Dyroff v. Ultimate Software Grp., Inc., 18-15175

• Decision Date: 20 August 2019
• Docket Number: No. 18-15175,18-15175
• Parties: Kristanalea DYROFF, individually and on behalf of the estate of Wesley Greer, deceased, Plaintiff-Appellant, v. The ULTIMATE SOFTWARE GROUP, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

934 F.3d 1093

Kristanalea DYROFF, individually and on behalf of the estate of Wesley Greer, deceased, Plaintiff-Appellant,

v.The ULTIMATE SOFTWARE GROUP, INC., Defendant-Appellee.

No. 18-15175

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2019, Seattle, Washington

Filed August 20, 2019

David F. Slade (argued), Carney Bates & Pulliam PLLC, Little Rock, Arkansas; Sin-Ting Mary Liu, Aylstock Witkin Kreis & Overholtz PLLC, Alameda, California; for Plaintiff-Appellant.

Jeffry A. Miller (argued), Lewis Brisbois Bisgaard & Smith LLP, San Diego, California; , Lewis Brisbois Bisgaard & Smith LLP, San Diego, California; Shawn A. Tolliver and Justin S. Kim, Lewis Brisbois Bisgaard & Smith LLP, San Francisco, California; for Defendant-Appellee.

Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.

D.W. NELSON, Circuit Judge:

Plaintiff Kristanalea Dyroff appeals the district court’s dismissal of her claims against Defendant The Ultimate Software Group ("Ultimate Software"), operator of the Experience Project website, for its alleged role in the death of her son, Wesley Greer. While the circumstances and facts of this case are no doubt tragic, we find that Ultimate Software is immune from liability under Section 230 of the Communications Decency Act. We therefore affirm.

BACKGROUND

This being an appeal from a motion to dismiss, we describe the case as Plaintiff presents it. We take her plausible allegations as true and draw all reasonable inferences in her favor.

Experience Project was a social networking website made up of various online communities or groups where users anonymously shared their first-person experiences, posted and answered questions, and interacted with other users about different topics. The site did not limit or promote the types of experiences users shared. The site’s "blank box" approach to user content resulted in an array of topics and forums ranging from "I like dogs" and "I am going to Stanford" to "I have lung cancer

" and "I Love Heroin."

Users registered with the site anonymously; in other words, the site did not collect users’ identifying information, including name, phone number, or mailing address. The site’s operator, Ultimate Software, believed that anonymity would promote users to share more personal and authentic experiences without inhibition. Experience Project’s founder stated, "We don’t want to know [users’] real name, their phone number, what town they’re from." Id. "The impetus behind this policy [of anonymity] was to encourage users to share experiences with the least amount of inhibition possible. The greater the anonymity, the more ‘honest’ the post ...."

Experience Project was live from 2007 until March 2016, during which its users shared 67 million experiences, made 15 million connections, and asked 5 million questions. Users could join groups and the site also recommended groups for users to join, based on the content of their posts and other attributes, using machine-learning algorithms. When a user posted content to a group, the site would send an email notification to the other users active in that group. The site generated revenue through advertisements and the sale of tokens that users used to post questions to other users in their groups.

Some of the site’s functions, including user anonymity and grouping, facilitated illegal drug sales. Wesley Greer was involved in one such transaction, which turned fatal. Wesley suffered from drug addiction, which began when a doctor overprescribed him opioid pain killers after a serious sports-related injury. After several unsuccessful rehabilitation attempts, Wesley bought what he believed to be heroin from a fellow Experience Project user. Wesley posted in a heroin-related group, "where can i [sic] score heroin in jacksonville, fl." The site sent him an email notification when another user, Hugo Margenat-Castro or "Potheadjuice," an Orlando-based drug dealer, posted in the same group. Wesley and Margenat-Castro connected off the site and Wesley bought heroin from Margenat-Castro on August 18, 2015.

