M. L. v. Craigslist Inc.

M. L., Plaintiff, v. CRAIGSLIST INC, G6 HOSPITALITY LLC, WYNDHAM HOTELSAND RESORTS INC, 2005 INVESTORS LLC, Defendants.

CASE NO. C19-6153 BHS-TLF

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

September 11, 2020

ORDER ADOPTING REPORT AND RECOMMENDATION

This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Theresa L. Fricke, United States Magistrate Judge, Dkt. 62, Defendant craigslist, Inc.'s ("craigslist") objections, Dkt. 89, Defendant Wyndham Hotels & Resorts, Inc.'s ("Wyndham") objections, Dkt. 94, Defendant 2005 Investors LLC's objections,¹ Dkt. 95, and Plaintiff M.L.'s ("Plaintiff") objections to the R&R, Dkt. 96.

I. Factual and Procedural History

Plaintiff alleges that she is a victim of sex trafficking. Dkt. 1-2. She brings claims against craigslist and Wyndham alleging that the Defendants are liable because her traffickers advertised her on craigslist and because she was held at a hotel owned by Wyndham. Id.

Plaintiff alleges that, beginning when she was 12 years old, traffickers would use craigslist to post advertisements and photographs of Plaintiff to solicit commercial sex purchases. Id. ¶¶ 37-38. Plaintiff contends that her traffickers would create the advertisements in accordance with craigslist's Terms of Use and used the craigslist guidelines to create, develop, and format the advertisements. Id. ¶¶ 38-39. For example, Plaintiff alleges that craigslist had a policy to blur and crop images posted on its "erotic services" section of the website and that traffickers used this policy to obscure her age and identity. Id. ¶ 55. She also alleges that the traffickers would pay craigslist a fee to post the advertisements on the "erotic services" section of the website. Id. ¶ 40.

Plaintiff contends that traffickers and purchasers knew that craigslist allowed them to advertise and purchase sex trafficking victims. Id. ¶ 41. Plaintiff also alleges that craigslist facilitated and assisted anonymous communications between sex purchasers and traffickers. Id. ¶ 42. The complaint alleges that craigslist was aware that its website hosted, facilitated, and aided the trafficking of minors. Id. ¶ 44. Plaintiff further states that craigslist benefitted from her advertisements on its website because traffickers paid a fee to post the advertisement and the advertisements attracted large numbers of users to its website. Id. ¶¶ 45-47. In sum, Plaintiff alleges that there was a relationship betweencraigslist and her traffickers by which they contracted and conspired to advertise Plaintiff for commercial sex and evade law enforcement. Id. ¶¶ 69-71, 75.

In regard to Wyndham, Plaintiff alleges that Wyndham owns, operates, and controls the Howard Johnson Inn brand, including the property located at 1233 Central Avenue North, Kent, WA 98032. Id. ¶¶ 22, 116(b), 121. Plaintiff further alleges that Wyndham controls the training and policies for the Howard Johnson brand hotel in Kent, Washington. Id. ¶ 22(b). Plaintiff contends that Wyndham receives a percentage of the gross room revenue from the money generated by the Howard Johnson location in Kent. Id. ¶¶ 22(b)-(c). The complaint states that Wyndham knew that human trafficking was occurring at Howard Johnson Inn hotels but failed to take adequate steps to train staff to prevent and report trafficking. Id. ¶ 118.

Plaintiff alleges that traffickers transported her to the Howard Johnson Inn in Kent, which is owned by Wyndham, where she was assaulted, advertised, sold, and held against her will. Id. ¶ 121. She alleges that traffickers held her at the Kent Howard Johnson location for over one year from 2007 to 2008. Id. ¶ 149. Plaintiff also alleges that the traffickers would pay Wyndham to rent the rooms. Id. ¶ 152. The complaint states that purchasers would arrive at the Howard Johnson location and could be seen waiting in the parking lots, common areas, and hallways of the hotel. Id. ¶ 156-57. Plaintiff contends that Wyndham had actual and constructive knowledge that sex trafficking was occurring its properties, yet "allowed, authorized, permitted, induced, or encouraged the trafficking of individuals, including [Plaintiff]." Id. ¶ 121.

Craigslist removed this case from Pierce County Superior Court to the District Court on December 2, 2019. Dkt. 1. On February 3, 2020, craigslist filed a motion to dismiss. Dkt. 37. Wyndham filed its own motion to dismiss on February 3, 2020 as well. Dkt. 38. On March 10, 2020, Judge Fricke heard oral arguments on the motions to dismiss. Dkt. 55.

