Beckman v., LLC

Filing 18

ORDER Granting 6 Defendant's Motion to Dismiss with prejudice. Signed by Judge James C. Mahan on 05/29/2013. (Copies have been distributed pursuant to the NEF - AC)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 MARY KAY BECKMAN, 9 2:13-CV-97 JCM (NJK) Plaintiff(s), 10 v. 11 MATCH.COM, 12 Defendant(s). 13 14 15 ORDER 16 Presently before the court is defendant, LLC’s motion to dismiss. (Doc. # 6). 17 Plaintiff Mary Kay Beckman responded (doc. # 9), and replied (doc. # 11). 18 I. Background 19 This action arises out of the brutal attack of plaintiff, Mary Kay Beckman, by a Wade 20 Mitchell Ridley, a man whom she met on Plaintiff seeks redress for the “horrific harms 21 she suffered as a result of the false information portrayed by [].” (Doc. # 1, 1:25-26). 22 In late August 2010, plaintiff subscribed to’s service and set up an online profile. 23 (Id. at ¶¶ 9-10). Shortly thereafter, plaintiff began interacting with another user, Ridley. 24 (Id. at ¶ 11). On or about September 26, 2010, plaintiff and Ridley had their first date in Las Vegas, 25 Nevada. (Id. at ¶ 13). 26 27 28 James C. Mahan U.S. District Judge 1 operates an online dating service at enables subscribers to search for and find people with whom they might wish to enter into a personal relationship. 1 After this initial meeting, plaintiff and Ridley continued their dating relationship for 2 approximately 10 days. (Id. at ¶ 14). On October 3, 2010, they had their last physical meeting and 3 plaintiff ended the relationship. (Id.). In the following days, Ridley sent plaintiff numerous 4 threatening and harassing text messages, to which she did not respond. (Id. at ¶ 15). 5 On January 21, 2011, Ridley ambushed plaintiff at her residence. (Id. at ¶ 16). Ridley 6 repeatedly stabbed and kicked plaintiff in the attack. (Id. at ¶¶ 17-18). As a result of the attack, 7 plaintiff suffered severe physical injuries requiring several hospitalizations and surgical procedures. 8 (Id. at ¶¶ 23-30). 9 On January 18, 2013, plaintiff filed a complaint in this court. Plaintiff asserts five causes of 10 action against (1) negligent misrepresentation; (2) deceptive trade practices pursuant to 11 15 U.S.C. § 45(a)(1); (3) negligence (failure to warn); (4) negligence; and (5) negligent infliction of 12 emotional distress. (Id. at ¶¶ 31-71). Plaintiff seeks nearly $10,000,000 in compensatory and punitive 13 damages, in addition to attorneys’ fees and costs. (Id. at 10:13-17). 14 brings the instant motion on the basis that plaintiff’s complaint fails to state a 15 claim under Rule 12(b)(6). seeks dismissal of all of plaintiff’s claims with prejudice. 16 II. Legal standard 17 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can 18 be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain 19 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell 20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual 21 allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements 22 of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted). 23 “Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. 24 at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to 25 “state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted). 26 ... 27 ... 28 James C. Mahan U.S. District Judge -2- 1 In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when 2 considering motions to dismiss. First, the court must accept as true all well-pled factual allegations 3 in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. 4 Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not 5 suffice. Id. at 1949. 6 Second, the court must consider whether the factual allegations in the complaint allege a 7 plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff’s complaint 8 alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the 9 alleged misconduct. Id. at 1949. 10 Where the complaint does not permit the court to infer more than the mere possibility of 11 misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id. 12 (internal quotations omitted). When the allegations in a complaint have not crossed the line from 13 conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570. 