PITTSBURGH – Litigation from two college students who say that social media app Snapchat was designed to protect perpetrators using it to harass innocent people will now be heard in a California federal court.
Bailey Ziencik and Kelly Ziencik of Westmoreland County and Pascale Wasson of Wellesley, Mass. first filed suit in the Allegheny County Court of Common Pleas on Dec. 4 versus Snap, Inc., of Santa Monica, Calif.
“On or about the late evening of Dec. 18, 2018, near midnight, plaintiff Bailey Ziencik, a consumer, was using the defendant product in a manner for which the defendant product was intended,” the suit said.
“Then, Ziencik received an attempt to communicate via the defendant product from the perpetrator of subsequent threats. The perpetrator tried to induce Ziencik into communication by falsely claiming that they were prior acquaintances. Plaintiff Bailey Ziencik did not initiate communication with the perpetrator.”
Initial messages soon turned violent and threatening to Bailey Ziencik’s physical person, which claimed she would be attacked while going about her daily activities at the University of Pittsburgh, where she attended college.
“The multiple messages included claims by the perpetrator to be a junior at the University of Pittsburgh and also threated that the perpetrator ‘knows where she lives’, and ‘will slash her throat.”
Despite blocking the offending user, Ziencik continued to receive similar messages from other usernames, but were shown to be aliases of the same perpetrator as the initial threatening message.
“You think you can block me? I have 15 fake usernames to get to you,” the prospective assailant stated, per the suit.
The suit explained that similar behavior was encountered by co-plaintiff Pascale Wasson, a student at the University of Massachusetts, in Amherst, Mass., on Dec. 27, 2018.
Despite requests on behalf of police and law enforcement authorities in Pittsburgh and Wellesley, Mass. for user account information tied to the perpetrator, the suit said that Snapchat initially failed to respond to these requests.
The response finally came a month later, on Jan. 29, 2019.
“On Jan. 29, 2019, the defendant product responded to the original search warrant, advising that the ‘legal process’ that was submitted would not prohibit them from notifying the owner (the perpetrator) of the aforementioned usernames. Furthermore, the defendant product advised that the information requested would be retained for 30 days, pending a response for further action or dismissal of the requested information,” the suit stated.
“According to the defendant product’s normal operation and design, the defendant product continued protecting the perpetrator of a credible threat of violence and bodily injury or death, unreasonably and unconscionably, rather than aid and protect the victims.”
Snapchat finally responded to the request in the original search warrant nearly six weeks after it had been made, and only after a second search warrant was issued and the Federal Bureau of Investigation became involved.
“[The plaintiffs] were only made conclusively aware of the identity and the whereabouts of the perpetrator of the threats on Aug. 1, 2019 when the perpetrator was arrested by Federal Law Enforcement Agents in Texas, more than seven months after initially reporting the threats to the defendant Product and law enforcement,” the lawsuit stated.
“On March 3, 2020, the perpetrator of these violent threats using the defendant product pleaded guilty to a federal felony, and was sentenced to a total term of four years of imprisonment in a federal penitentiary and three years of supervised release.”
Snap, Inc.’s counsel filed to remove the case to federal court on Jan. 8, citing both diversity of citizenship between the parties and the amount in controversy.
“Because Snap, the only defendant identified in the complaint, is a citizen of Delaware and California, and plaintiffs are citizens of Pennsylvania and Massachusetts, there is complete diversity in this action,” the removal notice said.
“The amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. In its prayer for relief, the complaint alleges that each plaintiff ‘individually’ has ‘been damaged and claims damages’ from Snap ‘in an amount in excess of $35,000, which is in excess of the arbitration jurisdiction of the Allegheny County Court of Common Pleas.’ Nowhere in the complaint do plaintiffs plead that the amount in controversy is less than $75,000.”
Snap, Inc. argued that the plaintiffs’ total requested damages would cross the federal court threshold of $75,000.
