Doe v. Myspace, Inc.

629 F.Supp.2d 663

Jane DOE IX, Individually and as Next Friend of Julie Doe IX, a Minor, Plaintiffs, v. MYSPACE, INC., Defendant.

Case No. 4:08-CV-140.

United States District Court, E.D. Texas, Sherman Division.

May 22, 2009.

Jason Aron Itkin, Kurt B. Arnold, Micajah Daniel Boatright, Arnold & Itkin, LLP, Houston, TX, Thomas S. Leatherbury, Vinson & Elkins, Dallas, TX, for Plaintiffs.

Thomas S. Leatherbury, Vinson & Elkins, Dallas, TX, Christopher Vasil Popov, Vinson & Elkins, Austin, TX, for Defendant.

ORDER GRANTING DEFENDANT MYSPACE, INC.'S MOTION TO DISMISS

RICHARD A. SCHELL, District Judge.

The following are pending before the court:

1. Defendant MySpace, Inc.'s motion to dismiss (docket entry # 17);

2. Plaintiffs' response to Defendant MySpace, Inc.'s motion to dismiss (docket entry # 19); and

3. Defendant MySpace, Inc.'s reply in support of motion to dismiss (docket entry # 20).

Having considered the Defendant's motion and the responsive briefing thereto, the court finds that the motion should be granted.

The Plaintiff herein, individually and as next friend of her then 15-year-old daughter, brought a state court action against the Defendant for negligence, gross negligence and strict product liability for failing to implement reasonable safety measures to protect minors. In her complaint, the Plaintiff alleges that her daughter "was lured from her home and sexually assaulted by a sexual predator, who communicated with her and ultimately orchestrated his sexual assault of her through the MySpace.com website." PL. SECOND AMD. PETITION, p. 2, ¶ 8. The Defendant subsequently removed the Plaintiff's lawsuit to this court. In response to the Plaintiff's allegations, the Defendant moved to dismiss the Plaintiff's claims, asserting that the Plaintiff's claims are barred by the Communications Decency Act, 47 U.S.C. § 230 ("CDA").

47 U.S.C. § 230(c)(1) states as follows:

No provider or user of an interactive computer service¹ shall be treated as the publisher or speaker of any information provided by another information content provider.²

In response in opposition to the Defendant's assertion of immunity under the CDA, the Plaintiff argues (1) that the Defendant is liable and not entitled to CDA immunity because it refused to employ reasonable safety measures on its website, and (2) that the Defendant acted as an information content provider by creating and developing information that led to the injuries alleged.

The Plaintiff's first argument is foreclosed by Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 600, 172 L.Ed.2d 456 (2008). In Doe, the Fifth Circuit held as follows:

Their claims are barred by the CDA, notwithstanding their assertion that they only seek to hold MySpace liable for its failure to implement measures that would have prevented Julie Doe from communicating with Solis. Their allegations are merely another way of claiming that MySpace was liable for publishing the communications and they speak to MySpace's role as a publisher of online third-party-generated content.

Id. at 420.

However, the Fifth Circuit in Doe did not address the Plaintiff's second argument to wit: that the CDA should not apply to the Defendant because it was partially responsible for creating information exchanged between Julie Doe and the sexual predator. Id. at 422. In response to the Defendant's motion to dismiss, the Plaintiff argues that the Defendant acted as an information content provider; therefore, the Defendant is not entitled to CDA immunity.

The Plaintiff argues that once a MySpace user creates a profile by entering a name, email address, gender, country and date of birth, the website automatically displays the user's zodiac sign. The user is then prompted, but not required, to enter additional information about "Interests & Personality," "Name," "Basic Info," "Background and Lifestyle," "Schools," "Companies," "Networking," and "Song & Video on Profile." Users are prompted to additional links as well.

A user's profile also contains links to the "Browse" and "Search" functions which allow the user to view and locate other profiles according to certain criteria. Additionally, users may also contact other users via email and messaging programs built into MySpace.

Based on these facts, and relying solely on Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir.2008), the Plaintiff...