Case 2:22-cv-00678-JNP-DAO Document 76 Filed 01/23/24 PageID.441 Page 1 of 10
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`UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
`CENTRAL DIVISION
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`VICTORIA SETHUNYA,
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`Plaintiff,
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`v.
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`TIKTOK INC.; C3780792 TIKTOK, INC.;
`META PLATFORMS, INC.; and
`FACEBOOK, INC.,
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`Defendants.
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`REPORT AND RECOMMENDATION
`TO GRANT TIKTOK’S MOTION TO
`DISMISS (DOC. NO. 36)
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`Case No. 2:22-cv-00678
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`District Judge Jill N. Parrish
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`Magistrate Judge Daphne A. Oberg
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` Pro se Plaintiff Victoria Sethunya filed this action against TikTok, Inc., and C3780792
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`TikTok, Inc., on October 21, 2022.1 With leave of court, Ms. Sethunya filed a second amended
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`complaint adding Meta Platforms, Inc. as a defendant.2 The thrust of Ms. Sethunya’s claim is
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`that TikTok and Meta failed to remove users’ reproductions of her copyrighted content, which
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`Ms. Sethunya alleges amounts to copyright infringement and harassment. TikTok has now filed
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`a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil
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`1 (See Compl., Doc. No. 13.) TikTok, Inc. claims C3780792 TikTok Inc. does not exist as an
`entity. (See Reply 9 n.2, Doc. No. 59.) Where Ms. Sethunya has not obtained a summons or
`attempted to serve this defendant separately, the court presumes C3780792 TikTok Inc. is the
`same entity as TikTok, Inc.
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`2 (See Second Am. Compl., Doc. No. 20.) Ms. Sethunya’s second amended complaint is the
`operative complaint in this case.
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`1
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`Case 2:22-cv-00678-JNP-DAO Document 76 Filed 01/23/24 PageID.442 Page 2 of 10
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`Procedure.3 Where Ms. Sethunya has failed to state any cognizable claim against TikTok, the
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`undersigned 4 recommends the district judge grant TikTok’s motion to dismiss.
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`LEGAL STANDARDS
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`Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for failure to
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`state a claim.5 To avoid dismissal under Rule 12(b)(6), a complaint must allege “enough facts to
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`state a claim to relief that is plausible on its face.”6 The court accepts well-pleaded factual
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`allegations as true, viewing them in the light most favorable to the plaintiff and drawing all
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`reasonable inferences in the plaintiff’s favor.7 But the court need not accept a plaintiff’s
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`conclusory allegations as true.8 “[A] plaintiff must offer specific factual allegations to support
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`each claim.”9 This court also has an “independent obligation to determine whether
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`subject-matter jurisdiction exists, even in the absence of a challenge from any party.”10
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`3 (See Def. TikTok Inc.’s Mot. to Dismiss Second Am. Complaint and Mem. in Supp. (“Mot. to
`Dismiss”), Doc. No. 36.)
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`4 On November 15, 2022, this case was referred to the undersigned magistrate judge pursuant to
`28 U.S.C. § 636(b)(1)(B). (Doc. No. 10.)
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`5 See Fed. R. Civ. P. 12(b)(6).
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`6 Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly,
`550 U.S. 544, 547 (2007)).
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`7 Wilson v. Montano, 715 F.3d 847, 852 (10th Cir. 2013).
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`8 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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`9 Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).
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`10 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006)
`(internal quotation marks omitted).
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`2
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`Because Ms. Sethunya proceeds pro se, her filings are liberally construed and held “to a
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`less stringent standard than formal pleadings drafted by lawyers.”11 Still, pro se plaintiffs must
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`“follow the same rules of procedure that govern other litigants.”12 Importantly, a pro se plaintiff
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`“still has the burden of alleging sufficient facts on which a recognized legal claim could be
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`based.”13 While the court must make some allowances for a pro se plaintiff’s “failure to cite
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`proper legal authority, [her] confusion of various legal theories, [her] poor syntax and sentence
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`construction, or [her] unfamiliarity with pleading requirements,”14 the court “will not supply
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`additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
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`plaintiff’s behalf.”15
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`ANALYSIS
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`The allegations in Ms. Sethunya’s second amended complaint relate to a video Ms.
