Doe v. Sexsearch.Com, 3:07 CV 604.

• Decision Date: 22 August 2007
• Docket Number: No. 3:07 CV 604.,3:07 CV 604.
• Citation: 502 F.Supp.2d 719
• Parties: John DOE, Plaintiff, v. SEXSEARCH.COM, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

502 F.Supp.2d 719

John DOE, Plaintiff, v. SEXSEARCH.COM, et al., Defendants.

No. 3:07 CV 604.

United States District Court, N.D. Ohio, Western Division.

August 22, 2007.

COPYRIGHT MATERIAL OMITTED

Brandie L. Hawkins, Lima, OH, Dean M. Boland, Lakewood, OH, for Plaintiff.

Scott R. Torpey, William D. Adams, Jaffe, Raitt, Heuer & Weiss, Southfield, MI, Max Kravitz, Michael D. Dortch, Kravitz, Dortch & Brown, Columbus, OH, Gary J. Kaufman, Dana Milmeister, Kaufman Law Group, Los Angeles, CA, for Defendants.

MEMORANDUM OPINION AND ORDER

ZOUHARY, District Judge.

This matter is before the Court on Defendants' Motion to Dismiss pursuant to Rule 12(b)(6) (Doc. No. 123) and Plaintiffs Motion to. Strike Defendants' Joint Reply (Doc. No. 149). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. For the reasons detailed below, Defendants' Motion is granted, and Plaintiffs Motion is denied.

BACKGROUND

Sexsearch.com (SexSearch) is a website offering an online adult dating service which encourages its members to meet and engage in sexual encounters (Complaint ¶¶ 53, 96). Members are permitted to provide information for a profile, which consists of a list of responses to specific questions posed by the website. Members may also upload photographs and video content to their profile (Complaint ¶¶ 121-22, 149, 151).

Plaintiff John Doe became a gold member of SexSearch in October 2005 (Complaint ¶ 173). Shortly thereafter, Plaintiff located Jane Roe's profile, which contained the following information: Birthdate June 15, 1987; Age 18; an authentic image of Jane Roe at her then-current age; and the statement that her ideal match included a male "who could last for a long time" (Complaint ¶¶ 198, 205).

Plaintiff began chatting online through SexSearch with Jane Roe, and the two eventually decided to schedule a sexual encounter to take place at Jane Roe's home on November 15, 2005. The meeting went as planned, and Plaintiff and Jane Roe engaged in consensual sexual relations (Complaint ¶¶ 219, 222). However, as it turned out, Jane Roe was not actually 18, but a 14-year-old child.

On December 30, 2005, Plaintiffs home was surrounded by law enforcement officers, and he was arrested and charged with three separate counts of engaging in unlawful sexual conduct with a minor, all felonies of the third degree (Complaint ¶¶ 226-33). As a result of the charges, Plaintiff could face fifteen (15) years in prison, and a classification that might include lifetime registration as a sex offender (Complaint ¶¶ 235-36).

Procedural Posture

On March 1, 2007, Plaintiff filed this Complaint, naming as Defendants the owners of SexSearch, which include: Sexsearch.com; Sexsearchcom.com; Cyber Flow Solutions, Inc.; Manic Media, Inc.; Stallion.com FSC Limited; DNR; Experienced Internet, Inc.; Fiesta Catering International, Inc.; Adam Small; Camelia Francis; Damian Cross; Ed Kunkel; Mauricio Bedoya; Patricia Quesada; and Richard Levine (Defendants) (Complaint ¶¶ 115-33, 40). Defendants contend Defendant/Intervenor Cytek, Ltd. is the true owner of the SexSearch website and business, and thus is the only proper party.

The Court initially granted Plaintiff an Ex-Parte Temporary Restraining Order on March 2, 2007 (Doc. No. 11), which was extended on March 13, 2007 after Defendants failed to appear at a Preliminary Injunction Hearing (Doc. Nos. 25, 26). After Defendants retained counsel and entered appearances, the Court held a Preliminary Injunction Hearing on April 16, 2007. At this hearing, the Court denied Plaintiffs Motion for a Preliminary Injunction and vacated the existing TRO (Doc. No. 130).

Defendants have filed individual Motions to Dismiss, both on the merits (pursuant to Rule 12(b)(6)) and for lack `of personal jurisdiction (pursuant to Rule 12(b)(2)) (Doc. Nos. 113, 117, 118, and 123). For the sake of judicial economy, Defendant/Intervenor Cytek, Ltd. agreed to enter an appearance and waive all service of process and personal jurisdiction issues, allowing the Court to consider a Rule 12(b)(6) motion to dismiss on the merits before undertaking the weighty task of evaluating personal jurisdiction for each of the sixteen remaining Defendants (Doc. No. 110). Defendants' Motions to Dismiss on Personal Jurisdiction Grounds were held in abeyance pending the outcome of their Motion on the merits (Doc. No. 142).

