Florida Abolitionist et al v. Backpage.com LLC et al

 

 

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

FLORIDA ABOLITIONIST and JANE
DOE,
Plaintiffs,

v. Case No: 6:17-cv-218-0rl-28TBS

BACKPAGE.COM LLC,
EVILEMPIRE.COM, BIGCITY.COM,
CARL FERRER, MICHAEL LACEY and
JAMES LARKIN,

Defendants.

 

ORDER

Plaintiffs Jane Doe and Florida Abolitionist bring this action against Defendants
Backpage.com LLC, EvilEmpire.com, BigCity.com, Carl Ferrer, Michael Lacey, and James
Larkin, alleging six claims under Florida law and one claim under 18 U.S.C. 1595, which
provides a federal civil remedy for sex trafficking victims. Before the Court is Defendants?
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) (Doc.
42), Plaintiffs? Opposition (Doc. 52), and Defendants? Reply (Doc. 58). As set forth below,
Defendants? motion is granted in part and denied in part, and Plaintiffs will be allowed to
replead their claims.

I. Background

As alleged in the Complaint, Defendant Backpage.com LLC owns and operates the
website that does business as Backpage.com, and Defendants EvilEmpire.com and
BigCity.com are websites whose content, services, and features are controlled by
Backpage.com LLC. (Compl, Doc. 1, 111] 11?13). Defendant Carl Ferrer is the CEO of

Backpage.com LLC, and Defendants Michael Lacey and James Larkin are owners of

DOC. 85

 

Dockets.Justia.com

 

 

Backpagecom LLC. 111) 14?16). Defendants operate an online classified advertising
service on Backpagecom, and during the time period at issue in this case advertisements
could be placed on the website in categories including ?Adult Services"?such as escort
services?and ?Dating.?1

Plaintiff Jane Doe ?was trafficked on Backpage in . . . 2013 and repeatedly raped as
a result of the advertisement placed on Backpage.? (Q, 11 18). She was twenty-six years
old at that time. id_. 1) 100 (stating that in 2017 Plaintiff Doe was thirty years old)).
Plaintiff Florida Abolitionist is a non-profit 501(c)(3) organization ?whose mission is to end
human trafficking," 1) 17), and which provides services to trafficking victims, 1) 111).
Florida Abolitionist estimates that at least half of the victims it serves were trafficked via
Backpage. 1) 114).

The Complaint alleges seven counts, each of which is against all Defendants?four
brought solely by Doe and three brought by both Plaintiffs. Doe alone brings claims of sex
trafficking under 18 U.S.C. 15952 (Count I), ?distributor or publisher liability" (defamation)
(Count II), common law invasion of privacy or right to publicity (Count IV), and violation of
Section 540.08, Florida Statutes (commercial exploitation of a person?s name or
personality) (Count V). Both Doe and Florida Abolitionist bring claims of outrage (Count
Ill), civil conspiracy (Count VI), and negligence (Count VII).

In their motion to dismiss, Defendants assert that Plaintiffs lack standing to bring

 

1 According to the Complaint, in January 2017 the ?Adult Services" section was
removed and advertisements in that section were shifted to the ?Dating? section. (Doc. 1
1111 74?75). This occurred one day prior to a public hearing before a US. Senate
Subcommittee that was investigating Backpagecom. (S_ee Doc. 1 111) 72?73).

2 In Count I, the Complaint refers to 18 U.S.C. 1591-?a criminal provision?rather
than 18 U.S.C. 1595, which provides a civil remedy for victims of sex trafficking. The
Complaint elsewhere refers to 1595, (see Docapparent that 1595 is
the basis for this claim.

 

 

 

their claims and that therefore the case should be dismissed for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure Defendants also argue that 47
U.S.C. 230?part of the Communications Decency Act of 1996?bars Plaintiffs? claims.
And Defendants contend that even aside from 230, Plaintiffs? claims should be dismissed
for failure to state a claim on which relief can be granted. Plaintiffs oppose all of
Defendants? arguments and request leave to amend their complaint in the event the Court
finds any of their claims deficiently pleaded.

ll. Standing (Rule 12(b)(1))3

Federal courts are courts of limited jurisdiction, and ?Article [of the US.
Constitution] restricts the jurisdiction of federal courts to litigants who have standing to sue.?
Nicklaw v. CitiMortqaqe, Inc., 839 F.3d 998, 1001 (11th Cir. 2016). ?Article standing
. . . enforces the Constitution?s case-or?controversy requirement. Elk Grove Unified Sch.
Dist. v. Newdow, 542 US. 1, 11 (2004), abrogated on other grounds by Lexmark lnt?l, Inc.
v. Static Control Components, Inc., 134 S. Ct. 1277 (2014).