The plaintiffs motioned to remand the case back to state court on Jan. 22.
“Plaintiffs’ instant motion to remand is timely and filed within 30 days after defendant Snapchat’s Jan. 11, 2021 notice of removal to the U.S. District Court. Defendant Snapchat’s removal was untimely. The defendant Snapchat was served in this matter on Dec. 11, 2020 and 30 days for removal expired Jan. 10, 2021,” the plaintiffs’ motion stated.
“Defendant Snapchat did not file all necessary documents for removal under 28 U.S.C. Section 1446(A). Defendant Snapchat purposefully and deliberately availed itself of personal jurisdiction of the Allegheny County Court of Common Pleas by demanding and belatedly answering search warrants issued by the Courts of Allegheny County, thus performed “some affirmative act ‘by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”
The defendant followed with a response to the remand motion on Feb. 16.
“Snap complied with the jurisdictional requirements of the removal statute, and its notice of removal specifically explains how the amount-in-controversy requirement is met by the allegations on the face of the complaint,” the response brief said, in part.
“Yet, despite these facts, plaintiffs petition for remand, raising a series of objections that range from the irrelevant to the absurd. For example, plaintiffs’ lead argument is that Snap’s removal was somehow untimely because it was not filed on Sunday, Jan. 10, 2021, completely ignoring Federal Rule of Civil Procedure 6(a)(1)(C) and every federal court to have applied its terms where the 30-day removal period ends on a weekend.”
UPDATE
On Sept. 8, U.S. District Court for the Western District of Pennsylvania Judge Cathy Bissoon denied the plaintiffs’ motion to remand the action to state and transferred the case to the U.S. District Court for the Central District of California, as Snap is based there.
“Defendant does not have officers or a registered agent in Pennsylvania and is headquartered in California. Nor does defendant target Pennsylvania residents in any advertisements or market any product specifically in Pennsylvania. The only contacts between defendant and plaintiffs were, as defendant states, plaintiffs’ contention that defendant ‘voluntarily and consciously chooses to do business in PA’ because it does not geofence its software is similarly unpersuasive. Plaintiffs provide no evidence that defendant does more than exist as an application that people can download while located in Pennsylvania,” Bissoon said.
“Defendant did not expressly aim its tortious conduct at the forum state. In fact, this failure is based on plaintiffs’ very pleadings – as one plaintiff is from Massachusetts, this clearly demonstrates that defendant’s conduct is unrelated to the forum state. Plaintiffs could have been, and indeed are, from multiple states. Defendant’s alleged tortious conduct was conducted in both Massachusetts and Pennsylvania and could have occurred in any state.”
Bissoon found favor with the defense’s argument that the plaintiffs were bound by a forum-selection clause, and thus transferred to the federal court in Central California.
For counts of strict product liability (design defect, manufacturing defect and failure to warn) breach of implied warranty of merchantability, breach of express warranty, negligence, negligence (failure to warn), negligence per se, gross negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, negligent misrepresentation, intentional and fraudulent misrepresentation, assault and unconscionability, each of the plaintiffs are seeking various reliefs:
• Damages in excess of $35,000, which is in excess of the arbitration jurisdiction of the Allegheny County Court of Common Pleas;
• Compensation for great suffering and inconvenience, for Bailey Ziencik’s and Pascale Wasson’s limitation and preclusion from performing normal activities, for great emotional distress, for plaintiffs’ loss of their general health, strength and vitality;
• Punitive and exemplary damages, attorney’s fees, costs of the litigation, any further relief found just and appropriate by the Court, plus a trial by jury.
The plaintiffs are represented by Lee W. Davis of the Law Offices of Lee W. Davis, in Pittsburgh.
The defendant is represented by Stephen A. Loney and Alexander B. Bowerman of Hogan Lovells, in Philadelphia.
U.S. District Court for the Western District of Pennsylvania case 2:21-cv-00049
Allegheny County Court of Common Pleas case GD-20-012327
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com