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`Sethunya created on the social media platform, TikTok, in response to the deportation of her
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`son.16 Ms. Sethunya contends the video became so popular, she trimmed it into a sound clip—
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`the “I am Doing Blasphemy” sound clip—which other TikTok users could use.17 Ms. Sethunya
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`also alleges she registered the “Blasphemy sound” with the United States Copyright Office.18
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`11 Hall, 935 F.2d at 1110.
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`12 Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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`13 Jenkins v. Currier, 514 F.3d 1030, 1032 (10th Cir. 2008) (internal quotation marks omitted).
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`14 Hall, 935 F.2d at 1110.
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`15 Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (internal quotation marks
`omitted).
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`16 (Second Am. Compl. 3, Doc. No. 20.)
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`17 (Id. at 3–4.)
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`18 (Id. at 6.)
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`However, Ms. Sethunya soon discovered other TikTok users were using the sound clip for
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`comedic purposes instead of her intended use (promoting her efforts to reunite with her son).19
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` Ms. Sethunya claims she (and a private copyright enforcement company she hired) notified
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`TikTok of videos allegedly infringing her copyright, but TikTok only removed some of the
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`videos from its website and refused to remove others.20 Ms. Sethunya asserts TikTok is allowing
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`its users to use her copyrighted sound without her permission and “she is requesting the court
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`take remedial action to hold TikTok responsible for [its] members’ harmful conduct.”21 She also
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`claims TikTok’s conduct amounts to “racial and sexual harassment” and “PTSD
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`retraumatization.”22 Ms. Sethunya seeks punitive damages and injunctive relief.23
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`In its motion to dismiss, TikTok makes three arguments. First, TikTok argues Ms.
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`Sethunya granted TikTok and its users a license to use her content on TikTok.24 Second, TikTok
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`contends the Communications Decency Act25 bars Ms. Sethunya from holding TikTok liable for
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`the actions of its users.26 Third, TikTok argues that where Ms. Sethunya cannot show TikTok
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`19 (Id. at 3–4.)
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`20 (Id. at 4–6.)
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`21 (Id. at 3–4.)
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`22 (Id. at 2.)
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`23 (Id. at 8.)
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`24 (See Mot. to Dismiss 7–9, Doc. No. 36.)
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`25 47 U.S.C. § 230.
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`26 (See Mot. to Dismiss 9–12, Doc. No. 36.)
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`had a legal duty or acted with intent to cause injury, her tort claims fail.27 According to TikTok,
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`providing Ms. Sethunya another opportunity to amend her complaint would be futile.28
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`Ms. Sethunya responds that the license was contrary to federal law, she lacked capacity to
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`agree to TikTok’s Terms of Service, the Communications Decency Act does not protect TikTok
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`because TikTok amplified users’ conduct, and TikTok may be liable in tort because it acted
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`intentionally and recklessly.29
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`As explained below, Ms. Sethunya fails to state a cognizable claim for copyright
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`infringement, and the district judge should dismiss that claim with prejudice. Since no federal
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`claims remain and Ms. Sethunya did not allege any independent basis for subject-matter
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`jurisdiction over her tort claims, the tort claims should be dismissed without prejudice.
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`I.
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` Ms. Sethunya granted TikTok a license to use her recording, which negates her
`claim of copyright infringement.
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`“To establish copyright infringement, a plaintiff must prove (1) ownership of a valid
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`copyright and (2) unauthorized copying of constituent elements of the work.”30 A copyright
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`owner who grants a license to use her material waives his right to sue the licensee for
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`infringement of that copyright.31
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`27 (See id. at 12–13.)
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`28 (Id. at 13.)
