to Plaintiff’s memorandum of law in

opposition to Defendants’ motion as “Pl. Opp.” (Dkt. #58), and to Defendants’ reply

memorandum of law as “Def. Reply” (Dkt. #60).

posted. (Id.). Specifically, Plaintiff claims that Eilish and her brother copied

the “[r]hythm, [s]tyle, harmonie, tone, [and] melodie” of his music. (Id.).

Indeed, “other artist[s] on [Universal Music Group’s] roster” have infringed on

Plaintiff’s music, too. (Id.).

Second, Plaintiff alleges that Elon Musk’s “Model Pi Phone” — which

“us[es] the Pi symbol” — infringes upon Plaintiff’s “Pi Face handheld and

[h]eadheld mobile/[c]omputer [d]evice,” which also “us[es] the Pi Symbol.”

(Compl. 6). What is more, according to Plaintiff, the evidence of Musk’s

infringement is contained within Plaintiff’s missing Twitter archive. (Id.).

According to Plaintiff, his Twitter archive “is worth [t]rillions of [d]ollars,” and

Musk’s actions have caused injuries to Plaintiff’s “branding[,] [f]ame, fortunes,

opportunities, [r]ecognition, credits, awards, [and] accolades, [f]rom [p]ast,

[p]resent, and [p]ossibly the future[.]” (Id.).

B. Procedural Background

Plaintiff initiated the instant action on June 24, 2022, when he filed a

Complaint against National Twitter Headquarters, Twitter Corporate Office,

Billie Eilish, and Universal Music Group. (Dkt. #1). The initial Complaint

lodged six claims against those defendants: (i) “[c]opyright [i]nfringement,”

(ii) “[i]llegally withholding [i]ntellectual properties of the Plaintiff,” (iii) “[i]llegal

contracts,” (iv) “[p]rofiting off of infringed [i]ntellectual properties,”

(v) “tampering with [e]vidence,” and (v) “[l]aundering.” (Compl. 2). On

October 13, 2022, at Plaintiff’s request (Dkt. #6), the Court dismissed

Defendants Billie Eilish and Universal Music Group (Dkt. #7) from the action.

On October 17, 2022, Plaintiff successfully served the Complaint on

Twitter, the only remaining Defendant. (Dkt. #14-15). Soon after, on

November 7, 2022, Twitter filed a pre-motion letter requesting leave to file a

motion to dismiss Plaintiff’s Complaint. (Dkt. #10). Following a pre-motion

conference regarding Twitter’s anticipated motion to dismiss — and in an effort

to resolve the case without further motion practice — Twitter agreed to provide

Plaintiff with the full data archive in Twitter’s possession for the account

@Zay_Cipher “using the only data production tool available to Twitter, the same

tool it uses to produce data to law enforcement entities and civil litigants alike.”

(Dkt. #24 at 2; December 13, 2022 Minute Entry). Twitter would not, however,

agree to reinstate Plaintiff’s account. (Id.).

Hopeful that Twitter’s overtures would be sufficient to resolve the

dispute, the Court then ordered Plaintiff to file a letter informing the Court

whether he still wished to continue with the litigation after receiving the data

archive. (Dkt. #25). On January 27, 2023, the Court received Plaintiff’s letter.

(Dkt. #28). The 34-page submission did not respond directly to the Court’s

Order; instead, it provided more detail about the merits of Plaintiff’s claims.

(See id.). As such, the Court construed the letter as an indication that Plaintiff

wished to continue the litigation. (Dkt. #29).

The Court then set a briefing schedule for Twitter’s motion to dismiss.

(Dkt. #29). Twitter filed its motion and accompanying papers on March 8,

2023 (Dkt. #43-48); Plaintiff filed his response and accompanying papers on

May 1, 2023 (Dkt. #58-59); and Twitter filed its reply on May 19, 2023 (Dkt.