Plaintiff's Claims

Plaintiff alleges that upon becoming a member of SexSearch, he reviewed SexSearch's warranties, and agreed to SexSearch's Terms and Conditions and profile guidelines (Complaint ¶¶ 173-78). He contends Defendants warranted "all persons within this site are 18 +" (Complaint ¶ 186). It is also alleged SexSearch's contractual agreement included the Terms and Conditions, in which Defendants promised to review, verify and approve all profiles on its website and remove materials depicting minors (Complaint ¶¶ 188-92). Plaintiff alleges the following fourteen claims:

1. Count One alleges SexSearch breached its contract by permitting minors to become paid members, and by delivering a minor to Plaintiff for the purpose of sexual relations (Complaint ¶¶ 295-97).

2. Count Two alleges Defendants engaged in fraud by representing that all persons on its site were over the age of 18, but allowed a minor to become a member and failed to remove her profile (Complaint ¶¶ 301, 303-04).

3. Count Three alleges Defendants negligently inflicted emotional distress by failing to remove the profile of a minor from its website, and by delivering a minor to Plaintiff for the purpose of engaging in sexual relations (Complaint ¶ 307).

4. Count Four alleges negligent misrepresentation because Defendants promised all members were adults, 11. but failed to remove the profile of a minor (Complaint ¶ 316).

5. Count Five alleges breach of warranty because Defendants Warranted all paid members were persons 18 years of age or older but delivered a minor to Plaintiff for the purpose of engaging in sexual relations (Complaint ¶¶ 323, 325).

6. Counts Six alleges Defendants committed a deceptive trade practice in violation of the Ohio Consumer Sales Practices Act by falsely warranting that no members were under the age of 18 (Complaint ¶¶ 342-43).

7. Counts Seven alleges Defendants committed unfair and deceptive acts in violation of the Ohio Consumer Sales Practices Act by falsely representing that no members were under the age of 18 (Complaint ¶ 354).

8. Count Eight alleges unconscionability in violation of the Ohio Consumer Sales Practices Act by incorporating into the contract a clause limiting damages to the amount of the contract (Complaint ¶ 358).

9. Count Nine alleges unconscionability in violation of the Ohio Consumer Sales Practices Act by incorporating into the contract a clause allowing the supplier to unilaterally cancel the contract after the consumer's three (3) day right to cancel has passed without allowing the consumer the option (Complaint ¶ 362).

10. Count Ten alleges unconscionability in violation of the Ohio Consumer Sales Practices Act by including clauses in the contract that are substantially one-sided (Complaint ¶ 366).

11. Count Eleven alleges unconscionability by requiring Plaintiff to agree to terms and conditions that contained no guarantee Defendants would or could perform their contractual promises (Complaint ¶ 370).

12. Count Twelve alleges unconscionability by including a limitation on liability that was unreasonably favorable to Defendants (Complaint ¶¶ 375-78).

13. Count Thirteen alleges unconscionability by including a clause in the contract disclaiming all liability (Complaint ¶ 383).

14. Count Fourteen alleges Defendants failed to warn that minors may be members of the website (Complaint ¶¶ 393-95).

These fourteen causes of action essentially boil down to either (a) Defendants failed to discover Jane Roe lied about her age to join the website, or (b) the contract terms are unconscionable.

STANDARD OF REVIEW

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the function of the Court is to test the legal sufficiency of the Complaint. In scrutinizing the Complaint, the Court is required to accept the allegations stated in the Complaint as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984), while viewing the Complaint in a light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). The Court is without authority to dismiss the claims unless it can be demonstrated beyond a doubt that Plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Westlake, 537 F.2d at 858. See generally 2 JAMES W. MOORE, MOORE'S FEDERAL. PRACTICE, § 12.34[1] (3d ed.2003).

DISCUSSION

Immunity under the Communications Decency Act

Defendants first argue they are immune from most of Plaintiffs claims by the Communications Decency Act (CDA), 47 U.S.C. § 230. More specifically, they contend an interactive computer service cannot be held liable on any state or federal claim which would render that service liable for content provided by third parties, and thus the CDA bars Plaintiffs claims based on the purported failure of the website to prevent Jane Roe from misrepresenting her age. These claims are: (1) breach, of contract (First cause of action); (2) fraud (Second cause of action); (3) negligent infliction of emotional distress (Third cause of action); (4) negligent misrepresentation (Fourth cause of action); (5) breach of warranty (Fifth cause of action); (6) violation of the Ohio Consumer Sales Practices Act (Sixth and Seventh causes of action); and (7) failure to warn (Fourteenth cause of action) (Def.Reply, p. 4).

Plaintiff responds that because SexSearch reserves the right to modify the content of profiles when they do not meet the profile...