Kristanalea Dyroff v. the Ultimate Software Group

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTANALEA DYROFF, individually No. 18-15175

and on behalf of the estate of Wesley

Greer, deceased, D.C. No.

Plaintiff-Appellant, 3:17-cv-05359-

LB

v.

THE ULTIMATE SOFTWARE GROUP, OPINION

INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted June 4, 2019

Seattle, Washington

Filed August 20, 2019

Before: Dorothy W. Nelson, Johnnie B. Rawlinson,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge D.W. Nelson

2 DYROFF V. THE ULTIMATE SOFTWARE GROUP

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.

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

DYROFF V. THE ULTIMATE SOFTWARE GROUP 3

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.

COUNSEL

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.

4 DYROFF V. THE ULTIMATE SOFTWARE GROUP

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

DYROFF V. THE ULTIMATE SOFTWARE GROUP 5

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.

6 DYROFF V. THE ULTIMATE SOFTWARE GROUP

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 sold heroin laced with fentanyl while active

on Experience Project.

In March 2016, Experience Project announced, in an

open letter to its users, that it was shutting down. The letter

expressed concern for the future of online privacy because

of government overreach. It stated that the site always

supported proper law enforcement efforts but recognized

that it did not have the resources to respond to increased

government information requests. The site shut down on

April 21, 2016.

Plaintiff Kristanalea Dyroff, Wesley Greer’s mother,

filed a complaint in San Francisco Superior Court. She

alleges that Ultimate Software: (1) allowed users to traffic

anonymously in illegal, deadly narcotics and to create

groups dedicated to their sale and use; (2) steered users to

additional groups dedicated to the sale and use of narcotics;

(3) sent users alerts to posts within groups that were

dedicated to the sale and use of narcotics; (4) permitted users

to remain active accountholders despite evidence that they

openly engaged in drug trafficking and that law enforcement

had undertaken related investigations; and (5) demonstrated

antipathy toward law enforcement efforts to stop illegal

activity on Experience Project.

Ultimate Software removed the action from state court

based on diversity jurisdiction and filed a motion to dismiss

all claims under Federal Rule of Civil Procedure 12(b)(6).

The district court granted the motion without prejudice.

Dyroff filed a notice stating that she would not file an

DYROFF V. THE ULTIMATE SOFTWARE GROUP 7

amended complaint and asked the district court to enter

judgement. Dyroff timely appealed the judgment.

STANDARD OF REVIEW

We review de novo both a district court order dismissing

a plaintiff’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(6) and questions of statutory interpretation.

Fields v. Twitter, Inc., 881 F.3d 739, 743 (9th Cir. 2018).

The Court must “accept all factual allegations in the

complaint as true and construe the pleadings in the light most

favorable to the nonmoving party.” Rowe v. Educ. Credit

Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009). Only

a complaint that states a plausible claim for relief may

survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). Plausibility exists when a court may “draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

DISCUSSION

Plaintiff argues that in granting the motion to dismiss,

the district court made three errors. First, she argues, the

district court erred when it held that Communications

Decency Act (CDA) Section 230 immunizes Defendant

Ultimate Software. Plaintiff reasons that Ultimate Software,

as the operator of the Experience Project website, was an

information content provider, as defined by the statute,

because its recommendation and notification functions were

“specifically designed to make subjective, editorial

decisions about users based on their posts.” Second,

according to Plaintiff, the district court erred when it found

that her allegations of collusion between Ultimate Software

and drug dealers using Experience Project were not

plausible. Her third argument is that the district court erred

in finding that Ultimate Software owed no duty of care to her

8 DYROFF V. THE ULTIMATE SOFTWARE GROUP

son, Wesley Greer, an Experience Project user. We affirm

because the district court did not err in any of these respects.

I. CDA Section 230 Immunizes Ultimate Software from

Plaintiff’s Claims

The CDA provides that website operators are immune

from liability for third-party information (or content, like the

posts on Experience Project) unless the website operator “is

responsible, in whole or in part, for the creation or

development of [the] information.” 47 U.S.C. §§ 230(c)(1)

& (f)(3). Ultimate Software did not create content on

Experience Project, in whole or in part. Accordingly,

Ultimate Software, as the operator of Experience Project, is

immune from liability under the CDA because its functions,

including recommendations and notifications, were content-

neutral tools used to facilitate communications. See Fair

Hous. Council of San Fernando Valley v. Roommates.com,

521 F.3d 1157, 1167–69 (9th Cir 2008) (en banc).

A. Scope of CDA Section 230 Immunity

The CDA instructs us that “[n]o provider or user of an

interactive computer service shall be treated as the publisher

or speaker of any information provided by another

information content provider.” 47 U.S.C. § 230(c)(1)

(emphasis added). The CDA defines an “interactive

computer service” as

[A]ny information service, system, or access

software provider that provides or enables

computer access by multiple users to a

computer server, including specifically a

service or system that provides access to the

Internet and such systems operated or

DYROFF V. THE ULTIMATE SOFTWARE GROUP 9

services offered by libraries or educational

institutions.

