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Dyroff v. The Ultimate Software Group, Inc.

United States Court of Appeals, Ninth Circuit

August 20, 2019

Kristanalea Dyroff, individually and on behalf of the estate of Wesley Greer, deceased, Plaintiff-Appellant,
v.
The Ultimate Software Group, Inc., Defendant-Appellee.

          Argued and Submitted June 4, 2019 Seattle, Washington

          Appeal from the United States District Court, No. 3:17-cv-05359-LB, for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding

          David F. Slade (argued), Carney Bates & Pulliam PLLC, Little Rock, Arkansas; Sin-Ting Mary Liu, Aylstock Witkin Kreis & Overholtz PLLC, Alameda, California; for Plaintiff-Appellant.

          Jeffry A. Miller (argued) and Scott M. Schoenwald, Lewis Brisbois Bisgaard & Smith LLP, San Diego, California; Shawn A. Tolliver, David E. Russo, and Justin S. Kim, Lewis Brisbois Bisgaard & Smith LLP, San Diego, California; for Defendant-Appellee.

          Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.

         SUMMARY[*]

         Communications Decency Act

         The panel affirmed the district court's dismissal, based on The Ultimate Software Group's immunity from liability under Section 230 of the Communications Decency Act, of an action alleging claims concerning Ultimate Software's role in the death of plaintiff's son.

         Ultimate Software was the operator of the Experience Project website, which allegedly facilitated illegal drug sales. Plaintiff's son died of a drug overdose after buying drugs from a fellow Experience Project user.

         The panel held that Ultimate Software satisfied all three prongs of the test for immunity under Section 230 of the Communications Decency Act. Specifically, the panel held that Ultimate Software was an interactive computer service because it did not create or publish its own content under the plain language of the statute. The panel also held that plaintiff's son treated Ultimate Software as a publisher or speaker of other's information or content. Finally, the panel held that Ultimate Software published information/content provided by another information content provider where the content at issue was created by plaintiff's son and his drug dealer. The panel rejected plaintiff's argument that a website develops content if it manipulates the content in a unique way through content-neutral tools.

         The panel held that plaintiff did not plead sufficient facts to show that Ultimate Software colluded with drug dealers on Experience Project. The panel held that plaintiff's allegation that user anonymity equaled promoting drug transactions was not plausible. The panel concluded that the district court was right to dismiss all claims related to this supposed theory of liability because Ultimate Software was immune under Section 230 of the Communications Decency Act.

         The panel held that Ultimate Software did not owe a duty of care to plaintiff's son because Experience Project's features amounted to content-neutral functions that did not create a risk of harm. The panel rejected plaintiff's claim that misfeasance by Ultimate Software created a duty to plaintiff's son.

          OPINION

          D.W. NELSON, CIRCUIT JUDGE.

         Plaintiff Kristanalea Dyroff appeals the district court's dismissal of her claims against Defendant The Ultimate Software Group ("Ultimate Software"), operator of the Experience Project website, for its alleged role in the death of her son, Wesley Greer. While the circumstances and facts of this case are no doubt tragic, we find that Ultimate Software is immune from liability under Section 230 of the Communications Decency Act. We therefore affirm.

         BACKGROUND

         This being an appeal from a motion to dismiss, we describe the case as Plaintiff presents it. We take her plausible allegations as true and draw all reasonable inferences in her favor.

         Experience Project was a social networking website made up of various online communities or groups where users anonymously shared their first-person experiences, posted and answered questions, and interacted with other users about different topics. The site did not limit or promote the types of experiences users shared. The site's "blank box" approach to user content resulted in an array of topics and forums ranging from "I like dogs" and "I am going to Stanford" to "I have lung cancer" and "I Love Heroin."

         Users registered with the site anonymously; in other words, the site did not collect users' identifying information, including name, phone number, or mailing address. The site's operator, Ultimate Software, believed that anonymity would promote users to share more personal and authentic experiences without inhibition. Experience Project's founder stated, "We don't want to know [users'] real name, their phone number, what town they're from." Id. "The impetus behind this policy [of anonymity] was to encourage users to share experiences with the least amount of inhibition possible. The greater the anonymity, the more 'honest' the post . . . ."

         Experience Project was live from 2007 until March 2016, during which its users shared 67 million experiences, made 15 million connections, and asked 5 million questions. Users could join groups and the site also recommended groups for users to join, based on the content of their posts and other attributes, using machine-learning algorithms. When a user posted content to a group, the site would send an email notification to the other users active in that group. The site generated revenue through advertisements and the sale of tokens that users used to post questions to other users in their groups.

         Some of the site's functions, including user anonymity and grouping, facilitated illegal drug sales. Wesley Geer was involved in one such transaction, which turned fatal. Wesley suffered from drug addiction, which began when a doctor overprescribed him opioid pain killers after a serious sports-related injury. After several unsuccessful rehabilitation attempts, Wesley bought what he believed to be heroin from a fellow Experience Project user. Wesley posted in a heroin-related group, "where can i [sic] score heroin in jacksonville, fl." The site sent him an email notification when another user, Hugo Margenat-Castro or "Potheadjuice," an Orlando-based drug dealer, posted in the same group. Wesley and Margenat-Castro connected off the site and Wesley bought heroin from Margenat-Castro on August 18, 2015.

         Wesley died the next day from fentanyl toxicity. He did not know that the heroin Margenat-Castro sold him was laced with fentanyl. Margenat-Castro was ultimately arrested and prosecuted. He pleaded guilty in March 2017 admitting that he ...


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