Doe v. Deluca

7ermont Superior Court
Filed 12/15/25
Chittenden Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 25-CV-01196
175 Main Street Gee *
Burlington VT 05401
802-863-3467
www.vermontjudiciary.org
John Doe v. Todd Deluca et al

ENTRY REGARDING MOTIONS
Title: Motion to Dismiss; Motion to Dismiss; Motion to Accept Late Filing; Motion for
Leave to File Sur-reply; Motion for Leave to File Supplemental Memo of Law
(Motion: 9; 12; 14; 15; 16)
Filer: John Doe; Joshua R. Diamond; Todd Deluca
Filed Dates: May 16, 2025; June 16, 2025; August 11, 2025; September 10, 2025; October 13,
2025

Plaintiff JJohn Doe brought this action against Defendants Todd DeLuca and YouTube,
LLC after DeLuca posted on YouTube a video he recorded of Doe. Doe's Amended Complaint
asserts claims against DeLuca for intentional infliction of emotional distress ("ITED"), invasion
of privacy and "unlawful commercial exploitation" and against YouTube for "contributory
infringement/liability," breach of contract and violation of the right of publicity. DeLuca and
YouTube have each moved to dismiss the respective claims against them. Doe has opposed both.

For the reasons that follow, the court (a) GRANTS DeLuca's motion to dismiss (Mot.
#9); (b) GRANTS YouTube's motion to dismiss (Mot. #12); and (¢) GRANTS Doe's Motion to
Accept Late Filing (Mot. #14), Motion for Leave to File Sur-reply (Mot. #15) and Motion for
Leave to File Supplemental Memo of Law (Mot. #16).

A. Background

On March 18, 2025, DeLuca recorded a 29-minute video that included Doe and others
standing in public view outside a homeless shelter and warming center on Pearl Street in
Burlington. An approximately two-minute portion of that video captures Doe speaking and
apparently recording or attempting to record DeLuca on Doe's cell phone. The video shows
other people closer to Doe than DeLuca who remains on or near the public sidewalk. Doe speaks
to DeLuca who does not respond. DeLuca turned Doe's speaking portion of the video into a
YouTube "short" video. DeLuca posted both videos to his YouTube channel, for commercial
profit according to Doe. Doe never gave DeLuca consent to record him or use his image.
Sometime after Doe filed this lawsuit, both DeLuca and YouTube removed the videos.
B. Discussion

1. Motion to Dismiss Standard

Under V.R.Civ.P. 12(b)(6), the court “must assume that the facts pleaded in the complaint
are true and make all reasonable inferences in the plaintiff’s favor.” Montague v. Hundred Acre
Homestead, LLC, 2019 VT 16, ¶ 10, 209 Vt. 514. The court does not accept as true “conclusory
allegations or legal conclusions masquerading as factual conclusions.” Vitale v. Bellows Falls
Union High Sch., 2023 VT 15, ¶ 28, 217 Vt. 611 (quotation omitted). The court considers
whether “it appears beyond doubt that there exist no facts or circumstances that would entitle the
plaintiff to relief.” Davis v. American Legion, Dept. of Vermont, 2014 VT 134, ¶ 12, 198 Vt. 204
(quotation omitted). “The purpose of a motion to dismiss is to test the law of the claim, not the
facts which support it.” Powers v. Off. of Child Support, 173 Vt. 390, 395 (2002). As a result,
only “where the plaintiff does not allege a legally cognizable claim, [is] dismissal . . .
appropriate.” Montague, 2019 VT 16, ¶ 11.

“The court’s attention . . . is to be directed toward determining whether the bare
allegations of the complaint constitute a statement of a claim under V.R.C.P. 8(a).” Levinsky v.
Diamond, 140 Vt. 595, 600 (1982). Rule 8 requires a “short and plain statement of the claim” in
“simple, concise, and direct” language with “all pleadings [to] be construed as to do substantial
justice.” V.R.Civ.P. 8(a), (e), (f). “[T]he threshold a plaintiff must cross in order to meet our
notice-pleading standard is exceedingly low.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575
(citation omitted). Consequently, “[m]otions to dismiss for failure to state a claim are disfavored
and should be rarely granted.” Id. (citation omitted). The court should be “particularly wary of
dismissing novel claims because ‘[t]he legal theory of a case should be explored in the light of
facts as developed by the evidence, and, generally, not dismissed before trial because of the mere
novelty of the allegations.’” Montague, 2019 VT 16, ¶ 11 (citation omitted). The Court does not
need to make any findings now. See id. ¶ 10.

2. What the Court May Consider in a Motion to Dismiss

At the outset, this court notes that it included the challenged videos and YouTube’s Terms
of Service (“ToS”) in drafting the Background section above and will assess both items in the
Discussion section below. This court has not found any Vermont Supreme Court decision that
discusses in detail when a court may consider materials beyond the pleadings on a Rule 12(b)(6)
motion without converting it into a Rule 56 motion that would require notice to the parties. See
V.R.Civ.P. 12(b); Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 10 n.4, 186 Vt. 605
(sanctioning with limited discussion trial court’s consideration of document referenced but not
attached to complaint). Leading commentary and significant case law under the federal
counterpart to Rule 12(b) supports doing so in this case where Doe’s complaint relies heavily on
both the video and the ToS, the materials prove central to his case and no party questions their
accuracy or authenticity. See Wright & Miller, 5B Fed. Prac. & Proc. Civ. § 1357 (3d ed. 2004
and Supp. 2007).

