Godaddy.Com, LLC v. Toups

• Decision Date: 10 April 2014
• Docket Number: No. 09–13–00285–CV.,09–13–00285–CV.
• Citation: 429 S.W.3d 752
• Parties: GODADDY.COM, LLC, Appellant v. Hollie TOUPS, et al., Appellees.
• Court: Texas Court of Appeals

429 S.W.3d 752

GODADDY.COM, LLC, Appellant

v.Hollie TOUPS, et al., Appellees.

No. 09–13–00285–CV.

Court of Appeals of Texas, Beaumont.

Submitted Nov. 5, 2013.

Decided April 10, 2014.

Aaron M. McKown, Paula L. Zecchini, Wren Bender LLLP, Irvine, CA, Mark Simon, Scheef & Stone, LLP, Dallas, for Appellant.

John S. Morgan, Morgan Law Firm, Beaumont, for Appellee.

Before McKEITHEN, C.J., KREGER and HORTON, JJ.

OPINION

CHARLES KREGER, Justice.

GoDaddy.com, LLC (“GoDaddy”) filed a petition in this Court seeking an order permitting an interlocutory appeal of the trial court's order denying GoDaddy's motion to dismiss plaintiffs' claims on the basis that such claims are barred by section 230 of the Communications Decency Act (the “CDA”). See47 U.S.C. § 230. We granted GoDaddy's request to file an interlocutory appeal. After consideration of the appeal, we reverse the trial court's order.

I. BACKGROUND

Plaintiffs filed the underlying action on behalf of a putative class of women who allege that other defendants, not a party to this appeal, who owned two “revenge porn” websites, published sexually explicit photographs of plaintiffs without their permission or consent. GoDaddy, as an interactive computer service provider, hosted the revenge porn websites. In their brief to this Court, plaintiffs admit that GoDaddy did not create the defamatory and offensive material at issue. Plaintiffs argue that because GoDaddy knew of the content, failed to remove it, and then profited from the activity on the websites, GoDaddy is jointly responsible for plaintiffs' damages. In their petition, plaintiffs allege that these revenge websites “engage[d] in the publication of obscenity and child pornography” in violation of Texas Penal Code. Plaintiffs further allege that GoDaddy hosted the websites despite having knowledge that the developers were engaged in illegal activities. Plaintiffs assert causes of action against GoDaddy “for intentional infliction of emotional distress, for its severe, extreme, intentional, and unlawful misconduct in violation of the Texas Penal [Code], and for its gross negligence in violation of Texas Penal Code[.]” Plaintiffs further contend,

[b]y its knowing participation in these unlawful activities, GoDaddy has also committed the intentional Texas tort of invasion of privacy upon these Plaintiffs, as well as ... intrusion on Plaintiffs' right to seclusion, the public disclosure of their private facts, the wrongful appropriation of their names and likenesses, false light invasion of Plaintiffs' privacy, and a civil conspiracy ... to perpetrate these intentional state law torts.

GoDaddy filed a motion to dismiss pursuant to Rule 91a of the Texas Rules of Civil Procedure. In its memorandum of law filed in support of its motion to dismiss, GoDaddy argued that it is immune from civil liability for plaintiffs' claims under section 230 of the CDA because GoDaddy is a provider of interactive computer services and cannot be treated as a publisher of content created by a third party. Plaintiffs responded that the websites were “ ‘revenge porn’ websites” and by their nature not protected by the First Amendment; and, therefore, the website owners were not entitled to immunity under the CDA. Plaintiffs further argued that the CDA does not preempt their state law tort claims. After a hearing, the trial court denied GoDaddy's motion to dismiss.

GoDaddy filed a motion to certify the trial court's order denying the motion to dismiss for interlocutory review in accordance with Rule 168 of the Texas Rules of Civil Procedure and section 51.014(d) of the Texas Civil Practice and Remedies Code. The trial court certified the following issues for interlocutory appeal to this Court:

(1) [W]hether immunity under Section 230 of the Communications Decency Act (the “CDA”) bars each of the claims asserted against [GoDaddy] as a matter of law based on Plaintiffs' admission that [GoDaddy] did not create, develop, or publish the content at issue; and

(2) [W]hether, as a matter of law, Plaintiffs have alleged facts that, if true, state a claim against [GoDaddy].

