M.H. et al. v. Omegle.com LLC
ENDORSED ORDER: Defendant Omegle.com, LLC's Motion to Dismiss the Second Amended Complaint (Doc. # 75) is GRANTED. All Counts are DISMISSED without leave to amend. The Clerk is directed to terminate any deadlines, deny any outstanding motions as moot, and thereafter, close the case. Signed by Judge Virginia M. Hernandez Covington on 1/10/2022. (CTL)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
M.H. and J.H., on behalf of
their minor child C.H.,
Case No.: 8:21-cv-814-VMC-TGW
This matter is before the Court on consideration of
Defendant Omegle.com, LLC’s Motion to Dismiss the Second
Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), filed on October 13, 2021. (Doc. # 78). Plaintiffs
M.H. and J.H., on behalf of their minor child C.H., responded
on November 3, 2021, (Doc. # 81), and Defendant replied on
November 15, 2021 (Doc. # 85). For the reasons that follow,
the Motion is granted.
The Second Amended Complaint asserts eight causes of
action against Omegle for damages arising from 11-year-old
C.H.’s distressing experience on the Omegle website. (Doc. #
75 at 15-29).
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Omegle allows users to communicate with other users
randomly and anonymously in real time by text, audio, and
video. (Id. at ¶¶ 33-34). Interested users are placed in a
immediately. (Id.). No personal identifying information is
required to begin a chatroom session, although Omegle also
“similarities in conversations and subjects.” (Id. at ¶¶ 3437). Users are anonymously paired with other users from across
the globe and can be paired with a new user in a new chatroom
at will. (Id. at ¶¶ 33, 57).
The Omegle website is visited millions of times per day.
(Id. at ¶ 14). As Omegle and similar websites have grown in
popularity, so too have reports of child sex trafficking and
victimization through those websites. (Id. at ¶¶ 13, 41 n. 89).
children for their use of Omegle and similar websites. (Id.
verification process to ensure that minor children only use
the site with parental guidance or consent — anonymity appears
to be a primary appeal of the Omegle platform. (Id. at ¶¶ 33,
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hacking. (Id. at ¶ 38). According to Plaintiffs, sexual
predators have taken advantage of the anonymity that Omegle
offers to prey on other users, including children. (Id. at ¶¶
children into committing sexual acts over live web feeds while
simultaneously recording the encounters. (Id. at ¶ 4 n. 1).
On March 31, 2020, C.H. was randomly placed in a chatroom
with a capper during her first time on Omegle. (Id. at ¶¶ 5762). C.H. — an eleven-year-old girl at the time — accessed
the Omegle platform from her laptop. (Id. at ¶ 57). She was
initially placed in a chatroom with other minors for some
time. (Id.). C.H. later ended the chat with the minors and
was placed in another chatroom. (Id.). She was met in the
next chatroom with a black screen that began displaying text
from the other anonymous user, “John Doe.” (Id. at ¶ 58).
John Doe informed C.H. that he knew where she lived, and he
provided specific details of her whereabouts to prove it.
(Id. at ¶ 59). He threatened to hack C.H. and her family’s
electronic devices if she did not disrobe and comply with his
demands. (Id. at ¶ 61). After pleading with John Doe without
success, C.H. complied. (Id.). John Doe captured screenshots
and recorded the encounter. (Id. at ¶¶ 61-62). Immediately
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after this incident, C.H. informed her parents, who then
contacted law enforcement. (Id. at ¶ 65).
C.H.’s parents then brought the instant suit against
Omegle on their daughter’s behalf. (Doc. # 1). This action
began in the United States District Court for the District of
New Jersey. (Id.). The case was then transferred to this
Court, and Plaintiffs were ultimately permitted to file their
Second Amended Complaint. (Id.; Doc. ## 74-75). Plaintiffs
bring eight claims against Omegle: (1) possession of child
pornography in violation of 18 U.S.C. § 2252A; 1 (2) violation
of the Federal Trafficking Victims Protection Act, 18 U.S.C.
emotional distress; (7) ratification/vicarious liability; and
(8) public nuisance. (Id. at 15-29).
Omegle now moves to dismiss all claims for failure to
state a claim. (Doc. # 78). Plaintiffs have responded, and
The Second Amended Complaint lists this claim as a violation
of 18 U.S.C. § 2255, which is a civil remedy statute that
allows victims of enumerated crimes to sue for liquidated
damages. (Doc. # 75 at 15). Plaintiffs assert entitlement to
such damages for Omegle’s violation of 18 U.S.C. § 2252A, an
enumerated statute, for Omegle’s alleged knowing possession
of child pornography. (Id. at 15-16).
