Douglas L. Kimzey, pro se, Plaintiff-Appellant/ Cross-Appellee,
Yelp! Inc., Defendant-Appellee/ Cross-Appellant.
Submitted September 2, 2016 [*] Seattle, Washington
from the United States District Court No. 2:13-cv-01734-RAJ
for the Western District of Washington Richard A. Jones,
District Judge, Presiding
Douglas L. Kimzey, Bellevue, Washington, pro se
Balasubramani, Focal PLLC, Seattle, Washington; Aaron Schur,
Yelp Inc., San Francisco, California; for
Before: Michael Daly Hawkins, M. Margaret McKeown, and Andre
M. Davis, [**] Circuit Judges.
panel affirmed the district court's Fed.R.Civ.P. 12(b)(6)
dismissal of Douglas Kimzey's action alleging that Yelp!
Inc. was liable for two negative business reviews posted on
230 of the Communications Decency Act "immunizes
providers of interactive computer services against liability
arising from content created by third parties." Kimzey
alleged that Yelp was responsible for creating and developing
content, and therefore did not enjoy immunity under the
Communications Decency Act which only grants immunity if the
computer service provider was also not an "information
panel held that Yelp fell under the Communications Decency
Act's grant of immunity, and rejected Kimzey's claims
to the contrary. The panel held that there were no facts
plausibly suggesting that Yelp fabricated content under a
third party's identity. The panel also rejected
Kimzey's theory that Yelp transformed a third party
review into its own "advertisement" or
"promotion." The panel concluded that the
proliferation and dissemination of content did not equal
creation or development of content.
McKEOWN, Circuit Judge.
230 of the Communications Decency Act ("CDA")
"immunizes providers of interactive computer services
against liability arising from content created by third
parties." Fair Hous. Council of San Fernando Valley
v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir.
2008) (en banc) (footnote omitted) (citing 47 U.S.C. §
230(c)). This case pushes the envelope of creative pleading
in an effort to work around § 230.
complaint centers on two negative business reviews posted on
Yelp's website about Douglas Kimzey's locksmith
business. Instead of asserting that Yelp was liable in its
well-known capacity as the passive host of a forum for user
reviews-a claim without any hope under our precedents, such
as Roommates.Com-Kimzey cryptically alleged that
Yelp in effect created and developed content. Kimzey claims
that Yelp is responsible for causing a review from another
site to appear on its page, providing a star-rating function
that transforms user reviews into Yelp's own content, and
"caus[ing] [the statements] to appear" as a
promotion on Google's search engine. This phrasing seeks
to take advantage of the fact that the CDA's "grant
of immunity applies only if the interactive computer service
provider is not also an 'information content provider,
' which is defined as someone who is 'responsible, in
whole or in part, for the creation or development of' the
offending content." Id. at 1162 (quoting 47
U.S.C. § 230(f)(3)); see also FTC v. Accusearch
Inc., 570 F.3d 1187, 1195 (10th Cir. 2009) ("The
prototypical service qualifying for [CDA] immunity is an
online messaging board (or bulletin board) on which Internet
subscribers post comments and respond to comments posted by
apparently hoped to plead around the CDA to advance the same
basic argument that the statute plainly bars: that Yelp
published user-generated speech that was harmful to Kimzey.
See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1105 (9th
Cir. 2009) (holding that Yahoo! was immune from liability for
negligently declining to remove indecent third-party
content). We decline to open the door to such artful skirting
of the CDA's safe harbor provision. This case is in some
sense a simple matter of a complaint that failed to allege
facts sufficient to state a claim that is plausible on its
face. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). But it is also more consequential than that, given
congressional recognition that the Internet serves as a
"forum for a true diversity of . . . myriad avenues for
intellectual activity" and "ha[s] flourished . . .
with a minimum of government ...