#60). On June 12, 2023, Plaintiff filed an “Opposition to Defendant’s Reply”

without leave of the Court to file a sur-reply (Dkt. #62), as well as a motion “to

add Apple Inc. and Meta, Xiam Inc. to this case” (Dkt. #63), and a request for

the Court to accept the earlier-filed “Opposition to Defendant’s Reply” “if

opposition [i]s permitted and necessary or expected” (Dkt. #64). The Court

denied Plaintiff’s requests, advising the parties that the Court would accept no

further briefing on Twitter’s motion to dismiss. (Dkt. #65).

Plaintiff thereafter filed three unauthorized submissions: a motion for

leave to amend his Complaint (Dkt. #66), a request that the Court “give

clarification” on certain matters (Dkt. #68), and a request that the Court

“[r]ecognize that [T]witter/[X] [C]orp continues to violate the [P]laintiff’s

[i]ntellectual property [r]ight[s] … in complete disregard to this case” (Dkt. #69).

The Court reminded Plaintiff that it was accepting no further submissions in

connection with the pending motion to dismiss and denied Plaintiff’s motion for

leave to amend. (See Dkt. #67, 70). The Court indicated that it would grant

Plaintiff leave to amend following its determination of Twitter’s motion to

dismiss if it thought amendment “would be fruitful.” (Dkt. #67).

DISCUSSION

A. Applicable Law

Federal Rule of Civil Procedure 8(a)(2), which sets forth the general rules

of pleading in the federal system, specifies that a complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to

relief[.]” Fed. R. Civ. P. (8)(a)(2). In Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007), the Supreme Court elaborated on this requirement, finding that — in

determining the adequacy of a complaint upon a motion to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) — a court should (i) take all of its

factual allegations (but not legal conclusions) as true and (ii) determine

whether it states a “plausible” claim for relief. See Ashcroft v. Iqbal, 556 U.S.

662, 678-79 (2009). At the motion to dismiss stage, the court’s task is to

“assess[] the legal feasibility of the complaint,” and not to “weigh the evidence

that might be offered to support it.” Glob. Network Commc’ns, Inc. v. City of

New York, 458 F.3d 150, 155 (2d Cir. 2006). This is “a context-specific task

that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679.

In ruling on a motion to dismiss under Federal 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);

accord Goel v. Bunge, Ltd., 820 F.3d 554, 558-59 (2d Cir. 2016). “[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,’ 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)).

Importantly, when (as here) a plaintiff is proceeding pro se, his complaint

is “held to [a] less stringent standard[] than formal pleadings drafted by

lawyers.” Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal

quotation marks omitted). Indeed, a district court must actively “interpret [his

complaint] ‘to raise the strongest arguments that [it] suggest[s].’” McPherson v.

Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d

787, 790 (2d Cir. 1994)). Unless it is “beyond doubt” that a pro se plaintiff may

“prove no set of facts in support of his claim[s] which would entitle him to

relief,” his complaint should not be dismissed. Thomas & Agnes Carvel Found.

v. Carvel, 736 F. Supp. 2d 730, 756 (S.D.N.Y. 2010) (quoting Leibowitz v.

Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006)).

B. Analysis

1. The Court Dismisses Plaintiff’s Copyright Infringement Claim

Plaintiff’s first claim is one arising under federal law, for copyright

infringement. (Compl. 2). Courts in this District have held that,

to withstand a motion to dismiss, a complaint based on

copyright infringement must allege: [i] which original

works are the subject of the copyright claim; [ii] that the

plaintiff owns the copyrights in those works; [iii] that

the copyrights have been registered in accordance with

the statute; and [iv] by what acts during what time the

defendant infringed the copyright.

BWP Media USA Inc. v. Hollywood Fan Sites, LLC, 69 F. Supp. 3d 342, 353

(S.D.N.Y. 2014) (internal quotations omitted and alteration adopted); see also

Palatkevich v. Choupak, Nos. 12 Civ. 1681 (CM), 12 Civ. 1682 (CM), 2014 WL

1509236, at *6 (S.D.N.Y. Jan. 24, 2014).

