Gary Black, et al v. Google, Inc.

Filing 5

Filed (ECF) Appellee Google, Inc. response to motion (,to stay lower court action). Date of service: 09/23/2010. [7484860] (BEV)

Gary Black, et al v. Google, Inc.

Doc. 5 Att. 2

EXHIBIT A

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EXHIBIT B

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GARY BLACK and HOLLI BEAM-BLACK, Plaintiffs, v. GOOGLE INC., Defendant. / No. 10-02381 CW ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING AS MOOT PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS (Docket Nos. 10 and 15)

Plaintiffs Gary Black and Holli Beam-Black, who are proceeding pro se, plead several claims against Defendant Google Inc. related to an anonymous "online comment" on Defendant's website. moves to dismiss their claims. Defendant

Plaintiffs oppose Defendant's The motions were

motion and move for judgment on the pleadings. taken under submission on the papers.

Having considered the papers

submitted by the parties, the Court GRANTS Defendant's motion to dismiss and DENIES as moot Plaintiffs' motion for judgment on the pleadings. BACKGROUND Plaintiffs, who are husband and wife, allege that they are sole proprietors of Cal Bay Construction and Castle Roofing. businesses appear to provide roofing services. They allege that, on or about October 20, 2009, an anonymous Both

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defamatory comment was posted on Defendant's website about Cal Bay Construction. They aver that the comment misrepresents their work

and has devastated their businesses. According to Plaintiffs, Defendant enables any "member of the general public or the Defendant, Google, Inc., . . . to post a businesses name, address, and phone number upon the Defendant's website then defame anonymously in review of that business." Compl. ¶ 18. Plaintiffs plead that they undertook several efforts

to have Defendant remove the comment. Plaintiffs claim that they have been "emotionally disturbed" by Defendant's conduct and that their businesses "were suffering financially on a daily basis from the on line defamation." ¶ 28. Compl.

They plead six causes of action: (1) a "Breach of Authority"

claim for violations of 15 U.S.C. §§ 45(a) and 53(a)-(b); (2) breach of contract; (3) unfair business practices and false advertising in violation of 15 U.S.C. §§ 45(a)(1)-(2) and 53(a)(b); (4) negligence; (5) misrepresentation; and (6) intentional infliction of emotional distress. LEGAL STANDARD A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Civ. P. 8(a). Fed. R.

Dismissal under Rule 12(b)(6) for failure to state a

claim is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. (2007). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

In considering whether the complaint is sufficient to

state a claim, the court will take all material allegations as true 2

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and construe them in the light most favorable to the plaintiff. Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, this principle is inapplicable to legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are not taken as true. Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009) (citing Twombly, 550 U.S. at 555). When granting a motion to dismiss, the court is generally

NL

required to grant the plaintiff leave to amend, even if no request to amend the pleading was made, unless amendment would be futile. Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 246-47 (9th Cir. 1990). In determining whether amendment

would be futile, the court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th Cir. 1990). Leave to amend should be liberally granted, but an amended complaint cannot allege facts inconsistent with the challenged pleading. Id. at 296-97. DISCUSSION Defendant asserts that, under the Communications Decency Act of 1996 (CDA), it is immune from Plaintiffs' action and that, in the alternative, Plaintiffs fail to state claims upon which relief can be granted. "Section 230 of the CDA immunizes providers of interactive computer services against liability arising from content created by third parties: `No provider . . . of an interactive computer 3

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service shall be treated as the publisher or speaker of any information provided by another information content provider.'" Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (quoting 47 U.S.C. § 230(c); alteration in original; footnotes omitted). In enacting § 230,

"Congress wanted to encourage the unfettered and unregulated development of free speech on the Internet, and to promote the development of e-commerce." (9th Cir. 2003). Batzel v. Smith, 333 F.3d 1018, 1027

As a result, "courts construing § 230 have

recognized as critical in applying the statute the concern that lawsuits could threaten the `freedom of speech in the new and burgeoning Internet medium.'" Id. (quoting Zeran v. Am. Online,

Inc., 129 F.3d 327, 330 (4th Cir. 1997)). The statute defines an "interactive computer service" to be "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 and such systems operated or services offered by libraries or educational institutions." § 230(f)(2). 47 U.S.C.

The immunity applies to such a service "so long as it

does not also function as an `information content provider' for the portion of the statement or publication at issue." Carafano v. An

Metrosplash.com Inc., 339 F.3d 1119, 1123 (9th Cir. 2003).

"information content provider" is "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). 4

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Based on the congressional intent discussed above, courts "have treated § 230(c) immunity as quite robust, adopting a relatively expansive definition of `interactive computer service' and a relatively restrictive definition of `information content provider.'" Carafano, 339 F.3d at 1123. All doubts "must be

resolved in favor of immunity."

