PUTT v. TRIPADVISOR INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KRISTIE PUTT, et al.,

Plaintiffs,

CIVIL ACTION

v. NO. 20-3836

TRIPADVISOR INC., et al.,

Defendants.

PAPPERT, J. January 25, 2021

MEMORANDUM

Kristie Putt was injured in front of her sons Gary and Grayson on a tour in New

Zealand that she booked through Viator, Inc., a subsidiary of TripAdvisor LLC. Putt

and her sons sued Viator and TripAdvisor, Inc., TripAdvisor LLC’s parent company, for

negligence, misrepresentation and negligent infliction of emotional distress.

Defendants move to dismiss the Complaint, and the Court denies the Motion for the

reasons that follow.

I

A

Viator hosts a website allowing customers to book and purchase tours and

browse customer reviews of tour packages. (Compl. ¶ 16, ECF No. 1-4.). Plaintiffs

allege Viator and TripAdvisor “sell and advertise travel services to customers wherein

the point of sale is at the customer’s location.” (Id.) They “target customers throughout

the country” and “recommend and place their customers with tour operators, and guide

their customers in designing a tour itinerary.” (Id. at ¶ 18.)

On August 15, 2017, “Defendants brought their guidance to bear” when Ms. Putt

used Viator’s website to book a three-day tour package in New Zealand. (Id. at ¶¶ 9,

14, 19, 26.) The tour was to be operated by Canterbury Leisure Tours, which also

supplied the tour’s travel services. (Id. at ¶ 26.) Ms. Putt booked the tour for herself

and her sons from October 22 through October 24. (Id. at ¶ 9.)

On October 23, Ms. Putt and her sons boarded a bus run by Dune Rider Unique

Tours for a day trip that included a drive along Ninety Mile Beach. (Id. at ¶¶ 25, 32–

33.) She sat in the bus’s back seat next to a window and her sons sat nearby. (Id. at

¶¶ 32, 33.) The bus had its seatbelts ripped out and the driver, without addressing the

missing seatbelts, advising passengers of safety precautions they could take or warning

passengers the drive could get bumpy, sped along the beach. (Id. ¶¶ 27, 29–31, 35.) At

one point he hit a large ditch that “threw every person on the bus out of their seats.”

(Id. at ¶ 36.) Ms. Putt “was flung three feet into the air, at least twice, and also flung

against the window and side of the bus.” (Id. at ¶ 38.) She hit her head, neck and

shoulders on the bus’s roof “with such force that the roof was dented” and her glasses

“flew off her face.” (Id. at ¶¶ 39–40.) She also “slammed her right side, including her

head, arm[] and shoulder with force against the window and side of the bus.” (Id. at

¶ 41.) She experienced a concussion and suffered traumatic injuries to her head, neck,

shoulders, back and spine. (Id. at ¶ 44.) Her sons witnessed her being injured. (Id. at

¶ 42.)

Ms. Putt was taken to the hospital immediately after the incident where she was

x-rayed, treated and eventually discharged. (Id. at ¶ 46.) Her sons watched as she was

removed from the bus by emergency medical personnel and placed on a gurney with a

neck brace, rode with her in the ambulance and “were terrified.” (Id. at ¶ 45.) After

she was discharged, Ms. Putt continued to experience pain in her head, right arm, right

shoulder, collarbone and back as well as substantial limitations in movement. (Id. at

¶ 48.) The rest of Plaintiffs’ New Zealand trip was ruined, and after the trip Ms. Putt

endured “endless doctor’s visits, testing and injections” which revealed she fractured

her C7 vertebra. (Id. at ¶¶ 49–51.) She eventually underwent surgery on her right

shoulder. (Id. at ¶ 54.)

Ms. Putt alleges she has been in pain daily, has continued to suffer emotionally,

physically and financially in the years since the incident and believes her injuries may

be permanent. (Id. at ¶¶ 58, 60–65.) Her sons also have injuries and damages that

may be permanent, including severe emotional distress and related physical

manifestations. (Id. at ¶¶ 60, 66.)

