Hinton v. Amazon.com.dedc, LLC, Civil Action No. 2:13cv237–KS–MTP.

• Decision Date: 09 December 2014
• Docket Number: Civil Action No. 2:13cv237–KS–MTP.
• Citation: 72 F.Supp.3d 685
• Parties: Marsha HINTON, Plaintiff, v. AMAZON.COM.DEDC, LLC, Amazon.com, LLC, and eBay, Inc., Defendants.
• Court: U.S. District Court — Southern District of Mississippi

72 F.Supp.3d 685

Marsha HINTON, Plaintiff
v.
AMAZON.COM.DEDC, LLC, Amazon.com, LLC, and eBay, Inc., Defendants.

Civil Action No. 2:13cv237–KS–MTP.

United States District Court, S.D. Mississippi, Eastern Division.

Signed Dec. 9, 2014.

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Lawrence E. Abernathy, III, Lawrence E. Abernathy, III, Attorney, Laurel, MS, Leslie D. Roussell, Leslie Roussell, P.A., Laurel, MS, for Plaintiff.

Patrick J. Schepens, Galloway, Johnson, Tompkins, Burr & Smith, Mandeville, LA, Edward F. Rudiger, Lambert J. Hassinger, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, Joseph Anthony Sclafani, Brunini, Grantham, Grower & Hewes, Jackson, MS, Christopher V. Popov, Vinson & Elkins, LLP, Houston, TX, Grayson E. McDaniel, Vinson & Elkins, LLP, Austin, TX, Marc A. Fuller, Thomas S. Leatherbury, Vinson & Elkins, LLP, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

KEITH STARRETT, District Judge.

This matter is before the Court on the Defendant eBay, Inc.'s Motion to Dismiss [181]. Having considered the submissions of the parties and the applicable law, the Court finds that the motion is well taken and should be granted.

I. BACKGROUND

This action centers on the Plaintiff Marsha Hinton's purchase of hunting equipment allegedly subject to recalls issued by the United States Consumer Product Safety Commission (“CPSC”). Defendant eBay, Inc. (“eBay”) “operates an Internet-based service in which it enables member sellers to offer items for sale to member buyers in what eBay characterizes as either

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auction-style or fixed price formats.” Gentry v. eBay, Inc., 99 Cal.App.4th 816, 820–21, 121 Cal.Rptr.2d 703 (Cal.Ct.App.2002) ; see also United States ex rel. Customs Fraud Investigations, LLC v. Victaulic Co., No. 13–2983, 2014 WL 4375638, at *3 (E.D.Pa. Sept. 4, 2014) (describing eBay as an “internet auction and sale site”). Plaintiff claims that she purchased a treestand and two safety harnesses that are subject to CPSC recalls through eBay's website. It appears that the Plaintiff sought to buy recalled hunting equipment, and that she never intended to use the equipment. The Plaintiff's adult son, Timothy Hinton, died in connection with a hunting accident in November of 2012, and she has publically stated, “When I realized they were selling these tree stands that had been recalled, I decided I would do whatever I could to keep a wife or mother from standing over a casket.” (Doc. No. [37–1] at p. 1.) The specific hunting equipment involved in Timothy Hinton's hunting accident is not at issue in this lawsuit. Furthermore, no wrongful death claim has been asserted in this cause.

This action was initially filed in the Circuit Court of the Second Judicial District of Jones County, Mississippi. On October 25, 2013, Defendants Amazon.com.dedc, LLC and Amazon.com, LLC filed their Notice of Removal [1], asserting that the Court possessed jurisdiction over this cause pursuant to Title 28 U.S.C. §§ 1331 (federal question), 1332 (diversity of citizenship), and 1367 (supplemental jurisdiction). The remaining Defendants timely consented to the removal.¹ On March 7, 2014, Plaintiff filed her Amended Complaint [160], presenting the following counts: (1) request for injunction; (2) negligence; (3) intentional conduct; (4) gross negligence; (5) breach of the implied warranty of merchantability; (6) failure to warn; (7) breach of the duty of good faith and fair dealing; (8) violation of the Mississippi Consumer Protection Act; (9) violation of federal law; and (10) punitive damages.

eBay has moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), and argues that all of the Plaintiff's claims against it are barred by the immunity provision of the Communications Decency Act (“CDA”), 47 U.S.C. § 230. Plaintiff contends that CDA immunity is inapplicable because the sale of recalled items is illegal under federal law. The Court has fully considered the parties' competing positions and is ready to rule.

II. DISCUSSION

A. Standard of Review

To withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.; see also In re Great Lakes Dredge & Dock Co., 624 F.3d 201, 210 (5th Cir.2010) (“To be plausible, the complaint's ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’ ”) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). A complaint containing mere “labels and conclusions, or a formulaic recitation

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of the elements” is insufficient. Bowlby v. City of Aberdeen, Miss., 681 F.3d 215, 219 (5th Cir.2012) (citation and internal quotation marks omitted). Although courts are to accept all well-pleaded facts as true and view those facts in the light most favorable to the nonmoving party, courts are not required “to accept as true a legal conclusion couched as factual allegation.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.2011) (citations omitted). “[W]hen a successful affirmative defense appears on the face of the pleadings, dismissal under Rule 12(b)(6) may be appropriate.” Miller v. BAC Home Loans Servicing, L.P., 726 F.3d 717, 726 (5th Cir.2013) (quoting Kansa Reins. Co. v. Cong. Mortg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir.1994) ). A court may consider matters of public record in deciding a Rule 12(b)(6) motion. Cinel v. Connick, 15 F.3d 1338, 1343 n. 6 (5th Cir.1994) (citation omitted).

B. Analysis

The immunity defense before the Court arises from 47 U.S.C. § 230(c)(1). This provision states: “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).² Relatedly, section 230(e)(3) provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). The United States Court of Appeals for the Fifth Circuit has held that by enacting § 230(c)(1), “Congress provided broad immunity under the CDA to Web-based service providers for all claims stemming from their publication of information created by third parties....” Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.2008). The Fifth Circuit has also recognized opinions from the Third, Fourth, Ninth, and Tenth Circuits construing “the immunity provisions in § 230 broadly in all cases arising from the publication of user-generated content.” Id. (citing Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir.2003) ; Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123–24 (9th Cir.2003) ; Batzel v. Smith, 333 F.3d 1018, 1030–31 & n. 19 (9th Cir.2003) ; Ben Ezra, Weinstein, & Co. v. Am. Online Inc., 206 F.3d 980, 984–86 (10th Cir.2000) ; Zeran v. Am. Online, Inc., 129 F.3d 327, 330–31 (4th Cir.1997) ). In MySpace, the Fifth Circuit affirmed the dismissal of negligence and gross negligence claims arising from the sexual assault of the plaintiff by an individual she met via MySpace.com. See id. at 415–18. The plaintiff's allegation that MySpace, Inc. (“MySpace”) failed to implement security measures to protect minors was found to be merely another way of claiming that MySpace should be held liable for publishing third-party communications that led to the assault.See id. at 419–20.

In Zeran, one of the leading cases referenced in MySpace, the Fourth Circuit described the legislative purpose behind the enactment of § 230 as follows:

Interactive computer services have millions of users. The amount of information

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communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.

129 F.3d at 331 (internal citation omitted). The Fourth Circuit ruled that the plain language of “ § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.” Id. at 330. In accordance with this ruling, the district...