?To have standing under Article a plaintiff ?must have suffered or be imminently
threatened with a concrete and particularized ?injury in fact? that is fairly traceable to the
challenged action of the defendant and likely to be redressed by a favorable judicial
decision.? v. Governor of Fla., 848 F.3d 1293, 1303?04 (11th Cir. 2017)
(quoting Lexmark, 134 S. Ct. at 1386). Defendants argue that Plaintiffs lack standing

because they have not sufficiently alleged a causal connection between their injuries and

 

3 Although Defendants raise the issue of standing at page twenty-four of their
motion?after fifteen pages of argument about their assertions of Communications
Decency Act ?immunity"?the Court addresses standing first. See, Mobility,
LLC v. Nat?l Ass?n for Stock Car Auto Racing, lnc., 494 F.3d 1356, 1359 (11th Cir. 2007)
(?Standing . . . ?is a threshold jurisdictional question which must be addressed prior to and
independent of the merits of a party?s claims.? (quoting Dillard v. Baldwin Cty. Comm?rs,
225 F.3d 1271, 1275 (11th Cir. 2000)).

 

 

 

 

 

Defendants? actions.4 The Court disagrees.

As noted above, in order for Plaintiffs to have standing their injuries must be ?fairly
traceable? to the actions of the Defendants. ??At the pleading stage, general factual
allegations of injury resulting from the defendant?s conduct may suffice? to establish
standing.? Resnick v. AvMed, lnc., 693 F.3d 1317, 1323 (11th Cir. 2012) (quoting LEM
Defenders of Wildlife. 504 US. 555, 561 (1992)). And ?[e]ven a showing that a plaintiff?s
injury is indirectly caused by a defendant?s actions satisfies the fairly traceable
requirement.? at 1324; see also 848 F.3d at 1304 (??Proximate
causation,? however, ?is not a requirement of Article (alteration in original)
(quoting Lexmark, 134 S. Ct. at 1391 Plaintiff Doe alleges that after an advertisement
offering her for sexual services was posted on Backpagecom on March 30, 2013, she was
raped and sold at least five times in a period of twelve hours. (Compl. 1i 9). She alleges
in each count that she suffered physical and injuries based on the posting of
the advertisement on Backpagecom. This is sufficient to satisfy the ?fairly traceable?
requirement for Article standing at this stage of the case as to each of Plaintiff Doe's
claims. Defendants' assertions as to the insufficiency of Doe?s pleading of causation bear
on whether she has stated causes of action under Rule 12(b)(6) rather than on whether
she has standing to bring these claims against Defendants in the first instance. 
Co. v. Citizens for a Better Env?t, 523 US. 83, 89 (1998) absence of a valid (as
Opposed to arguable) cause of action does not implicate subject?matter jurisdiction, 
the courts? statutory or constitutional power to adjudicate the case." (emphasis removed)).

The Complaint also sufficiently alleges that Plaintiff Florida Abolitionist has standing

 

4 Defendants do not contend that Plaintiffs have not satisfied the ?injury in fact? or
?redressability? aspects of standing.

 

 

 

to bring its claims. ?An organization suing on its own behalf can establish an injury when
it suffered ?both a diversion of its resources and a frustration of its mission.? La Asociacion
de Trabaiadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)
(quoting Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)); mm
Fla. Sec?v of State, 772 F.3d 1335, 1341 (11th Cir. 2014) organization has standing
to sue when a defendant?s illegal acts impair the organization?s ability to engage in its own
projects by forcing the organization to divert resources in response.? (citing Havens Realty
Corp. v. Coleman, 455 US. 363, 379 The Complaint alleges that Defendants?
conduct with regard to the advertisements posted on the websites has led to an increase
in sex trafficking, which has required Florida Abolitionist to divert its resources to treatment
of victims rather than to its mission of ending human trafficking. (Compl. 1111 10 114).
The Complaint further alleges that ?Florida Abolitionist estimates that at least half of the
victims it serves were trafficked via Backpage.? 11114). These are sufficient allegations
of an injury ?fairly traceable? to the actions of Defendants to support Florida Abolitionist?s
standing on each of its claims at this stage of the case.