14 The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202, 15 1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of truth, 16 allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, 17 but must contain sufficient allegations of underlying facts to give fair notice and to enable the 18 opposing party to defend itself effectively. Second, the factual allegations that are taken as true must 19 plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to 20 be subjected to the expense of discovery and continued litigation.” Id. 21 II. Discussion2 22 A. 23 argues that plaintiff’s claim under 15 U.S.C. § 45(a)(1) fails because plaintiff 24 lacks standing. See 15 U.S.C. § 45(a)(2) (stating “The Commission is hereby empowered and Deceptive trade practices, 15 U.S.C. § 45(a)(1) (claim two) 25 26 27 28 James C. Mahan U.S. District Judge 2’s motion requests the court to take judicial notice of’s “Terms of Use Agreement” and “Safety Tips”. (Doc. # 6, Exs. A & B). Plaintiff opposes the request on the ground that the documents are “subject to a reasonable dispute.” (Doc. # 9, 9:10-11). However, in’s initial request, it stated that “[c]onsideration of these materials is not necessary for a decision on this motion.” (Doc. # 6, 6 n.1). On this basis, the court declines to take judicial notice of exhibits A & B. -3- 1 directed to prevent persons, partnerships, or corporations . . . from using . . . unfair or deceptive acts 2 or practices in or affecting commerce.”); see Dreisbach v. Murphy, 658 F.2d 720, 730 (9th Cir. 1981) 3 (holding that Congress conferred the “initial remedial power solely in the Federal Trade 4 Commission.”); see also Hoekstra v. State Farm Gen. Ins. Co., C 12-06328 CRB, 2013 WL 556798, 5 at *1 (N.D. Cal. Feb. 12, 2013). 6 Plaintiff retorts that she alleges this as a negligence per se claim and concedes that this claim 7 is not clearly pleaded in the complaint. Although plaintiff does not cite any cases holding that 15 8 U.S.C. § 45–that is, Section 5 of the Federal Trade Commission Act– can be used as a vehicle to 9 pursue a state-law negligence claim, the court finds it premature to address whether amendment to 10 this claim should be permitted. See FED. R. CIV. P. 15(a)(2); see also Local Rule 15-1. 11 Failing to plead this claim as a negligence per se cause of action and there being no private 12 right of action to enforce § 45(a)(1), the court finds that plaintiff’s claim for deceptive trade practices 13 is appropriately dismissed for failure to state a claim. Plaintiff’s claim under 15 U.S.C. § 45(a)(1) 14 is dismissed with prejudice. 15 B. 16 The court analyses whether plaintiff’s claim are barred by the Communications Decency Act. 17 Ultimately, the court finds that defendant is immune from suit due to the statute. In an abundance 18 of caution, the court goes to the merits of plaintiff’s claims and finds that they fail to state a claim 19 pursuant to Federal Rule of Civil Procedure 12(b)(6). 20 State law causes of action (claims one, three, four, and five) i. 21 Title 47 U.S.C. § 230, the Communications Decency Act, bars plaintiff’s state law causes of action 22 argues that all of plaintiff’s state-law claims are barred by § 230 of the 23 Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). construes plaintiff’s 24 claims as seeking to hold it “liable for enabling Ridley to post a profile on its website that plaintiff 25 ultimately saw and responded to.” (Doc. # 6, 2:22-23). 26 ... 27 ... 28 James C. Mahan U.S. District Judge -4- 1 Section 230 states that “[n]o provider or user of an interactive computer service shall be 2 treated as the publisher or speaker of any information provided by another information content 3 provider.” 47 U.S.C. § 230(c)(1). 4 7 By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions–such as deciding whether to publish, withdraw, postpone or alter content–are barred. 8 Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). A website operator qualifies for CDA 9 immunity when: (1) it is an “interactive computer services” provider; (2) it is not an “information 10 content provider” with respect to the conduct at issue; and (3) the plaintiff seeks to hold the website 11 operator liable on account of information originating from a third-party user of its services. See 47 12 U.S.C. § 230; see also Zeran, 129 F.3d at 330. 13 (1) 5 6 Interactive computer services provider 14 The CDA defines “interactive computer service” as an “information service . . . that provides 15 or enables computer access by multiple users to a computer server . . . .” 47 U.S.C. § 230(f)(2). 