Ynfante v. Google LLC

Filing 28

MEMORANDUM OPINION AND ORDER re: 20 MOTION to Dismiss . filed by Google LLC. The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without meri t. For the foregoing reasons, the motion to dismiss is granted without prejudice.Within 30 days of the date of this decision, the plaintiff may file a motion to file an amended complaint. If the plaintiff fails to file such a motion by that date, thi s action will be dismissed with prejudice. No pre-motion conference is necessary.The Clerk is direct to close Docket No. 20. The Clerk is directed to mail a copy of this Memorandum Opinion and Order to the pro se plaintiff and note such mailing on the docket. SO ORDERED. (Signed by Judge John G. Koeltl on 6/1/23) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
ROBYN A. YNFANTE,
Plaintiff,

22-cv-6831 (JGK)

- against -

MEMORANDUM OPINION AND
ORDER

GOOGLE LLC,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The plaintiff, Robyn A. Ynfante, brought this action
against the defendant, Google LLC (“Google”), in the Supreme
Court of the State of New York, New York County, alleging false
advertising under N.Y. Gen. Bus. Law § 350 and negligence in
connection with a scam advertisement posted on Google’s online
platform. Google removed the action to this Court, invoking
diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441, and
1446. Google now moves to dismiss the complaint for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). For the reasons explained below, the motion is
granted.
I.
The following facts are drawn from the plaintiff’s Amended
Complaint, ECF No. 19 (“Compl.”), and are accepted as true for
the purposes of this motion.

Mr. Ynfante is domiciled in New York State. Compl. ¶ 4.
Google is a multinational technology company that provides a
search engine known as Google Search, as well as an online
advertising service known as Google Ads, “where advertisers can
bid to display brief advertisements, including by placing [such]
advertisements at the top of Google Search results.” Id. ¶¶ 710. In October 2021, Mr. Ynfante was the victim of a “phishing”
scam, into which he was lured by a supposed eBay customer
service advertisement placed on a Google search page via the
Google Ads service. Id. ¶¶ 37-44. Third-party advertisements
placed via Google Ads go through a review process, wherein
Google assesses whether the advertisements violate any of its
policies, including those against dishonest behavior and
scamming. Id. ¶¶ 13-14, 20. Mr. Ynfante alleges that Google
approved the advertisement in question without “properly
vet[ting] and verify[ing] [its] authenticity and legitimacy,”
despite Google’s assurance in its advertising policies that
users “should feel confident that ads are not fraudulent or
misleading.” Id. ¶¶ 22, 29. As a result, the scam advertisement
appeared on the top of Google’s search results for “ebay
customer service number,” leading Mr. Ynfante to believe he
would be calling the official eBay customer service helpline.
Id. ¶¶ 37-41. After Mr. Ynfante divulged his account information
to the scam helpline, the scammers made purchases on behalf of
2

Mr. Ynfante and gained access to sensitive personal information
such as his home address and Social Security number. Id. ¶¶ 4245, 61. Mr. Ynfante is seeking damages of $8,000,000 and
injunctive relief.
II.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
the allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff’s favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.
2007). 1 The Court's function on a motion to dismiss is “not to
weigh the evidence that might be presented at a trial but merely
to determine whether the complaint itself is legally
sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.
1985). The Court should not dismiss the complaint if the
plaintiff has stated “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).

1

Unless otherwise noted, this Memorandum Opinion and Order omits all
alterations, citations, footnotes, and internal quotation marks in quoted
text.

3

While the Court should construe the factual allegations in
the light most favorable to the plaintiff, “the tenet that a
court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions.” Id. When
presented with a motion to dismiss pursuant to Rule 12(b)(6),
the Court may consider documents that are referenced in the
complaint, documents that the plaintiff relied on in bringing
suit and that are either in the plaintiff's possession or that
the plaintiff knew of when bringing suit, or matters of which
judicial notice may be taken. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 153 (2d Cir. 2002).
When faced with a pro se complaint, the Court must
“construe [the] complaint liberally and interpret it to raise
the strongest arguments that it suggests.” Chavis v. Chappius,
618 F.3d 162, 170 (2d Cir. 2010). “Even in a pro se case,
however, . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. Thus, although the Court is “obligated to draw the
most favorable inferences” that the complaint supports, it
“cannot invent factual allegations that [the plaintiff] has not
pled.” Id.; see also Yajaira Bezares C. v. Donna Karan Co. Store
LLC, No. 13-cv-8560, 2014 WL 2134600, at *1 (S.D.N.Y. May 22,
2014).

