Doe v. Internet Brands, Inc., No. 12–56638

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CLIFTON, Circuit Judge
• Citation: 824 F.3d 846
• Parties: Jane Doe No. 14, Plaintiff–Appellant, v. Internet Brands, Inc., DBA Modelmayhem.com, Defendant–Appellee.
• Docket Number: No. 12–56638
• Decision Date: 31 May 2016

824 F.3d 846

Jane Doe No. 14, Plaintiff–Appellant
v.
Internet Brands, Inc., DBA Modelmayhem.com, Defendant–Appellee.

No. 12–56638

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2014
Opinion withdrawn February 24, 2015
Re-argued and Submitted April 8, 2015 Pasadena, California
Filed May 31, 2016

Jeffrey Herman (argued) and Stuart S. Mermelstein, Herman Law, Boca Raton, Florida, for Plaintiff–Appellant.

Daniel P. Collins (argued), Munger, Tolles & Olson LLP, Los Angeles, California; Jonathan H. Blavin, Munger, Tolles & Olson LLP, San Francisco, California; Wendy E. Giberti, iGeneral Counsel, P.C., Beverly Hills, California; Patrick Fraioli, Ervin Cohen & Jessup LLP, Beverly Hills, California, for Defendant–Appellee.

Patrick J. Carome (argued), Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Felicia H. Ellsworth and Brook Hopkins, Wilmer Cutler Pickering Hale and Dorr, Boston, Massachusetts, for Amici Curiae The Computer and Communications Industry Association; The Internet Association; Care.com, Inc.;

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Craigslist, Inc.; Facebook, Inc.; IAC/Interactivecorp; and Tumblr, Inc.

Before: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and Brian M. Cogan, District Judge.^**

ORDER

By order entered February 24, 2015, Defendant–Appellee Internet Brands Inc.'s Petition for Rehearing, filed October 31, 2014, was granted, the Petition for Rehearing En Banc was denied as moot, the opinion filed on September 17, 2014 was withdrawn, and the case scheduled for a new oral argument.

An opinion is filed together with this order. Subsequent petitions for rehearing or rehearing en banc may be filed.

OPINION

CLIFTON, Circuit Judge:

Model Mayhem is a networking website, found at modelmayhem.com, for people in the modeling industry. Plaintiff Jane Doe, an aspiring model who posted information about herself on the website, alleges that two rapists used the website to lure her to a fake audition, where they drugged her, raped her, and recorded her for a pornographic video. She also alleges that Defendant Internet Brands, the company that owns the website, knew about the rapists but did not warn her or the website's other users. She filed an action against Internet Brands alleging liability for negligence under California law based on that failure to warn.

The district court dismissed the action on the ground that her claim was barred by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c) (2012). We conclude that the CDA does not bar the claim. We reverse and remand for further proceedings.

I. Background

At the motion to dismiss stage, we assume factual allegations stated in the Complaint filed by Plaintiff to be true.¹ Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001). Plaintiff alleges that Internet Brands owns and operates the website modelmayhem.com, which it purchased in 2008. Model Mayhem is a networking site for professional and aspiring models to market their services. It has over 600,000 members. Plaintiff Jane Doe, a fictitious name, was an aspiring model who became a member of Model Mayhem.

Unbeknownst to Jane Doe, two persons, Lavont Flanders and Emerson Callum, were using Model Mayhem to identify targets for a rape scheme, allegedly as early as 2006. Flanders and Callum are not alleged to have posted their own profiles on the website. Instead, they browsed profiles on Model Mayhem posted by models, contacted potential victims with fake identities posing as talent scouts, and lured the victims to south Florida for modeling auditions. Once a victim arrived, Flanders and Callum used a date rape drug to put her in a semi-catatonic state, raped her, and recorded the activity on videotape for sale and distribution as pornography.