Plaintiff clears the first hurdle of this test. Presumably, the “original

works” at issue here are (i) unidentified piece(s) of music that Plaintiff posted

on Twitter and YouTube (Compl. 5),3 and (ii) Plaintiff’s “PiFace handheld [a]nd

[h]eadheld mobile/[c]omputer [d]evice” (id. at 6).4

The same cannot be said, however, for the second and third hurdles.

Plaintiff makes no showing that he owns copyrights in either of these “original

works,” or that such copyrights were registered in accordance with the federal

Copyright Act. To start, the only copyrights Plaintiff claims to own are for “the

song Ms. Elish [and] her [b]rother infringed on.” (Compl. 6). Plaintiff does not

claim to own a copyright for his “PiFace” device. But even for the copyrights he

purports to own, Plaintiff provides no evidence supporting his ownership of

them or their registration under the applicable law. Indeed, in the hundreds of

pages that Plaintiff has submitted in this action (and in support of this motion),

there is not a single exhibit reflecting his ownership of any copyright, or of its

registration.5

3 The Court recognizes that Plaintiff does not identify the specific songs at issue in his

Complaint. However, considering the Court’s obligation to liberally construe the

pleadings of a pro se litigant, the Court assumes their existence. See, e.g., Douglas v.

Abrams Child. Books, No. 13 Civ. 2613 (VSB), 2014 WL 12909009, at *2 (S.D.N.Y.

Sept. 26, 2014) (“Consistent with the liberal reading of a pro se plaintiff’s complaint,

courts have considered submissions and allegations outside of the four corners of a pro

se plaintiff’s complaint when evaluating the complaint on a motion to dismiss.”).

4 The Court takes no position as to the eligibility of either of these “original works” for a

copyright under the federal Copyright Act.

5 The Court acknowledges that, in his letter dated January 27, 2023, Plaintiff did provide

evidence of provisional patent applications that he had filed with the United States

Patent and Trademark Office in January 2021, including for his “Pi Face” device. (See

Dkt. #28 at 3, 11, 30, 32). Such applications, however, were “regarded as abandoned

[in January 2022,] 12 months after the filing date of such application[s],” in light of

Plaintiff’s presumed failure to convert them into non-provisional applications. 35

U.S.C. § 111(b)(5). Accordingly, there is no evidence indicating that Plaintiff currently

owns any patents, and Plaintiff therefore does not have standing to sue under the

federal Patent Act. See id. § 271; Bobcar Media, LLC v. Aardvark Event Logistics, Inc.,

354 F. Supp. 3d 375, 381 (S.D.N.Y. 2018).

And even assuming, arguendo, that Plaintiff had satisfied the first three

prongs of the BWP Media test, Plaintiff fails to surmount the fourth, as he has

not pleaded any facts demonstrating that Twitter — the only Defendant in this

case — took any actions amounting to infringement of his alleged copyrights.

Instead, Plaintiff claims that music released by former Defendants Eilish and

Universal Music Group copied the “[r]hythm, [s]tyle, harmonie, tone, [and]

melodie” of his own music. (Compl. 5). Plaintiff also claims that non-party

Elon Musk copied his “PiFace” device by “using the Pi symbol” in Musk’s

“model Pi phone.” (Id. at 6).6 Nowhere, however, does Plaintiff describe any

infringing actions taken by Twitter. Accordingly, Plaintiff’s copyright

infringement claim against Twitter must be dismissed.