Roommates.Com, 521 F.3d at 1174.

A fair reading of Plaintiffs' complaint demonstrates that they seek to impose liability on Defendant for content created by an anonymous third party. They assert that their lawsuit "arises from Compl.

an online comment posted upon the Google web site . . . ."1 ¶ 1. They aver that the allegedly defamatory comment is

"anonymous," id. ¶ 21, but they do not allege that Defendant was its author. Finally, they summarize their action by stating that

Defendant's "business review `courtesy advertisement' process which allows for consumer generated content is illegal and inappropriate as it manifest into allowing parties to seek revenge against businesses and professionals." Id. ¶ 34. Based on these

allegations, Defendant is immune from their suit. Plaintiffs appear to argue that CDA immunity does not apply because their claims are based on Defendant's "programming," not the third-party content. Pl.'s Br. of July 19, 2010 at 6.

Plaintiffs seem to be referring to the source code underlying the services offered on Defendant's website. See Compl. ¶ 30

Plaintiffs do not dispute that Defendant is an interactive computer service. Several other courts have recognized Defendant as such a service. See, e.g., Jurin v. Google Inc., 695 F. Supp. 2d 1117, 1123 (E.D. Cal. 2010); Parker v. Google, Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006). 5

1

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(asserting that Defendant engaged "in the acts and practices set forth in this complaint via software programming on their web site"). In light of Plaintiffs' complaint, this argument is

unavailing; they aver that their lawsuit arises from the thirdparty content and that their businesses suffered damage therefrom. Further, Defendant's programming does not transform it into the creator of the offending comment. Indeed, several courts have

considered and rejected theories that an interactive computer service could be held liable merely because its programming facilitated the creation of the content at issue. See, e.g.,

Carafano, 339 F.3d at 1124-25 (concluding defendant was immune, even though "the content was formulated in response" to its questionnaire); Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 833-34 (2002) (holding that plaintiffs could not avoid § 230 by attacking the structure of defendant's "safety program"). Plaintiffs also argue that Defendant could be held liable because it sponsored and endorsed the comment. However, Plaintiffs

make no allegations that suggest any sponsorship or endorsement of the comment by Defendant. entitled to immunity. Even if they did, Defendant would remain

Plaintiffs' attempt to depict Defendant as a

sponsor or endorser of the comment is, in effect, an end-around the prohibition on treating it as the publisher or speaker of it. a ploy, if countenanced, would eviscerate the immunity granted under § 230. Further, even if Defendant were a sponsor or Such

endorser, the fact remains that Plaintiffs seek to hold it liable for content generated by a third-party. Finally, Plaintiffs contend that their claims rest on 6

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Defendant's failure to provide an adequate "dispute resolution" system to resolve their concerns about the comment. July 19, 2010 at 6. Pl.'s Br. of

Again, this argument fails because the In

predicate for liability remains the third-party content.

addition, several courts have held that immunity is not vitiated because a defendant fails to take action despite notice of the problematic content. See, e.g., Universal Commc'ns Sys., Inc. v.

Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007) ("It is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service provider's own speech."); Zeran, 129 F.3d at 333 ("Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA."); Barrett v. Rosenthal, 40 Cal. 4th 33, 45 (2006). Plaintiffs offer no persuasive argument that their theory presents an exception. Accordingly, Plaintiffs' claims are barred by § 230. Because

their complaint makes clear that their action "arises from an online comment posted upon" Defendant's website, Compl. ¶ 1, any amendment would be futile and dismissal with prejudice is warranted. CONCLUSION For the foregoing reasons, the Court GRANTS Defendant's motion to dismiss. (Docket No. 10.) Plaintiffs' action is dismissed with Consequently, their motion (Docket No. 15.)

prejudice as barred by 47 U.S.C. § 230.

for judgment on the pleadings is DENIED as moot.

The case management conference set for September 14, 2010 is VACATED. 7

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The Clerk shall enter judgment and close the file. parties shall bear their own costs. IT IS SO ORDERED. Dated: August 13, 2010

The

CLAUDIA WILKEN United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

GARY BLACK and HOLLI BEAM-BLACK, Plaintiffs, v. GOOGLE INC., Defendant. /

Case Number: CV10-02381 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on August 13, 2010, I SERVED a true and correct copy of the attached, by placing said copy in a postage paid envelope addressed to the persons hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy into an inter-office delivery receptacle located in the Clerk's office.

Gary Black 101 Auld Court Green Valley Falls, CA 94534 Holli Beam-Black 101 Auld Court Green Valley Falls, CA 94534 Dated: August 13, 2010 Richard W. Wieking, Clerk By: MP, Deputy Clerk

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EXHIBIT D

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. GOOGLE INC.,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GARY BLACK and HOLLI BEAM-BLACK, Plaintiffs, No. 10-02381 CW ORDER ON PLAINTIFFS' OBJECTION, DENYING DEFENDANT'S MOTION TO STRIKE AND DENYING PLAINTIFFS' MOTION TO STAY (Docket Nos. 28, 29 and 32)

Defendant.