47 U.S.C. § 230(f)(2).

On the other hand, an “information content provider” is

[A]ny 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

computer service.

47 U.S.C. § 230(f)(3).

“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 others.” Kimzey v. Yelp! Inc., 836 F.3d

1263, 1266 (9th Cir. 2016) (internal quotations omitted). In

other words, a website like Experience Project. Taking the

relevant statutory definitions and case law in account, it

becomes clear that, in general, Section 230(c)(1) “protects

websites from liability [under state or local law] for material

posted on the[ir] website[s] by someone else.” Doe v.

Internet Brands, Inc., 824 F.3d 846, 850 (9th Cir. 2016); see

also 47 U.S.C. § 230(e)(3).

Combining the above principles, in Barnes v. Yahoo!,

Inc., we created three-prong test for Section 230 immunity.

570 F.3d 1096, 1100 (9th Cir. 2009). Immunity from liability

exists for “(1) a provider or user of an interactive computer

service (2) whom a plaintiff seeks to treat, under a state law

cause of action, as a publisher or speaker (3) of information

provided by another information content provider.” Id.

at 1100–01. When a plaintiff cannot allege enough facts to

10 DYROFF V. THE ULTIMATE SOFTWARE GROUP

overcome Section 230 immunity, a plaintiff’s claims should

be dismissed. See Kimzey, 836 F.3d at 1268–71. Ultimate

Software satisfies all three prongs of the test.

B. Section 230 Immunity—The Barnes test

1. Defendant is an Interactive Computer Service

We interpret the term “interactive computer service”

expansively. Kimzey, 836 F.3d at 1268. Ultimate Software

was an interactive computer service because it did not create

or publish its own content under the plain language of the

statute. Rather, Ultimate Software published Experience

Project users’ posts and did not materially contribute to its

users’ posts.

Millions of users, including Plaintiff’s son, Wesley

Greer, set up accounts on Experience Project, a website, to

communicate with each other. Websites are the most

common interactive computer services. Kimzey, 836 F.3d at

1268; see also Roommates.com, 521 F.3d at 1162 n.6

(“[t]oday, the most common interactive computer services

are websites”).

No binding legal authority supports Plaintiff’s

contention that Ultimate Software became an information

content provider, losing its Section 230 immunity, by

facilitating communication on Experience Project through

content-neutral website functions like group

recommendations and post notifications. Ultimate Software,

therefore, satisfies the first prong.

DYROFF V. THE ULTIMATE SOFTWARE GROUP 11

2. Plaintiff Treats Ultimate Software as a

Publisher or Speaker of Other’s

Information/Content

An interactive computer service, like Ultimate Software,

can also be an information content provider, but that is only

relevant, for the purposes of Section 230 immunity, if the

website it operates creates or develops the specific content

at issue. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119,

1124 (9th Cir. 2003). Here, Ultimate Software was not an

information content provider because it did not create or

develop information (or content). 47 U.S.C. § 230(f)(3).

Rather, it published information created or developed by

third parties. Specifically, Experience Project did not create

or develop the posts that led to Greer’s death. Rather, it was

Greer, himself, who posted “where can i [sic] score heroin

in jacksonville, fl” on Experience Project. And it was the

drug dealer, Margenat-Castro, who posted in response to

Greer’s post.

It is true that Ultimate Software used features and

functions, including algorithms, to analyze user posts on

Experience Project and recommended other user groups.

This includes the heroin-related discussion group to which

Greer posted and (through its emails and push notifications)

to the drug dealer who sold him the fentanyl-laced heroin.

Plaintiff, however, cannot plead around Section 230

immunity by framing these website features as content. We

have held that what matters is whether the claims “inherently

require[] the court to treat the defendant as the ‘publisher or

speaker’ of content provided by another.” Barnes, 570 F.3d

at 1102. If they do, then Section 230(c)(1) provides

immunity from liability. Id.

By recommending user groups and sending email

notifications, Ultimate Software, through its Experience

12 DYROFF V. THE ULTIMATE SOFTWARE GROUP

Project website, was acting as a publisher of others’ content.

These functions—recommendations and notifications—are

tools meant to facilitate the communication and content of

others. They are not content in and of themselves.