B

Plaintiffs filed this suit as well as a separate suit against Canterbury Leisure

Tours in the Philadelphia County Court of Common Pleas. See generally (Compl.);

(Mot. to Dismiss 2 n.2, ECF No. 6-3). They filed their Complaint on July 7, 2020 and

Defendants removed to this Court on August 6 based on diversity. See generally

(Compl.); see also (Notice of Removal ¶ 6, 8–9, ECF No. 1).1 Plaintiffs claim Defendants

are responsible for their injuries because Defendants failed to use reasonable care in

1 Defendants contend venue is improper here because Plaintiffs live in Tyrone, Pennsylvania,

outside the Eastern District. See (Defs.’ Reply 7–8, ECF No. 11). The Court disagrees. 28 U.S.C.

§ 1441(a) “expressly provides that the proper venue of a removed action is ‘the district court of the

United States for the district and division embracing the place where such action is pending’” and 28

U.S.C. § 1391 “has no application to this case because this is a removed action.” Polizzi v. Cowles

Magazines, Inc., 345 U.S. 663, 665–66 (1953); accord Leonetti’s Frozen Foods, Inc. v. Crew, Inc., 140

F. Supp. 3d 388, 393 (E.D. Pa. 2015).

their duties to investigate, examine, select, monitor and supervise their tour operators

to ensure they operated safely and were qualified as well as to disclose any information

relating to whether they vetted Plaintiffs’ tour operator or the risks associated with

Plaintiffs’ tour, thereby “misrepresent[ing] and/or conceal[ing] material facts and

perpetuat[ing] the illusion that the bus tour would be operated by qualified, vetted[]

and safe operators.” See (Compl. ¶¶ 69–72, 74, 77–79, 81–82).

Defendants argue that Plaintiffs’ claims are barred for three reasons: (1)

Defendants are immune from suit as publishers of third-party content pursuant to

Section 230 of the Communications Decency Act; (2) Plaintiffs waived their claims in a

binding agreement they entered with Defendants; and (3) the same agreement’s forum

selection clause requires Plaintiffs to sue in Massachusetts. (Mot. to Dismiss 2–3.)2

II

To survive dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure,

a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

plausible when the facts pled “allow[] the court to draw the reasonable inference that

2 In their Reply, Defendants argue for the first time that Plaintiffs failed to plead the requisite

elements of negligence. (Defs. Reply 10, ECF No. 11). Plaintiffs claim in their Response that

Defendants are travel agents and owed Plaintiffs a duty of care in that capacity, which Plaintiffs did

not allege in their Complaint. See (id. at 8–9). Defendants need not, however, respond to this

allegation because Plaintiffs are not entitled to raise new claims in response to Defendants’ Motion.

See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1989) (“It is

axiomatic that the complaint may not be amended by the briefs in opposition to a motion to

dismiss.”) (internal quotations and citation omitted); accord Doe v. Casino, 381 F. Supp. 3d 425, 437

(E.D. Pa. 2019). If Defendants wish to generally assert a new ground for dismissal, they cannot do so

in a reply. See Baker v. Pennsylvania Econ. League, Inc. Retirement Income Plan, 811 F. Supp. 2d

1136, 1144 n.7 (E.D. Pa. 2011) (“A reply brief is intended only to provide an opportunity to respond to

the arguments raised in the response brief; it is not intended as a forum to raise new issues.”)

(quoting United States v. Martin, 454 F. Supp. 2d 278, 281 n.3 (E.D. Pa. 2006).

[a] defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “[W]here the

well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—'that the pleader is

entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

When a complaint includes well-pleaded factual allegations, a court “should

assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016)

(quoting Iqbal, 556 U.S. at 679). However, this “presumption of truth attaches only to

those allegations for which there is sufficient factual matter to render them plausible

on their face.” Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir.