16, as an operator of a website that allows people to join and view other users’ profiles, is 17 an interactive services provider. See, e.g., Carafano v., Inc., 339 F.3d 1119, 1121 18 (9th Cir. 2003), see also Doe v., 502 F. Supp. 2d 719, 722 (N.D. Ohio 2007) aff’d, 19 551 F.3d 412 (6th Cir. 2008); see also Doe v. MySpace, Inc., 528 F.3d 413, 415 (5th Cir. 2008). 20 (2) Not an information content provider 21 An “information content provider” is defined as “any person or entity that is responsible, in 22 whole or in part, for the creation or development of information provided through the Internet or any 23 other interactive computer service.” 47 U.S.C. § 230(f)(3). To qualify for CDA immunity, 24 must not be an “information content provider” in respect to the challenged conduct. 25 Whether a website is an “information content provider” turns on whether the website “created 26 or developed” the particular information or content alleged to have resulted in the harm at issue. 27 Carafano, 339 F.3d at 1125. The fact that a website may have created certain features that enabled 28 James C. Mahan U.S. District Judge -5- 1 a user to post the content in question is irrelevant. See, e.g., id. (stating that even the use of a detailed 2 questionnaire to elicit statements was insufficient to establish that a website operator was an 3 “information content provider’); Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st 4 Cir. 2007) (“At best, [the plaintiff’s] allegations establish that [the defendant’s] conduct may have 5 made it marginally easier for others to develop and disseminate misinformation. That is not enough 6 to overcome Section 230 immunity.”); Doe v. Bates, 5:05-CV-91-DF-CMC, 2006 WL 3813758, at 7 *17 (E.D. Tex. Dec. 27, 2006) (acknowledging that “immunity analysis turns on who was 8 responsible for the specific harmful material at issue, not on whether the service provider was 9 responsible for the general features and mechanisms of the service . . . .”). 10 Here, plaintiff does not allege that created Ridley’s profile or authored the 11 communications from Ridley. Thus, Ridley, not, was the “information content provider” 12 for the material provided on his user profile on’s website. That is, is not an 13 “information content provider” with respect to Ridley’s user profile. 14 (3) Information originating from a third-party user 15 To satisfy the third prong, and thus be afforded immunity under the CDA, the plaintiff must 16 seek to hold the defendant liable for information originating from a third-party user of the 17 defendant’s services. 18 argues that plaintiff is suing because it “published on its website Ridley’s 19 profile–content that led to their meeting online, to their communicating with each other offline, and 20 to their dating.” (Doc. # 6, 11:6-7). also argues that “plaintiff’s fundamental charge 21 against is that it didn’t do enough to prevent her from meeting Ridley.” (Doc. # 11:4-5). 22 This is certainly true of plaintiff’s claims for negligence and negligent infliction of emotional 23 distress. 24 In plaintiff’s claims for negligence and negligent infliction of emotional distress, plaintiff 25 argues that failed “to protect her from individuals trolling the website to further criminal 26 activity” by “exposing Plaintiff to a serial murderer who used the website as a vessel to facilitate 27 attacks on unsuspecting women,” (doc. # 1, ¶¶ 58-59); and “by exposing Plaintiff to a serial killer 28 James C. Mahan U.S. District Judge -6- 1 who used Defendant’s service to facilitate a brutal attack and attempted murder upon Plaintiff” (id. 2 at ¶ 67).3 3 The basis of these negligence claims is irreducibly based on content posted by a third party. 4 That is, plaintiff’s claims for negligence and negligent infliction of emotional distress seek to hold 5 liable for its decision to publish Ridley’s user profile, see Zeran, 129 F.3d at 330; see 6 also Doe v., 502 F. Supp. 2d 719, 727 (N.D. Ohio 2007) aff’d, 551 F.3d 412 (6th Cir. 7 2008), which is barred under the CDA. 8 The conduct of publishing a user’s profile is within the ambit of protection afforded under 9 the CDA as these claims challenge’s role as a publisher of third-party content. In 10 particular, these claims challenge’s decisions and actions with respect to screening and 11 removing such content, and thus are barred. Therefore, is entitled to immunity under the 12 CDA for plaintiff’s claims for negligence and negligent infliction of emotional distress with 13 prejudice. 