In sum, Plaintiffs have sufficiently alleged standing. Defendants? motion to dismiss
is denied insofar as it asserts lack of subject-matter jurisdiction under Rule 
Failure to State a Claim (Rule 

A. Legal Standards

pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.? Fed. R. Civ. P. 
factual allegations?" are not required, but pleading that offers ?labels and

conclusions? or ?a formulaic recitation of the elements of a cause of action will not 

Ashcroft v. Igbal, 556 US. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twomblv, 550 US.

 

 

 

544, 555 (2007)). "To survive a [Rule motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ?state a claim to relief that is plausible on its

face. (quoting Twombly, 550 US. at 570). In considering a motion to dismiss brought
under Rule a court limits its ?consideration to the well-pleaded factual allegations,
documents central to or referenced in the complaint, and matters judicially noticed."
LaGrasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

B. The Communications Decency Act

The main focus of Defendants' motion to dismiss is on 47 U.S.C. 230(c)(1), which
provides that 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.? And 230(e)(3) provides that cause of action may be brought and no
liability may be imposed under any state or local law that is inconsistent with? 230.
Defendants contend that these provisions afford them ?immunity" to all of Plaintiffs? claims
or otherwise bar them.

As earlier noted, 230 is part of the Communications Decency Act of 1996 (CDA).
The Ninth Circuit explained the history of the CDA, 230, and 230(c)(1)5 in particular in
Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003):

The primary goal of the was to control the exposure of minors to

indecent material. Parts of the have since been struck down as
unconstitutional limitations on free speech, but the section at issue here,

 

5 Another paragraph of 230?? 230(c)(2), titled ?Civil liability??provides: ?No
provider or user of an interactive computer service shall be held liable on account of?(A)
any action voluntarily taken in good faith to restrict access to or availability of material that
the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable, whether or not such material is constitutionally
protected; or (B) any action taken to enable or make available to information content
providers or others the technical means to restrict access to material described in
[paragraph Defendants do not rely on this portion of 230 in defending against
Plaintiffs' claims. Although Plaintiffs insist that 230(c)(2) is implicated here, the Court
confines its discussion to the provisions upon which Defendants base their motion.

 

 

 

230, remains intact.

. . . The specific provision at issue here, 230(c)(1), overrides the
traditional treatment of publishers, distributors, and speakers under statutory
and common law. As a matter of policy, ?Congress decided not to treat
providers of interactive computer services like other information providers
such as newspapers, magazines or television and radio stations, all of which
may be held liable for publishing or distributing obscene or defamatory
material written or prepared by others.? Absent 230, a person who
published or distributed speech over the internet could be held liable for
defamation even if he or she was not the author of the defamatory text, and,

indeed, at least with regard to publishers, even if unaware of the statement.
Congress, however, has chosen to treat cyberspace differently.

333 F.3d at 1026?27 (internal citations omitted).

Defendants argue that as website operators, they are merely providers of an
?interactive computer service? and that?contrary to are attempting
to treat them "as the publisher or speaker of . . . information provided by [other] information
content who post the ads on Defendants? websites. Plaintiffs, on the
other hand, maintain that Defendants are not merely providers of an ?interactive computer
service? but also qualify as ?information content providers? for the ads at issue here.

?Information content provider" is defined in 230(f)(3) as "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 computer service.? An entity can be both an
?interactive computer service? provider and an "information content provider.? Thus, at
issue is whether Defendants merely provided an interactive computer service or were also
?responsible, in whole in part, for the creation or development? of the advertisements on
the website such that they were ?information content providers? as well.

Some courts characterize the ?protection? of 230(c)(1) as ?a broad immunity,? but
this view is not universal. Compare, Nemet Chevrolet, Ltd. v. Consumeraffairscom,

Lrg, 591 F.3d 250 (4th Cir. 2009), with Chicago Lawyers? Committee for Rights Under Civil

 

 

 

