Tamara Fields, on behalf of herself, as a representative of the Estate of Lloyd Fields, Jr.; Heather Creach, on behalf of herself and as a representative of the Estate of James Damon Creach; J.C. (1), a minor; J.C. (2), a minor, Plaintiffs-Appellants,
Twitter, Inc., Defendant-Appellee.
and Submitted December 6, 2017 San Francisco, California
from the United States District Court for the Northern
District of California William Horsley Orrick, District
Judge, Presiding D.C. No. 3:16-cv-00213-WHO
D. Arisohn (argued), L. Timothy Fisher, and Scott A. Bursor,
Bursor & Fisher P.A., Walnut Creek, California, New York,
New York, for Plaintiffs-Appellants.
P. Waxman (argued), Patrick J. Carome, and Ari Holtzblatt,
Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.;
Mark D. Flanagan, Wilmer Cutler Pickering Hale and Dorr LLP,
Palo Alto, California; for Defendant-Appellee.
Mackey, Jamie Williams, and Sophia Cope, Electronic Frontier
Foundation, San Francisco, California, for Amici Curiae
Electronic Frontier Foundation and Center for Democracy &
D. Maitra, Durie Tangri LLP, San Francisco, California, for
Amicus Curiae Internet Association. Catherine R. Gellis,
Sausalito, California, for Amicus Curiae Floor 64 Inc. DBA
The Copia Institute.
Before: MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit
Judges, and STEVEN J. MCAULIFFE, [*] District Judge.
panel affirmed the district court's dismissal of an
action seeking civil remedies under the Anti-Terrorism Act
against Twitter, Inc.
whose family members were killed while working as government
contractors in Jordan in an attack for which ISIS claimed
credit, alleged injury "by reason of" Twitter's
knowing provision of material support to ISIS.
panel affirmed the district court's holding that
plaintiffs failed to adequately plead proximate causation
because, to satisfy the ATA's "by reason of"
requirement, a plaintiff must show at least some direct
relationship between the injuries that he or she suffered and
the defendant's acts.
panel declined to reach the district court's additional
holding that Twitter's liability was precluded by §
230 of the Communications Decency Act because plaintiffs'
claims sought to treat Twitter as the publisher of ISIS's
SMITH, CIRCUIT JUDGE
Lloyd "Carl" Fields, Jr., and James Damon Creach
were killed while working as government contractors in Jordan
in an attack for which ISIS claimed credit,
Plaintiffs-Appellants sued Defendant-Appellee Twitter, Inc.
(Twitter) pursuant to 18 U.S.C. § 2333(a), the civil
remedies provision of the Anti-Terrorism Act (ATA), alleging
that they were injured "by reason of" Twitter's
knowing provision of material support to ISIS. Twitter moved
to dismiss the case, and its motion was granted. The district
court held that Plaintiffs-Appellants had failed to plead
that they were injured "by reason of" Twitter's
conduct. The district court also ruled that Twitter's
liability was precluded by § 230 of the Communications
Decency Act (CDA), 47 U.S.C. § 230(b), because
Plaintiffs-Appellants' claims sought to treat Twitter as
the publisher of ISIS's content. Plaintiffs-Appellants
have appealed both holdings. We affirm on the ground that
Plaintiffs-Appellants have failed to adequately plead
AND PROCEDURAL BACKGROUND
The Deaths of Lloyd "Carl" Fields, Jr., and James
Tamara Fields and Heather Creach brought this lawsuit on
behalf of themselves and as representatives of the estates of
their husbands, Lloyd "Carl" Fields, Jr. (Fields),
and James Damon Creach (Creach), respectively. They are
joined as Plaintiffs-Appellants by J.C. (1) and J.C. (2),
Creach's two minor sons, who are represented by their
common legal guardian, Heather Creach. All
Plaintiffs-Appellants are American nationals.
case arises from the tragic deaths of Fields and Creach in
Jordan, on November 9, 2015. Fields had "travelled to
Jordan on June 12, 2015 as a government contractor through
DynCorp International." "Creach [had] arrived in
Jordan on October 15, 2015[, ] where he was working through
the government contractor DECO, Inc." While in Jordan,
both men were assigned to work at the International Police
Training Center (the IPTC) in southeast Amman, where they
"both used their years of experience as police officers
to train law enforcement personnel from Jordan, Iraq and the
Palestinian Territories in basic police and security
skills." Fields "had previously served as a Deputy
Sheriff in Calcasieu Parish, Louisiana, and as a police
advisor in both Iraq and Afghanistan." Creach "was
a graduate of the Virginia Beach Polic[e] Academy, a former
police officer in the Virginia Police Department and had
trained police officers in Afghanistan, Kenya and other
the students at the IPTC was Anwar Abu Zaid (Abu Zaid), a
"28-year old Jordanian police captain." "On
November 9, 2015, Abu Zaid arrived at [the] IPTC[, ]
smuggling [in] a Kalashnikov assault rifle with 120 bullets
and two handguns in his car." Because he was an officer,
he was not searched upon entry. "After the noontime
prayer, Abu Zaid shot a truck that was moving through the
facility, killing [Creach]. Abu Zaid then entered the
facility's cafeteria where he killed an additional four
people eating lunch, including [Fields]." Israeli
military intelligence ultimately determined that "Abu
Zaid was a graduate of al-Mutah University in al-Karak,
Jordan where he was part of a clandestine . . . terror
cell" associated with the Islamic State of Iraq and
Syria (al-Sham) (ISIS).
claimed responsibility for the attack in a statement issued
through [its] al-Battar Media Foundation: 'Yes . . . we
kill the Americans in Amman, ' the terror group
said." ISIS reiterated the claim in its Dabiq Magazine,
"And on 9 November 2015, Anwar Abu Zeid -after repenting
from his former occupation -attacked the American crusaders
and their apostate allies, killing two American crusaders,
two Jordanian apostates, and one South African crusader.
These are the deeds of those upon the methodology of the
revived Khilāfah. They will not let its enemies enjoy