14 However, the court finds it necessary to piecemeal plaintiff’s remaining negligence claims. 15 Her claims for negligent misrepresentation and negligence (failure to warn) are alleged in the 16 complaint in a way that attempts to focus on’s alleged failure to warn users of the 17 inherent dangers of using the website. These two claims attempt to focus specifically on 18 and not on the profile of Ridley. 19 The problem with plaintiff’s attempt to focus on’s alleged failure to warn or 20 alleged negligent misrepresentation is that all of’s conduct must trace back to the 21 publication of third-party user content or profiles. is a website that publishes dating 22 profiles. There is nothing for to negligently misrepresent or negligently fail to warn about 23 other than what a user of the website may find on another user’s profile on the website. Plaintiff may 24 attempt to focus the alleged wrongdoing on, but what plaintiff is actually alleging is that 25 she was eventually harmed because of third-party content published by on its website. 26 27 28 James C. Mahan U.S. District Judge 3 Plaintiff asserts that Ridley killed a woman and attacked another–hence the allegation that he is a serial murderer. (See doc. # 9, 3:17-19). -7- 1 An illustrative example is Doe v. MySpace, Inc., 474 F.Supp.2d 843, 848 (W.D. Tex. 2006) 2 aff’d, 528 F.3d 413 (5th Cir. 2008). In MySpace, the plaintiffs argued that they were not challenging 3 any particular third-party content, but rather, MySpace’s failure to keep minors off its website or to 4 keep predators from using the site to communicate with minors. Id. at 848-49. There, the district 5 court found this “artful pleading to be disingenuous,” stating that: 6 7 8 9 It is quite obvious the underlying basis of Plaintiffs’ claims is that, through postings on MySpace, [the sexual predator] and [the minor] met and exchanged personal information which eventually led to an in-person meeting and the sexual assault of [the minor]. If MySpace had not published communications between [the minor] and [the sexual predator], including personal contact information, Plaintiffs assert they never would have met and the sexual assault never would have occurred. No matter how artfully Plaintiffs seek to plead their claims, the Court views Plaintiffs’ claims as directed toward MySpace in its publishing, editorial, and/or screening capacities. 10 11 Id. at 849. In MySpace, plaintiffs’ claims for negligence and gross negligence were challenging the 12 publication of the minor user’s profile–which goes to content and thus is within the ambit of 13 immunity afforded under the CDA. The same reasoning applies in this case. Plaintiff’s claims for 14 negligent misrepresentation and negligence (failure to warn) are actually challenging the publication 15 of the profile of a third-party user and criminal, Ridley. Plaintiff’s claims, like those in MySpace, 16 actually go to a website’s publication of a third-party user’s profile, which is clearly immune under 17 the CDA, and not to any alleged wrong or failure on the part of 18 The court in Doe v., 502 F. Supp. 2d 719, 727 (N.D. Ohio 2007) aff’d, 551 19 F.3d 412 (6th Cir. 2008), reached a similar conclusion. The claims were based on the publication of 20 third-party content masked as a failure to warn or negligent misrepresentation on the part of the 21 website. In, plaintiff met another user on the website who claimed she was at least 22 18 years old. Id. at 722. After meeting and having sexual relations with her, the plaintiff was arrested 23 for unlawful sexual conduct with a minor. Id. Plaintiff later sued alleging that but 24 for this introduction to the minor on its website–and her claim that she was at least 18 years old–he 25 would not have had sex with her. Id. 722-23. The district court held that the CDA barred all claims 26 seeking to hold “liable for its publication of third-party content and harms flowing 27 from the dissemination of that content.” Id. 727. 28 James C. Mahan U.S. District Judge -8- 1 In, plaintiff’s claims for negligent misrepresentation and failure to warn4 were 2 barred by the CDA because plaintiff was seeking to hold liable for its publication 3 of third-party content and harms flowing from the dissemination of that content. Here, plaintiff is 4 alleging that she would not have been harmed had warned her that some of the third- 5 party user’s with profiles were dangerous. Plaintiff is really alleging that’s publication 6 of Ridley’s profile is ultimately what caused the attack. 