United States District Court, D. New Jersey
JACK A. SHULMAN, Plaintiff,
FACEBOOK.COM, ET AL., Defendants.
Michael Vazquez, U.S.D.J.
case arises from Plaintiffs claims that Defendants are
engaged in a vast conspiracy to stop Plaintiffs media company
from using Facebook. Currently before the Court are
Defendants' motions to dismiss pro se
Plaintiff Jack A. Shulman's Second Amended Complaint
("SAC"), D.E. 91, D.E. 92, and Defendant
Facebook's motion to transfer, D.E. 93. The Court
previously dismissed Plaintiffs Amended Complaint without
prejudice. D.E. 79, 80. The Court has considered the
parties' submissions and has considered the motions without
oral argument pursuant to Federal Rule of Civil Procedure 78
and Local Civil Rule 78.1. Defendants' motions to dismiss
(D.E. 91, D.E. 92) are GRANTED and Defendant
Facebook's motion to transfer (D.E. 93) is
DENIED as moot.
FACTUAL BACKGROUND 
states he brings his claims as "Jack A. Shulman d/b/a
Advances Magazine, and individually." SAC at ¶
Plaintiffs allegations are, in general, rambling and
difficult to follow. The Court also notes that Plaintiffs
claims have changed from the First Amended Complaint
("FAC"). The FAC alleged that Defendants violated
the First, Fourth, Fifth, and Fourteenth Amendments, the
Americans with Disabilities Act, New Jersey's Law Against
Discrimination, and engaged in a RICO conspiracy by censoring
his political speech on Facebook. See First Amended
Complaint ("FAC"), D.E. 13.
general sense, Plaintiffs SAC now alleges that the Defendants
participated in a conspiracy scheme to prevent Plaintiffs
business, Advances Magazine, from competing with the Media
Defendants on Facebook. See Id. at ¶ 24.
Plaintiff has been using Facebook since 2009, id. at
¶ 56, and "started investing in and engaging in
intensified business use of Facebook.com in 2015 .. . seeking
to enter into and compete in the electronic News Media and
Publishing market, id. at ¶ 57. Plaintiff
claims that Facebook (and apparently the Media Defendants)
suspended Plaintiffs ability to post on Facebook based on
false allegations that Plaintiff was "spamming and . . .
breaching community standards." Id. at ¶
26. Plaintiff claims that he was suspended from Facebook
twenty-two times within the last year, "depriv[ing] the
plaintiff of 222 out of 365 calendar days of business ... and
caused him to lose over $ 150, 000 in investments in his
business." Id. at ¶ 27. Plaintiff details
his "top fifteen  suspensions," including when he
"post[ed] a copy of Pamela Gellar's defense of
Israel from George Soros," "post[ed] a news item
about Uranium One and Mrs. Clinton from the NY Times,"
"post[ed] a link to a White House Briefing," and
when he "disagree[ed] with TV Minister Joel Osteen's
claim that all activities by Muslims the world over were
driven by their 'discovery' of God's Love, and
must not be questioned . . . [and Plaintiff responding] that
God's Love did not include the death of 69 million
'infidels' nor the comments of Islamic Religious
leader Adbullah Juber." Id. at ¶ 27.
Plaintiff claims that these "22 suspensions were
baseless and entirely without merit and cost plaintiff his
full investment in his business for over 4 years."
Id. at ¶ 31.
then turns to allegations related to Facebook's
advertising system. In sum, Plaintiff "believes
[Defendant Facebook has set up a business model that shakes
down the small business person, using software that operates
automatically and accompanied by corporate policies designed
to hide it." Id. at ¶ 49. Plaintiff
alleges "an anticompetitive scheme wherein [Plaintiffs]
pay-ins for advertising were producing little or no impact
and priced far, far higher per 'click thru' than
defendants CNN, PBS and NPR, often overloading [Plaintiff]
with inexplicable 'ad views' that had no effect
whatsoever since [Defendant Facebook's users gave them no
mind." Id. at ¶ 32. Plaintiff claims that
Facebook's advertising system could only benefit entities
that were '"National Brand[s]' whose name, logo
and reputation might serve as 'click bait'-a way to
draw the user's attention away from reading whatever
[n]ews or comments they were engrossed in." Id.
at ¶ 32. Plaintiff explains that Facebook's
advertising system is '"price fixing' against
the benefit of the small competitor and thus reduces
competition, by its very nature, due to the lack of
'confirmed attraction' to the alleged
'impression' and 'viewing window' and
likelihood of false positives." Id. at ¶
37. Plaintiff contends that "Large Brand Name companies
with recognized Logos have no equivalent problem."