According to the Supreme Court, “courts must consider the complaint in its entirety, as
well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss,

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in particular, documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322
(2007) (citing 5B Wright & Miller § 1357 (3d ed. 2004 and Supp. 2007)). The Second Circuit
and its district courts have followed Tellabs. E.g., Kaplan v. Lebanese Canadian Bank, SAL, 999
F.3d 842, 854 (2d Cir. 2021) (quoting Tellabs). See also White v. Core Civic Corp., Civil Action
No. 2:20-CV-211-CR-KJD, 2022 WL 1250779, at *2 n.5 (D. Vt. Feb. 24, 2022) (considering on
motion to dismiss exhibits attached to motion for injunctive relief but not attached to complaint
apparently inadvertently); Warchol v. Green Mt. Coffee Roasters, Inc., No. 2:10-cv-227, 2012
WL 236099, at *1 (D. Vt. Jan. 27, 2012) (citing Tellabs to allow it to consider on motion to
dismiss “public disclosure documents filed with the SEC as required by law,” as well as
documents “possessed by or known to the plaintiff and upon which it relied in bringing the suit”)
(other citations omitted). In the Second Circuit’s words, “[c]onsideration of materials outside the
complaint is not entirely foreclosed on a 12(b)(6) motion,” but “several conditions must be met.”
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). “[I]t must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document” and “[i]t must also be
clear that there exist no material disputed issues of fact regarding the relevance of the
document.” Id. (citations omitted). In addition, while courts may consider materials “integral”
to a complaint when addressing motions to dismiss, doing so requires that “‘plaintiff[] rel[y] on
the terms and effect of [the] document in drafting the complaint.’’” Global Network
Communications, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006) (quoting Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)) (emphasis in original).

Other circuits follow similar rules. The Seventh Circuit has held that “documents may be
considered by a district court in ruling on the motion to dismiss without converting the motion
into a motion for summary judgment” because “‘documents attached to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central
to his claim.’” Burke v. N. Wabash Venture, LLC, 714 F.3d 501, 505 (7th Cir. 2013) (citation and
brackets omitted). Moreover, “[t]he court ‘is not bound to accept the pleader’s allegations as to
the effect of the exhibit, but can independently examine the document and form its own
conclusions as to the proper construction and meaning to be given the material.’” Id. (citing 5
Wright & Miller, Federal Practice & Procedure: Civil 2d, § 1327 at 766 (1990)) (other citations
omitted). Burke consequently ratified a district court’s consideration of a “clearly central” report
repeatedly referenced by but not attached to plaintiff’s complaint. Id.

In the Eighth Circuit, “[t]hough ‘matters outside the pleadings’ may not be considered in
deciding a Rule 12 motion to dismiss, documents necessarily embraced by the complaint are not
matters outside the pleading.” Zean v. Fairview Health Services, 858 F.3d 520, 526 (8th Cir.
2017) (citation omitted). “In general, materials embraced by the complaint include documents
whose contents are alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleadings.” Id. (citation omitted). In deciding a motion to
dismiss, a court may “consider ‘matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record of the
case, and exhibits attached to the complaint whose authenticity is unquestioned;’ without
converting the motion into one for summary judgment.” Id. (quoting 5B Wright & Miller,
Federal Practice & Procedure § 1357 (3d ed. 2004)) (other citations omitted). “In a case
involving a contract, the court may examine the contract documents in deciding a motion to

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dismiss.” Id. (citation omitted). Importantly, “[t]his is true even if contract documents not
attached to the complaint refute a breach-of-contract claim . . . .” Id. (citations omitted).
Accordingly, Zean approved a district court’s consideration in a motion to dismiss of the contract
that formed the subject of plaintiff’s breach of contract claim, even though plaintiff had not
attached it and the contract language undermined plaintiff’s claim of breach. Id. at 527.

Any of the Second, Seventh or Eighth Circuits’ approaches supports examining the
content of the videos and ToS in deciding the pending Rule 12(b)(6) motions in this case. Doe’s
complaint references the video 15 times (Am. Compl. at 1-3, 5-6). The video forms the crux of
five of his six claims and a critical part of his sixth claim. His fifth claim relies on YouTube’s
ToS which his complaint mentions six times (id. at 3, 5). At the preliminary injunction hearing,
Doe described the video (Apr. 22, 2025 tr., at 12) and did not object to DeLuca’s offering it into
evidence (id. at 24). Doe also described the short video at the hearing (id. at 34). YouTube
attached its ToS to its motion and, instead of objecting to its attachment, Doe referenced it nine
times in his opposition (Doe’s Opp. at 7-9, 11). In the words of the circuit courts, Doe’s
complaint and case have “embraced” the videos and ToS, “whose authenticity” and “accuracy”
“no party questions”; they are “clearly central” to his complaint and case; and “no material
disputed issues of fact regarding the relevance” of the videos and ToS exist. Considering the
videos and ToS also aligns not only with the rules established by the Second, Seventh and Eighth
Circuits, but also with V.R.Civ.P 10(c) which provides in part that “any written instrument which
is an exhibit to a pleading is a part thereof for all purposes.” Id. As a result, this court finds
consideration of the videos and ToS in connection with the pending motions to dismiss makes
sense and prejudices no one.

3. Assessing Doe’s Claims

a. IIED by DeLuca

Doe has alleged that (1) DeLuca’s “act of recording a vulnerable, homeless individual
and exploiting their image for profit, without consent, can be considered outrageous and
intolerable,” (Am. Compl. at 3), and (2) DeLuca’s “actions have caused the plaintiff, Jonn Doe,
severe emotional distress, including anxiety and PTSD.” (Id.). DeLuca responds that “[n]o
outrageous or extreme conduct occurred.” (DeLuca’s Mot. at 2.) Both parties have provided the
court with largely conclusory statements in this respect. Neither party has cited to case law
supporting the proposition that recording the image of another without their permission does or
does not constitute an intentional infliction of emotional distress as a matter of law.