Our recent decision, HomeAway.com, Inc. v. City of

Santa Monica, 918 F.3d 676 (9th Cir. 2019) is of no help to

Plaintiff. There, the City of Santa Monica required short-

term vacation rentals to be licensed and imposed liability on

vacation rental hosting platforms—HomeAway.com and

Airbnb—that facilitated unlicensed short-term vacation

rentals. Id. at 680. The platforms sued, alleging, among other

things, that Section 230 immunized them from liability. Id.

We found that HomeAway.com and Airbnb did not meet the

second prong of the Barnes test because the Santa Monica

ordinance did not “proscribe, mandate, or even discuss the

content of the [website] listings” and required only that the

website’s transactions involve licensed properties. Id. at 683.

In other words, the vacation rental platforms did not face

liability for the content of their listings; rather liability arose

from facilitating unlicensed booking transactions.

Ultimate Software, therefore, satisfies the second prong

of the Barnes test.

3. Ultimate Software Published

Information/Content Provided by Another

Information Content Provider

The third prong is also met because, as stated previously

and as detailed in Plaintiff’s complaint, the content at issue

was created and developed by Greer and his drug dealer.

Plaintiff’s content “manipulation” theory is without support

in the statute and case law. First, Plaintiff misreads

Roommates.com when she argues it holds that a website

DYROFF V. THE ULTIMATE SOFTWARE GROUP 13

develops content if it manipulates the content in a unique

way through content-neutral tools.

The question in Roommates.com was whether Section

230 immunized a website, which matched people renting

rooms with people looking for somewhere to live, from

claims that it violated federal and state housing anti-

discrimination laws by requiring subscribers to disclose,

using dropdown menus and checkboxes, their sex, sexual

orientation, and family status. See Roommates.com,

521 F.3d at 1161–2, 1165.

We answered “no” to this question. We rested our

decision, however, on the fact that Roommates.com

affirmatively required users to disclose information related

to protected classes through discriminatory questions and

answer choices. As a result, this information, especially

information related to a user’s protected class, served as the

focus of the registration process and, ultimately, became the

cornerstone of each user’s online profile. Moreover, the

website designed its search function to guide users through

the required discriminatory criteria. Id. at 1164, 1167. Under

these set of facts, the website in Roommates.com was clearly

the developer of the discriminatory content at issue. Id.

at 1170.

In Roommates.com, we also identified the type of

conduct that does not constitute the “development” of

content under Section 230. Id. at 1169. For example, a

housing website that lets users create their own criteria for

identifying and choosing potential roommates (including

criteria based on protected classes like race or sex) in a blank

text box, does not become a developer of content if it does

not require the use of that discriminatory criteria. Id. In other

words, a website does not become a developer of content

when it provides neutral tools that a user exploits to create a

14 DYROFF V. THE ULTIMATE SOFTWARE GROUP

profile or perform a search using criteria that constitutes a

protected class. Id. We, furthermore, concluded that

“[w]here it is very clear that the website directly participates

in developing the alleged illegality—as it is clear here with

respect to [Roommates.com’s] questions, answers and the

resulting profile pages—immunity will be lost.” However,

“in cases of enhancement by… inference—such as with

respect to the ‘Additional Comments’ [on

Rommates.com]—[S]ection 230 must be interpreted to

protect websites not merely from ultimate liability, but from

having to fight costly and protracted legal battles.” Id.

at 1174–75.

Here, Ultimate Software’s functions on Experience

Project most resemble the “Additional Comments” features

in Roommates.com in that Experience Project users,

including Wesley Greer, were not required to disclose that

they were looking for heroin or other illegal drugs. Rather,

users were given something along the lines of blank text

boxes in which they could post and share experiences,

questions, and answers. The recommendation and

notification functions helped facilitate this user-to-user

communication, but it did not materially contribute, as

Plaintiff argues, to the alleged unlawfulness of the content.

Roommates.com, 521 F.3d at 1175; see also Kimzey,

836 F.3d at 1269 n.4 (the material contribution test makes a

“‘crucial distinction between, on the one hand, taking actions

(traditional to publishers) that are necessary to the display of

unwelcome and actionable content and, on the other hand,

responsibility for what makes the displayed content illegal

or actionable.’”).

In summary, Plaintiff is unable to allege that Ultimate

Software materially contributed to the content posted on

Experience Project that led to Greer’s death. Plaintiff cannot

DYROFF V. THE ULTIMATE SOFTWARE GROUP 15

and does not plead that Ultimate Software required users to

post specific content, made suggestions regarding the

content of potential user posts, or contributed to making

unlawful or objectionable user posts. Ultimate Software is

entitled to immunity under the plain terms of Section 230

and our case law as a publisher of third-party content.