Id. In essence, Plaintiff claims that this
"violates anticompetition laws by its one sided design
to benefit only 'big brands.'" Id. at
alleges that the Defendants "behave as a RICO
Enterprise" because "Plaintiff believes [Defendant
Facebook and those who've joined it through a PAY TO PLAY
agreement and buy ins such as defendants, CNN, PBS and NPR,
reap mutual rewards by doing harm to smaller
competitors." Id. at ¶ 50. Plaintiff adds
that this "RICO Enterprise"
engages in 'baiting', 'false reporting of illegal
conduct', 'violation of the public trust', and
other wrongdoing so as to draw off cash on hand from the
smaller competitor, plaintiff, who through a deceptive
'lure the rubes' draws smaller competitors into
deceptive and fraudulent business practices produce [sic]
little or no results but benefit the larger defendants CNN,
PBS and NPR, and repeatedly, anti-competitively suspending
the plaintiffs business on Facebook.com and even acted to
disrupt momentum, and to prevent [Plaintiff] from drawing a
large following, by canceling his News posted to large
affinity groups on Facebook.com, who would otherwise be very
interested in reading [Plaintiffs] NEWS, causing him to lose
roughly 222 days of the past 365 days to suspension, unable
to promote, unable to advertise, unable to post News, build
followers and ultimately, losing all formerly developed
business momentum and his investment in it of substantial
money, time and effort.
Id. at ¶ 50. More specifically, Plaintiff
claims that Facebook "promised Plaintiff vast public
exposure, low rates for advertising and engages in [sic]
mutual protection with them of their media concentration in
the market, helping him to increase [Plaintiffs] competitive
position in the electronic News Media and Publishing
market." Id. at ¶ 60. Instead, Plaintiff
claims that his business "was treated deceptively and
was injured by [Facebook's] anti-competitive schemes that
benefit the larger businesses including CNN, PBS and NPR, at
the expense of smaller competitor [sic] like the
plaintiff." Id. at ¶ 61. For example,
Plaintiff states that he learned that "Defendants CNN,
PBS and NPR are given rates as low as $0.16 per advertisement
clicked through by a user, and are given 100% distribution of
their news to the viewers on [Facebook] through the
Newsfeed(s)," while this option was not offered to
Plaintiff. Id. at ¶ 62.
Plaintiff claims that Defendant Facebook engaged in much of
this conduct "as part of a horizontal integration of its
own media activities with competitor [Defendants CNN, PBS and
NPR, in support of their patronage, without regard for the
consequences upon [P]laintiff, in fact intended to victimize
[P]laintiff and other businesses like [P]laintiff[']s,
for their own self enrichment." Id. at ¶
155. Plaintiff continues that
the [Defendants knew that [Facebook] could provide a means to
continuously expand their monopolistic control over the
market for electronic New publishing, and, [Defendant
Facebook who in combination with [Defendants CNN, PBS and
NPR, lures the unwary (plaintiff, others) in, steals their
money delivering nothing to smaller competitors but a
steadily declining ability to compete, ads that are
worthless, abuses and suppresses them, violates their privacy
and premises, humiliates their vulnerabilities and keeps
expanding to gain control of more and more of the Internet,
while suppressing smaller competition, to the favor of its
pay-to-play partners in the Enterprise, [Defendants CNN, PBS
Id. at ¶169.
February 2, 2017, Plaintiff filed his initial Complaint. D.E.
1. On March 13, 2017, Plaintiff filed the FAC. D.E. 13. On
November 6, 2017, the Court dismissed the FAC without
prejudice. D.E. 79, 80. The Court also denied Plaintiffs
motion for partial summary judgment and motion for Rule 11
sanctions. D.E. 79, 80.
November 29, 2017, Plaintiff filed the SAC. D.E. 82. On
January 11, 2018, Facebook filed a motion to dismiss. D.E.
