Godwin v. Facebook, Inc.

Decision Date08 October 2020
Docket NumberNo. 109203,109203
Parties Debbie GODWIN, Plaintiff-Appellant, v. FACEBOOK, INC., et al., Defendants-Appellees.
CourtOhio Court of Appeals

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.:

{¶ 1} Debbie Godwin, as the executor of the estate of Robert Godwin, Sr., appeals the trial court's judgment in which all claims against Facebook, Inc., Facebook Payments, Inc., Facebook Services, Inc., Atlas Solutions, L.L.C., and CrowdTangle, Inc., were dismissed with prejudice. For the sake of clarity and expediency, the appellees will be referred to collectively as Facebook unless otherwise noted.

{¶ 2} This case arises from disturbing facts as presented through a sympathetic lens. The events underlying the current claims stem from the senseless murder of Robert Godwin, Sr., on Easter weekend in 2017. By all accounts, Robert Godwin was a good man devoted to his family and friends. On that fateful day, Robert Godwin was simply enjoying a moment in a local park when accosted by a complete stranger determined to murder anyone in a horrifyingly public manner. Nevertheless, the claims before this court are not those leveled against the perpetrator of the crime. Instead, the primary focus of this appeal is the purely legal implications of the relationship between a social media conglomerate and its customers, and whether the corporation can be liable for failing to intervene in one of its customer's criminal acts.

{¶ 3} Robert Godwin, Sr., Godwin's father, was murdered by Steve Stephens — a video of the murder was briefly posted to Stephens's social media account, part of the social media network that is owned and managed by Facebook, Inc. Stephens committed suicide two days later. Godwin filed a wrongful death action against Stephens's estate, all the while maintaining that the estate is merely a "nominal defendant" in the action.1 In addition, Godwin included allegations against Facebook for its alleged failure to warn Robert Godwin of Stephens's intention, of which Facebook should have been aware based on a statement Stephens posted before the attack and based on Facebook's in depth and financially motivated use of its users' information. On the day of the tragic events, Stephens posted an ominous, but relatively ambiguous, statement on his social media account. In that message, Stephens stated:

FB my life for the pass year has really been fuck up!!! lost everything ever had due to gambling at the Cleveland Jack casino and Erie casino ... I not going to go into details but I'm at my breaking point I'm really on some murder shit ... FB you have 4 minutes to tell me why I shouldn't be on deathrow!!!! dead serious #teamdeathrow.2

"Minutes" later, Stephens randomly approached Robert Godwin, who was sitting in a local park. Stephens pulled out a handgun and shot him after a brief dialogue.

{¶ 4} Godwin asserted five causes of action against Facebook: (1) common law negligence for failing to warn the police of Stephens's threat; (2) civil recovery for a criminal act in failing to report a terrorist threat made by Stephens; (3) statutory negligence for failing to warn in violation of R.C. 2921.22 ; (4) wrongful death; and (5) survivorship. There are two discrete veins of liability underlying Godwin's claims — one relating to Stephens's message published before the murder and another relating to Facebook's use of its users' information.

{¶ 5} In the complaint, Godwin alleged that her negligence claims "focuses on Facebook's own conduct in operating a separate and distinct business — a business that focuses on the collection, analysis, use, exploitation and/or sale of [users'] information" (hereinafter "data-mining practices"). (Emphasis added.) Complaint at ¶ 2. According to Godwin, a duty was owed because of "[t]he Facebook Defendants' special business relationship with [their] users and the acquisition of intimate knowledge/information relating to their activities, intentions, wishes, desires and even their specific location." (Emphasis added.) Id. at ¶ 7. However, Godwin's claims "do not require the Facebook Defendants to monitor, edit, withdraw or block any content supplied by [their] users." Id. at ¶ 8. Throughout the complaint, it is alleged that Facebook utilizes its data-mining practices for financial gain, and from those general allegations, Godwin concludes that Facebook owes a duty to control its users' conduct outside of their business-consumer relationship. There are no factual allegations identifying anything specifically discovered as a result of Facebook's data-mining practices, except for the fact that Stephens owned and used firearms — although there are no allegations that Stephens's possession or use of those firearms was illegal or otherwise unsafe. Godwin nevertheless opines that Stephens's ownership and use of firearms was "suggestive of his violent tendencies."