/

Plaintiffs Gary Black and Holli Beam-Black, who are proceeding pro se, asserted several claims against Defendant Google Inc. related to an anonymous "online comment" on Defendant's website. On August 13, 2010, the Court granted Defendant's motion to dismiss, finding Plaintiffs' claims barred by the Communications Decency Act (CDA) of 1996, 47 U.S.C. § 230. On August 25, 2010,

Plaintiffs filed an "objection" to the Court's August 13 Order, which Defendant has moved to strike. Plaintiffs have also filed a

motion to stay the Court's judgment pending their appeal. Defendant opposes that motion. Read liberally, Plaintiffs' objection appears to be a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the Court's judgment. Rule 59(e) motions are interpreted as motions

for reconsideration, and are appropriate if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch.

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Dist. No. 1J, Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). motion for reconsideration shall not "repeat any oral or written argument made by the applying party in support of or in opposition to the . . . order which the party now seeks to have reconsidered." Civil L.R. 7-9(c). Plaintiffs' objection raises many of the same arguments they made in their opposition to Defendant's Motion to Dismiss. For the A

reasons stated in the Court's Order of August 13, Plaintiffs' action is barred by the CDA. Plaintiffs' objection does not

warrant reconsideration of this ruling. Further, Plaintiffs have not established that a stay of the Court's decision is warranted. A party seeking a stay must show

either (1) a strong likelihood of success on the merits of its appeal and the possibility of irreparable harm, or (2) that serious questions regarding the merits exist and the balance of hardships tips sharply in its favor. See Golden Gate Restaurant Ass'n v.

City and County of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008). These two alternatives "represent two points on a sliding

scale in which the required degree of irreparable harm increases as the probability of success decreases." internal quotation marks omitted). Id. at 1116. (citation and

A court must "consider where

the public interest lies separately from and in addition to whether the applicant for stay will be irreparably injured absent a stay." Id. (citation and internal quotation and alteration marks omitted). Plaintiffs do not establish a strong likelihood that they will prevail on their appeal or the existence of serious questions 2

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regarding the merits of this case.

Without citation, Plaintiffs

appear to argue that Congress did not intend to grant immunity under § 230 in circumstances involving anonymity.1 to Stay at 7. See Pls.' Mot.

However, there is no provision in the CDA that Further, in Carafano v. Metrosplash.com

imposes such a limit.

Inc., the Ninth Circuit held that § 230 immunized an interactive computer service from liability based on an anonymous post on the defendant's website. 339 F.3d 1119, 1121 (9th Cir. 2003). The

Ninth Circuit later explained the Carafano holding as follows: The allegedly libelous content there -- the false implication that Carafano was unchaste -- was created and developed entirely by the malevolent user, without prompting or help from the website operator. To be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content -- indeed, the defamatory posting was contrary to the website's express policies. The claim against the website was, in effect, that it failed to review each user-created profile to ensure that it wasn't defamatory. That is precisely the kind of activity for which Congress intended to grant absolution with the passage of section 230. With respect to the defamatory content, the website operator was merely a passive conduit and thus could not be held liable for failing to detect and remove it. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1171-72 (9th Cir. 2008) (discussing Carafano). Here, as stated above, Plaintiffs attempt to hold Defendant liable for an anonymous comment. Plaintiffs' claims. For the foregoing reasons, the Court DENIES (1) Plaintiffs' Thus, the CDA and Carafano preclude

Plaintiffs also appear to assert that Google authored the disputed comment. However, this allegation runs contrary to Plaintiffs' complaint, which states that the comment was anonymous. Compl. ¶ 19. 3

1

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motion to alter or amend the Court's judgment, styled as an objection (Docket No. 28); (2) Defendant's motion to strike (Docket No. 29); and (3) Plaintiffs' motion to stay the Court's judgment (Docket No. 32). IT IS SO ORDERED.

Dated: September 20, 2010

CLAUDIA WILKEN United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

GARY BLACK and HOLLI BEAM-BLACK, Plaintiffs, v. GOOGLE INC., Defendant. /

Case Number: CV10-02381 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 20, 2010, I SERVED a true and correct copy of the attached, by placing said copy in a postage paid envelope addressed to the persons hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy into an inter-office delivery receptacle located in the Clerk's office.

Gary Black 101 Auld Court Green Valley Falls, CA 94534 Holli Beam-Black 101 Auld Court Green Valley Falls, CA 94534 Dated: September 20, 2010 Richard W. Wieking, Clerk By: MP, Deputy Clerk