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III.
The defendant Google moves to dismiss the complaint on two
grounds. First, Google argues that the claims are barred by
Section 230 of the Communications Decency Act (the “CDA”), 47
U.S.C. § 230. Second, Google argues that the complaint fails to
state a claim for both false advertising and negligence.
A.
The defendant argues that Mr. Ynfante’s claim is barred by
Section 230 of the CDA.
Section 230 of the CDA provides that “[n]o provider . . .
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). Subject to
certain delineated exceptions, see id. § 230(e), Section 230
thus shields a defendant from civil liability when: (1) it is a
“provider or user of an interactive computer service,” as
defined by § 230(f)(2); (2) the plaintiff's claims treat the
defendant as the publisher or speaker of information, id.
§ 230(c)(1); and (3) that information is “provided by” an
“information content provider,” id. § 230(f)(3), other than the
defendant interactive computer service. Force v. Facebook, Inc.,
934 F.3d 53, 64 (2d Cir. 2019). Congress enacted Section 230 to
“preserve the vibrant and competitive free market that presently
exists for the Internet and other interactive computer services,
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unfettered by Federal or State regulation.” FTC v. LeadClick
Media, LLC, 838 F.3d 158, 173 (2d Cir. 2016) (citing 47 U.S.C.
§ 230(b)(2)). “In light of Congress's objectives, the Circuits
are in general agreement that the text of Section 230(c)(1)
should be construed broadly in favor of immunity.” Force, 934
F.3d at 64.
In this case, it is plain that Section 230 protects Google
from liability in the negligence and false advertising action
brought by Mr. Ynfante. First, Google is the provider of an
interactive computer service. The Court of Appeals for the
Second Circuit has explained that “search engines fall within
this definition,” LeadClick Media, 838 F.3d at 174, and Google
is one such search engine. See, e.g., Marshall's Locksmith Serv.
Inc. v. Google, LLC, 925 F.3d 1263, 1268 (D.C. Cir. 2019) (holding
that the definition of “interactive computer service” applies to
Google specifically).
Second, there is no doubt that the complaint treats Google
as the publisher or speaker of information. See, e.g., Compl.
¶¶ 27, 34. Section 230 “specifically proscribes liability” for
“decisions relating to the monitoring, screening, and deletion
of content from [a platform] -- actions quintessentially related
to a publisher’s role.” Green v. Am. Online (AOL), 318 F.3d 465,
471 (3d Cir. 2003). In other words, Section 230 bars any claim
that “can be boiled down to the failure of an interactive
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computer service to edit or block user-generated content that it
believes was tendered for posting online, as that is the very
activity Congress sought to immunize by passing the section.”
Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC,
521 F.3d 1157, 1172 n.32 (9th Cir. 2008). In this case, the
plaintiff’s causes of action against Google rest solely on the
theory that Google did not block a third-party advertisement for
publication on its search pages. But for Google’s publication of
the advertisement, the plaintiff would not have been harmed.
See, e.g., Compl. ¶¶ 38-39, 61. The plaintiff therefore seeks to
hold Google liable for its actions related to the screening,
monitoring, and posting of content, which fall squarely within
the exercise of a publisher’s role and are therefore subject to
Section 230’s broad immunity.
Third, the scam advertisement came from an information
content provider distinct from the defendant. As the complaint
acknowledges, the advertisement was produced by a third party
who then submitted the advertisement to Google for publication.
See id. ¶ 26. It is therefore plain that the complaint is
seeking to hold the defendant liable for information provided by
a party other than the defendant and published on Google’s
platform, which Section 230 forecloses.
The plaintiff attempts to escape Section 230’s broad scope
by arguing that the claims are based on Google’s own conduct
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rather than that of the scammer. Specifically, the plaintiff
focuses on Google’s statement that users “should feel confident
that ads are not fraudulent or misleading.” Id. ¶ 53. However,
the plaintiff’s claims are fundamentally premised on Google’s
actions related to publishing the scam advertisement. In
attempting to hold Google liable for negligence, the plaintiff
asserts that Google had a duty to “vet and verify the
authenticity and legitimacy of potentially fraudulent
advertisements.” Id. ¶ 57. Vetting and verifying are analogous
to the “quintessential[]” duties of a publisher to “screen[]”
and “monitor[]” content. See Green, 318 F.3d at 470-71
(“[H]olding AOL liable for its alleged negligent failure to
properly police its network for content transmitted by its users