In 2008, Internet Brands purchased Model Mayhem from Donald and Taylor Waitts, the original developers of the site. Shortly after the purchase, Internet Brands learned of how Flanders and Callum

824 F.3d 849

were using the website. It is not alleged precisely how Internet Brands obtained that information, but it is alleged that the company “as early as August, 2010, knew that two individuals, Lavont Flanders and Emerson Callum, had been criminally charged in this scheme, and further knew from the criminal charges, the particular details of the scheme, including how MODELMAYHEM.COM had been used in the scheme and its members victimized.” Specifically, it is alleged that Internet Brands knew that:

a. Lavont Flanders and Emerson Callum would contact female MODELMAYHEM.COM members, using fake identities, disguised as talent scouts.

b. Lavont Flanders and Emerson Callum would lure female MODELMAYHEM.COM members to South Florida to participate in fake auditions for a fraudulent modeling contract opportunity.

c. Lavont Flanders and Emerson Callum would drug the female MODELMAYHEM.COM members with a date-rape drug during the fake audition.

d. Emerson Callum would then rape the unknowingly drugged women.

e. Lavont Flanders and Emerson Callum would record the rape on video camera.

f. Lavont Flanders and Emerson Callum would produce the rape videos and distribute the video on the internet, guised as consensual hardcore pornography.

It is also alleged that Internet Brands sued the Waitts in August 2010 for failing to disclose the potential for civil suits arising from the activities of Flanders and Callum.

The reference to criminal charges suggests that the information was obtained by Internet Brands from an outside source, not from monitoring postings on the Model Mayhem website. As noted above, Flanders and Callum did not post on the website.

In February 2011, several months after Internet Brands had learned about the criminal activity, Flanders, pretending to be a talent scout and using a false identity, contacted Jane Doe, in the words of the Complaint, “through” the Model Mayhem website.² Jane Doe went to south Florida for a purported audition, where Flanders and Callum drugged, raped, and recorded her.

Jane Doe filed this diversity action against Internet Brands in the Central District of California, where Internet Brands is based, asserting one count of negligent failure to warn under California law. She alleges that Internet Brands knew about the activities of Flanders and Callum but failed to warn Model Mayhem users that they were at risk of being victimized. She further alleges that this failure to warn caused her to be a victim of the rape scheme.

Internet Brands filed a motion to dismiss the action under Federal Rule of Civil Procedure 12(b)(6), on the ground that her claim was barred by the CDA. The district court granted the motion to dismiss and dismissed the action with prejudice. It denied leave to amend the complaint on the ground that any amendment would be futile. Jane Doe appeals.

II. Discussion

We review de novo a district court's decision to grant a motion to dismiss.

824 F.3d 850

Edwards v. Marin Park, Inc. , 356 F.3d 1058, 1061 (9th Cir. 2004). We also review de novo questions of statutory interpretation. United States v. Harvey , 659 F.3d 1272, 1274 (9th Cir. 2011).

California law imposes a duty to warn a potential victim of third-party harm when a person has a “special relationship to either the person whose conduct needs to be controlled or ... to the foreseeable victim of that conduct.” Tarasoff v. Regents of Univ. of California , 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), superseded by statute , Cal. Civ. Code § 43.92. Jane Doe alleges that Internet Brands had a cognizable “special relationship” with her and that its failure to warn her of Flanders and Callum's rape scheme caused her to fall victim to it. Internet Brands argues that the CDA precludes the claim. Although we assume that Internet Brands may contest the scope of the duty to warn under California law and, in particular, the existence of the required special relationship, that issue is not before us. The dismissal of the action by the district court was based entirely on the CDA.

The question before us, therefore, is whether the CDA bars Jane Doe's negligent failure to warn claim under California law. We begin with the language of the statute. Campbell v. Allied Van Lines Inc. , 410 F.3d 618, 620 (9th Cir. 2005).

Section 230(c) of the CDA, is titled “Protection for ‘Good Samaritan’ blocking and screening of offensive material.” It provides two types of protection from civil liability, but only the first type is relevant to this case:

(1) Treatment of publisher or speaker

No 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.

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