2. The Court Dismisses Plaintiff’s Claim for Illegal Withholding of

Intellectual Property

Plaintiff’s second claim is for the “[i]llegal withholding of [i]ntellectual

propert[y].” (Compl. 2). Because “illegal withholding of intellectual property” is

not a cause of action, Plaintiff’s second claim may be dismissed “on this basis

alone.” Douglas v. Abrams Child. Books, No. 13 Civ. 2613 (VSB), 2014 WL

12909009, at *7 (S.D.N.Y. Sept. 26, 2014). The Court is, however, mindful of

its obligation to interpret Plaintiff’s complaint “to raise the strongest arguments

6 Plaintiff is presumably referring to the Tesla Model Pi Smartphone, a product that was

rumored to be under development by Tesla, a different company owned by Musk, since

at least 2020. See Martyn Casserly, “Tesla Model Pi Smartphone: Why Elon Probably

Isn’t Making a Phone,” TECH ADVISOR (December 2, 2022, 2:14 PM),

https://www.techadvisor.com/article/746185/tesla-model-pi-smartphone-everything-

you-need-to-know.html. Regardless, neither Musk nor Tesla is a party to this litigation,

and Plaintiff has not adequately alleged that such a product was ever actually developed

or sold.

that [it] suggest[s].” McPherson, 174 F.3d at 280 (quoting Burgos, 14 F.3d at

790). Because the Court understands Plaintiff to be arguing that Twitter has

unlawfully assumed control of the ideas expressed by Plaintiff across his

defunct Twitter archive, the Court construes Plaintiff’s claim as a state-law

claim for conversion. Even so, that claim does not survive a motion to dismiss.

Under New York law, “conversion takes place when someone,

intentionally and without authority, assumes or exercises control over personal

property belonging to someone else, interfering with that person’s right of

possession.” Colavito v. N.Y. Organ Donor Network, Inc., 8 N.Y.3d 43, 49

(2006).7 Importantly, “[a]lthough courts continue to allow certain intangible

property to be subject to conversion, the Second Circuit has not yet ruled on

whether these rights should extend to intellectual property[.]” Harris v.

Coleman, 863 F. Supp. 2d 336, 344 (S.D.N.Y. 2012). Lower courts, however,

have indicated that intangible property, including intellectual property, may be

7 “Federal 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).

Here, Defendants’ briefing assumes that New York law controls Plaintiff’s potential

state-law claims (see, e.g., Def. Br. 8-9), and Plaintiff does not proffer any alternative

state’s substantive law (see generally Pl. Opp.). Courts have held that “such implied

consent is sufficient to establish choice of law.” Brown v. Twitter, Automattic Inc.,

No. 19 Civ. 6328 (KPF), 2021 WL 3887611, at *7 (S.D.N.Y. Aug. 31, 2021) (quoting MIG,

Inc. v. Paul, Weiss, Rifkind, Wharton & Garrison, LLP, 701 F. Supp. 2d 518, 532

(S.D.N.Y. 2010)). The Court will accordingly analyze Plaintiff’s state-law claims under

New York law.

subject to conversion in the form of a “tangible expression,” Matzan v. Eastman

Kodak Co., 521 N.Y.S.2d 917, 918 (1st Dep’t 1987), or “when the converted

property is a document into which intangible rights have merged,” Ancile Inv.

Co. v. Archer Daniels Midland Co., 784 F. Supp. 2d 296, 312 (S.D.N.Y. 2011).

The Court fails to see how Plaintiff’s tweets, as alleged, could amount to

the “tangible expression” of intellectual property or a “document into which

intangible rights have merged.” That is because the mere articulation of an

idea, without more, is insufficient to serve as a “tangible expression.” Matzan,

521 N.Y.S.2d at 918 (“There is no protected interest in an idea, but only in the

tangible expression or implementation of that idea.”); compare Arcadia

Biosciences, Inc. v. Vilmorin & Cie, 356 F. Supp. 3d 379, 387, 403-04 (S.D.N.Y.