2016) (internal quotation and citation omitted). “Conclusory assertions of fact and legal

conclusions are not entitled to the same presumption.” Id. This plausibility

determination is a “context-specific task that requires the reviewing court to draw on

its judicial experience and common sense.” Id. (quoting Connelly, 809 F.3d at 786–87).

While “courts generally consider only the allegations contained in the complaint,

exhibits attached to the complaint and matters of public record” in deciding a motion to

dismiss, Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196

(3d Cir. 1993), “an exception to the general rule is that a ‘document integral to or

explicitly relied upon in the complaint’ may be considered ‘without converting the

motion into one for summary judgment.’” In re Burlington Coat Factory Sec. Litig., 114

F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original) (citation omitted). “[W]hat is

critical is whether the claims in the complaint are ‘based’ on an extrinsic document and

not merely whether the extrinsic document was explicitly cited.” Id.

District Courts in the Third Circuit “may grant a Rule 12(b)(6) motion on the

basis of an affirmative defense ‘if the predicate establishing the defense is apparent

from the face of the complaint.’” Brody v. Hankin, 145 F. App’x 768, 771 (3d Cir. 2005)

(quoting Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 n.10 (3d Cir. 1978)

(emphasis in original)); cf. Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 657 (3d Cir.

2003) (“[W]ith some exceptions, affirmative defenses should be raised in responsive

pleadings, not in pre-answer motions brought under Rule 12(b)” because “[t]he facts

necessary to establish an affirmative defense must generally come from matters outside

of the complaint.”). “Whether a particular ground for opposing a claim may be the basis

for dismissal for failure to state a claim depends on whether the allegations in the

complaint suffice to establish that ground, not on the nature of the ground in the

abstract.” Jones v. Bock, 549 U.S. 199, 215 (2007). A defendant bears the burdens of

production and persuasion for affirmative defenses. See Moore v. Kulicke & Soffa

Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003). “Under Federal Rule of Civil Procedure

8, a complaint need not anticipate or overcome affirmative defenses; thus, a complaint

does not fail to state a claim simply because it omits facts that would defeat” an

affirmative defense. Schmidt v. Skolas, 770 F.3d 241, 248 (3d Cir. 2014).

III

A

Plaintiffs’ Complaint fairly establishes the predicate for Defendants’ claim that

they are entitled to immunity under Section 230 of the Communications Decency Act

(“CDA”) because it contains allegations discussing or alluding to Viator’s website, the

content thereon and Defendants’ actions and duties relating to the content. See

generally (Compl. ¶¶ 14, 16–24, 69–72, 74, 77–80). Nonetheless, Defendants have not

shown they are immune from liability at this stage of the litigation.

Section 230 immunizes from liability (1) an interactive computer service provider

(2) whom a plaintiff seeks to treat as a publisher or speaker of information (3) provided

by another information content provider and states “[n]o cause of action may be brought

and no liability may be imposed under any State or local law that is inconsistent with

this section.” 47 U.S.C. §§ 230(c)(1), (e)(3); see also Green v. Am. Online (AOL), 318 F.3d

465, 470–71 (3d Cir. 2003); Dimeo v. Max, 433 F. Supp. 2d 523, 528–29 (E.D. Pa. 2006),

aff’d 248 F. App’x 280 (3d Cir. 2007). In part, it proscribes liability for a service

provider’s “decisions relating to the monitoring, screening, and deletion of content from

its network—actions quintessentially related to a publisher’s role.” Green, 318 F.3d at

471. “Federal Courts have interpreted the statute as providing broad immunity from

claims that would hold websites liable for dissemination of information originating from

a third party.” Moretti v. Hertz Corp., No. 14-469, 2017 WL 1032783, at *2 (D. Del.

Mar. 17, 2017) (citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,

254–55 (4th Cir. 2009). “Under the statutory scheme, an ‘interactive computer service’

qualifies for immunity so long as it does not also function as an ‘information content

provider’ for the portion of the statement or publication at issue.” Carafano v.

Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003).

Defendants contend Plaintiffs’ claims against them are barred by Section 230

because Defendants provide an interactive computer service, Plaintiffs’ claims “arise

solely from content that was created by Canterbury” and Plaintiffs seek to hold

Defendants liable as the publisher of Canterbury’s statements. See (Mot. to Dismiss

12–17). Plaintiffs do not contest that Defendants provide an interactive computer

service, but they argue Section 230 does not entitle Defendants to immunity because

they are information content providers ineligible for CDA protection based on their

“tight[] control” over tour operator posts on Viator’s website. See (Pls.’ Resp. 6–8, ECF

No. 10). They also assert their claims do not arise entirely from third-party content—

they seek to hold Defendants accountable for their own negligent conduct, which the

CDA does not immunize. See (Id. at 5–6); see also Saponaro v. Grindr, LLC, 93 F.

Supp. 3d 319, 323 n.3 (D.N.J. 2015) (“The CDA was not meant to immunize internet

service providers for all activity on their websites; they are, indeed, still responsible for

their own wrongful conduct.”) (emphasis in original).

The Court cannot yet conclude that Defendants did not function as information

content providers. See Moretti, 2017 WL 1032783, at *3.3 The CDA defines

“information content provider” broadly to include “any person or entity that is

responsible, in whole or in part, for the creation or development of information provided

through the Internet or any other interactive service.” 47 U.S.C. § 230(f)(3).

“Accordingly, there may be several information content providers with respect to a

single item of information (each being ‘responsible,’ at least ‘in part,’ for its ‘creation or

development’).” Pace v. Baker-White, 432 F. Supp. 3d 495, 507–08 (E.D. Pa. 2020)

(quoting Fed. Trade Comm’n v. Accusearch Inc., 570 F.3d 1187, 1197 (10th Cir. 2009)).

While Plaintiffs do not allege the extent of Defendants’ contributions to the content on

3 In their Response, Plaintiffs assert Defendants “are undeniably information content

providers” based on language in Defendants’ Supplier Agreement and Defendants’ Product Quality

Standards, which Plaintiffs append as exhibits. Plaintiffs again attempt in their Response to

introduce facts not alleged in their Complaint. See Com. of Pa. ex rel. Zimmerman, 836 F.2d at 181

(3d Cir. 1989). The Court declines to consider these new documents or allegations in deciding

Defendants’ Motion.

Viator’s website, they are “not required to anticipate and plead around an affirmative

defense such as Section 230,” and therefore the Court “cannot treat the Complaint’s

silence . . . as an affirmative allegation” that Defendants are not responsible for content

creation or development. Moretti, 2017 WL 1032783, at *4.

Moreover, while some of Plaintiffs’ claims may arise from content created by

Canterbury, Plaintiffs’ seek to hold Defendants accountable as information content

providers. Specifically, they allege that Defendants’ own misrepresentations and

omissions induced Plaintiffs to book their tour. See Pirozzi v. Apple Inc., 913 F. Supp.

2d 840, 849 (N.D. Cal. 2012) (“To the extent Plaintiff’s claims allege that Apple’s

misrepresentations induced Plaintiff to purchase an Apple Device . . . . even if Apple

acts as an ‘interactive computer service,’ Plaintiff seeks to hold it liable as the

‘information content provider’ for the statements at issue.”).

B

Defendants attached as an exhibit to their Motion the terms and conditions

agreement (“Agreement”) from Viator’s website. They also attached a declaration from

the Vice President of Supply at TripAdvisor LLC (the “Dorsett Declaration”) stating the

Agreement was a “true and correct copy of the Viator Terms, Conditions, and Notices

that were in effect on August 15, 2017.” See generally (Mot. to Dismiss Ex. B, ECF No.

6-5). The Agreement was not referenced in or attached to Plaintiffs’ Complaint, but

Defendants contend it bars Plaintiffs’ claims. See generally (Compl.). Plaintiffs did not

contest the authenticity of the Agreement in their Response.