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Omegle replied in turn. (Doc. # 81; Doc. # 84). The Motion is
ripe for review.
On a motion to dismiss pursuant to Rule 12(b)(6), this
Court accepts as true all the allegations in the complaint
plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Hum. Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Courts are not “bound to accept as true
a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). The Court must limit its
consideration to well-pleaded factual allegations, documents
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judicially noticed. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
A. Immunity Under the Communications Decency Act
Omegle claims that it is immune from each of Plaintiffs’
claims pursuant to 47 U.S.C. § 230, the Communications Decency
Act (“CDA”). (Doc. # 78 at 3). The CDA grants immunity to
interactive computer services (“ICS”) providers for damages
caused by the providers’ users. 47 U.S.C. § 230(c)(1). ICS
providers are those who “provide or enable  computer
access by multiple users to a computer server, including
specifically a service or system that provides access to the
Internet . . . .” 47 U.S.C. § 230(f)(2).
By statute, ICS providers are distinguished from those
publisher or speaker of any information provided by another
information content provider.” 47 U.S.C. § 230(c)(1). ICS
providers are further distinguished from information content
providers (“ICPs”), who are responsible for the creation or
development of information through the Internet or an ICS
provider. 47 U.S.C. § 230(f)(3).
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The CDA also preempts state or local law that would
actions of their users. 47 U.S.C. § 230(e)(3). “The majority
of ‘federal circuits have interpreted the CDA to establish
broad federal immunity to any cause of action that would make
service providers liable for information originating with a
third-party user of the service.’” Almeida v. Amazon.com,
Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) (quoting Zeran v.
Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). The
Florida Supreme Court has also recognized the CDA’s broad
preemptive effect. See Doe v. Am. Online, Inc., 783 So. 2d
1010, 1018 (Fla. 2001) (“We specifically concur that section
230 expressly bars ‘any actions,’ and we are compelled to
give the language of this preemptive law its plain meaning.”).
A defendant seeking to enjoy the immunity provided by
Section 230 must establish that: (1) the defendant is a
service provider or user of an interactive computer service;
(2) the causes of action the treat defendant as a publisher
or speaker of information; and (3) a different information
content provider provided the information. Doe v. Reddit,
Inc., No. SACV 21-00768 JVS (KESx), 2021 WL 5860904, at *3
(C.D. Cal. Oct. 7, 2021); Roca Labs, Inc. v. Consumer Op.
Corp., 140 F. Supp. 3d 1311, 1319 (M.D. Fla. 2015). As such,
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immunity applies unless an ICS provider creates, authors, or
otherwise materially contributes to a publication such that
the content “is properly attributable to them.” Gilmore v.
Jones, 370 F. Supp. 3d 630, 662 (W.D. Va. 2019) (internal
B. Exceptions to Immunity Under the CDA
Immunity under the CDA is not absolute. ICS providers
trafficking offenses under 18 U.S.C. §§ 1591 and 1595 if the
underlying conduct constitutes a violation of those statutes.
47 U.S.C. § 230(e)(5)(A-B). 18 U.S.C. § 1591, titled “Sex
trafficking of children or by force, fraud, or coercion”
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce,
or within the special maritime and territorial
jurisdiction of the United States, recruits,
entices, harbors, transports, provides, obtains,
advertises, maintains, patronizes, or solicits by
any means a person; or
(2) benefits, financially or by receiving anything
of value, from participation in a venture which has
engaged in an act described in violation of
paragraph (1) . . .
corollary, 18 U.S.C. § 1595(a-b), allows victims to pursue
civil recovery against their perpetrators. However, courts
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interpret 18 U.S.C. § 1591 to require actual knowledge and
overt participation in a sex trafficking venture by the ICS
provider — generalized knowledge without active participation
is insufficient. See, e.g., Doe v. Kik Interactive, Inc., 482
F. Supp. 3d 1242, 1249-51 (S.D. Fla. 2020) (granting immunity
to ICS provider where plaintiff failed to allege sufficient
facts establishing actual knowledge or overt participation in
under 18 U.S.C. § 1591); United States v. Afyare, 632 F. App’x
272, 286 (6th Cir. 2016) (interpreting 18 U.S.C. § 1591 to
require actual participation in a sex trafficking venture).
For the reasons discussed below, the Court finds that Omegle
is entitled to immunity from each of Plaintiffs’ claims.