. . . would treat AOL as the publisher or speaker of that
content.”). Likewise, the only alleged harm at the center of the
plaintiff’s false advertising claim stems from the plaintiff’s
interaction with the scam advertisement published on Google’s
platform. See Compl. ¶ 53. Indeed, courts have recognized claims
similar to the plaintiff’s as unsuccessful attempts to avoid
Section 230 protections through artful pleading. See, e.g.,
Kimzey v. Yelp! Inc., 836 F.3d 1263, 1266 (9th Cir. 2016)
(rejecting the plaintiff’s attempt to hold Yelp liable for
“causing a [negative] review from another site to appear on its
page” and for “causing the statements to appear as a promotion
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on [a] search engine” as “creative pleading” designed to
circumvent Section 230); Goddard v. Google, Inc., No. 08-cv2738, 2008 WL 5245490, at *4 (N.D. Cal. Dec. 17, 2008) (finding
that the plaintiff’s attempt to hold Google liable for its
“acceptance of tainted funds from fraudulent mobile content
providers” was an “impermissible recharacterization” of a claim
fundamentally based on Google’s publishing of third-party
content).
Mr. Ynfante also attempts to plead around Section 230 by
alleging that Google helped to develop the scam advertisement by
taking such actions as placing it at the top of the search page,
distinguishing it from other search results, and adding an
official “Ad” label in the top left corner of the advertisement.
Pl.’s Opp’n, ECF No. 24, at 9-10. These allegations seek to take
advantage of the fact that Section 230 protection does not apply
if the website operator goes beyond merely publishing the
content and is instead “responsible, in whole or in part, for
creating or developing” it. Roommates.com, 521 F.3d at 1162; see
47 U.S.C. § 230(f)(3).
However, this attempt fails. Under the “material
contribution test” adopted by the Court of Appeals for the
Second Circuit, “a defendant will not be considered to have
developed third-party content unless the defendant directly and
materially contributed to what made the content itself
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unlawful.” Force, 934 F.3d at 68 (emphasis added). This test
“draws the line at the crucial distinction between, on the one
hand, taking actions to display actionable content and, on the
other hand, responsibility for what makes the displayed content
itself illegal or actionable.” Id. Google’s alleged actions did
not directly and materially contribute to the content of the
scam advertisement nor to its unlawfulness. Features such as the
official “Ad” label are instead “neutral tools for navigating
websites” that “merely provide a framework that could be utilized
[by others] for proper or improper purposes.” See Roommates.com,
521 F.3d at 1172, 1174 n.37. In other words, Google did nothing
to make the content of the advertisement itself more unlawful.
Rather, the defendant’s alleged actions merely served to
distinguish the advertisement as an advertisement.
Accordingly, the plaintiff’s claims are barred by Section
230 of the CDA. Because this Court has determined that the
plaintiff’s claims are barred by Section 230 of the CDA, it need
not address the merits of the defendant’s arguments that the
plaintiff’s complaint fails to state a claim for false
advertising and negligence.
B.
Google argues that this case should be dismissed with
prejudice. However, because this is the first dismissal, and
particularly because the plaintiff is proceeding pro se and has
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requested an opportunity to amend, within 30 days of the date of
this decision the plaintiff may file a motion to file an amended
complaint. See Fed. R. Civ. P. 15(a)(2); Nielsen v. Rabin, 746
F.3d 58, 62 (2d Cir. 2014). In support of that motion, the
plaintiff should attach a copy of the proposed amended complaint
and explain how the amended complaint is consistent with Section
230. To overcome Section 230, any such amended complaint would
need to contain specific, concrete, plausible allegations,
beyond what has already been alleged, permitting an inference
that Google directly and materially contributed to the creation
or development of the scam advertisement. See, e.g.,
Roommates.com, 521 F.3d at 1174 (explaining that it must be
“very clear that the website directly participate[d] in
developing the alleged illegality” for Section 230 not to
apply).
CONCLUSION
The Court has considered all of the arguments raised by the
parties. To the extent not specifically addressed, the arguments
are either moot or without merit. For the foregoing reasons, the
motion to dismiss is granted without prejudice.
Within 30 days of the date of this decision, the plaintiff
may file a motion to file an amended complaint. If the plaintiff
fails to file such a motion by that date, this action will be
dismissed with prejudice. No pre-motion conference is necessary.
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