Communications Decency Act Update: A CDA Defense Can Be Raised in a Rule 12(b)(6) Motion to Dismiss
Two recent decisions have eliminated questions about a defendant's ability to use the Communications Decency Act (CDA) to obtain a quick dismissal of a lawsuit. Federal rules permit a defendant, under certain circumstances, to get an immediate dismissal of a lawsuit, without every being required to file an "answer" to the complaint, make any disclosures, or engage in any discovery. Winning such a "motion to dismiss" cuts off a lawsuit at its knees, immediately eliminating the costs and risks associated with the suit.
One of the bases on which a motion to dismiss can be brought is "failure to state a claim on which relief can be granted" -- a Federal Rules of Procedure "Rule 12(b)(6)" motion. In general, a Rule 12(b)(6) motion can only be used if the complaint is so defective that the plaintiff's allegations against the defendant, even if true, would not qualify for any form of relief from the court. For example, a complaint for common-law fraud would be dismissed on a Rule 12(b)(6) motion if it failed to allege that the defendant made a false statement that the plaintiff actually relied on -- because to get damages for a false statement made by a plaintiff, the defendant must have actually relied on that false statement.
Internet service providers have often used Rule 12(b)(6) to obtain dismissal of suits brought against then for their publication of third-party material by successfully asserting that the Communications Decency Act (47 U.S.C. ยง 230) barred the claim. However, a recent ruling from the Ninth Circuit threatened to overturn this practice. In a May 7, 2009 opinion in Barnes v. Yahoo!, Inc., __ F.3d___, 2009 WL 1232367 (9th Cir. 2009), the Ninth Circuit stated that "section 230(c) provides an affirmative defense" and that [t]he assertion of an affirmative defense does not mean that the plaintiff has failed to state a claim, and therefore does not by itself justify dismissal under Rule 12(b)(6)." The proper procedure, according to the opinion, was for the defendant Yahoo to have filed answer asserting its CDA defense, and then to have filed a motion to dismiss under Federal Rule of Procedure 12(c) -- a motion for judgment on the pleadings.
A Rule 12(c) motion can't be filed until all the pleadings are "settled" -- i.e., after the complaint and all answers have been filed, and all Rule 12(b) motions resolved. This might not occur until many months after a suit is filed. Following the procedure suggested by the Ninth Circuit would have forced Yahoo to start making unwanted disclosures in its answer and possibly under federal automatic disclosure and discovery rules, and to have continued to burn through cash defending the suit.
When I first read this portion of the Ninth Circuit opinion on Barnes v. Yahoo, it struck me as a little odd. Every litigator knows that courts don't like to waste time with obviously meritless suits and that courts often will grant a motion to dismiss if the plaintiff's allegations reveal the presence of an affirmative defense that would bar the case from proceeding. The most common example would be if the allegations in the complaint show that the claim is barred by the statute of limitations. I have participated in successfully bringing several such motions.
Unfortunately, the initial Barnes ruling immediately began to have an impact on pending cases. On May 15, 2009, the plaintiff in Goodard v. Google, a Northern District of California case (No. 5:08-cv-02738-JF) we have previously reported on, filed a brief opposing Google's Rule 12(b)(6) motion to dismiss which was based on the CDA, arguing that under the Barnes ruling, a CDA defense could not be raised in a 12(b)(6) motion.
A pair of recent decisions appears to have corrected this error.
On June 15, 2009, in Gibson v. Craigslist, the Southern District of New York (Case No. 08-Civ-7735 [RMB]) granted a Rule 12(b)(6) motion brought by Craigslist that was based on the CDA. The plaintiff in Gibson sought to hold Craigslist liable for publishing a classified ad for a handgun that was used to shoot the plaintiff. Craiglist filed a 12(b)(6) motion based on the "immunity" provided by the CDA. Gibson argued that because the CDA is an affirmative defense, the CDA could not be the basis for a 12(b)(6) motion. Gibson also sought discovery into Craiglist's involvement in the sale of guns. The Court sided with Craigslist, holding that a "defendant may raise an affirmative defense in a pre-answer Rule 12(b)(6) motion where, as here, the defense appears on the face of the complaint." It then held that the CDA did bar Gibson's suit because by suing Craiglist for running a handgun ad, it was treating Craiglist as either the publisher or speaker of the ad.
Then on June 22, 2009, the Ninth Circuit amended its Barnes v. Yahoo! opinion -- and eliminated the section which stated that a motion seeking dismissal based on the CDA should be brought under Rule 12(c), instead of Rule 12(b)(6). This amendment is already having an impact on lower court practice. On June 23, Google filed supplemental briefing in the Goodard v. Google case alerting the Court to this change. I would expect Judge Fogel, who is hearing Goodard v. Google, will be persuaded and let Google's 12(b)(6) motion go forward -- although that does not mean that the motion might not ultimately be denied on other grounds. One hopes that this little excursion by the Ninth Circuit has settled this procedural issue.
If find yourself the target of a lawsuit after having published a problematic third-party post, these recent rulings mean that the CDA may be able to provide you quick relief. Please do not hesitate to contact me if you have any questions about the possible application of the CDA to your case.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
