Jack Shulman v. Facebook.com (Inc.) ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-2708
__________
JACK A. SHULMAN d/b/a ADVANCES MAGAZINE and individually;
JOHN DOES 1-10000
v.
FACEBOOK.COM (Inc.); CNN (CABLE NEWS NETWORK);
PBS (PUBLIC BROADCASTING SERVING); NPR (NATIONAL PUBLIC RADIO);
NEWSHOUR PRODUCTIONS, LLC; JOHN DOE COMPANIES (1-50)
Jack A. Shulman; Advances Magazine,
Appellants
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2:17-cv-00764)
District Judge: Honorable John M. Vazquez
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 11, 2019
Before: CHAGARES, BIBAS and GREENBERG, Circuit Judges
(Opinion filed: October 11, 2019)
___________
OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Plaintiff-appellant Jack Shulman sued CNN, NPR, PBS (“the Media Defendants”)
and Facebook, claiming that they all had a hand in violating his First Amendment rights
to free speech and peaceable assembly. Shulman’s access to Facebook was allegedly
restricted after he mounted a spirited online defense of certain comments made by
presidential advisor Kellyanne Conway, in response to what Shulman perceived to be a
smear campaign by the Media Defendants against Conway.
The District Court granted motions to dismiss Shulman’s first amended complaint,
under Fed. R. Civ. P. 12(b)(6), primarily because none of the defendants (the Media
Defendants; Facebook; and an intervening party—NewsHour Productions) is a state actor
subject to civil rights liability under 42 U.S.C. § 1983. In addition, the District Court
denied Shulman’s motions for sanctions and summary judgment.
Shulman was given leave to amend. See ECF 79 at 13 (District Court: “[W]hile
the Court is dubious about whether Plaintiff can file a second amended complaint with
plausible allegations, . . . he is proceeding pro se”). He took that opportunity to craft an
entirely new case against the defendants on behalf of “Advances Magazine,” a tradename
used by Shulman for his social media publishing pursuits. Shulman’s working theory of
the case is that the defendants have conspired to undermine Advances Magazine’s ability
to profitably operate on Facebook. See, e.g., ECF 82 at 4 (alleging that defendants “hurt
plaintiff’s business intentionally, by repeatedly suspending [Advances Magazine’s]
2
operations with defendant Facebook . . . by falsely alleging plaintiff Spammed”); ECF 82
at 7-8 (alleging that Advances Magazine’s “pay-ins for advertising [on Facebook] were
producing little or no impact and [were] priced far, far higher per ‘click thru’ than [those
of] defendants CNN, PBS and NPR”).
The District Court granted the defendants’ Rule 12(b)(6) motions to dismiss the
second amended complaint.1 In the opinion accompanying its order of dismissal, the
District Court carefully sorted through the largely meandering and loquacious second
amended complaint, identified every claim that Shulman could conceivably be raising,
and addressed each claim in commendably thorough fashion. Shulman appealed the
order of dismissal.
We have jurisdiction under 28 U.S.C. § 1291.2 Our review is plenary. See Foglia
v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014). Dismissal under
Rule 12(b)(6) is proper if the pleading party fails to allege sufficient factual matter that, if
accepted as true, could “state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
1
The District Court “denied” as “moot” Facebook’s motion to transfer Shulman’s case to
California in the alternative to dismissal.
2
After Shulman filed his Notice of Appeal, he filed with the District Court a motion to
appeal in forma pauperis, which was granted. Facebook then filed a motion for
reconsideration of the in forma pauperis ruling, and Shulman filed a ‘cross-motion’ to
expand the record on appeal. In an order entered on February 5, 2019, the District Court
denied Facebook’s and Shulman’s motions. Because neither party formally appealed the
February 5, 2019 decision, we have no occasion (or jurisdiction) to address it.
3
A preliminary issue in this appeal is whether Shulman is permissibly litigating on
behalf of Advances Magazine. Facebook argues that Advances Magazine, as a business
entity, “cannot be represented on appeal by Mr. Shulman, a pro se litigant.” Facebook
Resp., Doc. 003113051922 at 2. Shulman, for his part, counters that because Advances
Magazine is “an unincorporated Sole Proprietorship/ Personal Trade Name” with “no
separate existence” from Shulman the flesh-and-blood man, he may proceed without an
attorney (as he did in the District Court). Shulman Reply, Doc. 003113053613 at 1.
Under 28 U.S.C. § 1654, “parties may plead and conduct their own cases
personally.” Corporations, by contrast, “may appear in federal courts only through
licensed counsel,” Simbraw v. United States, 367 F.2d 373 (3d Cir. 1966) (per curiam),
and that rule “applies equally to all artificial entities,” Rowland v. Cal. Men’s Colony,
506 U.S. 194, 201-02 (1993). Here, Advances Magazine may be artificial, but it is not an
“artificial entit[y]”; it is simply a trade name for Shulman’s personal online activities.
That is to say, Advances Magazine has no distinct legal existence, and no claims against
the defendants here separate from those of Shulman personally. Cf. United States v.
Hagerman, 545 F.3d 579, 581 (7th Cir. 2008) (collecting cases holding that “[a] sole
proprietorship may litigate pro se . . . because it has no legal identity separate from the
proprietor himself”). We thus reject Facebook’s arguments concerning Advances
Magazine’s standing, conclude that Shulman is not impermissibly representing a business
entity, and move to the merits of the appeal.
4
Having considered the merits, we conclude that Shulman’s arguments on appeal
are unpersuasive and that there was no error below, for substantially the reasons given in
the District Court’s opinion supporting dismissal. Among the District Court’s uniformly
correct rulings, we highlight the following ones: (1) Shulman failed to adequately plead
a claim under Section 2 of the Sherman Antitrust Act because he did not “identify any
relevant market that Defendants are monopolizing,” ECF 111 at 9; see Broadcom Corp.
v. Qualcomm Inc., 501 F.3d 297, 306–07 (3d Cir. 2007) (explaining that liability under
Section 2 requires, inter alia, “the possession of monopoly power in the relevant market”)
(citation omitted); (2) Shulman did not plead a cognizable claim under the Robinson-
Patman Act because his “allegations relate to advertising space on Facebook” instead of a
commodity, ECF 111 at 10; see Advo, Inc. v. Philadelphia Newspapers, Inc., 51 F.3d
1191, 1195 n.3 (3d Cir. 1995) (“Advo could not make a claim under the Robinson–
Patman Act, since the Act applies only to commodities and not services like
advertising.”); and (3) Shulman failed to adequately plead a claim under the CAN-SPAM
Act, as his second amended complaint lacked the required plausible allegations about
misleading email communications, ECF 111 at 16; see 15 U.S.C. § 7704(a)(1); cf.
Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1064 (9th Cir. 2016) (“The
CAN–SPAM Act grants a private right of action for a ‘provider of Internet access service
adversely affected by a violation of section 7704(a)(1) of this title.’”) (quoting 15 U.S.C.
§ 7706(g)(1)) (emphasis added).
5
Therefore, we will affirm the judgment of the District Court. Facebook’s motion
to file a supplemental appendix, along with Shulman’s motion to quash Facebook’s
motion to file a supplemental appendix, are denied.
6