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`29 (See Opp’n to Mot. to Dismiss (“Opp’n”) 6–18, Doc. No. 54.)
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`30 Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1196 (10th Cir. 2005) (emphasis
`added).
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`31 See, e.g., Boatman v. U.S. Racquetball Ass’n, 33 F. Supp. 3d 1264, 1271 (D. Colo. 2014).
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`Ms. Sethunya admits she posted her Blasphemy sound on TikTok.32 Under TikTok’s
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`Terms of Service,33 to which users must agree in order to post content, users “grant [TikTok] an
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`unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide
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`licence to use, . . . publish and/or transmit, and/or distribute” content users post.34 Users also
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`“authorize other users . . . to view, access, use, download, modify, adapt, reproduce, make
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`derivative works of, publish and/or transmit” content other users post.35 Moreover, by agreeing
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`to the Terms of Service, TikTok users acknowledge TikTok has “no obligation to pre-screen,
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`monitor, review, or edit any content posted by” users.36 Thus, even accepting Ms. Sethunya’s
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`assertion as true—that TikTok (rather than its users) infringed her copyright—she fails to state a
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`claim in view of TikTok’s Terms of Service. Under the Terms of Service, Ms. Sethunya granted
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`a license to TikTok and other users, authorizing the use of her recording and negating any claim
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`for infringement of copyrighted material she posted on TikTok.
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`Ms. Sethunya does not dispute the validity of TikTok’s Terms of Service, but she makes
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`two arguments in support of her position that the Terms of Service do not bar her claims. Both
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`fail. First, she argues she did not have the capacity to enter into a contract because she has
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`32 (See Second Am. Compl. 3–4, Doc. No. 20.)
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`33 At the motion to dismiss stage, courts may take judicial notice of information found on the
`internet when its authenticity is not disputed—such as a website’s Terms of Service. Labertew v.
`Winred, Inc., No. 2:21-cv-555, 2022 U.S. Dist. LEXIS 90580, at *17–18 (D. Utah May 18, 2022)
`(unpublished). Where Ms. Sethunya does not dispute the authenticity of the TikTok Terms of
`Service, the court takes judicial notice and considers them at this stage.
`34 Terms of Service, TikTok (last updated Nov. 2023),
`https://www.tiktok.com/legal/page/us/terms-of-service/en [https://perma.cc/UB24-P5PJ].
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`35 (Id.)
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`36 (Id.)
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`PTSD.37 But Ms. Sethunya explains in her complaint and in briefing related to TikTok’s motion
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`(all of which she filed herself) that, during the period of her alleged incapacitation, she was a
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`graduate student working on a master’s degree in English;38 she “successfully defend[ed] an
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`approximately 39-page research paper”;39 she was an “independent teacher” who taught 1600
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`hours of music, genetics, and math;40 she hired a third-party copyright enforcement company
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`(presumably by signing a contract);41 she filed a tax return;42 and she obtained a United States
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`copyright registration.43 Even taking as true Ms. Sethunya’s assertions of PTSD, anxiety, and
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`depression, the evidence demonstrates her capacity was not “so deficient or impaired” that she
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`lacked “sufficient power to comprehend the subject of the contract.”44 Accepting Ms.
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`Sethunya’s claims and filings as true and drawing reasonable inferences in her favor, Ms.
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`Sethunya has not sufficiently alleged she lacked capacity to agree to TikTok’s Terms of Service.
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`Second, Ms. Sethunya argues the Terms of Service “contravene federal law” because
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`they require a party to break the law.45 But Ms. Sethunya does not explain how the Terms of
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`37 (Opp’n 7, Doc. No. 54.)
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`38 (Mot. to Req. Time 1, Doc. No. 37.)
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`39 (Id.)
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`40 (Second Am. Compl. 2, Doc. No. 20.)
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`41 (Id. at 4.)
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`42 (Id. at 2.)
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`43 (Id. at 6.)
