M.L. v. Craigslist Inc.

M.L., Plaintiff, v. Craigslist Inc. et al., Defendants.

No. 3:19-cv-06153-BHS-TLF

United States District Court, W.D. Washington, Tacoma

September 16, 2021

REPORT AND RECOMMENDATION

Theresa L. Fricke, United States Magistrate Judge.

This matter comes before the Court on defendant craigslist Inc.'s (“craigslist”) motion to dismiss. Dkt 200. The parties have briefed the issues before the Court and the Court has heard oral argument from the parties. Dkt. 205 (Plaintiff's Response), Dkt. 206 (craigslist's Reply), Dkt. 207 (Notice of Hearing), Dkt. 210 (Minute Order for Hearing).

Craigslist's motion argues that the Court should dismiss plaintiff's negligence claim, strict liability claim, Criminal Profiteering Act claims and Sexual Exploitation of Children Act claims.

For the reasons set forth below, the Court should GRANT IN PART and DENY IN PART craigslist's motion and should:

• Dismiss plaintiff's negligence claim (Count One) with prejudice as barred by the Communications Decency Act (47 U.S.C. § 230) • Dismiss plaintiff's strict liability claim (Count Two) with prejudice as barred by the Communications Decency Act (47 U.S.C. § 230)

• Dismiss plaintiff's Criminal Profiteering Act claim (Count Four) to the extent the claim relies on the following predicate offenses:

o Trafficking (RCW 9A.40.100) for failure to state a claim;

o Promoting Commercial Sexual Abuse of a Minor (RCW 9.68A.101) as barred by the Communications Decency Act (47 U.S.C. § 230);

o Leading Organized Crime (RCW 9A.82.060) (Count Four and Count Five) as barred by the Communications Decency Act (47 U.S.C. § 230);

o Use of Proceeds of Criminal Profiteering (RCW 9A.82.080) for failure to state a claim;

o Sexual Exploitation of a Minor (RCW 9.68A.040) for failure to state a claim;

o Dealing in Depictions of Minors Engaged in Sexually Explicit Conduct (RCW 9.68A.050) as barred by the Communications Decency Act (47 U.S.C. § 230); and

o Sending, Bringing into State Depictions of Minor Engaged in Sexually Explicit Conduct (RCW 9.68A.060) as barred by the Communications Decency Act (47 U.S.C. § 230).

• Not Dismiss plaintiff's Criminal Profiteering Act claim (Count Four) to the extent the claim relies on the following predicate offenses:

o Promoting Prostitution in the First Degree (RCW 9A.88.070), limited to conduct occurring before May 8, 2007; and

o Promoting Prostitution in the Second Degree (RCW 9A.88.080).

FACTUAL BACKGROUND

Plaintiff alleges that over a period of 15 years, commencing when plaintiff was 12 years old, plaintiff was trafficked and subjected to abuse, rape, abductions and assaults. Dkt. 187 ¶ 5. Plaintiff alleges that during this period, adult traffickers used the craigslist website to advertise plaintiff at different locations. Id. at ¶ 6.

craigslist previously filed a motion to dismiss plaintiff's first amended complaint. Dkt. 37. The motion argued that plaintiff's complaint should be dismissed because (1) plaintiff's state law claims are barred by the statute of limitations, (2) plaintiff's state law claims are barred by 47 U.S.C. § 230, the Communications Decency Act, and (3) the amended complaint fails to sufficiently plead facts to state the claims alleged against craigslist. Dkt. 37. Plaintiff filed a response opposing the motion (Dkt. 48) and craigslist filed a reply in support of their motion (Dkt. 54).

The undersigned issued a Report and Recommendation recommending that the Court GRANT IN PART and DENY IN PART craigslist's motion to dismiss. Dkt. 62. The Court recommended the Court deny craigslist's motion on statute of limitations grounds. Dkt. 62 at 17-19. The Court also recommended that the Court find that the CDA barred some but not all of plaintiff's state law claims. Id. at 19-27. Specifically, the Report and Recommendation recommended the Court not dismiss plaintiff's outrage claim (count 2), criminal profiteering claims (counts 3, 8), civil conspiracy claim (count 7) and 18 U.S.C. § 1595 claims (count 9). Dkt. 62 at 27-39. Next, the Court recommended the Court dismiss plaintiff's negligence claim (count 1) and unjust enrichment claim (count 6) without prejudice. Id. Finally, the Court recommended the Court dismiss plaintiff's Sexual Exploitation of Children Act claim with prejudice as an independent tort claim (count 4) and plaintiff's ratification/vicarious liability claim (count 5) with prejudice. Id. After considering the party's objections, the Court adopted the Report and Recommendation. Dkt. 153.