2019) (finding PowerPoint presentations discussing biotech company’s idea for

a kind of genetically modified wheat not subject to conversion), with

Astroworks, Inc. v. Astroexhibit, Inc., 257 F. Supp. 2d 609, 618 (S.D.N.Y. 2003)

(finding a “copyrighted and trademarked website” subject to conversion), and

Harris, 863 F. Supp. 2d at 344-45 (finding the United States Patent and

Trademark Office’s record of a given patent subject to conversion). That is,

Plaintiff’s simple act of tweeting does not create any “thing” on which to base

his conversion claim. Rushing v. Nexpress Sols., Inc., No. 05 Civ. 6243 (CJS),

2009 WL 104199, at *6 (W.D.N.Y. Jan. 14, 2009) (“Since his claim is that

Defendants converted his patentable idea, not a tangible expression of that

idea … [Plaintiff’s] claim does not lie.”). Accordingly, the claim cannot stand.

3. The Court Dismisses Plaintiff’s Illegal Contracts Claim

Plaintiff’s third claim is for “[i]llegal contracts.” (Compl. 2). As Twitter

rightly notes in its opening brief, “‘[i]llegal contract’ is an affirmative defense,

not a cause of action.” (Def. Br. 9 (citing Unger v. Leviton, 787 N.Y.S.2d 625,

628 (2004) (explaining that the illegality defense “would not come into play

unless the plaintiff’s [breach of contract] claim were proved”))). However, as

above, the Court interprets Plaintiff’s Complaint to make the strongest

arguments it suggests. Because the Court understands Plaintiff to argue, in

substance, that Plaintiff was injured by Twitter in the course of their

contractual relationship — but does not claim that Twitter breached a specific

provision of the contract between them — the Court finds Plaintiff’s third claim

nearest to a state-law claim for breach of the covenant of good faith and fair

dealing.

“[I]mplicit in every contract is a covenant of good faith and fair dealing ...

which encompasses any promises that a reasonable promisee would

understand to be included.” N.Y. Univ. v. Cont’l Ins. Co., 87 N.Y.2d 308, 318

(1995) (internal citation omitted). The “‘intent and reasonable expectations’ of

[the] parties … fix the boundaries of the covenant of good faith and fair dealing,

provided that those expectations are consistent with the express terms of the

contract.” ARI & Co. v. Regent Int’l Corp., 273 F. Supp. 2d 518, 522 (S.D.N.Y.

2003) (quoting Cross & Cross Props., Ltd. v. Everett Allied Co., 886 F.2d 497,

502 (2d Cir. 1989)). The duty is breached when a party to a contract “do[es]

anything that has the effect of destroying or injuring the right of the other party

to receive the fruits of the contract” or “violate[s] the [other] party’s presumed

intentions of reasonable expectations.” Spinelli v. Nat’l Football League, 903

F.3d 185, 205 (2d Cir. 2018) (internal quotations omitted and alteration

adopted).

On the facts before it, the Court cannot conclude that Plaintiff has a

plausible claim for breach of the implied covenant of good faith and fair

dealing. The agreement between Twitter and Plaintiff is embodied in Twitter’s

Terms of Service (the “Terms”), to which Plaintiff agreed to abide by when he

created his account. (See Def. Br. 1-2).8 Importantly, the Terms clearly

disclaim any responsibility for Twitter’s failure to store or transmit content.

(See id. at 8). A reasonable user, therefore, would contemplate the possibility

of one’s tweets, for whatever reason, becoming inaccessible; nowhere do the

Terms suggest an intention on Twitter’s part to retain all users’ data for

transmission to them anywhere, at any time, and in any format. Further,

Twitter’s efforts to provide Plaintiff with a copy of his Twitter archive (even if

unsuccessful) evince significant good faith. (See id. at 3 n.6 (“Twitter has

provided Plaintiff a copy of his archive twice — once, before Plaintiff sued; and

a second time in December 2022, in a voluntary (but unsuccessful) effort to

8 The Court finds that the Terms (Dkt. #46-2, 46-3) are incorporated by reference in the

Complaint. As the Court earlier noted, “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)).

