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Tamara Fields v. Twitter, Inc.

United States Court of Appeals, Ninth Circuit

January 31, 2018

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,
v.
Twitter, Inc., Defendant-Appellee.

          Argued and Submitted December 6, 2017 San Francisco, California

         Appeal 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

          Joshua D. Arisohn (argued), L. Timothy Fisher, and Scott A. Bursor, Bursor & Fisher P.A., Walnut Creek, California, New York, New York, for Plaintiffs-Appellants.

          Seth 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.

          Aaron Mackey, Jamie Williams, and Sophia Cope, Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electronic Frontier Foundation and Center for Democracy & Technology.

          Sonali 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.

         SUMMARY [**]

         Anti-Terrorism Act

         The panel affirmed the district court's dismissal of an action seeking civil remedies under the Anti-Terrorism Act against Twitter, Inc.

         Plaintiffs, 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.

         The 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.

         The 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 content.

          OPINION

          M. SMITH, CIRCUIT JUDGE

         After 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 proximate causation.

         FACTUAL AND PROCEDURAL BACKGROUND

         I. The Deaths of Lloyd "Carl" Fields, Jr., and James Damon Creach

         Plaintiffs-Appellants 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.

         This 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 locations."

         One of 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).[1]

         "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, Issue 12:

"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 ...

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