On April 17, 2020, Judge Fricke issued the R&R recommending that the Court deny Wyndham's motion to dismiss and grant in part and deny in part craigslist's motion to dismiss. Dkt. 62. On May 15, 2020, craigslist filed objections, Dkt. 89, Wyndham filed objections, Dkt. 94, Defendant 2005 Investors LLC filed objections, Dkt. 95, and Plaintiff filed objections, Dkt. 96. On June 12, 2020, Wyndham responded to Plaintiff's objections, Dkt. 121, as did craigslist, Dkt. 122. Plaintiff also responded to Wyndham's, Dkt. 123, and craigslist's objections, Dkt. 124, on June 12, 2020.

II. Discussion

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

A. Craigslist's Objections

1. 47 U.S.C. § 230

a. State Law Claims

Craigslist argues that all of Plaintiff's state law claims are barred by the Communications Decency Act ("CDA"), 47 U.S.C. § 230, and objects to the R&R'sconclusion that "craigslist 'materially contributed' to the illegality of the third-party advertisements trafficking Plaintiff." Dkt. 89 at 8. The CDA provides that "website operators are immune from liability for third-party information . . . unless the website operator 'is responsible, in whole or in part, for the creation or development of [the] information." Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1096 (9th Cir. 2019), cert. denied ___ S.Ct. ___, 2020 WL 2515458, 206 L. Ed. 2d 936 (2020) (quoting 47 U.S.C. §§ 230(c)(1) & (f)(3)).

The Ninth Circuit uses a three-prong test to determine CDA Section 230 immunity. Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009). Immunity from liability exists for (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat as a publisher or speaker (3) of information provided by another information content provider. Id. at 1100-01. When a plaintiff cannot allege enough facts to overcome Section 230 immunity, a plaintiff's claims should be dismissed. Dyroff, 934 F.3d at 1097. Plaintiff has alleged sufficient facts at this stage to overcome craigslist's claim of CDA immunity.

The CDA "immunizes providers of interactive computer services against liability from content created by third parties[.]" Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008). However, for content a website creates itself, or is "responsible, in whole or in part" for creating or developing, the website is not immune under the CDA. Id. The Ninth Circuit has made clear that the term "development" does not mean "augmenting the content generally." Id. at 1167-68; see also Dyroff, 937 F.3d at 1096. Rather, a website must materially contribute to thedevelopment of the third-party-content's alleged unlawfulness. Roommates.com, 521 F.3d at 1167-68. In Roommates.com, the Ninth Circuit offered examples as to what does and does not amount to "development" under the CDA:

If an individual uses an ordinary search engine to query for a "white roommate," the search engine has not contributed to any alleged unlawfulness in the individual's conduct; providing neutral tools to carry out what may be unlawful or illicit searches does not amount to "development" for purposes of the immunity exception. A dating website that requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines, retains its CDA immunity insofar as it does not contribute to any alleged illegality; this immunity is retained even if the website is sued for libel based on these characteristics because the website would not have contributed materially to any alleged defamation.

Id. at 1169.

Craigslist argues that the R&R improperly focused on whether it facilitated the traffickers' postings and "failed to adhere to the 'crucial distinction' between enabling third-party content[] and actions that actually 'make the displayed content illegal or actionable.'" Dkt. 89 at 12 (quoting Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269 n.4 (9th Cir. 2016)). Craigslist additionally calls out two cases against the website where a court addressed CDA material contribution arguments: Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), and Dart v. craigslist, Inc., 665 F. Supp. 2d 961 (N.D. Ill. 2009).

In Chicago Lawyers', the plaintiff brought suit on behalf of its members against craigslist for allegedly violating the Fair Housing Act's prohibition for ads that state a preference with respect to any of the protected classes. Chi. Lawyers', 519 F.3d at 668. The plaintiff alleged that the notices that advertised housing on craigslist werediscriminatory, and craigslist asserted CDA immunity. Id. at 668-69. The Seventh Circuit held that it was improper to treat craigslist as having contributed to the development of the allegedly discriminatory ads and found craigslist immune. Id. at 671-72. In Dart, the Sheriff of Cook County, Illinois sued craigslist for postings on the website's "erotic services" section, alleging that the postings constituted a public nuisance. Dart, 665 F. Supp. 2d at 961-63. Again, craigslist argued that it was immune from...