“Vermont recognizes the tort of intentional infliction of emotional distress. To prevail,
plaintiff must demonstrate ‘outrageous conduct, done intentionally or with reckless disregard of
the probability of causing emotional distress, resulting in the suffering of extreme emotional
distress, actually or proximately caused by the outrageous conduct.’” Crump v. P & C Food
Markets, Inc., 154 Vt. 284, 296 (1990) (citation omitted). “To satisfy the IIED standard,
“[p]laintiff[] bear[s] ‘a heavy burden that requires . . . show[ing] that the [defendant’s] conduct
was so outrageous in character and so extreme in degree as to go beyond all possible bounds of
decent and tolerable conduct in a civilized community and be regarded as atrocious and utterly
intolerable.’” Marshall v. Nat’l Bank of Middlebury, No. 5:19-CV-246, 2021 WL 6803284, at

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*11 (D. Vt. Dec. 3, 2021) (quoting Cate v. City of Burlington, 2013 VT 64, ¶ 28, 194 Vt. 265).
“The plaintiff must demonstrate ‘legal harm resulting from inflicted distress so severe that no
reasonable person could be expected to endure it.’” Id. (quoting Baldwin v. Upper Valley Servs.,
Inc., 162 Vt. 51, 57 (1994)). Under this explicitly objective standard, “[w]hether the alleged
conduct was so extreme that a trier of fact could find liability is a threshold question of law.”
Carroll v. Tropical Aquaculture Prods., Inc., No. 1:08-CV-138, 2009 WL 385430, at *5 (D. Vt.
Feb. 13, 2009) (citing Denton v. Chittenden Bank, 163 Vt. 62, 66 (1994)).

“Liability for IIED cannot be grounded in ‘mere insults, indignities, threats annoyances,
petty oppressions, or other trivialities.’” Id. (citation omitted). See also id. (noting that prima
facie case requires proving “1) extreme and outrageous conduct; 2) done intentionally or with
reckless disregard of the probability of causing emotional distress; 3) resulting in the suffering of
extreme emotional distress; and 4) the extreme emotional distress must be actually or
proximately caused by the outrageous conduct.”) (citation omitted).

Although this court has not found a Vermont Supreme Court decision addressing what
sort of conduct could support an IIED claim in a context similar to this case, the Court has done
so in other situations. Those cases highlight the inadequacy of Doe’s claim here. For instance,
in Baptie v. Bruno, 2013 VT 117, parents claimed IIED against a police officer for failing to
properly investigate a harassment complaint against a man who days later murdered their son.
Id. ¶ 1. In denying parents’ IIED claim, the Court found that “the record demonstrates that, even
if defendant’s investigation proved to be inadequate or incomplete, he made some effort to locate
and charge [the killer] for what he reasonably believed to be a misdemeanor crime.” Id. ¶ 25. As
a result, “[t]his conduct cannot be considered outrageous in the extreme . . . .” Id. See also
Dalmer v. State, 174 Vt. 157, 171-72 (2002) (holding that a “statutory violation . . . alone” “does
not . . . make defendants’ conduct outrageous”).

The District of Vermont has reached similar outcomes in comparable cases. In Grega v.
Pettengill, 123 F. Supp.3d 517 (D. Vt. 2015) (Crawford, J.), plaintiff brought an IIED claim on
various theories against state officials for their allegedly deficient investigation of his wife’s
death. Id. at 531. The court applied Vermont law and dismissed the IIED claims based on the
state officials’ failure to investigate, but it denied dismissal for IIED claims based on fabricated
evidence because it found this latter allegation sufficiently outrageous as a matter of law. Id. at
550-51 (citations omitted). The District of Vermont reached the same outcome in a different case
involving allegations of a deficient law enforcement investigation. Kucera v. Tkac, No. 5:12–cv–
264, 2014 WL 6463292, at *20 (D. Vt. Nov. 17, 2014) (Reiss, J.).

The Vermont Supreme Court has addressed IIED claims of allegedly outrageous conduct
most expansively in the employment context. Employment termination alone will not suffice,
but “if the manner of termination evinces circumstances of oppressive conduct and abuse of a
position of authority vis-a-vis plaintiff, it may provide grounds for the tort action.” Id. (citation
omitted). As a result, prolonged interrogation of an employee “without a break for rest or food,”
followed by “repeatedly badger[]ing] him to amend and sign a statement,” making him “not feel
free to leave,” ending in employer’s “representative direct[ing] plaintiff to clean out his desk”
and “a summary dismissal after eighteen years of service” sufficed for an IIED claim to make it
to the jury. Id. at 448-49.

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By contrast, “[t]he demotion of an employee under suspicious circumstances for reasons
that do not stand up under scrutiny does not support a claim for intentional infliction of
emotional distress.” Boulton v. CLD Consulting Eng’rs, Inc., 2003 VT 72, ¶ 31. Likewise,
“[p]rofane language” with “verbal[] attack[s]” allegedly with “malice” and “manifest[ing] ill will
and oppression” are not enough to support an IIED claim. Carroll, 2009 WL 385430, at *6.
“Absent at least one incident of behavior that transcends the ignoble and vast realm of unpleasant
and often stressful conduct in the workplace, incidents that are in themselves insignificant should
not be consolidated to arrive at the conclusion that the overall conduct was outrageous.” Denton,
163 Vt. at 67 (citation omitted). See also Dulude v. Fletcher Allen HealthCare, Inc., 174 Vt. 74,
83-84 (2002) (affirming summary judgment of IIED claim where employee’s allegations
included discharge by a supervisor with a known chemical dependency and other infirmities in
the investigation resulting in her termination). Cf. Sinha v. Kina, No. 2006-022, 2006 WL
5838954, at *3 (Vt. Oct. 1, 2006) (affirming the trial court’s judgment for a landlord against
whom plaintiffs had alleged an IIED claim, concluding that landlord’s “[e]ntering tenants’
driveway, driving past the property, or parking nearby, even if done several times, is not a
significantly outrageous act”).

