M.A. v. Vill. Voice Media Holdings, LLC

Citation809 F.Supp.2d 1041
Decision Date15 August 2011
Docket NumberCase No. 4:10cv1740 TCM.
PartiesM.A., a minor, by and through her Natural Mother and Next Friend, P.K., Plaintiff, v. VILLAGE VOICE MEDIA HOLDINGS, LLC., d/b/a backpage.com, and Backpage.Com, LLC, Defendants.
CourtU.S. District Court — Eastern District of Missouri

OPINION TEXT STARTS HERE

Robert H. Pedroli, Jr., Pedroli and Gauthier, Clayton, MO, for Plaintiff.

Mark Sableman, Michael L. Nepple, Thompson Coburn, LLP, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

THOMAS C. MUMMERT, III, United States Magistrate Judge.

This is a two-count civil action having its genesis in the horrific victimization of M.A. by Latasha Jewell McFarland.1 M.A. seeks to hold defendants Village Voice Media Holdings, LLC, and Backpage.com, LLC (hereinafter collectively referred to as Backpage) liable for this victimization. Backpage moves to dismiss the amended complaint.

Background

McFarland was indicted in May 2010 for violations of 18 U.S.C. § 1591(b)(2) (prohibiting sex trafficking of children), 18 U.S.C. § 1952(a)(3) (prohibiting the use of interstate commerce to “promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity”), and 18 U.S.C. § 2422(b) (prohibiting the use of interstate commerce to “knowingly persuade [ ], induce[ ], entice[ ], or coerce[ ] any individual who has not attained the age of 18 years, to engage in prostitution....”). See United States v. McFarland, No. 4:10cr0266 SNLJ (E.D.Mo. May 12, 2010). Four months later, she pled guilty to one of the three counts; specifically, to the count alleging a violation of § 1952(a)(3). Id. Her sentence includes a restitution requirement of $16,830.18 plus additional costs, “including future counseling costs of victim.” Id.

Shortly after McFarland pled guilty, M.A. filed this action. In Count I, she seeks to hold Backpage liable under 18 U.S.C. § 2255.2 Because the question before the Court must be answered by an examination of the amended complaint, portions of that complaint are set forth below. The allegations focusing on the injury to M.A. are as follows.

That in 2009 and 2010 Plaintiff M.A., a minor, while being a fourteen year old runaway child, was being sexually trafficked by Latasha Jewell McFarland, an adult, who has pled guilty to criminal charges and has been sentenced relating to the allegations herein and has admitted to the following facts in open court which are stated as facts hereinafter; she photographed minor M.A. displaying private body parts in sexual pornographic poses; she posted this child pornography on [Backpage's] website, backpage.com in advertisements seeking payment for sex; she paid backpage.com for these sex ad postings; she reposted ads; she transported minor M.A. for the purposes of multiple sexual liaisons for money with adult male customers obtained through [Backpage's] website; she collected money for minor M.A.'s sexual services from these customers; and she purchased goods to facilitate these sexual services.(Am. Compl. ¶ 10.)

Anticipating Backpage's defense of immunity under the Communications Decency Act (CDA), 47 U.S.C. § 230, M.A. describes Backpage as follows.

8. [A]t all relevant times herein [Backpage] operated an online classified marketing advertisement website in interstate commerce that allows the public to post for a fee, classified advertising for goods and services including categorized advertising for escorts under the adult section which also includes categories for transsexuals, strippers, body rubs, domination and fetish, and adult jobs....