C. Omegle is Entitled to Section 230 Immunity
First, Omegle is an ICS provider under Section 230. That
is, Omegle is a system that allows multiple users to connect
to a computer server via the Internet. 47 U.S.C. § 230(f)(3).
ICS providers are afforded immunity under the CDA unless they
materially augment or develop the unlawful content at issue.
Roommates.com, LLC, 521 F.3d 1157, 1167-68 (9th Cir. 2008)
(“a website helps to develop unlawful content, and thus falls
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Indeed, Plaintiffs appear to acknowledge that Omegle is an
ICS provider by arguing that “the rapidly evolving legal
landscape . . . increasingly holds Internet Service Providers
. . . liable for the harms they facilitate and oftentimes
create.” (Doc. # 81 at 1).
confirms that Omegle functions by randomly pairing users in
a chatroom and enabling them to communicate in real time.
(Doc. # 75 at ¶¶ 33-34). There are no factual allegations
suggesting that Omegle authors, publishes, or generates its
own information to warrant classifying it as an ICP rather
than an ICS provider. Compare Doe v. Mindgeek USA Inc., No.
SACV 21-00338-CJC(ADSx), 2021 WL 4167504, at *9 (C.D. Cal.
Sept. 9, 2021) (finding that website was an ICP where it
actively created programs, curated playlists, and developed
private messaging systems to facilitate trafficking of child
pornography) with Mezey v. Twitter, Inc., No. 1:18-cv-21069KMM,
(granting Twitter CDA immunity where it merely displayed,
organized, and hosted user content). Nor are there any factual
augmenting it. See Roommates.com, 521 F.3d at 1167-68. Omegle
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users are not required to provide or verify user information
before being placed in a chatroom with another user. (Doc. #
75 at ¶¶ 37, 50-51). Further, some users, such as hackers and
cappers, can circumvent Omegle’s anonymity using the data
Omegle’s hosting capabilities for its users, coupled with its
lack of material content generation, place it squarely within
the definition of an ICS provider under 47 U.S.C. § 230(f)(2).
Plaintiffs’ claims seek to treat Omegle as a speaker or
Plaintiffs’ claims must treat Omegle as the publisher or
speaker of the complained of information that was provided by
others. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102-03
(9th Cir. 2009) (explaining that Section 230 shields websites
from liability against “any activity that can be boiled down
to deciding whether to exclude material that third parties
seek to post online”) (internal citations omitted); Whitney
Info. Network, Inc. v. Verio, Inc., No. 2:04-cv-462-JES-SPC,
2006 WL 66724, at *3 (M.D. Fla. Jan. 11, 2006) (finding that
defamation claims treated the website as the publisher of
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offensive statements). Courts will find this element to be
satisfied where a plaintiff’s claim alleges that an ICS
provided by their users. See Green v. Am. Online, 318 F.3d
465, 471 (3d Cir. 2003) (finding the second element satisfied
where plaintiff “attempt[ed] to hold [a defendant] liable for
decisions relating to the monitoring, screening, and deletion
publisher's role.”); Ben Ezra, Weinstein, and Co. v. Am.
Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000) (upholding
immunity for ICS provider where plaintiff sought damages
caused by their reliance on third party’s inaccurate stock
Here, Counts I, II, III, IV, and VI seek to hold Omegle
responsible for the conduct of cappers like John Doe who
pornography claim asserts that Omegle knowingly possessed
child pornography that was generated on its platform. (Doc.
# 75 at ¶¶ 31-37, 41-42, 75). Their child sex trafficking
claim alleges that Omegle created a forum that harbored,
enticed, and solicited child sex trafficking. (Id. at ¶¶ 8387). (Id. at ¶¶). The intrusion upon seclusion and intentional
infliction of emotional distress claims in turn posit that
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(1) Omegle designed a website that allows users’ personal
identifying information to become compromised, and that (2)
Omegle knowingly paired C.H. with a capper, causing her
extreme emotional distress. (Id. at 20-22, 25-56). Lastly,
the Video Privacy Protection Act claim seeks to hold Omegle
identifying information. (Id. at 19-20). Each of these claims
seek redress for damages caused by John Doe’s conduct. (Id.
at 15, 17, 20, 25). No well-pleaded facts suggest that Omegle
had actual knowledge of the sex trafficking venture involving
venture. Cf. Mindgeek, 2021 WL 4167504, at **9-10 (finding
plausible 18 U.S.C. §§ 1591 and 2252A claims where plaintiff
alleged that website reviewed, approved, posted, and featured
certain child pornography videos on its platform while also
sharing profits with sex traffickers). Instead, Plaintiffs
acknowledge that Omegle is not impervious to attack — hackers
can screenshot their activity with other users and use those
information. (Doc. # 75 at ¶ 38). These factual allegations,
compounded with the details of C.H.’s encounter with John
Doe, ultimately serve to support Plaintiffs’ position that
Omegle should be held responsible for John Doe’s conduct.