Applying those principles to this case, Doe’s IIED claim fails as a matter of law. The
videos show DeLuca recording a group of people in public view, including Doe. DeLuca speaks
in a conversational tone at the intended audience of his videos, not to Doe or the people around
him. Doe speaks to DeLuca and appears to record DeLuca on Doe’s phone. Throughout the
exchange, DeLuca remains on or near the public sidewalk and several other people appear
physically closer to Doe than DeLuca, contextualizing that DeLuca maintained socially
appropriate physical distance from Doe during the recording.

This court holds that a now commonplace occurrence like DeLuca’s recording by cell
phone of Doe in public and posting it online without more does not constitute as matter of law
the sort of objectively outrageous conduct required for an IIED claim. Inasmuch as Doe may
assert particular vulnerabilities to DeLuca’s conduct, Doe does not suggest or offer evidence to
show that DeLuca had any knowledge of Doe’s alleged sensitivities. See Restatement (Second)
of Torts § 46 cmt. f. (1965) (“The extreme and outrageous character of the conduct may arise
from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by
reason of some physical or mental condition or peculiarity.”). Even if he had, the absence of
objectively outrageous conduct from Doe’s allegations would still foreclose this theory of
recovery. Id. (“It must be emphasized again, however, that major outrage is essential to the tort;
and the mere fact that the actor knows that the other will regard the conduct as insulting, or will
have his feelings hurt, is not enough.”). The court grants DeLuca’s motion to dismiss Doe’s
IIED claim.

b. Invasion of Privacy by DeLuca

“One who appropriates to his own use or benefit the name or likeness of another is
subject to liability to the other for invasion of his privacy.” Restatement (Second) of Torts
§ 652C. See also Staruski v. Cont’l Tel. Co. of Vt., 154 Vt. 568, 572–73 (1990) (“[W]e now hold
that a damage remedy for invasion of privacy by the appropriation of a person’s identity, at least

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when done for commercial purposes, should be available in appropriate circumstances in
Vermont as in other states.”). Yet “[n]o one has the right to object merely because his . . .
appearance is brought before the public, since . . . [it is not] in any way a private matter and . . .
[is] open to public observation.” Restatement (Second) of Torts § 652C, cmt. d. Similarly,
“[t]he incidental use of a person’s name is not . . . grounds for liability. It is only when [the
defendant] makes use of the name to pirate the plaintiff’s identity for some advantage of his own
. . . that he becomes liable.” Staruski, 154 Vt. at 571 (quotation omitted). Likewise:

[N]or is the value of his likeness appropriated when it is published for purposes
other than taking advantage of his reputation, prestige, or other value associated
with him, for purposes of publicity. . . . The fact that the defendant is engaged in
the business of publication, for example of a newspaper, out of which he makes or
seeks to make a profit, is not enough to make the incidental publication a
commercial use of the name or likeness. Thus a newspaper, although it is not a
philanthropic institution, does not become liable under the rule stated in this
Section to every person whose name or likeness it publishes.

Restatement (Second) of Torts § 652C, cmt. d. The Vermont Supreme Court elaborated: “There
are of course incidental uses of people’s likenesses in commercial advertising, such as a
photograph of a busy street where certain pedestrians may be recognizable, and in such a case
there could be no liability.” Staruski, 154 Vt. at 575. See also Bankers Tr. Co. v. Publicker
Indus., Inc., 641 F.2d 1361, 1364 (2d Cir. 1981) (“The New York state courts, however, have
created an exception to this tort of invasion of the right of publicity for “‘incidental use.’”). The
Staruski court found liability because defendant “featured” plaintiff “exclusively and attributed
the company’s advertising copy to her solely because of who she was,” providing defendant a
“commercial benefit . . . from the association of the ad’s texts with the names and photographs of
select employees.” Id. at 575. In other words, “There [wa]s nothing incidental about plaintiff’s
appearance in the ad.” Id.

By contrast, Doe’s claim for invasion of privacy by DeLuca does not meet these
requirements to establish liability. DeLuca’s 29-minute video captured Doe for about two
minutes—the length of the “short” video. In both, however, Doe appears as one of several
incidentally recorded people in public view. The videos do not intentionally “feature” Doe or
anyone recorded like the plaintiff in Staruski. Instead, Doe and the others appear in DeLuca’s
videos “of a busy street where certain [people] may be recognizable, and in such a case there
c[an] be no liability.” Staruski, 154 Vt. at 575. If anything, Doe’s own actions (not DeLuca’s) in
speaking to DeLuca make Doe a more prominent but still incidental figure compared to the
others. That DeLuca operates a YouTube channel on which he posted Doe’s incidental likeness
does not mean that he “become[s] liable under the rule stated in this Section to every person
whose name or likeness [he] publishes.” Restatement (Second) of Torts § 652C, cmt. d. The
court grants DeLuca’s motion to dismiss Doe’s claim for invasion of privacy since it does not
suffice as a matter of law.