The Agreement is integral to or explicitly relied upon in the Complaint because

Plaintiffs base certain of their allegations on it. See (Compl. ¶¶ 14, 16). The Complaint

thus fairly establishes the predicate for Defendants’ arguments that the Agreement

bars this suit and the Court may consider both the Agreement’s content and

Defendants’ claims. See Pryor v. NCAA, 288 F.3d 548, 560 (3d Cir. 2002) (“[D]ocuments

whose contents are alleged in the complaint and whose authenticity no party questions,

but which are not physically attached to the pleading, may be considered.”); accord

Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co. (U.S.A.), 768

F.3d 284, 290 (3d Cir. 2014).

Defendants argue they cannot be liable for Plaintiffs’ injuries and Plaintiffs

agreed to litigate any claims against them in Massachusetts. (Mot. to Dismiss 17–20.)

Specifically, the Agreement contains an exculpatory clause entitled “Our Liability”

where Defendants “disclaim all liability for[] any errors or other inaccuracies relating to

the information and description of the products and services displayed on [the Viator]

website.” (Mot. to Dismiss Ex. B 10). The agreement also states that “third-party

suppliers and private tour guides providing products or other services on th[e] website

are independent contractors” for whom Defendants are not liable. (Id.).4 The clause

further states:

In no event shall the Viator Group Companies (or their officers, directors and

affiliates) be liable for any direct, indirect, punitive, incidental, special,

exemplary or consequential damages . . . arising out of, or in any way connected

with, product or service bookings made by you through this website . . . .

(Id. at 11.) The Agreement also contains a forum selection clause, entitled “Jurisdiction

and Governing Law”:

This Website is operated by a U.S. entity and this Agreement is governed by the

laws of the Commonwealth of Massachusetts, USA. You hereby consent to the

exclusive jurisdiction and venue of courts in Boston, Massachusetts, USA and

4 Citations to Motion exhibits reflect page numbers generated by the Court’s electronic case

filing system.

stipulate to the fairness and convenience in such courts for all disputes arising

out of or relating to the use of this Website. You agree that all claims you may

have against Viator, Inc. arising from or relating to this Website must be heard

and resolved in a court of competent subject matter jurisdiction located in

Boston, Massachusetts. . . . .

(Id. at 20.)

Plaintiffs respond they cannot be bound by the Agreement because they did not

assent to the exculpatory or forum selection clauses. See (Pls.’ Resp. 10–13). They

allege the Agreement is “an unenforceable browsewrap agreement that failed to provide

Ms. Putt with actual or constructive notice of the Terms and Conditions on Viator’s

website.” (Id. at 11). They contend Ms. Putt used Viator’s website without reading or

assenting to the Agreement and the Agreement was not displayed in a way that a

reasonable user would notice. (Id.). While the website’s main text was in large black

font contrasted against a white background, a hyperlink to the Agreement only

appeared in small blue font against a blue footer “below other non-significant links” at

the bottom of the page. (Id. (emphasis in original).) Within the Agreement, the

exculpatory clause was located at the end separated by an “ambiguous” heading. (Id.).

In their Reply, Defendants introduce a screenshot of the checkout page on

Viator’s website, which shows it contains text immediately below a “Book Now” button

stating “[b]y clicking Book Now and making a reservation, I acknowledge that I have

read and agree to be bound by Viator’s Terms and Conditions and Privacy Statement.”

(Defs.’ Reply 5.) The text is primarily black against a white background, but “Viator’s

Terms and Conditions” and “Privacy Statement” appear in blue and Defendants

represent “Viator’s Terms and Conditions” is hyperlinked to the Agreement. See (id.).