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Herrick v. Grindr LLC, 765 F. App’x 586, 591 (2d Cir. 2019)
(dismissing failure to warn and emotional distress claims
against ICS provider for damages caused by another user);
Caraccioli v. Facebook, Inc., 700 F. App’x 588, 590 (9th Cir.
2017) (dismissing intrusion upon seclusion claims); Klayman
(dismissing negligence and assault claims).
The other claims, Counts V, VII, and VII, confirm that
Plaintiffs’ theories of liability against Omegle are rooted
in the creation and maintenance of the platform. These claims
recognize the distinction between Omegle as an ICS provider
and the users, but nonetheless treat Omegle as the publisher
responsible for the conduct at issue. Yahoo!, 570 F.3d at
This is corroborated in no small part by Count VII,
the “ratification/indemnification” claim, where Plaintiffs
maintain that child sex trafficking was so pervasive on and
known to Omegle that it should be vicariously liable for the
damages caused by the cappers and similar criminals. 2 (Doc.
As Omegle highlights in their Motion, ratification/vicarious
liability is not an independent cause of action. See Barabe
v. Apax Partners Europe Managers, Ltd., 359 F. App’x 82, 84
(11th Cir. 2009) (explaining that “[t]heories of vicarious
liability, however, are not independent causes of action;
instead, they are theories of liability for other claims.”).
Count VII fails as a matter of law on this ground alone, and
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nuisance claims, Plaintiffs allege that Omegle knew or should
have known about the dangers that the platform posed to minor
children, and that Omegle failed to ensure that minor children
did not fall prey to child predators that may use the website.
(Id. at ¶¶ 112, 148).
liability onto Omegle for the ultimate actions of their users.
See, e.g., Bauer v. Armslist, LLC, No. 20-cv-215-pp, 2021 WL
5416017, at **25-26 (E.D. Wis. Nov. 19, 2021) (dismissing,
against ICS provider website that was used to facilitate
unlawful firearm sales); Kik, 482 F. Supp. 3d at 1249-50
photographs was immune from sex trafficking, negligence, and
communication); Poole v. Tumblr, Inc., 404 F. Supp. 3d 637,
642-43 (D. Conn. 2019) (content hosting website entitled to
immunity from invasion of privacy and negligent infliction of
emotional distress claims); Saponaro v. Grindr, LLC, 93 F.
Plaintiffs have not offered a response in support of Count
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Supp. 3d 319, 325 (D. N.J. 2015) (dismissing “failure to
Regardless of form, each of Plaintiffs’ claims ultimately
seek to treat Omegle as a publisher or speaker, which are
encompassed within Section 230 immunity.
As for the third element for immunity under the CDA, the
Court readily gleans that the information and content at issue
here was in fact generated by a separate content provider,
John Doe. The Second Amended Complaint recounts that C.H.’s
encounter. (Doc. # 75 at ¶¶ 54-62). John Doe’s video feed,
his brandishing of C.H.’s personal identifying information,
and the threats he subjected her to were not provided by
Omegle in any sense. (Id.). See Kik, 482 F. Supp. 3d at 124849. Merely providing the forum where harmful conduct took
place cannot otherwise serve to impose liability onto Omegle.
Klayman, 753 F.3d at 1358.
In short, the Court finds that Omegle is entitled to
immunity under CDA Section 230 because (1) it is an ICS
provider under the CDA, (2) Plaintiffs’ claims seek to treat
Omegle as a publisher or speaker, and (3) the information at
issue originated from another information provider, John Doe.