Wesley died the next day from fentanyl toxicity. He did not know that the heroin Margenat-Castro sold him was laced with fentanyl. Margenat-Castro was ultimately arrested and prosecuted. He pleaded guilty in March 2017 admitting that he sold heroin laced with fentanyl while active on Experience Project.

In March 2016, Experience Project announced, in an open letter to its users, that it was shutting down. The letter expressed concern for the future of online privacy because of government overreach. It stated that the site always supported proper law enforcement efforts but recognized that it did not have the resources to respond to increased government information requests. The site shut down on April 21, 2016.

Plaintiff Kristanalea Dyroff, Wesley Greer’s mother, filed a complaint in San Francisco Superior Court. She alleges that Ultimate Software: (1) allowed users to traffic anonymously in illegal, deadly narcotics and to create groups dedicated to their sale and use; (2) steered users to additional groups dedicated to the sale and use of narcotics; (3) sent users alerts to posts within groups that were dedicated to the sale and use of narcotics; (4) permitted users to remain active accountholders despite evidence that they openly engaged in drug trafficking and that law enforcement had undertaken related investigations; and (5) demonstrated antipathy toward law enforcement efforts to stop illegal activity on Experience Project.

Ultimate Software removed the action from state court based on diversity jurisdiction and filed a motion to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion without prejudice. Dyroff filed a notice stating that she would not file an amended complaint and asked the district court to enter judgement. Dyroff timely appealed the judgment.

STANDARD OF REVIEW

We review de novo both a district court order dismissing a plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) and questions of statutory interpretation. Fields v. Twitter, Inc. , 881 F.3d 739, 743 (9th Cir. 2018). The Court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Rowe v. Educ. Credit Mgmt. Corp ., 559 F.3d 1028, 1029–30 (9th Cir. 2009). Only a complaint that states a plausible claim for relief may survive a motion to dismiss. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plausibility exists when a court may "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id .

DISCUSSION

Plaintiff argues that in granting the motion to dismiss, the district court made three errors. First, she argues, the district court erred when it held that Communications Decency Act (CDA) Section 230 immunizes Defendant Ultimate Software. Plaintiff reasons that Ultimate Software, as the operator of the Experience Project website, was an information content provider, as defined by the statute, because its recommendation and notification functions were "specifically designed to make subjective, editorial decisions about users based on their posts." Second, according to Plaintiff, the district court erred when it found that her allegations of collusion between Ultimate Software and drug dealers using Experience Project were not plausible. Her third argument is that the district court erred in finding that Ultimate Software owed no duty of care to her son, Wesley Greer, an Experience Project user. We affirm because the district court did not err in any of these respects.

I. CDA Section 230 Immunizes Ultimate Software from Plaintiff’s Claims

The CDA provides that website operators are immune from liability for third-party information (or content, like the posts on Experience Project) unless the website operator "is responsible, in whole or in part, for the creation or development of [the] information." 47 U.S.C. §§ 230(c)(1) & (f)(3). Ultimate Software did not create content on Experience Project, in whole or in part. Accordingly, Ultimate Software, as the operator of Experience Project, is immune from liability under the CDA because its functions, including recommendations and notifications, were content-neutral tools used to facilitate communications. See Fair Hous. Council of San Fernando Valley v. Roommates.com , 521 F.3d 1157, 1167–69 (9th Cir 2008) (en banc).

A. Scope of CDA Section 230 Immunity

The CDA instructs us 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 ." 47 U.S.C. § 230(c)(1) (emphasis added). The CDA defines an "interactive computer service" as

[A]ny information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

47 U.S.C. § 230(f)(2).

On the other hand, an "information content provider" is

[A]ny 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).

"The prototypical service qualifying for [CDA] immunity is an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others." Kimzey v. Yelp! Inc. , 836 F.3d 1263, 1266 (9th Cir. 2016) (internal quotations omitted). In other words, a website like Experience Project. Taking the relevant statutory definitions and case law in account, it becomes clear that, in general, Section 230(c)(1) "protects websites from liability [under state or local law] for material posted on the[ir] ...