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c. “Unlawful Commercial Exploitation” by Deluca

Doe calls his third claim “unlawful commercial exploitation,” asserting DeLuca “gained
commercially through the plaintiff’s image without authorization.” (Am. Compl. at 5.) To avoid
treating it as a duplication of his invasion-of-privacy claim, the court gives Doe the benefit of the
doubt, see Dodge, 2014 WL 4825632, at *6, and instead treats this claim as one for right of
publicity. See Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.
1953) (“We think that, in addition to and independent of that right of privacy . . . a [hu]man has a
right in the publicity value of [their] photograph, i.e., the right to grant the exclusive privilege of
publishing [their] picture, and that such a grant may validly be made ‘in gross,’ i.e., without an
accompanying transfer of a business or of anything else.”); Restatement (Third) of Unfair
Competition § 46 (1995) (“One who appropriates the commercial value of a person’s identity by
using without consent the person’s name, likeness, or other indicia of identity for purposes of
trade is subject to liability.”).

The Vermont Supreme Court has differentiated this cause of action from a right to
privacy: “some authorities hold that the appropriation for profit of a famous person’s name or
likeness is not an invasion of privacy but a different tort altogether.” Staruski, 154 Vt. 568, 573
n.5 (citing Haelan, 202 F.2d at 868). Staruski referenced the West Virginia Supreme Court of
Appeals’ decision in Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 85 n.6 (W. Va. 1983),
that clarified “the ‘right of publicity’ first recognized in Haelan . . . , which remedies the unjust
enrichment caused by an unauthorized exploitation of the good will and reputation that a public
figure develops in his name or likeness through the investment of time, money and effort.” Id.
In other words, “[t]he right of privacy protects individual personality and feelings, the right of
publicity protects the commercial value of a name or likeness.” Id. Critically, the latter cause of
action requires plaintiff to be a public figure or have invested time, money and effort in their
likeness. Id. See also Lerman v. Flynn Distributing Co., Inc., 745 F.3d 123, 134 (2d Cir. 1984)
(stating that “[b]ecause the plaintiff must generally have developed a property interest with
financial value in order to prove that he suffered damages, the right is most frequently invoked
by public figures or celebrities” and denying claim of “admittedly private person” who had
“never exploited the value of” the likeness challenged in the case).

Doe’s allegations do not adequately plead a claim for right of publicity. Doe has alleged:
(1) “The defendant gained commercially through the plaintiff’s image without authorization.”
(Am. Compl. at 4); and (2) “The defendant’s actions have caused the plaintiff, John Doe, severe
emotional distress, including anxiety and PTSD.” (Id. at 2.) Doe has not alleged that he is a
public figure or that he has invested time, money and effort in his likeness. Without these
essential elements, his claim cannot survive Rule 12(b)(6) as a matter of law.

d. Doe’s Claims Against YouTube

Section 230 of the Communications Decency Act, 47 U.S.C. § 230(c)(1) (“Section 230”),
states that “[n]o provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information content provider.” Id.
In other words, an online platform generally has no liability for content that a third party posts on
that platform. See Ricci v. Teamsters Union Loc. 456, 781 F.3d 25, 28 (2d Cir. 2015) (“In short, a

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plaintiff defamed on the internet can sue the original speaker, but typically cannot sue the
messenger.”) (quotation omitted). See also Atlantic Recording Corp. v. Project Playlist, Inc., 603
F. Supp.2d 690, 699-702 (S.D.N.Y. 2009) (discussing Section 230 congressional intent and
outlining cases applying its broad immunity). Section 230 also clarifies that “[n]o cause of
action may be brought and no liability may be imposed under any State or local law that is
inconsistent with this section.” 42 U.S.C. § 230(e). “[T]he Circuits are in general agreement
that the text of Section 230(c)(1) should be construed broadly in favor of immunity.” Force v.
Facebook, Inc., 934 F.3d 53, 64 (2d Cir. 2019) (collecting cases). “Although [p]reemption under
the Communications Decency Act is an affirmative defense, . . . it can still support a motion to
dismiss if the statute’s barrier to suit is evident from the face of the complaint.” Ricci, 781 F.3d
at 28 (citation omitted) (alteration in original).

“In applying the statute, courts have broken [it] down into three component parts, finding
that [i]t shields conduct if the defendant (1) is a provider or user of an interactive computer
service, (2) the claim is based on information provided by another information content provider
and (3) the claim would treat [the defendant] as the publisher or speaker of that information.”
United States v. EZ Lynk, SEZC, 149 F.4th 190, 195 (2d Cir. 2025) (quotations omitted)
(alterations in original). An “interactive computer service” means “any information service,
system, or access software provider that provides or enables computer access by multiple users
to a computer service, including specifically a service or system that provides access to the
Internet.” 47 U.S.C. §230(f)(2). “A website that is a passive host of third party content qualifies
as an interactive computer service entitled to immunity for the content of that third party.”
Ratermann v. Pierre Fabre USA, Inc., 651 F. Supp. 3d 657, 666 (S.D.N.Y. 2023) (citations
omitted). An “information content provider” means any person or entity that is responsible, in
whole or in part, for the creation or development of information provided through the Internet or
any other interactive computer service.” 47 U.S.C. § 230(f)(3).

An “interactive computer service” defendant “will not be considered to have developed
third-party content unless the defendant directly and materially contributed to what made the
content itself unlawful.” Force, 934 F.3d at 68 (quotations omitted). This “‘material
contribution’ test . . . ‘draw[s] the line at the crucial distinction between, on the one hand, taking
actions . . . to . . . display . . . actionable content and, on the other hand, responsibility for what
makes the displayed content [itself] illegal or actionable.’” Id. (quoting Kimzey v. Yelp! Inc., 836
F.3d 1263, 1269 n.4 (9th Cir. 2016)).