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`44 Wittingham, LLC v. TNE Ltd. P’ship, 2020 UT 49, ¶ 58, 469 P.3d 1035 (citation omitted); see
`also United States v. McCall, 235 F.3d 1211, 1215 (10th Cir. 2000) (noting state law governs
`issues of contract formation and enforceability).
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`45 (Opp’n 3, Doc. No. 54.)
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`Service have this effect. In light of TikTok’s Terms of Service, Ms. Sethunya has failed to state
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`a plausible claim of copyright infringement, even accepting her factual allegations as true.46
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`Accordingly, her claim should be dismissed.
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`II. Ms. Sethunya failed to establish this court has original subject-matter
`jurisdiction for her tort claims, and the court should decline to exercise
`supplemental jurisdiction.
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`To the extent Ms. Sethunya’s complaint raises claims sounding in tort,47 her allegations
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`fail to establish any basis for subject-matter jurisdiction over such claims.48 She fails to allege
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`facts sufficient to establish diversity jurisdiction because she has not stated whether she seeks
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`more than $75,000 in damages and has not alleged diversity of citizenship.49 Where the
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`undersigned recommends dismissal of Ms. Sethunya’s federal copyright claims, the court should
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`46 Where dismissal is recommended on these grounds, the court need not address TikTok’s
`arguments under the Communications Decency Act.
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`47 (See Second Am. Compl. 2–3, 6, Doc. No. 20 (alleging “harassment”).)
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`48 Because tort claims against private actors arise from state law, not federal law, they must be
`brought in state court unless a federal court has a basis for jurisdiction over the claims (for
`example, diversity or supplemental jurisdiction). Cf. Fletcher v. Summit Food, No. 18-cv-1220,
`2020 U.S. Dist. LEXIS 75194, at *8 (D.N.M. Apr. 29, 2020) (unpublished) (“To the extent the
`Complaint raises any state law claims for . . . torts, those claims will be dismissed without
`prejudice. Plaintiff must re-file those claims in [state court] to obtain relief.”).
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`49 See 28 U.S.C. § 1332 (requiring complete diversity among parties and an amount in
`controversy exceeding $75,000).
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`decline to exercise supplemental jurisdiction over Ms. Sethunya’s tort claims50 and should
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`dismiss them without prejudice.
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`RECOMMENDATION
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`Even accepting Ms. Sethunya’s factual allegations as true and drawing reasonable
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`inferences in her favor, Ms. Sethunya has failed to state a plausible claim in light of TikTok’s
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`Terms of Service.51 Where Ms. Sethunya has already amended her complaint, her copyright
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`claims should be dismissed with prejudice, as further amendment would be futile.52 And
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`because this court should decline to exercise supplemental jurisdiction over Ms. Sethunya’s
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`state-law tort claims (upon dismissal of the federal claims), the tort claims should be dismissed
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`without prejudice. Accordingly, the undersigned recommends the district judge dismiss Ms.
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`Sethunya’s copyright claims with prejudice, and dismiss her tort claims without prejudice.
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`50 See Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th Cir. 1998)
`(“When all federal claims have been dismissed, the court may, and usually should, decline to
`exercise jurisdiction over any remaining state claims.”). Ms. Sethunya has not argued this court
`should exercise supplemental jurisdiction.
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`51 Where dismissal is recommended on these grounds, the court need not address TikTok’s
`arguments under the Communications Decency Act.
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`52 See Fleming v. Coulter, 573 F. App’x 765, 769 (10th Cir. 2014) (unpublished) (“[D]ismissal
`with prejudice is proper for failure to state a claim when it is obvious that the plaintiff cannot
`prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.”
`(internal quotation marks omitted)).
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`Ms. Sethunya is notified of her opportunity to object to this report and recommendation.
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`Any objection must be filed by February 6, 2024.53 Failure to object may constitute waiver of
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`objections upon subsequent review.
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`DATED this 23rd day of January, 2024.
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`BY THE COURT:
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`_____________________________
`Daphne A. Oberg
`United States Magistrate Judge
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`53 See 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b)(2).
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