This appeal followed.

II. STANDARD OF REVIEW

Rule 91a of the Texas Rules of Civil Procedure allows a party to move the court to dismiss a groundless cause of action. Tex.R. Civ. P. 91a. The rule provides in pertinent part:

[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.

Tex.R. Civ. P. 91a.1. We review the trial court's ruling on a question of law de novo. See El Paso Nat'l Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999). Before Rule 91a, Texas procedure did not have a counterpart to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fort Bend Cnty. v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ). In 2011, this deficiency was remedied when the Legislature promulgated section 22.004(g) of the Texas Government Code, which provides that the “supreme court shall adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.” SeeTex. Gov't Code Ann. § 22.004(g) (West 2013). While not identical, Rule 91a is analogous to Rule 12(b)(6); therefore, we find case law interpreting Rule 12(b)(6) instructive. SeeTex.R. Civ. P. 91a; Fed.R.Civ.P. 12(b)(6).

Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). For a complaint to survive a Rule 12(b)(6) motion to dismiss, it must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Facial plausibility requires facts that allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Essentially, under the federal rules, the complaint is liberally construed in favor of the plaintiff and all well-pleaded facts are taken as true. Ashcroft, 556 U.S. at 678–79, 129 S.Ct. 1937;Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). That said, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937. Likewise, in determining whether the trial court erred in denying a defendant's motion to dismiss, we take all plaintiff's allegations as true and consider whether a plaintiff's petition contains “enough facts to state a claim to relief that is plausible on its face.” See Twombly, 550 U.S. at 570, 127 S.Ct. 1955.Rule 12(b)(6) dismissal is appropriate if the court determines beyond doubt that the plaintiff can prove no set of facts to support a claim that would entitle him to relief. Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir.2003). Just as a motion to dismiss for failure to state a claim under Rule 12(b)(6) is a proper vehicleto assert a claim of immunity under the federal rules, a motion to dismiss under Rule 91a is a proper vehicle to assert an affirmative defense of immunity under section 230 in the state court. See Imbler v. Pachtman, 424 U.S. 409, 416, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (prosecutorial immunity); Mowbray v. Cameron Cnty., 274 F.3d 269, 276, 279 (5th Cir.2001) (prosecutorial immunity and witness immunity).

On appeal, GoDaddy argues that the trial court erred in denying its motion to dismiss under Rule 91a because it is immune from suit for plaintiffs' asserted causes of action. Plaintiffs contend that their claims against GoDaddy are not precluded by the CDA because their state law intentional tort causes of action stem from GoDaddy's knowledge of the illegal content of the websites and its refusal to shut the websites down. Plaintiffs further assert that GoDaddy is not entitled to immunity under section 230 of the CDA because the underlying content is unlawful or not entitled to First Amendment protection.

III. ANALYSIS

To support its argument that it is entitled to immunity, GoDaddy relies on the following language in section 230:

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.

47 U.S.C. § 230(c)(1).¹ The statute defines an “ ‘interactive computer service’ ” as “any 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[.]” Id. § 230(f)(2). The statute defines an “ ‘information content provider’ ” as “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.” Id. § 230(f)(3).

GoDaddy asserts that it is a provider of an interactive computer service as defined by the CDA, that the content at issue was provided by another information content provider, and plaintiffs' allegations improperly seek to treat GoDaddy as a publisher of the content posted on the websites by third parties. Plaintiffs argue that GoDaddy is not entitled to immunity because section 230 does not preempt state law intentional torts, and because the immunity provision in section 230 only applies if the website content qualifies for protection under the First Amendment. Plaintiffs argue that the CDA “does not protect conduct that is illegal or in violation of a federal or state penal statute.” We address these arguments in turn.

A. Survival of State Law Intentional Tort Claims

Citing our ...