Defendants contend the screenshot shows the Agreement is a clickwrap, instead of

browsewrap, agreement and the Agreement does not merely “exist passively at the

bottom of Defendants’ website.” (Id. at 5–6.) Defendants do not say the screenshot is

the screen Ms. Putt viewed while booking her tour on August 15, 2017. See generally

(id.).5

Agreements appearing on internet webpages are often referred to as either

“clickwrap” or “browsewrap” agreements. See Zabokritsky v. JetSmarter, Inc., No. 19-

273, 2019 WL 2563738, at *3 n.30 (E.D. Pa. June 20, 2019). A clickwrap agreement

generally requires a webpage user to actively consent to terms or conditions, such as by

clicking “accept” or checking a dialog box to proceed with an internet transaction. See

James v. Glob. TelLink Corp., 852 F.3d 262, 267 (3d Cir. 2017); HealthPlanCRM LLC v.

AvMed, Inc., 458 F. Supp. 3d 308, 334 (W.D. Pa. 2020); Feldman v. Google, Inc., 513 F.

Supp. 2d 229, 236 (E.D. Pa. 2007). A browsewrap agreement is “generally posted on a

website via hyperlink at the bottom of the screen” and “do[es] not require users to

expressly manifest assent.” Glob. TelLink Corp., 852 F.3d at 267. Clickwrap

agreements are “routinely enforced by the courts.” HealthPlanCRM, 458 F. Supp. 3d at

334 (citing Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017) (“Courts routinely

uphold clickwrap agreements for the principal reason that the user has affirmatively

assented to the terms of agreement by clicking ‘I agree.’”)). A browsewrap agreement’s

enforceability “often turn[s] on whether the terms or a hyperlink to the terms are

5 Although Defendants cite to it in discussing the screenshot, see (Defs.’ Reply 5–6), the

Dorsett Declaration appended to Defendants’ initial Motion does not authenticate the screenshot.

Dorsett states “[i]n order to book any tour through Viator, an individual is required to agree to the

Terms and Conditions. Accordingly, Plaintiffs would not have been able to book a tour through

Viator without consenting to the Terms and Conditions and forming an agreement.” (Mot. to

Dismiss Ex. B 2.) She does not explain how an individual is “required to agree” to Viator’s terms and

conditions, nor does she describe how the terms and conditions are presented on the website.

reasonably conspicuous on a webpage.” Glob. TelLink Corp., 852 F.3d at 267. “Where

[a] website contains an explicit textual notice that continued use will act as a

manifestation of the user’s intent to be bound, courts have been more amenable to

enforcing browsewrap agreements.” Id. (quoting Nguyen v. Barnes & Noble Inc., 763

F.3d 1171, 1177 (9th Cir. 2014).

The Court cannot resolve the enforceability of the Agreement at this stage.

Whether the Agreement is clickwrap or browsewrap, as well as whether it was

reasonably conspicuous such that Ms. Putt should have been on notice that she would

be bound by it, depends on how it was presented on Viator’s website when Ms. Putt

booked the tour. The Court cannot consider the screenshot Defendants provided in

their Reply because it is undated and Plaintiffs have had no opportunity to contest its

accuracy. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 231 (2d Cir. 2016) (“Even

where a document is considered ‘integral’ to the complaint, it must be clear on the

record that no dispute exists regarding the authenticity or accuracy of the document.”)

(internal quotations and citation omitted); cf. Cooper-Booth Transp. Co., L.P. v. Daimler

Trucks of North America, LLC, No. 5:17-cv-3884, 2018 WL 1940527, at *2 (E.D. Pa.

Apr. 24, 2018) (declining to consider documents found not part of plaintiff’s pleadings

because plaintiff contested their authenticity). The Parties also appear to disagree

markedly on the Agreement’s presentation on the website—Plaintiffs’ description of its

placement is irreconcilable with the screenshot.

The Court also declines to take judicial notice of Viator’s website because it may

have looked different when Ms. Putt booked her tour. See (Mot. to Dismiss 9).

An appropriate Order follows.

BY THE COURT:

_/_s_/ _G_e_r_a__ld__ J__. _P_a__p_p_e_r_t_ __

GERALD J. PAPPERT, J.