Plaintiff subsequently filed a second amended complaint alleging the following claims: 1) Negligence, 2) Strict Liability, 3) Outrage, 4) Criminal Profiteering Act, 5) Leading Organized Crime (RCW 9A.82.060), 6) Sexual Exploitation of Children, 7) Civil Conspiracy, and 8) Trafficking Victims Protection Reauthorization Act (“TVPRA”) (18 U.S.C. § 1595). Dkt. 187.

DISCUSSION

A. Motion to Dismiss Standard

When reviewing a motion under Rule 12(b)(6), the Court must accept as true “all well-pleaded allegations of fact in the complaint and construe them in the light most favorable to the non-moving party.” Cedar Point Nursery v. Shiroma, 923 F.3d 524, 530 (9th Cir. 2019) (internal quotations omitted). The court is not required to accept legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

To survive a 12(b)(6) motion, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). A claim is plausible on its face if the pleaded facts allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft, 556 U.S. at 678. When evaluating an Fed. R. Civ. P. 12(b)(6) motion, the court may only consider the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice. Cedar Point Nursery, 923 F.3d at 530; Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998-99, 1002-03 (9th Cir. 2018). The Court does not resolve factual disputes at the pleading stage. Khoja, at 1003.

B. Consumer Decency Act Standard

47 U.S.C. § 230, the Communications Decency Act (“CDA”), provides website operators certain immunities “‘in order to promote the continued development of the Internet and other interactive computer services.'” Lemmon v. Snap, Inc., 995 F.3d 1085, 1090 (9th Cir. 2021) (quoting HomeAway.com, Inc., v. City of Santa Monica, 918 F.3d 676, 681 (9th Cir. 2019)). 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) (petition for certiorari denied 140 S.Ct. 2761). To empower computer service providers to self-regulate content without chilling speech, Congress decided not to impose tort liability on companies that serve as intermediaries for another party's potentially injurious message. Gonzalez v. Google LLC, 2 F.4th 871, 886 (9th Cir. 2021).

Under the CDA, computer service providers are immune from state law claims seeking to hold the computer service provider liable for publishing third party content. Dyroff, 934 F.3d at 1097 (citing Doe v. Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016)), see also, Backpages.com, LLC v. McKenna, 881 F.Supp.2d 1262, 1272-73 (W.D. Wash. 2012). A computer service provider enjoys CDA immunity only if the provider is “(1) a provider or user of an interactive computer service (2) whom plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” Lemmon, 995 F.3d at 1091 (quoting Dyroff, 934 F.3d at 1097).

1. Provider or Use of Interactive Computer Services

The term provider of “interactive computer services” must be interpreted expansively under the CDA. Kimzey v. Yelp! Inc., 836 F.3d 1263, 1268 (9th Cir. 2016). It is undisputed in this action that craigslist is a provider of interactive computer services. Dkt. 200 at 12; Dkt. 205 at 10-11; see, Fair Hous. Council v. Roomates.com, LLC, 521 F.3d 1157, 1162 n.6 (9th Cir. 2008) (“Today, the most common interactive computer services are websites.”).

2. Publisher or Speaker

For purposes of CDA immunity, the term “publication” generally “involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content.” Lemmon, 995 F.3d at 1091 (citations omitted). Regardless of the type of claim a plaintiff brings, the relevant inquiry is whether the alleged duty or liability stems from defendant's role or conduct as a publisher or speaker. Id.

Actions based on the defendant's hosting of third-party content are “a clear illustration of a cause of action that treats a website proprietor as a publisher.” Internet Brands, 824 F.3d at 851. CDA immunity applies to claims based on a website hosting illegal content created entirely by a third party, even if the website does not act to remove the offending content, because removing content is the function of a publisher. Id. (“to permit liability for such conduct necessarily involves treating the liable party as a publisher of the content it failed to remove.”) (internal quotations omitted).

Making decisions about whether to exclude third party created content is conduct for which a defendant would be immune under Section 230. Roomates.com, 521 F.3d at 1170-71 (citing Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003)) (“The claim against the website [in Carafano] was, in effect, that it failed to review each user-created...