91. On the same day, the Media Defendants filed a motion to
dismiss. D.E. 92. Plaintiff filed opposition to both motions,
D.E. 106, to which Facebook and the Media Defendants replied,
D.E. 108, 109. Defendant Facebook also filed a motion to
transfer this case to the United States District Court for
the Northern District of California, D.E. 93, to which
Plaintiff filed opposition, D.E. 107, and to which Facebook
replied, D.E. 110.
STANDARD OF REVIEW
12(b)(6) of the Federal Rules of Civil Procedure permits a
defendant to move to dismiss a count for "failure to
state a claim upon which relief can be granted[.]" To
withstand a motion to dismiss under Rule 12(b)(6), a
plaintiff must allege "enough facts to state a claim to
relief that is plausible on its face." Bell Ail.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint
is plausible on its face when there is enough 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). Although the plausibility standard "does not
impose a probability requirement, it does require a pleading
to show more than a sheer possibility that a defendant has
acted unlawfully." Connelly v. Lane Const.
Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
quotation marks and citations omitted). As a result, a
plaintiff must "allege sufficient facts to raise a
reasonable expectation that discovery will uncover proof of
[his] claims." Id. at 789.
evaluating the sufficiency of a complaint, a district court
must accept all factual allegations in the complaint as true
and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d
Cir. 2008). A court, however, is "not compelled to
accept unwarranted inferences, unsupported conclusions or
legal conclusions disguised as factual allegations."
Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir.
2007). If, after viewing the allegations in the complaint
most favorable to the plaintiff, it appears that no relief
could be granted under any set of facts consistent with the
allegations, a court may dismiss the complaint for failure to
state a claim. DeFazio v. Leading Edge Recovery
Sols., 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
Plaintiff is proceedingpro se, the Court construes
the pleadings liberally and holds him to a less stringent
standard than those filed by attorneys. Haines v.
Kerner, 404 U.S. 519, 520 (1972). However, the
"Court need not . . . credit a pro se
plaintiffs 'bald assertions' or 'legal
conclusions.'" D'Agostino v. CECOMRDEC,
2010 WL 3719623, at *1 (D.N.J. Sept. 10, 2010).
SAC brings five counts. Count One alleges violations of the
"Clayton Act," SAC at ¶¶ 174-189; Count
Two alleges violations of the "CAN-SPAM Act (coordinated
with CDA violations)" and include what Plaintiff calls
"Count Two(B): CDA/CAN-SPAM violations in the context of
psychological gaslighting," id. at ¶¶
213-227; Count Three alleges a RICO conspiracy, id.
at ¶¶ 228-248; Count Four alleges violations of
various New Jersey laws, id. at ¶¶
249-252; and Count Five alleges a "privacy violation and
use of keylogger/mouse logging 'spyware' software by
Defendant Facebook," id. at ¶¶
Count One (Antitrust Claims)
stylizes Count One as an action for "Clayton Act
Violations," but Plaintiff appears to bring claims under
the Sherman Act, 15 U.S.C. §§ 1 et seq.,
the Clayton Act, 15 U.S.C. §§ 12 etseq.,
the Robinson-Patman Act, 15 U.S.C. §§ 13
etseq., the Lanham Act, 15 U.S.C. §§ 1051
et seq., and the New Jersey Antitrust Act, N.J.S.A.
56:9, et seq. As a general matter, Count One alleges
that Defendant Facebook's apparent "pay per
view" advertisement pricing model burdens smaller media
competitors to the benefit of larger companies like
Defendants CNN, PBS, and NPR. See SAC at
¶¶ 178-189. Plaintiff claims that this advertising
model amounts to an "anticompetitive scheme" and
"price fixing." Id. at ¶ 179.
Plaintiff asserts that the anticompetitive scheme also
includes Facebook's suspensions of Plaintiff s account,
as well as harassment Plaintiff experienced on Facebook.
Id. at ¶ 182.
One mentions the Sherman Act in passing. Id. at
¶ 179. Presumably, Plaintiff alleges a Sherman Act
violation as to his allegations concerning Defendants'
"price fixing" and "anticompetitive"
conduct. Defendants argue Plaintiffs Sherman Act claims (to
the extent that he brings any) should be dismissed, in part,