M.H. ex rel. C.H. v. Omegle.com LLC

Decision Date19 March 2021
Docket NumberCiv. No. 20-11294 (KM) (JBC)
PartiesM.H. and J.H., on behalf of their minor child, C.H., Plaintiffs, v. OMEGLE.COM LLC, Defendant.
CourtU.S. District Court — District of New Jersey
OPINION

KEVIN MCNULTY, U.S.D.J.:

C.H., an eleven-year-old girl, logged onto Omegle.com, a website that randomly pairs users for video and text chats. Omegle paired C.H. with an anonymous user who sexually exploited her. After this incident, C.H.'s parents, M.H. and J.H. ("the parents"), sued Omegle on her behalf, asserting tort claims and a claim under the Video Privacy Protection Act ("VPPA"), 18 U.S.C. § 2710. Omegle moves to dismiss for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2), and failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). (DE 10.)1 With deepest sympathy for the parents, I am constrained to GRANT Omegle's motion to dismiss for lack of personal jurisdiction. Because I lack the power to hear the case, Omegle's motion to dismiss for failure to state a claim is DENIED as moot.

I. BACKGROUND

Omegle is an Oregon limited liability company that had its principal place of business in Washington at the time of the events here, but now is located in Florida. (K-Brooks Decl. ¶¶ 4-5.) Omegle allows users to communicate with random individuals anonymously. (Compl. ¶ 20.) Specifically, a user logs into Omegle, and Omegle matches him or her with another user for a video or text chat. (Id. ¶ 21.) Omegle receives millions of page views per day from across the world. (Id. ¶ 6.)

When a user logs on, there are terms of service printed at the bottom of the webpage. (Id. ¶ 32.) Those terms declare that, by using Omegle, a user is not to engage in sexual behavior or take and publicize other users' information. (Id.) The terms also provide that no one under 13 should use Omegle, and users under 18 should have a parent or guardian's permission. (Id.)

Nonetheless, the terms state that Omegle is not responsible for users' conduct. (Id.) Omegle does not ask for age verification or other personal authentication. (Id. ¶ 25.) Omegle also does not inform users that their personal information can be obtained by other users. (Id. ¶ 49.)

Given its offering of anonymous chat, Omegle has been used for sexual exploitation. (Id. ¶ 27.) Indeed, Omegle has been used by sexual criminals across the country, including in New Jersey. (Id. ¶ 29.) The website itself contains a warning to users that "[p]redators have been known to use Omegle." (Id. ¶ 22.)

C.H. was a victim of such predators. She accessed Omegle and was eventually paired with an anonymous user ("Doe") who used a black screen and communicated through text appearing on that screen. (Id. ¶¶ 40-41.) Doe informed C.H. that he knew where she lived and provided her geolocation to prove it. (Id. ¶ 41.) Doe then threatened to hack the devices of C.H. and her family if she did not disrobe and touch herself. (Id. ¶ 43.) C.H. complied. (Id.) Doe captured screenshots and recorded the encounter. (Id. ¶ 44.)

Immediately after this incident, C.H. informed her parents, who contacted police. (Id. ¶ 45.) The criminal investigation stalled, so the parents brought a civil suit against Omegle on C.H.'s behalf. (Id. ¶ 46.) They assert four claims: (1) a violation of the VPPA, (2) intrusion upon seclusion, (3) negligence, and (4) intentional infliction of emotional distress (Id. ¶¶ 55-82.) Omegle moves to dismiss, arguing that (1) this Court lacks personal jurisdiction; (2) Omegle is immune under section 230 of the Communications Decency Act ("CDA"), 47 U.S.C. § 230; and (3) the claims are not plausibly alleged. (Mot.)

II. STANDARD OF REVIEW

"[I]n a one-defendant case, the court must first decide the defendant's Rule 12(b)(2) motion to dismiss the complaint for lack of personal jurisdiction." Murphy v. Eisai, Inc., --- F. Supp. 3d ----, ----, Civ. No. 19-17552, 2020 WL 7022747, at *3 (D.N.J. Nov. 28, 2020); see Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 562 (2017) ("A court must have . . . power over the parties before it (personal jurisdiction) before it can resolve a case."). "[I]f personal jurisdiction is absent," as I conclude it is here, "the court is powerless to address the merits of [a] Rule 12(b)(6) motion." Murphy, 2020 WL 7022747, at *3.