7 The situation is identical to and MySpace. Plaintiff is alleging that the website 8 did not warn, protect, or misrepresented the safety of its website. The problem is that’s 9 website published only dating profiles of other users. The only thing that could warn 10 about or misrepresent is the content on the users with third-party profiles. 11 Plaintiff argues that her claims for negligent misrepresentation and negligence (failure to 12 warn) are not directed at the publication of third-party profiles, but rather at’s failure to 13 implement basic safety measures to prevent criminals and other dangerous people from 14 communicating with users of that are genuinely attempting to start a relationship. 15 Plaintiff is basically asserting she never would have met or been attacked by Ridley had 16 warned her or did not negligently misrepresent a profile or the safety of its website. The court finds 17 that these claims are actually directed at’s publishing, editorial, and/or screening 18 functions–all of which are clearly entitled to immunity under the CDA. 19 Congress enacted the CDA for several policy reasons, including “to promote the continued 20 development of the Internet and other interactive computer services . . . .” 47 U.S.C. § 230(b)(1). To 21 ensure that website operators and other interactive computer services would not be crippled by 22 lawsuits arising out of third-party communications, the Act provides interactive computer services 23 with immunity. See MySpace, Inc., 474 F.Supp.2d at 847. This immunity is for causes of action that 24 would make service providers liable for information originating with a third-party user of the service. 25 See Zeran., 129 F.3d at 330. The court finds that plaintiff’s claims for negligent misrepresentation 26 27 28 James C. Mahan U.S. District Judge 4 These particular causes of action were amongst other causes of action the court found to be barred by the CDA. See, 502 F. Supp. 2d at 724. -9- 1 and negligence (failure to warn) actually seek to hold liable for information originating 2 with Ridley on the website. is immune pursuant to the CDA immunity. 3 ii. Negligent misrepresentation (claim one) 4 For the tort of negligent misrepresentation, Nevada has adopted the Restatement (Second) 5 of Torts definition. Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1387 (Nev. 1998) (citing Bill 6 Stremmel Motors, Inc. v. First Nat'l Bank of Nev., 575 P.2d 938, 940 (Nev. 1978)). Under this theory 7 of liability: 8 9 10 One who, in the course of his business, profession or employment, or in any other action in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. 11 Restatement (Second) of Torts § 552 (1977); see also Bill Stremmel Motors, Inc., 575 P.2d at 940. 12 Furthermore, any claim of “fraud or mistake” must be alleged “with particularity.” FED. R. 13 CIV. P. 9(b). A complaint alleging fraud or mistake must include allegations of the time, place, and 14 specific content of the alleged false representations and the identities of the parties involved. See 15 Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam). 16 Here, argues that plaintiff’s claim for negligent misrepresentation fails to satisfy 17 the heightened pleading standard under Rule 9(b). contends that plaintiff has not 18 identified a single “specific misstatement made by, let alone when, where, and how any 19 such misstatement was made.” (Doc. # 6, 13:2-4). Further, argues that this claim fails 20 because any alleged misstatement made to plaintiff was not made in connection with a business 21 transaction as plaintiff pleads that she joined “for the purpose[] of establishing a 22 relationship with another individual” and that she “wanted to experience the type of healthy and 23 loving relationship the website claimed to foster.” (Doc. # 1, ¶¶ 8, 10). characterizes this 24 as a “quintessentially personal purpose.” (Doc. # 6, 13:21). 25 Plaintiff responds that her allegations meet all the elements for negligent misrepresentation 26 and her claim is in connection with a business transaction because she paid membership fees. 27 28 James C. Mahan U.S. District Judge - 10 - 1 The court finds that plaintiff’s negligent misrepresentation claim was in the course of 2 business and was a business transaction. While asserts that plaintiff used’s 3 services for personal reasons, this characterization is inapposite here. To permit to avoid 4 a negligent misrepresentation claim because its services are necessarily personal in nature would be 5 to shroud in immunity from this claim based on the nature of services it sells. Surely, a 6 defendant cannot dodge this type of claim just because the business it is in has a “quintessentially 7 personal purpose.” 