Nasser v. WhitePages, Inc.
| Decision Date | 21 November 2013 |
| Docket Number | Civil Action No.: 5:12cv097 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | MICHAEL J. NASSER, SR., Plaintiff, v. WHITEPAGES, INC., Defendant. |
By: Hon. Michael F. Urbanski
United States District Judge
This matter is before the court on cross motions for summary judgment filed by the pro se plaintiff Michael J. Nasser, Sr. ("Nasser") (Dkt. # 43), and defendant WhitePages, Inc. ("WhitePages") (Dkt. # 38). Because Nasser's tort claims are barred by the immunity provided by the Communications Decency Act, 47 U.S.C. § 230, and because his promissory estoppel claim is not recognized under Virginia law, the court will deny his motion for summary judgment and grant WhitePages's motion for summary judgment.
In this emotional distress and nuisance action, Nasser alleges that WhitePages incorrectly listed his address and telephone as that of "Comcast Phone of Virginia" and "Comcast Phont of Virginia." Despite numerous requests to remove the incorrect listings, they remained on WhitePages's website from October 2, 2009, to February 17, 2011. As a result of WhitePages's failure to remove the incorrect listings, Nasser received thousands of unwanted phone callsintended for Comcast. Nasser alleges that these unwanted calls required him to seek medical treatment for various ailments.
Nasser first instituted this action in the Circuit Court of Frederick County, Virginia, jointly against WhitePages and Verizon Virginia, Inc. ("Verizon"). On February 8, 2012, Nasser nonsuited his state law claims against WhitePages. On March 21, 2012, Nasser settled the nuisance claim against Verizon after the state court determined that Nasser had failed to state a claim against Verizon for intentional infliction of emotional distress and negligent infliction of emotional distress.
Nasser refiled this action in the Circuit Court of Frederick County on August 6, 2012, this time solely against WhitePages. The case was removed from state court on September 7, 2012. On October 2, 2012, WhitePages filed a motion to dismiss for failure to state a claim. (Dkt. # 9). In an order and memorandum opinion dated May 23, 2013, the court dismissed both of Nasser's motions for default, and dismissed both parties' motions for dismissal based on collateral estoppel. The court ordered discovery on WhitePages's defense that Nasser's claim was barred by Section 230 immunity. (Dkt. # 32).
On August 15, 2013, WhitePages filed a motion for summary judgment. (Dkt. # 38). The next day Nasser also filed a motion for summary judgment. (Dkt. # 43). WhitePages filed its opposition to Nasser's motion for summary judgment (Dkt. # 45) on August 30, 2013, and on September 4, 2013, Nasser filed a supplemental response to WhitePages's motion for summary judgment. (Dkt. # 48). On September 13, 2013, WhitePages filed a reply in support of its motion for summary judgment. (Dkt. # 49). Nasser responded on October 2, 2013 with a motion to quash WhitePages's reply in support of its motion for summary judgment, or in the alternative,to grant Nasser leave to respond to WhitePages's motion. (Dkt. # 50).1 This requested response was filed with the motion. (Dkt. # 50-1).
For the reasons set forth below, the court grants WhitePages's motion for summary judgment and denies Nasser's motion for summary judgment.
Under Federal Rule of Civil Procedure 56, "the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Nguyen v. CNA Corp., 44 F.3d 234, 236-37 (4th Cir. 1995). The court should consider "the pleadings, depositions, answers to interrogatories, and admissions on file, together with [any] affidavits" filed by the parties. Celotex, 477 U.S. at 322. Rule 56 "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the burden of proof at trial." Id. All reasonable inferences drawn from the evidence must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). But "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Id. at 587 (quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Where the issue is one of immunity under Section 230 of the Communications Decency Act, courts "aim to resolve the question of § 230 immunity at the earliest possible stage of the case because that immunity protects websites not only from 'ultimate liability,' but also from 'having to fight costly and protracted legal battles.'" Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (quoting Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008)). The immunity at issue here "is an immunity from suit rather than a mere defense to liability and it is effectively lost if a case is erroneously permitted to go to trial." Id. at 254 (internal quotations and emphasis omitted).
WhitePages is an interactive computer service and therefore qualifies for Section 230 immunity. This immunity is not forfeited because WhitePages is not an information content provider. Liability is also unavailable on the theory of promissory estoppel because Virginia does not recognize the doctrine.
The Communications Decency Act, 47 U.S.C. § 230 ("Section 230"), directs that "[n]o 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) (1998). "Interactive computer service" is defined 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). To determine if Section 230 immunity attaches, the court must determine: "1) whether Defendant is a provider of an interactive computer service; 2) if the postings at issue areinformation provided by another information content provider; and 3) whether Plaintiff[']s claims seek to treat Defendant as a publisher or speaker of third party content." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 564 F. Supp. 2d 544, 548 (E.D. Va. 2008). WhitePages is clearly an interactive computer service within the meaning of the statute. Its website is an "information service" that enables multiple users to access the data on its servers. This data is created and provided by third parties. The plaintiff does not dispute that WhitePages is an interactive computer service, but rather asserts that WhitePages is also an information content provider.
An interactive computer service can only claim Section 230 immunity with regard to "information provided by another information content provider." 47 U.S.C. § 230(c)(1); F.T.C. v. Accusearch, Inc., 570 F.3d 1187, 1197 (10th Cir. 2009). "Thus, an interactive computer service that is also an 'information content provider' of certain content is not immune from liability arising from publication of that content." Accusearch, 570 F.3d at 1197. Section 230 describes 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." 47 U.S.C. § 230(f)(3).
Nasser seeks to prove that WhitePages is an information content provider by pointing to the control it exercised over the offensive listings. Pl.'s Mem. in Supp. of Mot. for Summ. J., Dkt. # 43, at 7-11, 18 (). But the Fourth Circuit in Zeran v. America Online, Inc., specifically gave Section 230 immunity to the types of "editorial functions" Nasser is describing. See Zeran, 129 F.3d 327, 330 (4th Cir. 1997) (). Nasser is also unable to produce any evidence that WhitePages created the offensive content. See Pl.'s Res. to WhitePages, Inc.'s First Set of Interrogs. and Req. for Produc. Of Docs. and Things, Dkt. # 40-3, at 6 (). WhitePages, however, has persuasively shown that it receives all of its data from third parties and does not create any content itself. See Azose Supplementary Decl., Dkt. # 46, at 1-2 (). WhitePages asserts that the changes in the availability of the listings reflect the fluctuating status of its agreements with third parties. See Azose Decl., Dkt. # 39, at 3-4 ( ...
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