N.Y. Plaintiffs Oppose CTO for 2nd Time in Social Media MDL; Seek State Trial
Plaintiffs Dean and Michelle Nasca oppose conditional transfer order 30 (CTO-30) in In Re: Social Media Adolescent Addiction/Personal Injury Liability Litigation, said their notice of opposition Wednesday (docket 3047) before the Judicial Panel on Multidistrict Litigation. The plaintiffs will file a motion to vacate CTO-30, which listed its case against TikTok parent ByteDance and also included tag-along actions Putnam County School District vs. Alphabet Inc. et al and Cumberland County Board of Education vs. Meta Platforms Inc. et al.
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It was the second time the Nascas' case was removed from a CTO in the Social Media MDL. Last spring, the Social Media Victims Law Center (SMVLC) filed an opposition to CTO-7 on the couple’s behalf to vacate that transfer order to U.S. District Court for Northern California in Oakland under U.S. District Judge Yvonne Gonzalez Rogers.
TikTok is the only social media platform named in the Nasca lawsuit vs. the school district cases that also name Meta, Google and Snapchat. Other defendants in the couple’s suit are the Metropolitan Transportation Authority, MTA Long Island Railroad and Islip, New York (MTA defendants). The couple filed suit against TikTok in U.S. District Court for Northern California in March 2023 after their son, Chase, died by suicide after TikTok allegedly directed him to adult accounts with “highly depressive, violent, self-harm and suicide themed content (see 2304280037).”
Several weeks later, on March 21, the Nascas refiled the action in New York state court, joining for the first time the MTA defendants. TikTok removed the case from New York State Supreme Court in Suffolk County to U.S. District Court for Eastern New York in Central Islip April 13, 2023, on the basis that the MTA defendants were improperly joined. In his order remanding the case, U.S. District Judge Nicholas Garaufis for Eastern New York said TikTok could seek state court severance and then seek removal of the case again for transfer to the Social Media MDL in the Northern District of California.
TikTok moved for severance in New York state court and last month, the state court granted the motion in its entirety. The New York court determined that “the legal and factual issues arising from the claims against the TikTok [D]efendants are completely distinct from the legal and factual issues arising from the claims against the [non-diverse defendants].” TikTok removed the action the next day and tagged it for inclusion in the MDL; the plaintiffs filed a second motion to remand to state court March 22.
In its April 5 opposition to the Nascas’ motion to remand, TikTok said none of the plaintiffs’ arguments for remand changes the removability of the action. TikTok wasn’t required to wait for the plaintiffs to file an amended complaint in state court because the court’s severance order “rendered this case immediately available,” said the opposition (docket 2:24-cv-02061). Also, it said, the plaintiffs’ reliance on cases that address severance orders that have been appealed “is misplaced.” If the court granted the Nascas’ remand motion, that could “permanently close the door” on TikTok’s right to access the federal courts, it said.
Such a result would be “particularly inappropriate here,” where the Nascas “relied on the option of seeking severance in state court to defeat an argument that they had fraudulently misjoined non-diverse defendants,” the opposition said. That would conflict with 2nd Circuit law that found “[a] plaintiff may not defeat federal court diversity jurisdiction by improperly joining as a defendant a non-diverse party with no real connection to the controversy,” it said, citing Bounds v. Pine Belt Mental Health Care Resources.
Finally, said TikTok's opposition, remanding the case would be “inequitable given the Plaintiffs’ gamesmanship and prior representation to this federal court.” The court should deny the remand motion “in its entirety,” it said.