8 However, because this cause of action sounds in fraud, plaintiff’s allegations must meet Rule 9 9(b)’s standards. Plaintiff fails to do so here. Plaintiff has not pleaded with sufficient particularity 10 to put on adequate notice of what negligent misrepresentations were made. See Kearns 11 v. Ford Motor Co., 567 F.3d 1120, 1125 (9th Cir. 2009) (quoting In re Stac Elecs. Sec Litig., 89 F.3d 12 1399, 1405 (9th Cir. 1996)(citation omitted)). For this reason, plaintiff’s negligent misrepresentation 13 claim fails. 14 iii. No duty or breach any duty: negligence (claims three and four) 15 To establish a negligence claim, a plaintiff must satisfy four elements: (1) the existence of 16 a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages. Sanchez ex rel. Sanchez 17 v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009). Whether a duty of care exists is “a 18 question of law” for the court to decide. Id. In general, “no duty is owed to control the dangerous 19 conduct of another or to warn others of the dangerous conduct.” Id. (citation omitted). An exception 20 exists when (1) there is a special relationship between the parties; and (2) the harm created by the 21 defendant’s conduct is foreseeable. Id. at 1280-81. 22 a. No special relationship 23 Nevada law recognizes that there is a duty to aid others when there is a special relationship 24 between the parties, such as innkeeper-guest, teacher-student, or employer-employee. Lee v. GNLV 25 Corp., 22 P.3d 209, 212 (Nev. 2001). The existence of a special relationship is premised on the 26 notion that “the ability of one of the parties to provide for his own protection has been limited in 27 some way by his submission to the control of another.” Sparks v. Alpha Tau Omega Fraternity, Inc., 28 James C. Mahan U.S. District Judge - 11 - 1 255 P.3d 238, 245 (Nev. 2011) (citation omitted). Without this degree of control, no special 2 relationship exists. Id. 3 asserts that plaintiff has failed to state a claim for her negligence claims because 4 had no legal duty to prevent the brutal attack. Plaintiff responds that a special 5 relationship has arisen because she was a “paying subscriber” as alleged in the complaint. (See doc. 6 # 1, ¶ 32). However, merely being a “paying subscriber” is insufficient to establish a special 7 relationship. 8 Here, the brutal attack occurred offline several months after plaintiff and Ridley had ended 9 their dating relationship that began by communicating over the website. The court finds that 10 plaintiff’s factual allegations do not support her claim that a special relationship existed between 11 herself and Plaintiff cites no authority, and the court is aware of none, that supports her 12 position that Nevada courts would find a special relationship between a provider of online dating 13 services and subscribers. In fact, a district court has held that, under Texas law, a website operator’s 14 relationship with a paying website subscriber is not special, but instead an “ordinary commercial 15 contract relationship.” Robinson v., LLC, 3:10-CV-2651-L, 2012 WL 3263992, at *18 16 (N.D. Tex. Aug. 10, 2012) (citation omitted). Given Nevada’s case law on special relationships in 17 other contexts, the court finds this holding persuasive.5 18 Having found that a special relationship does not exist between plaintiff and, and 19 since both a special relationship and a foreseeability are necessary to establish a duty under these 20 circumstances, the court need not address whether the harm allegedly created by’s 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge 5 “Where the state’s highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it.” Giles v. Gen. Motors Acceptance Corp., 494 F.3d 865, 872 (9th Cir. 2007) (quotation omitted). “In answering that question, this court looks for ‘guidance’ to decisions by intermediate appellate courts of the state and by courts in other jurisdictions.” Id. (quotation omitted). - 12 - 1 conduct was foreseeable. See Sanchez, 221 P.3d at 1280-81.6 Thus, there being no duty to 2 plaintiff–her negligence claims are dismissed with prejudice.7 