9. [Backpage is an] Information Content Provider[ ] within 47 U.S.C. 230 in that [Backpage was] responsible in part for the development and/or creation of information provided through the internet or other internet computer service in that: [Backpage's] website also has a search engine to allow focused searches by keywords of the postings; [Backpage] developed the value and impact of the posted ad alleged herein by creating the highly viewed website, wherein [Backpage] advertised that there are billions of page views of their ads per week and the website is a highly tuned marketing site with search tools, adult sex focused categories, and directions and features offered regarding how to increase the impact of your ad for a fee; [Backpage] offer[s] special ad placement for a fee; [Backpage] offer[s] automatic reposting to a top spot for a fee; [Backpage] offer[s] knowledge regarding how to post ads and pay anonymously; [Backpage] advertise[s] its website to increase page views of the ads; [Backpage] remove[s] spam from its website to increase page views of placed ad; [Backpage] offer[s] commissions to customers for referrals of other customers; and [Backpage] enable[s] viewers and posters to search and review popular searches; [Backpage has] posting rules and limitations which aid in the sight veiling of illegal sex services ads to create the veil of legality.

....

11. In 2009 and 2010, [Backpage] posted many advertisements which included explicit nude photographs of Plaintiff, M.A., a minor, advertising her services as an escort for sex on backpage.com and received fees for each posting.

12. That [Backpage] had knowledge that: explicit sexual pornographic photographs were being posted on its website; that postings on their website were advertisements for prostitution; that numerous minors were included in these postings for prostitution on its website; that sex trafficking of minors is prolific in the United States of America; that the internet, including their website, was used for advertisements for illegal sexual contact with minors; that on numerous prior occasions [Backpage was] made aware of minors being trafficked on their website; that according to [Backpage], on five prior occasions [Backpage] responded to subpoenas involving the trafficking of minors on backpage.com and this does not include other cases involving minors of which [Backpage is] aware wherein [Backpage] cooperated with authorities without subpoenas.

13. By posting explicit nude photographs of Plaintiff, M.A., a minor, in an advertisement which advertised her services as an escort for sex on backpage.com, [Backpage] facilitated child sex trafficking and aided and abetted McFarland in violating each criminal statute and United States Treaty Optional Protocol herein alleged, in that: [Backpage] had a strong suspicion that the aforementioned crimes were being committed yet was so indifferent that [it] failed to investigate for fear of what it would learn; [Backpage] had a desire that these posters accomplished their nefarious illegal prostitution activities so that the posters would return to the website and pay for more posting; and [Backpage] continued to maintain their website so as to participate in these illegal transactions....

(Am. Compl. ¶ 8–9, 11–13.)

Also in anticipation of Backpage's § 230 defense, M.A. alleges that there is no immunity because Backpage (a) has aided and abetted crimes against her, in violation of the statutes listed in § 2255, see note 2, supra, and (b) has violated her primary rights under the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. ( Id. ¶ 15–[18].3)

In Count II of her amended complaint, M.A. seeks to hold Backpage liable under 18 U.S.C. § 1595 4 for the conduct alleged in Count I.

As anticipated, Backpage moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The specific arguments and the opposition thereto are discussed below.

Discussion

Standard of Review. When ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must take as true the alleged facts and determine whether they are sufficient to raise more than a speculative right to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court does not, however, accept as true any allegation that is a legal conclusion. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). The complaint must include ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting first Fed.R.Civ.P. 8(a)(2) and then Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (alteration in original); see also Gregory v. Dillard's Inc., 565 F.3d 464, 473 (8th Cir.2009) (en banc). Although detailed factual allegations are not necessary, a complaint that contains only “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955; accord Iqbal, 129 S.Ct. at 1949. The complaint must set forth “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; accord Iqbal, 129 S.Ct. at 1949; Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir.2010); Braden v. Wal–Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.2009). “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.” Iqbal, 129 S.Ct. at 1949. If the claims are only conceivable, not plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; accord Iqbal, 129 S.Ct. at 1950. Also, in considering a Rule 12(b)(6) motion, “the complaint should be read as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.” Braden, 588 F.3d at 594. The issue in considering such a motion is not whether the plaintiff will ultimately prevail, but whether the plaintiff is entitled to present evidence in support of the claim. See Neitzke v. Williams, 490 U.S. 319,...

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