II. Plaintiff Does Not Plead Sufficient Facts to Show that

Ultimate Software Colluded with Drug Dealers on

Experience Project

The complaint’s allegations as it relates to Plaintiff’s

“collusion” with bad actors does not establish an

independent theory of liability. Rather, Plaintiff tries, again,

to circumvent Section 230 immunity by alleging that

Ultimate Software knew or should have known that users

sold drugs on Experience Project, and it supported and

protected these drug dealers through its anonymity policies.

The district court characterized this claim well, stating “The

idea is that Ultimate Software is less Match.com and more

Silk Road (a notorious online platform for criminal

activities, including selling illegal drugs).”

To advance this collusion and inducement theory,

Plaintiff relies on a Washington Supreme Court decision,

J.S. v. Village Voice Media Holdings, LLC, 184 Wash. 2d 95

(2015) (en banc). In Village Voice Media, plaintiffs, minors

featured in advertisements for sexual services, sued the

operators of the website Backpage.com alleging, among

other things, violations of state laws prohibiting the sexual

exploitation of children. Id. at 98. The court held that

plaintiffs sufficiently alleged that the website operators

helped develop the illegal content and therefore were not

immune from liability under Section 230. Id. at 103.

16 DYROFF V. THE ULTIMATE SOFTWARE GROUP

Specifically, the court pointed to allegations that

Backpage.com required users to disclose certain information

within its “escorts” section that encouraged the sexual

exploitation of children. Id. at 102. One such allegation is

that Backpage.com’s “content requirements [were]

specifically designed to control the nature and context of

[escort] advertisements so that pimps can continue to use

Backpage.com to traffic in sex, including the trafficking of

children.” Id. at 102–03. In other words, the court found that

the plaintiffs alleged enough facts such that it was plausible

to infer that Backpage.com’s content requirements—within

the website’s escort section—were designed to facilitate the

prostitution of children.

Here, Ultimate Software’s anonymity features along

with its public statements expressing concern for internet

privacy and detailing the burden of law enforcement

information requests are not facts whose inferences, viewed

in the light most favorable to Plaintiff, plausibly allege

collusion with drug dealers or other bad actors. Today,

online privacy is a ubiquitous public concern for both users

and technology companies. These statements do not

establish, on the part of Ultimate Software, antipathy to law

enforcement, especially given the corresponding statements

about always supporting “proper law enforcement requests.”

Unlike the plaintiffs in Village Voice Media, Plaintiff

here did not allege that Experience Project had a section for

drug-related experiences on its website with specific content

posting requirements that facilitated illegal drug

transactions. Plaintiff’s allegation that user anonymity

equals promoting drug transactions is not plausible. Iqbal,

556 U.S. at 678. The district court was right to dismiss all

claims related to this supposed theory of liability because

DYROFF V. THE ULTIMATE SOFTWARE GROUP 17

Ultimate Software is, as reasoned above, immune under

Section 230.

III. Ultimate Software Did Not Owe a Duty to

Plaintiff’s Son

Ultimate Software owed Greer no duty of care because

Experience Project’s features amounted to content-neutral

functions that did not create a risk of harm. Plaintiff rests her

“failure to warn claim” on a misguided premise that

misfeasance by Ultimate Software created a duty to Greer.

When analyzing a duty of care in the context of third-

party acts, California courts distinguish between

“misfeasance” and “nonfeasance.” Melton v. Boustred,

183 Cal. App. 4th 521, 531 (2010). Misfeasance is when a

defendant makes the plaintiff’s position worse while

nonfeasance is when a defendant does not help a plaintiff.

Lugtu v. Cal. Highway Patrol, 26 Cal. 4th 703, 716 (2001).

Misfeasance, unlike nonfeasance, creates an ordinary duty

of care where none may have existed before. See id.

Ultimate Software did not make Plaintiff’s son, Greer,

worse off because the functions Plaintiff references—

recommendations and notifications—were used regardless

of the groups in which a user participated. No website could

function if a duty of care was created when a website

facilitates communication, in a content-neutral fashion, of its

users’ content. See e.g., Klayman v. Zuckerberg, 753 F.3d

1354, 1359–60 (D.C. Cir. 2014) (no special relationship

between Facebook and its users). We decline to create such

a relationship. Accordingly, the district was correct to

dismiss Plaintiff’s duty to warn claim.

18 DYROFF V. THE ULTIMATE SOFTWARE GROUP

CONCLUSION

For the preceding reasons, we AFFIRM the district

court’s order granting Defendant Ultimate Software’s

motion to dismiss.