i. Violation of “Right of Publicity” by YouTube

Section 230 immunity shields YouTube from this claim. Doe alleges (1) “YouTube LLC
is contributorily liable for the unauthorized commercial use of Plaintiff’s likeness by providing
the platform and failing to remove the infringing content after notice”; and (2) “YouTube LLC
facilitated the commercial use of Plaintiff’s likeness without Plaintiff’s consent, violating
Plaintiff’s right to control the commercial exploitation of their identity.” (Am. Compl. at 5.)
These allegations treat YouTube wholly as a “publisher” or “speaker” of the videos made and
posted by DeLuca. Doe effectively concedes YouTube’s status as an “interactive computer
service,” (Doe’s Opp. at 2), and his allegations do not in any way challenge DeLuca’s status as
“another information content provider.” Doe has not alleged that YouTube was “responsible, in

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whole or in part, for the creation or development of” DeLuca’s video. 47 U.S.C. § 230(f)(3).
See also Ricci, 781 F.3d at 28 (upholding 12(b)(6) dismissal where plaintiffs “allege only that
GoDaddy ‘refused to remove’ from its web servers an allegedly defamatory newsletter that was
authored by another” since “[t]hese allegations do not withstand the Communications Decency
Act, which shields GoDaddy from publisher liability (with respect to web content provided by
others) in its capacity as a provider of an interactive computer service”). Doe’s allegations fall
squarely within Section 230’s protections for YouTube.

YouTube’s insertion of advertisements into DeLuca’s video does not remove Section 230
immunity for YouTube. (Cf. Doe’s Opp. at 2 (asserting otherwise).) A defendant must do more
to meet the “material contribution” test. In EZ Lynk, SEZC, 149 F.4th at 200-01, the Second
Circuit summarized the sort of activities that can meet the “material contribution” test to include:
using “paid researchers to uncover confidential phone records protected by law, and then
provid[ing] that information to paying customers” of defendant; “participat[ing] in the
development of . . . deceptive content posted on fake news pages” by recruiting, paying and
advising affiliates about the content posted by defendant; and working with and otherwise
collaborating with defendant system about content complained of by plaintiff. Id. See also Fair
Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1169 (9th Cir.
2008) (providing illustrations of what constitutes actionable “development”). To defeat 12(b)(6)
dismissal, plaintiff’s allegations must “raise the reasonable inference” that defendants “courted –
i.e., recruited . . . and collaborated with” content providers “to ensure that their [content] would
be compatible with and available to users of [defendant] system” – so much so that defendants
“specifically encourage[d] development of what [was] offensive about the content.” EZ Lynk,
SEZC, 149 F.4th at 201 (citations omitted). See also Force, 934 F.3d at 66 (holding that
Facebook’s use of algorithms did not defeat its “publisher” status giving it Section 230 immunity
since “arranging and distributing third-party information inherently forms ‘connections’ and
‘matches’ among speakers, content, and viewers of content, whether in interactive internet
forums or in more traditional media” which “is an essential result of publishing”). Doe does not
allege YouTube did any of these sorts of activities in this case.

This court found only one case involving claims resembling Doe’s, but its different facts
support its different outcome. Plaintiff in that case:

allege[d] not simply that defendant provided “neutral tools” which may
have been used by other parties for “unlawful purposes,” but that
[defendant] Meta ha[d] “active involvement” in deciding what ads look
like and who they are shown to and that its automated tools “supercharge
Meta’s ability to produce and drive the Scam Ads to vulnerable viewers,”
which has “been a substantial factor in the continuing production,
dissemination, and success” of the challenged ads.

Forrest v. Meta Platforms, Inc., 737 F. Supp. 3d 808, 818 (N.D. Cal. 2024). The court denied
Rule 12(b)(6) dismissal because “[t]hese allegations present[ed] a factual dispute regarding
whether Meta’s ad systems were neutral tools that anyone could use (or misuse) or whether the
tools themselves contributed to the content of the ads, including to the aspects of the content that
are allegedly illegal.” Id.

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Doe’s allegation that “insertion of advertisements into the video featuring the plaintiff,
and its subsequent monetization of that content,” (Opp. at 2.), does not meet what Forrest
requires. Doe has not alleged that YouTube “directly and ‘materially’ contributed to what made
the content itself unlawful.” Force, 934 F.3d at 68 (quotations omitted). Providing “neutral
tools” for DeLuca to post his video does not eliminate Section 230 immunity for YouTube, where
it otherwise “did absolutely nothing to encourage the posting of . . . [allegedly actionable]
content.” Roommates.Com, LLC, 521 F.3d at 1171. “[S]o long as [DeLuca] willingly provide[d]
the essential published content, [YouTube] receives full immunity regardless of the specific
edit[orial] or selection process.” Force, 934 F.3d 53 at 67.

ii. “Contributory Infringement/Liability” Against YouTube

Section 230’s intellectual property exception also does not save this claim of Doe’s that
emanates from his right to privacy, as discussed above. Privacy claims do not constitute
intellectual property claims excepted from Section 230 immunity. Ratermann v. Pierre Fabre
USA, Inc., 651 F. Supp.3d 657, 669 (S.D.N.Y. 2023). Even if they did, the intellectual property
exception preserves claims based only on “federal intellectual property” law which Doe does not
assert in this case. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1119 (9th Cir. 2007). Section
230 immunity remains for claims based on state intellectual property law. See id. at 1118
(“[P]ermitting the reach of any particular state’s definition of intellectual property to dictate the
contours of this federal immunity would be contrary to Congress’s expressed goal of insulating
the development of the Internet from the various state-law regimes.”); 42 U.S.C. § 230(e). Cf.
Hepp v. Facebook, 14 F.4th 204, 212-14 (3d Cir. 2021) (allowing a Pennsylvania “intellectual
property” claim to avoid Section 230 immunity while emphasizing “we express no opinion as to
whether other states’ rights of publicity qualify as intellectual property as a matter of federal
law”). Section 230 consequently immunizes YouTube from this claim.

iii. Breach of Contract by YouTube

Whether Section 230 also precludes Doe’s breach-of-contract claim against YouTube
based on its terms of service presents another question that Vermont courts have not apparently
addressed, at least as far as this court can tell. Federal courts in the Second Circuit have done so
very limitedly. E.g., Domen v. Vimeo, Inc., 6 F.4th 245, 253 (2d Cir. 2021) (“Certain claims
sounding in contract or tort may be beyond the reach of Section 230(c)(2)’s protection from
suit.”), opinion withdrawn, No. 20-616-CV, 2021 WL 4399692 (2d Cir. Sept. 23, 2021); Wiener
v. Miller, Case No. 2023 WL 6385816, at *4 (E.D.N.Y. Sep. 29, 2023) (dismissing breach of
contract and implied warranty claim because of Section 230 immunity where plaintiff sought to
hold defendant liable for published content versus violating terms of service).