Counts I through VIII are barred under the CDA and are hereby
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dismissed. The Court writes separately to address whether
Count II has been sufficiently pled to escape immunity under
D. The Sex Trafficking Claim
Count II asserts a claim for civil liability for Omegle’s
alleged involvement in a child sex trafficking venture under
Notwithstanding Section 230 immunity, the CDA does permit
suits against ICS providers for violations of 18 U.S.C. §§
1591 and 1595 under narrow circumstances. Congress enacted
the CDA to “encourage service providers to self-regulate the
dissemination of offensive material over their service,” and
allow “computer service providers to establish standards of
decency without risking liability for doing so.” NetChoice,
LLC v. Moody, No. 4:21cv220-RH-MAF, 2021 WL 2690876, at *6
Congress did not, however, alter a sex trafficking victim’s
underlying venture. See J.B. G6 Hosp., LLC, No. 19-cv-07848HSG, 2021 WL 4079207, at *12 (N.D. Cal. Sept. 8, 2021)
(holding that 18 U.S.C. § 1591 could not surmount CDA immunity
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unless plaintiff alleged an ICS provider’s actual knowledge
or participation in a sex trafficking venture).
occurs on a website is insufficient to maintain a plausible
18 U.S.C. § 1591 claim that survives CDA immunity. 482 F.
Supp. 3d 1242, 1250 n. 6 (S.D. Fla. 2020). The plaintiff in
Kik alleged that multiple users on the Kik website solicited
her for sexually explicit photographs. Id. at 1244. She then
brought claims against Kik for violations of 18 U.S.C. §§
1591, 1595, negligence, and strict liability. Id. at 124546, 1251. The Kik court found that Kik would not be immune
knowledge of the underlying incident and had some degree of
active participation in the alleged sex trafficking venture.
Id. at 1250-51. The Kik plaintiff did not assert actual
knowledge or overt participation on behalf of Kik, and instead
trafficking incidents on the website. Id. at 1251. Thus, the
Kik court found that Kik was entitled to Section 230 immunity
because plaintiff had not plausibly alleged a claim that would
surmount Section 230 immunity. Id.; see also Reddit, 2021 WL
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5860904, at *8 (dismissing 18 U.S.C. § 1591 claim for failure
to plead that ICS provider knowingly participated in a sex
Just as in Kik, Plaintiffs here assert that Omegle had
knowledge of prior instances of sex trafficking and knew that
the platform had been used as a sex trafficking tool in the
generalized knowledge is sufficient to place their 18 U.S.C.
§§ 1591 and 1595 claims outside the bounds of CDA immunity.
(Doc. # 81 at 5-6). Yet, just as in Kik, the asserted claims
knowledge of past sex trafficking incidents. (Doc. # 75 at ¶
83) (“[Omegle] knowingly benefited from participation in what
it knew or should have known was a sex trafficking venture
. . . .”). The Second Amended Complaint fails to sufficiently
allege Omegle’s actual knowledge or overt participation in
knowledge of past instances of sex trafficking are not enough
to satisfy an exception to immunity. Reddit, 2021 WL 5860904
at *8; Kik, 482 F. Supp. 3d at 1251; see also Afyare, 632 F.
App’x at 288 (interpreting 18 U.S.C. § 1591 to require actual
participation in a sex trafficking venture rather than only
requiring generalized knowledge of a venture).
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Without allegations that Omegle had actual knowledge of,
or overtly participated in the sex trafficking venture by
John Doe, Plaintiffs fail to state a plausible sex trafficking
claim that would escape CDA 230 immunity.
E. Leave to Amend
For the reasons explained above, each of Plaintiffs’
claims must be dismissed. As posed in Plaintiffs’ response,
Plaintiffs ultimately seek to hold Omegle liable for the
actions of John Doe. See (Doc. # 81 at 1) (“the rapidly
evolving legal landscape . . . increasingly holds Internet
Service Providers . . . liable for the harms they facilitate
Omegle’s Motion, nor at any time after have Plaintiffs moved
for leave to amend the Second Amended Complaint. Despite
survive CDA immunity. While leave to amend is typically
granted, amendment in this case would be futile. See Cockrell
v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (“Leave to
amend a complaint is futile when the complaint as amended
would still be properly dismissed or be immediately subject
to summary judgment for the defendant.”). Plaintiffs have had
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multiple opportunities to assert claims that avoid the CDA’s
grant of immunity but have been unable to do so.
Congress has instructed that claims for harm suffered at
redirecting liability to the forum where the harm took place.
While the Court sympathizes with Plaintiffs over the harm
C.H. suffered while using Omegle, the Court finds that they
Omegle’s Section 230 Immunity.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
Defendant Omegle.com, LLC’s Motion to Dismiss the
Second Amended Complaint (Doc. # 75) is GRANTED. All
Counts are DISMISSED without leave to amend.
The Clerk is directed to terminate any deadlines, deny
any outstanding motions as moot, and thereafter, close
DONE and ORDERED in Chambers in Tampa, Florida, this 10th
day of January, 2022.
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