Further, as Twitter explains in its Request for Judicial Notice in Support of its Motion to

Dismiss, “[t]o the extent Plaintiff attempts to state a cause of action arising from the

Terms, the plausibility of that claim relies heavily on the Terms and their effect,

rendering them integral to his Complaint.” (Dkt. #46 at 4).

resolve this matter without further litigation.”)). Thus, even when construed as

legally cognizable, Plaintiff’s third claim must be dismissed.

4. The Court Dismisses Plaintiff’s Claim for “Profiting Off of

Infringed Intellectual Properties”

Plaintiff’s fourth claim is for “[p]rofiting off of infringed [i]ntellectual

properties.” (Compl. 2). This claim may also be dismissed on the basis that it

is not a recognized cause of action. Douglas, 2014 WL 12909009, at *7.

Because the Court understands Plaintiff to be arguing that — in substance —

Twitter is making money from the ideas Plaintiff expressed in his tweets, the

Court construes his claim as a state-law claim for misappropriation of ideas.

Even so construed, Plaintiff’s claim does not survive a motion to dismiss.

New York courts “afford protection to persons who ... have disclosed their

ideas to others in the expectation that the idea would be used, and the use

compensated.” Vantage Point, Inc. v. Parker Brothers, Inc., 529 F. Supp. 1204,

1216 (E.D.N.Y. 1981), aff’d sub nom. Vantage Point, Inc. v. Milton Bradley, 697

F.2d 301 (2d Cir. 1982). For an idea to be susceptible to a claim of

misappropriation, there must be “[i] a legal relationship between the parties in

the form of a fiduciary relationship, an express contract, implied contract, or

quasi contract; and [ii] an idea that is novel and concrete.” Town & Country

Linen Corp. v. Ingenious Designs LLC, 436 F. Supp. 3d 653, 667 (S.D.N.Y. 2020)

(quoting Schroeder v. Pinterest Inc., 17 N.Y.S.3d 678, 692 (1st Dep’t 2015)),

order vacated in part on reconsideration, No. 18 Civ. 5075 (LGS), 2020 WL

996732 (S.D.N.Y. Mar. 2, 2020).

Critically, however, “[a] plaintiff cannot recover for misappropriation of

ideas unless the ideas are actually used by a defendant.” McGhan v. Ebersol,

608 F. Supp. 277, 286 (S.D.N.Y. 1985). Here, notwithstanding the novelty or

concreteness of Plaintiff’s ideas, Plaintiff presents no facts evidencing Twitter’s

actual use of them or any money made from such use. Accordingly, a

misappropriation claim cannot lie.

Construing Plaintiff’s claim as one for unjust enrichment is similarly

unavailing. “To state a claim for unjust enrichment under New York law, a

plaintiff must allege that: ‘[i] the defendant was enriched, [ii] at the expense of

the plaintiff, and [iii] that it would be inequitable to permit the defendant to

retain that which is claimed by the plaintiff.’” Agerbrink v. Model Serv. LLC,

155 F. Supp. 3d 448, 458 (S.D.N.Y. 2016) (quoting Clifford R. Gray, Inc. v.

LeChase Construction Services, LLC, 819 N.Y.S.2d 182, 187 (3d Dep’t 2006)).

Again, because Plaintiff presents no facts evidencing Twitter’s actual use of his

ideas or any money made from such use, Plaintiff cannot demonstrate that

Twitter was enriched. Accordingly, an unjust enrichment claim also cannot lie.

5. The Court Dismisses Plaintiff’s Claims for “Tampering with

Evidence” and “Laundering”

Both tampering with evidence and laundering are crimes, not civil causes

of action. See, e.g., N.Y. Penal Law § 215.40 (categorizing tampering with

physical evidence as a class E felony); 18 U.S.C. § 1956 (listing criminal and

civil penalties for money laundering). It is a longstanding principle of our legal

system that “a citizen lacks standing to contest the policies of the prosecuting

authority when he himself is neither prosecuted nor threatened with

prosecution.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). In

accordance with this principle, private citizens generally cannot enforce

criminal law. See, e.g., Forkin v. Loc. 804 Union (IBT), 394 F. Supp. 3d 287,

308 (E.D.N.Y. 2019). Accordingly, Plaintiff’s fifth and sixth claims must be

dismissed.