3 iv. Negligent infliction of emotional distress (claim five) 4 To establish a claim for either intentional or negligent infliction of emotional distress, “the 5 plaintiff needs to show that there was ‘extreme and outrageous conduct with either the intention of, 6 or reckless disregard for, causing emotional distress.’” State v. Eighth Judicial Dist. Court ex rel. 7 Cnty. of Clark, 152, 42 P.3d 233, 241 (Nev. 2002) (quoting Shoen v. Amerco, Inc., 747, 896 P.2d 8 469, 476 (Nev. 1995)). Extreme and outrageous conduct is that which is “outside all possible bounds 9 of decency” and is intolerable in civil life. Maduike v. Agency Rent–A–Car, 953 P.2d 24, 25 (Nev. 10 1998); see also Knight v. Climbing Magazine, 3:11-CV-0146-LRH-RAM, 2012 WL 6627821, at *3 11 (D. Nev. 2012). 12 argues that plaintiff has not met her burden in pleading this claim. Specifically, 13 takes issue with plaintiff’s failure to plead “extreme and outrageous conduct” on 14’s behalf. 15 Plaintiff responds that her allegations include deliberately misrepresenting “the 16 dangers associated with membership to the extreme detriment, and at times near death, of its 17 members.” (Doc. # 9, 16:7-8). Plaintiff further states that takes “no responsibility for its 18 members’ safety or well-being” and “puts profits before the safety of its members.” (Id. at 16:24- 19 17:1). 20 First, plaintiff’s statements contained in her response that are not alleged in her complaint 21 are not “relevant for Rule 12(b)(6) purposes.” Schneider v. California Dep't of Corr., 151 F.3d 1194, 22 1197 n.1 (9th Cir. 1998). Further, even if the court considers plaintiff’s statements in her response, 23 none of the conduct alleged rises to the level “extreme and outrageous conduct.” Plaintiff has not 24 25 26 27 28 James C. Mahan U.S. District Judge 6 Further, even if the court did address whether the harm created by the defendant’s conduct was foreseeable, the court finds that plaintiff has not alleged any facts that knew or should have known that Ridley was a potential danger to others. 7 Dismissal with prejudice of plaintiff’s negligence claims does not include her negligent misrepresentation claim or her negligent infliction of emotional distress claim. - 13 - 1 identified a particular representation misstating the dangers associated with membership; and even 2 if she did, failure to make a general disclosure that dating presents risk does not rise to the level of 3 conduct that is “outside all possible bounds of decency,” Maduike, 953 P.2d at 25. Therefore, this 4 claim is dismissed on the basis that plaintiff has failed to allege “extreme and outrageous conduct.” 5 6 7 III. Conclusion 8 Accordingly, 9 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant, 10 LLC’s motion to dismiss (doc. # 6) be, and the same hereby is, GRANTED. 11 IT IS FURTHER ORDERED THAT plaintiff’s claim for violation of deceptive trade 12 practices (claim two) is dismissed for failure to state a claim because plaintiff lacks standing to assert 13 this claim. This claim is dismissed with prejudice. 14 IT IS FURTHER ORDERED THAT plaintiff’s claim for negligence (failure to warn) (claim 15 three) is dismissed because is immune from such claims under the CDA and for failure 16 to state a claim because there is no special relationship between plaintiff and This claim 17 is dismissed with prejudice. 18 IT IS FURTHER ORDERED THAT plaintiff’s claim for negligence (claim four) is dismissed 19 because is immune from such claims under the CDA and because there is no special 20 relationship between plaintiff and This claim is dismissed with prejudice. 21 IT IS FURTHER ORDERED THAT plaintiff’s claim for negligent infliction of emotional 22 distress (claim five) is dismissed because is immune from such claims under the CDA 23 and because plaintiff has failed to allege “extreme and outrageous conduct” on defendant’s behalf. 24 This claim is dismissed with prejudice. 25 IT IS FURTHER ORDERED THAT plaintiff’s claim for negligent misrepresentation (claim 26 one) is dismissed because is immune from such claims under the CDA and plaintiff has 27 28 James C. Mahan U.S. District Judge - 14 - 1 not plead with sufficient particularity to satisfy the pleading requirements of Rule 9(b). This claim 2 is dismissed with prejudice. 3 May 29, 2013. DATED May 28, 2013. 4 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge - 15 -

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