{¶ 6} In the third count of the complaint, Godwin alleges that Facebook "failed to take any steps to warn or protect those threatened by Mr. Stephens' stated intention to do some ‘murder shit’ by alerting law enforcement authorities" and such an act was in contravention of the duty established in R.C. 2921.22 "to warn the general public about Mr. Stephens' commission of a felony." Id. at ¶ 102-103. R.C. 2307.60 creates a statutory cause of action for those injured by criminal acts in Ohio to seek compensation for damages from the perpetrator of the criminal act. Godwin alleges that Facebook's failure to report the "making terroristic threat" crime, committed by Stephens through the posting of the statement, was in violation of R.C. 2921.22, and therefore, Facebook could be held liable for their inaction under R.C. 2307.60. Although Godwin framed the claim as two separate negligence and statutory claims, the negligence claim advanced in count three is merely duplicative of the civil-recovery statutory claim advanced in count two and shall be treated as a single claim.

{¶ 7} Accordingly, there are two claims or theories of liability advanced in the complaint against Facebook: (1) the common law negligence claim, based on the failure to warn Robert Godwin of Stephens's dangerous propensity of which Facebook was aware through its data-mining practices, which is the underlying negligence theory upon which the wrongful death and survivorship claims arise and (2) the civil-right-of-recovery claim based on R.C. 2921.22 and 2307.60 stemming from Stephens's message posted to his social network page "minutes" before Robert Godwin's tragic and senseless murder.

{¶ 8} The trial court concluded that Godwin failed to state any claim upon which relief could be granted under Civ.R. 12(B)(6). After dismissing the allegations against Facebook, the trial court quashed a subpoena Godwin issued to Facebook seeking the contents of Stephens's social-media account; the subpoena was issued after Facebook had been dismissed from the case and was no longer a party to the action as contemplated under Civ.R. 45. That subpoena was in furtherance of the pending claims against Stephens's estate. In this appeal, Godwin also challenges the trial court's interlocutory decision to quash the subpoena.

{¶ 9} We sua sponte ordered the parties to brief the following issues:

whether this court has jurisdiction to review: (1) The order granting the motion to quash filed by the appellees (see In re Grand Jury Proceeding of Doe , 150 Ohio St.3d 398, 2016-Ohio-8001, 82 N.E.3d 1115 ; Hanick v. Ferrara , 7th Dist. Mahoning No. 18 MA 0073, 2019-Ohio-880 [2019 WL 1223248], ¶ 25 ; In re Estate of Adkins , 4th Dist. Lawrence No. 16CA22, 2016-Ohio-5602 ; In re Tracy M. , 6th Dist. Huron No. H-04-028, 2004-Ohio-5756 ); and (2) the order granting the appellees' motion to dismiss (see Rae-Ann Suburban, Inc. v. Wolfe , 8th Dist. Cuyahoga No. 107536, 2019-Ohio-1451 ).

Generally speaking, the granting of a motion to quash a subpoena is not considered a final appealable order. See, e.g., Ferrara. In addition, in Wolfe, the panel concluded that a "partial final order is not appealable pursuant to Civ.R. 54(B) if pending unresolved claims ‘touch upon the very same facts, legal issues and circumstances’ as the resolved claims. Wolfe at ¶ 16, quoting Altenheim v. Januszewski , 8th Dist. Cuyahoga No. 105860, 2018-Ohio-1395, 2018 WL 1778660, ¶ 3-7, 10-13.

{¶ 10} Facebook and Godwin agreed that Wolfe was distinguishable, based on the fact that Facebook's alleged nonfeasance was independent of and unrelated to the underlying action against Stephens who committed the murder, and therefore, the order granting the motion to dismiss was final and appealable under R.C. 2505.02 and Civ.R. 54(B). We agree with the parties' assessment. Alexander v. Buckeye Pipe Line Co. , 49 Ohio St.2d 158, 160, 359 N.E.2d 702 (1977) ; Noble v. Colwell , 44 Ohio St.3d 92, 540 N.E.2d 1381 (1989), syllabus; see generally Doolin v. Old River Yacht Club L.P. , 8th Dist. Cuyahoga No. 87653, 2006-Ohio-5922, 2006 WL 3234021. Godwin's allegations against Facebook are wholly independent of her claims against the nominal defendant who is alleged to have committed murder. Wolfe is not applicable, and neither party otherwise challenges our jurisdiction to review the judgment of dismissal. App.R. 16(A)(7).

{¶ 11} With respect to the motion to quash, however, the parties disagree. A motion to quash a discovery subpoena is generally considered "a proceeding ancillary to an action" and therefore a provisional remedy pursuant to R.C. 2505.02(A)(3). In re Grand Jury Proceeding of Doe , at ¶ 19. Thus, in order to determine whether such a provisional remedy qualifies as a final order pursuant to R.C. 2505.02(B)(4), the party appealing must demonstrate both that

(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would
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