6. The Court Denies Plaintiff Leave to Amend

Having determined that Plaintiff’s Complaint must be dismissed, the

Court now returns to its earlier commitment to consider whether “amendment

[of the Complaint] would be fruitful,” and concludes that it would not. (Dkt.

#67). While the Court “should freely give leave [to amend] when justice so

requires,” Fed. R. Civ. P. 15(a)(2), “it is proper [for the Court] to deny leave to

replead where … amendment would be futile,” Hunt v. Alliance N. Am. Gov’t

Income Tr., Inc., 159 F.3d 723, 728 (2d Cir. 1998). See also Cuoco v. Moritsugu,

222 F.3d 99, 112 (2d Cir. 2000) (“[W]e do not find that the complaint[,] liberally

read, suggests that the plaintiff has a claim that she has inadequately or

inartfully pleaded and that she should therefore be given a chance to reframe.”

(internal quotation marks and citations omitted)). Accordingly, the Court

denies Plaintiff leave to amend his Complaint.9

As an initial matter, the Court is mindful that Twitter’s immunity under

the Communications Decency Act (“CDA”) may protect Twitter from a swath of

civil claims. Section 230(c)(1) of the CDA provides that “[n]o provider ... of an

interactive computer service shall be treated as the publisher or speaker of any

information provided by another information content provider.” 47 U.S.C.

§ 230(c)(1). The CDA’s grant of immunity applies if a defendant “[i] is a

provider or user of an interactive computer service, [ii] the claim is based on

information provided by another information content provider[,] and [iii] the

claim would treat the defendant as the publisher or speaker of that

information.” Fed. Trade Comm’n v. LeadClick Media, LLC, 838 F.3d 158, 173

(2d Cir. 2016) (internal quotation marks omitted and alteration adopted).

Twitter unequivocally satisfies the first factor. Section 230(f)(2) defines

“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.” 47 U.S.C. § 230(f)(2). Courts have repeatedly concluded

9 The Court acknowledges that Plaintiff’s submissions in this matter — and in particular,

his opposition to Twitter’s motion to dismiss — reference a litany of his additional

claims beyond those enumerated in his Complaint. (See generally Pl. Opp.; see also

Def. Reply 1 (“[In his opposition], Plaintiff makes mysterious assertions about, for

example, ‘The Whistleblower’ and ‘the private social network Club’; lodges serious

criminal allegations against multiple non-parties, including rape and physical assault;

details a long list of the various awards and honors Twitter purportedly has caused him

to lose, including The MacArthur Foundation Genius Grant; and baselessly lists more

than 100 new causes of action.”)). While “[i]t is axiomatic that the Complaint cannot be

amended by the briefs in opposition to a motion to dismiss,” Jordan v. Chase Manhattan

Bank, 91 F. Supp. 3d 491, 500 (S.D.N.Y. 2015) (internal quotation marks omitted), for

the sake of finality, the Court had broadly considered such claims in its decision to

deny leave to amend.

that message boards and social media sites qualify as “interactive computer

services.” See, e.g., Herrick v. Grindr LLC, 765 F. App’x 586, 590 (2d Cir. 2019)

(summary order); see also Knight First Amend. Inst. at Columbia Univ. v. Trump,

953 F.3d 216, 222 n.2 (2d Cir. 2020); Force v. Facebook, Inc., 934 F.3d 53, 64

(2d Cir. 2019); Ratermann v. Pierre Fabre USA, Inc., 651 F. Supp. 3d 657, 666

(S.D.N.Y. 2023).

What is more, Plaintiff is undoubtedly an “information content provider.”