The most developed case law on this question, as far as this court can tell, comes from
the Ninth Circuit, venue to many of the companies claiming Section 230 immunity. Those cases
make clear that, as a matter of law, a breach-of-contract claim can avoid Section 230 immunity
even where a tort claim based on similar conduct would fail. “[T]he difference between contract
claims and a tort such as defamation is that the latter ‘derive[s] liability from behavior that is
identical to publishing or speaking . . . .’” covered by Section 230 immunity, whereas

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“‘[p]romising,’ on the other hand, ‘is different because it is not synonymous with the
performance of the action promised.’” Calise v. Meta Platforms, Inc., 103 F.4th 732, 743 (9th
Cir. 2024) (quoting Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1107 (9th Cir. 2009)). In other words,
“because ‘[c]ontract law treats the outwardly manifested intention to create an expectation on the
part of another as a legally significant event,’” it becomes “a legal duty distinct from the conduct
at hand.” Id. (citation omitted). The Ninth Circuit distilled the rule from its decisions:

Our cases instead require us to look to the legal “duty.” “Duty” is “that
which one is bound to do, and for which somebody else has a corresponding
right.” Duty, BLACK’S LAW DICTIONARY (11th ed. 2019). We must therefore
examine two things in looking at duty. First, what is the “right” from which the
duty springs? If it springs from something separate from the defendant’s status as
a publisher, such as from an agreement, or from obligations the defendant has in a
different capacity, then § 230(c)(1) does not apply. Second, we ask what is this
duty requiring the defendant to do? If it obliges the defendant to “monitor third-
party content”—or else face liability—then that too is barred by § 230(c)(1).

Id. at 742 (citations omitted). Calise and Barnes, given their specific facts, excepted plaintiffs’
contract claims from Section 230 immunity, even though they dismissed similar tort claims. See
also Estate of Bride v. Yolo Technologies, Inc., 112 F.4th 1168, 1177-82 (9th Cir. 2024) (applying
Calise to bar product liability claim under Section 230 immunity but not misrepresentation
claims based on defendant’s failure to “unmask and ban users who violated the terms of service”
despite informing users that it would); In re: Apple, Inc. App Store Simulated Casino-Style
Games Litigation, Case No. 5:21-md-02985 et al., 2025 WL 2782591, at *5-*8 (N.D. Cal. Sep.
30, 2025) (holding that Section 230 does not immunize defendant’s payment-processing
activities unrelated to its publisher activities and mandates no monitoring requirement where
defendants could stop offering payment processing instead).

State and federal courts in the Ninth Circuit have applied Barnes and Calise to find
Section 230 immunity against claims similar to Doe’s. For instance, in King v. Facebook, Inc.,
572 F. Supp.3d 776 (N.D. Cal. 2021), the court found Section 230 immunity for a contract claim
in a case brought by a mother and son against Facebook. Their breach of contract claims had
several theories, including that Facebook breached its terms of service when it exercised its
discretion to disable the mother’s account. Id. at 795. “In other words, all that Facebook did
here was to incorporate into the contract (the Terms of Service) its right to act as a publisher.”
Id. Mindful of Barnes’s exhortation that “‘what matters is not the name of the cause of action
[but rather] whether the cause of action inherently requires the court to treat the defendant as the
publisher or speaker of content provided by another,’” id. at 794 (quoting Barnes, 570 F.3d at
1101–02) (other citation omitted) (emphasis omitted) (alteration in original), the King court
concluded, “[t]his by itself is not enough to take Facebook outside of the protection the CDA
gives to ‘paradigmatic editorial decisions not to publish particular content.’” Id. at 795 (citation
omitted). This outcome aligns with Calise’s plain language – “If it obliges the defendant to
monitor third-party content—or else face liability—then that too is barred by § 230(c)(1).”
Calise, 103 F.4th at 742 (citation omitted). In that sense, King applied the plain language of
Calise’s second requirement.

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In reaching its decision, the King court also cited the California appellate court’s decision
in Murphy v. Twitter, Inc., 274 Cal.Rptr.3d 360 (2021). Murphy involved several claims,
including one for breach of contract brought by a Twitter user, accusing Twitter “of unfairly
applying its general rules regarding what content it will publish and seeks injunctive relief to
demand that Twitter restore her account and refrain from enforcing its Hateful Conduct Policy.”
Id. at 372. The Murphy court noted that other “[c]ourts have routinely rejected a wide variety of
civil claims like Murphy’s that seek to hold interactive computer services liable for removing or
blocking content or suspending or deleting accounts (or failing to do so) on the grounds they are
barred by the CDA.” Id. at 370 (citations omitted). Acknowledging that “[w]hile Murphy is
correct that some courts have rejected the application of section 230 immunity to certain breach
of contract and promissory estoppel claims, many others have concluded such claims were
barred because the plaintiff’s cause of action sought to treat the defendant as a publisher or
speaker of user generated content.” Id. at 371 (citations omitted). The court rejected Murphy’s
attempt to rely on Barnes, where the Ninth Circuit’s decision to except Section 230 immunity
related to a Yahoo employee’s personal promise to plaintiff that they would remove the
challenged content, not the company’s commercial terms of service. Id. at 372-73. Rejecting a
variety of other arguments as well, the court found Murphy’s claims barred by Section 230. Id.
at 377.

