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DeLima v. YouTube, LLC

United States District Court, D. New Hampshire

August 30, 2018

Natasha DeLima
v.
YouTube, LLC et al.[1]

          Natasha DeLima, pro se

          Timothy John McLaughlin, Esq.

          Matan Schacham, Esq.

          Travis Silva, Esq.

          Joseph H. Aronson, Esq.

          Stephen J. Soule, Esq.

          Nolan C. Burkhouse, Esq.

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge

         Before the court for preliminary review is plaintiff Natasha DeLima's amended complaint (Doc. No. 131) and documents the court deems to be addenda to the amended complaint (Doc. Nos. 72, 87, 130, 130-1, 130-2, 130-3). See LR 4.3(d)(2); Aug. 17, 2018 Order (referring amended complaint to magistrate judge for preliminary review). Also before the court for consideration and a report and recommendation are the plaintiff's motions seeking preliminary injunctive relief (Doc. Nos. 3, 5-8, 11, 17, 28, 29).

         Pending Appeals

          As an initial matter, the court notes that DeLima has filed four notices of appeal (Doc. Nos. 115, 126, 132, 138) that have been forwarded to the First Circuit.

[T]he Courts of Appeals have jurisdiction of appeals from final decisions, 28 U.S.C. § 1291, a defined group of interlocutory decisions, 28 U.S.C. § 1292, and a “small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”

Perry v. Tinkham, No. 2:15-CV-00310-JCN, 2018 WL 2376090, at *1 n.3, 2018 U.S. Dist. LEXIS 87069, at *2 n.3 (D. Me. May 24, 2018) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)), appeal filed sub nom. Perry v. Alexander, No. 18-1572 (1st Cir., filed June 18, 2018). The order, and lack of orders, challenged in DeLima's notices of appeal are neither final orders under § 1291 nor subject to interlocutory appeal under § 1292. DeLima's filing of notices of appeal have not divested this court of jurisdiction over this matter. The court finds, therefore, that it retains jurisdiction over all of the matters presently before the court in this case.

         Preliminary Review

         I. Standard

         In determining whether a pro se pleading states a claim, the court construes the pleading liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). To survive preliminary review, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief.'” See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Disregarding conclusory allegations and legal conclusions, the court treats as true all well-pleaded factual allegations, and construes reasonable inferences in plaintiff's favor. See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Iqbal, 556 U.S. at 678); Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The court may dismiss claims asserted in a complaint if the court lacks jurisdiction, a defendant is immune from the relief sought, the complaint fails to state a claim, or the action is frivolous or malicious. See 28 U.S.C. § 1915(e)(2); LR 4.3(d)(2).

         II. Background

         DeLima's amended complaint (Doc. No. 131) contains no clear narrative and is difficult to understand. Many of DeLima's assertions are legal conclusions that are not supported by any specific facts. Liberally construed, the amended complaint appears to allege the following facts and claims.

         In her amended complaint (Doc. No. 131) and addenda thereto (Doc. Nos. 72, 87, 130, 130-1, 130-2, 130-3) (collectively “First Amended Complaint” or “FAC”), DeLima asserts claims against defendants Google LLC (“Google”); Twitter, Inc. (“Twitter”); YouTube, LLC (“YouTube”); Facebook, Inc. (“Facebook”); Patreon, Inc. (“Patreon”); GoFundme, Inc. (“GoFundMe”); and Blogspot.com. DeLima's claims arise out of her assertions that her rights were violated in connection with her use of the defendants' websites. DeLima alleges that she has created one or more accounts on YouTube, Google, Facebook Twitter, Blogspot.com, Patreon, or GoFundMe, and that she is a member of a group of Facebook users who contribute to a Facebook account entitled “Stop Bullying Protect All Children.” Using those accounts, DeLima posts videos and other content. Other users of the defendants' websites follow DeLima's accounts as subscribers, or view her videos and other content without subscribing.

         DeLima asserts that the number of people who view and subscribe to her accounts on the defendants' websites entitles her to certain advertising revenue earned by YouTube and possibly other defendants, and that those defendants have embezzled such revenue from her. DeLima further asserts that on two of the websites, Patreon and GoFundMe, she has established fundraising websites, but that Patreon and GoFundMe have embezzled money donated or pledged to her through those websites. DeLima claims the defendants have engaged in various tactics to receive money to which she is entitled, including manipulating data concerning the number of people who subscribe to and view her videos, and otherwise tampering with her accounts.

         Although DeLima concedes that she “does not actually know how much is paid [by YouTube/Google] per ad, per view and per option of advertising, ” FAC at 5, she states in the FAC that the defendants are embezzling 90% or 100% of the money she has earned on defendants' internet platforms. DeLima acknowledges that she has received payments from Google for revenue earned by her YouTube channel, as Google owns YouTube, but that the amount paid to her was a small percentage of what it should have been, and was reduced by the defendants' “illicit acts.” DeLima further claims that the defendants, motivated by political bias, based on the views she expresses in her videos and other postings, have locked her out of her various accounts; closed her accounts; denied her the ability to post some or all content; deleted subscribers, comments, and view-counts relating to her accounts; placed false strikes on her accounts; stole or otherwise denied DeLima access to her “virtual property, ”[2] and otherwise harassed her.

         DeLima additionally states that at one time she had a blog on Blogspot.com with the domain name http://natashanothingbuttruth.blogspot.com. At some point she stopped using that domain. DeLima alleges that although she purchased that domain, and that she holds a copyright in the domain name, defendants Blogspot.com and Google have allowed someone else to use that domain name to post content, some of which she alleges is defamatory and harms DeLima and/or her audience.

         Generously construing the assertions in the FAC, the court finds that DeLima asserts the following claims in this action:

1. All of the defendants have violated the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1) (“FLSA”), by failing to pay DeLima minimum wage.
2. All of the defendants have embezzled money earned by DeLima on the defendants' internet platforms and engaged in other criminal activity with regard to DeLima's use of those platforms.
3. All of the defendants have violated DeLima's First Amendment right to free speech, and engaged in viewpoint discrimination, by: a) censoring the content she posts on the defendants' internet platforms; b) denying DeLima access to the defendants' internet platforms; and c) requiring that DeLima agree to ...

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