The statute defines “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). Plaintiff, of course, is responsible for the

creation of his tweets, which were circulated via Twitter. See, e.g., Mezey v.

Twitter, Inc., No. 18 Civ. 21069 (KMM), 2018 WL 5306769, at *1 (S.D. Fla.

July 19, 2018) (“Plaintiff is the information content provider as he created the

relevant content associated with his Twitter account[.]”); Morton v. Twitter, Inc.,

No. 20 Civ. 10434 (GW), 2021 WL 1181753, at *3 (C.D. Cal. Feb. 19, 2021)

(“Every decision th[is] Court has seen to consider the issue has treated Twitter

as an interactive computer service provider, even at the motion to dismiss

stage.”).

Accordingly, Section 230 would appear to immunize Twitter from all

claims that would treat it as the publisher or speaker of information provided

by Plaintiff: that is, all “lawsuits seeking to hold [Twitter] liable for its exercise

of a publisher’s traditional editorial functions — such as deciding whether to

publish, withdraw, postpone[,] or alter [the] content” provided by Plaintiff.

LeadClick Media, LLC, 838 F.3d at 174 (internal quotation marks omitted).

This presumably includes all actions arising from Twitter’s alteration or

removal of Plaintiff’s content. See, e.g., id.; Murawski v. Pataki, 514 F. Supp.

2d 577, 591 (S.D.N.Y. 2007) (“Deciding whether or not to remove content or

deciding when to remove content falls squarely within Ask.com’s exercise of a

publisher’s traditional role and is therefore subject to the CDA’s broad

immunity.”); see also Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir.

2009), as amended (Sept. 28, 2009) (“We have indicated that publication

involves reviewing, editing, and deciding whether to publish or to withdraw

from publication third-party content.”).10 As such, Twitter’s CDA immunity

strikes at the heart of Plaintiff’s grievances with Twitter.

Further, Plaintiff’s submissions to date have left the Court with little

confidence in Plaintiff’s ability to successfully replead a claim against Twitter.

Plaintiff’s briefs have consistently referenced a myriad of potential claims

against many potential defendants. See Neitzke v. Williams, 490 U.S. 319, 325

(1989) (identifying “inarguable legal conclusion[s]” insufficient to state a claim);

Frein v. Pelosi, No. 22-1063, 2023 WL 2530453, at *1 (2d Cir. Mar. 16, 2023)

(summary order) (“[A] complaint w[ill] be subject to dismissal if it assert[s]

10 The Court notes that the Second Circuit has not explicitly ruled as to whether Section

230 immunity applies “where [a] plaintiff[] s[eeks] to hold a defendant liable for

removing content as opposed to permitting content to exist on its platform.” Domen v.

Vimeo, Inc., No. 20-616, 2021 WL 4352312, at *3 (2d Cir. Sept. 24, 2021) (summary

order) (“Because Appellants’ complaint fails to plausibly plead a claim for discrimination

under the state statutes there is no need to consider Vimeo’s defense that such claims

are pre-empted under Section 230.”), cert. denied, 142 S. Ct. 1371 (2022).

claims against a [Defendant] premised on injuries caused by third parties, or

on the [Defendant]’s mere knowledge of those injuries.”). Distilling Plaintiffs

Complaint to just those allegations involving the actions of Twitter, the Court

does not believe there is any basis on which a plausible claim against Twitter

may be stated. See Cuoco, 222 F.3d at 112 (“The problem with [Plaintiff]’s

causes of action is substantive; better pleading will not cure it.”). Accordingly,

the Court denies Plaintiff leave to amend his Complaint.

CONCLUSION

In accordance with the discussion herein, Plaintiff's Complaint is hereby

DISMISSED for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6), without leave to replead.

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 at his address of record.

SO ORDERED. 2 ~~

Dated: December 6, 2023 Kithrees fale (lo

New York, New York

KATHERINE POLK FAILLA

United States District Judge

20