Plaintiffs Seek to Vacate CTO in Social Media MDL Pending Motion to Remand
Plaintiffs Dean Nasca and Michelle Nasca filed a motion (docket MDL 3047) Friday to vacate the April 20 conditional transfer order No. 7 (CTO-7) pursuant to Rule 7.1(f) of the Rules of Procedure for the Judicial Panel on Multidistrict litigation in their negligence lawsuit against TikTok parent ByteDance. CTO-7 would conditionally transfer Nasca v. ByteDance (docket 2:23-cv-02786) to Social Media Adolescent Addiction/Personal Injury Products Liability Litigation pending before Judge Yvonne Gonzalez Rogers in U.S. District Court for Northern California in Oakland.
Alternatively, pursuant to JPML 6.1, the Nascas moved the court to stay any decision on the conditional transfer order or their motion to vacate for 60 days until after the U.S. District Court for Eastern New York rules on their motion to remand. The plaintiffs asked the panel to abstain from rendering a decision on CTO-7 or their motion to vacate until after Magistrate Judge James Wicks issues his recommendation to U.S. District Judge Nicholas Garaufis for Eastern New York on whether the case should be dismissed for lack of diversity jurisdiction based upon the parties’ already-filed letter briefs or after the court rules on their pending motion to remand.
The Nascas’ son, Chase, rode his bike to a railroad intersection in February 2022 in Bayport, New York, walked through an unfenced portion of train tracks and was hit by a Long Island Railroad (LIRR) train after texting a friend, “I’m gonna go.” His parents accessed his TikTok account on his phone after his death and found “thousands” of videos with “highly depressive, violent, self-harm, and suicidal themes accompanied with dark and depressing music,” said the memorandum in support of the Nascas’ motion to vacate.
On May 11, 2022, the Nascas filed a pro se notice of claim against the Metropolitan Transit Authority, the LIRR and the town of Islip, New York, alleging the MTA had knowledge of “disproportionate occurrences” of LIRR trains striking pedestrians and vehicles in that portion of track “but failed to take any actions to mitigate or prevent future collisions.” The next month, they retained a law firm to prosecute a claim against social media companies arising out of Chase’s death. They filed a liability claim against TikTok and ByteDance in U.S. District Court in Northern California in October.
Matthew Bergman, an attorney with the Social Media Victims Law Center, learned of the Nascas’ claim against the MTA and said the MTA’s failure to fence off the section of track where Chase died is actionable under New York law due to prior suicides at the same location. He also said the statute of limitations for the parents to file a claim against the MTA would run on Thursday. Because the Nascas and the MTA are New York residents, the plaintiffs couldn't assert diversity jurisdiction in their pending federal claim.
As a result, the only way for the Nascas to prosecute their claims against TikTok and the MTA before the statute of limitation expired was to dismiss the federal action and proceed against both sets of defendants in New York state court. They voluntarily dismissed their federal action against TikTok in March and later that month filed an instant action in Suffolk County Supreme Court with similar allegations. TikTok removed the action in April, arguing the defendants “are distinct, and the claims cannot be properly joined together” and then filed a notice of potential tag-along actions, including to MDL No. 3047.