The plaintiff bears the burden of establishing sufficient facts to show that personal jurisdiction exists. Marten v. Godwin, 499 F.3d 290, 295-96 (3d Cir. 2007). Initially, a court must accept the plaintiff's allegations as true and construe disputed facts in favor of the plaintiff. Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 368 (3d Cir. 2002). Where factual allegations are disputed, however, the court must examine any evidence presented. See Patterson v. FBI, 893 F.2d 595, 603-04 (3d Cir. 1990) ("A Rule 12(b)(2) motion . . . is inherently a matter which requires resolution of factual issues outside the pleadings . . . . Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence." (citation omitted)). If the district court does not hold an evidentiary hearing, "the plaintiff need only establish a prima facie case ofpersonal jurisdiction." O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).

III. DISCUSSION

The first (and ultimately only) issue presented by Omegle's motion is whether the Court has personal jurisdiction over it. (Mot. at 4-8.) A federal court may exercise personal jurisdiction over a defendant to the extent authorized by state law. Fed. R. Civ. P. 4(k)(1)(A). New Jersey law provides for jurisdiction coextensive with constitutional due process. Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) (citing N.J. Ct. R. 4:4-4). Due process allows for general or specific jurisdiction. Danziger & De Llano, LLP v. Morgan Verkamp LLC, 948 F.3d 124, 129 (3d Cir. 2020). The parents do not argue that Omegle is subject to general jurisdiction in New Jersey (see Opp. at 11-15), so I focus on specific jurisdiction.2

A court has specific jurisdiction "when the cause of action arises from the defendant's forum related activities." Chavez v. Dole Food Co., 836 F.3d 205, 223 (3d Cir. 2016) (en banc) (citation omitted). The parents must establish three elements. "First, [Omegle] must have purposefully directed its activities at the forum. Second, [the parents'] claims must arise out of or relate to [Omegle's] activities. And third, exercising personal jurisdiction must not offend traditional notions of fair play and substantial justice." Danziger, 948 F.3d at 129-30 (quotation marks, alterations, and citations omitted).

In applying the purposeful direction requirement to cases involving website defendants, the Third Circuit has explained that "the mere operation of a commercially interactive web site" does not suffice. Toys "R" Us, Inc. v. StepTwo, S.A., 318 F.3d 446, 454 (3d Cir. 2003). Rather, the defendant must have "directly target[ed] its web site to the state," "knowingly interacted with residents of the forum state via its web site," or had other contacts with the forum. Id.

There are no such indicia of purposeful direction towards New Jersey by Omegle. In fact, the parents do not allege anything about Omegle's website that is New Jersey-specific. Rather, Omegle is a generally accessible website that looks and operates the same for users across the world. That is not enough to create personal jurisdiction in New Jersey. CoachSource, LLC v. Coachforce, Civ. No. 17-5126, 2019 WL 1385200, at *4 (D.N.J. Mar. 27, 2019). There does not even appear to be any mechanism associated with the website that would enable Omegle to ascertain information about the geographic locations of its users. Compare LG Electronics USA, Inc. v. Seamless Interactive, LLC, Civ. No. 09-5178, 2010 WL 3035141, at *6 (D.N.J. Aug. 3, 2010) ("[A] Court might consider . . . whether visitors can, or are asked to, submit their personal information through the website."). True, the Complaint points to a handful of prosecutions involving New Jersey defendants using Omegle. But a basic awareness that residents of a specific forum use a website is insufficient; the facts must demonstrate that the website targeted those users. See Kloth v. S. Christian Univ., 320 F. App'x 113, 116 (3d Cir. 2008) (foreseeability that users from a forum state would access the website is insufficient); Toys "R" Us, 318 F.3d 454-55 (two documented sales by website to New Jersey residents were insufficient). Accordingly, the parents fail to make the showing required by Toys "R" Us.

Nonetheless, the parents offer two reasons for exercising jurisdiction here: (A) Omegle is an "interactive" website, and (B) jurisdiction is warranted under the "effects test" from Calder v. Jones, 465 U.S. 783 (1984). (Opp. at 12-13.) Neither argument is persuasive.

A. Interactivity

The parents first reason that, because Omegle is an interactive website, C.H.'s use of the website while in New Jersey is sufficient to confer jurisdiction in New Jersey. (Opp. at 12-13.) This argument does not fit with the manner in which personal jurisdiction applies in website cases.

The Third Circuit addressed the relationship between personal jurisdiction and websites in Toys "R" Us. 318 F.3d at 452-54. There, the court reviewed the case law, including Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), a case the court noted "has become a seminal authority regarding personal jurisdiction based upon the operation of an Internet web site." Id. at 452. The court noted that Zippo used a "a sliding scale of commercial interactivity" in which a more interactive website would more likely support personal jurisdiction. Id. Citing Zippo, the parents argue that Omegle is on the high end of interactivity, and so jurisdiction is per se warranted. As evidence of interactivity, they point to the facts that Omegle users select chat options and that Omegle...

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