Likewise, in Federal Agency of News LLC v. Facebook, Inc., 395 F. Supp.3d 1295 (N.D.
Cal. 2019), plaintiff alleged Facebook breached its terms of service when it removed its
Facebook page and blocked its content. Id. at 1306. Citing Barnes and Rommates, the Federal
Agency of News court summarily foreclosed plaintiff’s claim under Section 230 as targeting
inherently publishing activity. Id. at 1306-07. “[I]t is ‘immaterial whether [the] decision comes
in the form of deciding what to publish in the first place or what to remove among the published
material.’” Id. (quoting Barnes, 570 F.3d at 1102 n.8). Rather, “‘activity that can be boiled
down to deciding whether to exclude material that third parties seek to post online is perforce
immune under section 230’ of the Communications Decency Act.” Id. at 1307 (quoting
Rommates, 521 F.3d at 1163). The court consequently dismissed plaintiff’s contract claim. Id. at
1308. See also Lancaster v. Alphabet, Inc., Case No. 15-cv-05299-HSG, 2016 WL 3648608 (Jul.
8, 2016 N.D. Cal.) (holding “that § 230 of the CDA prohibits any claim arising from Defendants’
removal of Plaintiff’s videos” allegedly in violation of the covenant of good faith and fair
dealing).

These cases demonstrate why Section 230 immunizes YouTube from Doe’s breach of
contract claim in this case. Here, Doe alleges that: (1) he “reviewed YouTube’s terms of service
agreement,” (Am. Compl. at 3); (2) he “submitted a report to YouTube LLC to remove the
[DeLuca] video,” (Id.); (3) “YouTube LLC failed to remove the content,” (Id.); and (4)
“YouTube LLC failed to adhere to its own terms of service when it failed to remove the reported
video.” (Id. at 5.) As the cases above make clear, Doe’s allegations, while framed as a breach of
contract claim, nevertheless go to the heart of YouTube’s actions as a publisher – Doe complains
that YouTube published DeLuca’s videos when it should not have. Calise’s plain language
shows that Section 230 applies to this sort of allegation that would “oblige[] the defendant to
‘monitor third-party content’—or else face liability—then that too is barred by § 230(c)(1).”
Calise, 103 F.4th at 742.

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Even aside from Section 230, Doe’s contract claim does not survive rule 12(b)(6) because
YouTube’s ToS do not create promises which it could have breached in the way that Doe alleges.
In Caraccioli v. Facebook, Inc., 167 F. Supp.3d 1056 (N.D. Cal. 2016), plaintiff sued Facebook
for failing to remove an allegedly impostor account depicting plaintiff in compromising
activities. Id. at 1060. Plaintiff claimed that Facebook’s refusal to remove the account until after
plaintiff threatened suit breached its terms of service. Id. at 1061, 1064. The court, however,
found that “while Facebook’s Terms of Service place restrictions on users’ behavior, they do not
create affirmative obligations.” Id. at 1064 (citation omitted). As a result, his breach of contract
claim failed. Id. In addition, the court found that Facebook had immunity under Section 230 in
any event. “Liability based on that sort of vicarious responsibility” where plaintiff contended
that “Facebook should be deemed responsible for the account because it reviewed it and decided
not to remove it” “is exactly what §2320(c) seeks to avoid.” Id. at 1066 (citing Roommates, 521
F.3d at 1163).

In this case, YouTube’s ToS likewise make no affirmative obligations of the sort Doe
alleges it breached. Doe’s most direct allegation in this regard reads: “YouTube LLC failed to
adhere to its own terms of service when it failed to remove the reported video.” (Am. Compl. at
5.) Yet YouTube’s ToS says only that, “we reserve the right to remove or take down some or all
of such Content in our discretion.” (YouTube Mot. Ex. A at 10.) Even its promise that it “will
notify you with the reason for our action” contains three “unless” clauses qualifying that
obligation, not applicable here since Doe challenges YouTube’s failure to remove the DeLuca
videos. YouTube further disclaims in all capital letters: “WE DON’T MAKE ANY
WARRANTIES ABOUT: (A) THE CONTENT PROVIDED THROUGH THE SERVICE; (B)
THE SPECIFIC FEATURES OF THE SERVICE, OR ITS ACCURACY, RELIABILITY,
AVAILABILITY, OR ABILITY TO MEET YOURNEEDS . . . .” (Id. at 13.) As a result, even
without Section 230’s protections, Doe’s breach of contract claim fails because it does not
identify any promise YouTube breached.

e. Doe’s Motions for Late Filing and Sur-Replies

In reaching today’s decision, the court has reviewed and considered all of Doe’s late filed
papers and unpermitted sur-replies. The court, therefore, grants Doe’s motions to accept his late
filings and will allow his sur-replies retroactively for purposes of this decision.

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C. Order

For the foregoing reasons, the court (a) GRANTS DeLuca’s motion to dismiss (Mot. #9);
(b) GRANTS YouTube’s motion to dismiss (Mot. #12); and (c) GRANTS Doe’s Motion to
Accept Late Filing (Mot. #14), Motion for Leave to File Sur-reply (Mot. #15) and Motion for
Leave to File Supplemental Memo of Law (Mot. #16).

Electronically signed pursuant to V.R.E.F. 9(d) on December 11, 2025.

Colin Owyang
Superior Court Judge

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