Law, lnc. v. Craiqslist, 519 F.3d 666, 669 (7th Cir. 2008), and Barnes v. Yahool, Inc., 570
F.3d 1096, 1100 (9th Cir. 2009) (?Neither 230(c)(1)] nor any other [subsection] declares
a general immunity from liability deriving from third-party content . . . . [Section 230(c)(1)]
precludes liability only by means of a definition"). And some courts regard 230(c)(1) as
an affirmative defense that need not be overcome by a complaint?s allegations and is not
the proper subject of a Rule 12(b)(6) motion to dismiss. See, Doe v. GTE Corp., 347
F.3d 655, 657 (7th Cir. 2003) (discussing the procedural posture issue but noting that the
parties did not raise it and declining to ?fuss[] over procedural niceties to which the parties
are indifferent?). Some courts have found that even if it is affirmative defense, the issue of
the applicability of 230(c)(1) can be resolved on a 12(b)(6) motion if it is clear from the
face of the complaint. See, Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d
Cir. 2015) (?Although [p]reemption under the Communications Decency Act is an
affirmative defense, . . . it can still support a motion to dismiss if the statute?s barrier to suit
is evident from the face of the complaint.? (alterations in original) (internal quotation
omitted)); accord Green Grp. Holdings, LLC v. Schaeffer, 2016 WL 6023841, at *8 (SD.
Ala. Oct. 13, 2016); e-ventures Worldwide, LLC v. Gooqle. Inc., 188 F. Supp. 3d 1265,
1273 (MD. Fla. 2016).

Although Defendants assert that they are ?immune from" this suit under 230(c)(1),
the Court concludes that even if 230(c)(1) is something other than an affirmative defense
and can be properly addressed on a Rule 12(b)(6) motion, factual issues preclude a ruling
on the 230(c)(1) issue at this stage of the case. See. FTC v. LeanSpa, LLC, 920 F.
Supp. 2d 270, 275 (D. Conn. 2013) (?The Court cannot conclude from the face of the
Amended Complaint that the LeadClick defendants are entitled to immunity under the

Cybersitter, LLC v. Gooqle lnc., 905 F. Supp. 2d 1080, (CD. Cal. 2012) (?Because

 

 

 

Defendant?s entitlement to immunity under the CDA depends on whether Defendant
?developed? or materially contributed to the content of these advertisements, it is too early
at this juncture to determine whether CDA immunity applies?); Hv Cite Corp. v.
Badbusinessbureau.com, L.L.C., 418 F. Supp. 2d 1142, 1145 (D. Ariz. 2005) (?Taking
Plaintiff?s allegations as true, Defendants are not entitled to immunity under the CDA at this
stage of the case.? (citation omitted)). Plaintiffs have alleged facts suggesting that
Defendants materially contributed to the content of the advertisements, and thus the issue
of CDA immunity cannot be resolved on a Rule 12(b)(6) motion to dismiss in this case.

C. Pleading Sufficiency Aside from the CDA

Although Plaintiffs have sufficiently alleged facts establishing their standing and
overcoming a finding of CDA ?immunity? at this stage of the case, Plaintiffs? claims
nevertheless must be repleaded. First, the Complaint is of the ?shotgun? variety, in which
each count incorporates all prior paragraphs, lumps all Defendants together in nearly all
allegations, and makes it difficult for the Court to determine which allegations the Plaintiffs
are relying on for each of their counts. Moreover, the Complaint refers to entities as
?Defendants? who are not identified as Defendants in the caption of the case and
apparently have not been served with process. (?ag Compl. at 6 (referring to "Defendant
Dartmoor Holdings "Defendant Classified Solutions and ?Defendant Website
Technologies, 

Additionally, the only federal claim asserted in the Complaint?Count l?does not
state a claim for which relief can be granted. Defendants note that Count I does not include
a plausible allegation that Defendants saw the ad concerning Plaintiff Doe and knew it
related to illegal sex trafficking. And the Complaint?s allegations largely describe

Defendants? alleged actions of masking advertisements of minors by creating content that

 

 

 

obscures the fact that they are minors. Yet Plaintiff Doe was not a minor at the time of the
events at issue-?she was twenty-six years old. Compl. 1] 100). Thus, Plaintiffs have
not yet sufficiently alleged a plausible federal claim. Although Plaintiffs allege that this
Court has diversityjurisdiction over their state law claims, they do so only conclusorily and
do not identify the citizenship of any party. ig, 1] 21).

Plaintiffs request, and will be allowed, leave to amend so that they can attempt to
remedy their pleading deficiencies. The other arguments made in Defendants? 12(b)(6)
motion may be asserted again, if applicable, after repleading by Plaintiffs.

IV. Conclusion

In accordance with the foregoing, it is ORDERED as follows:

1. Defendants' Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(1) and 12(b)(6) (Doc. 42) is GRANTED in part and DENIED in part. The motion is
denied insofar as it is brought under Rule 12(b)(1) and is GRANTED insofar as it is brought
under Rule 

2. The Complaint is dismissed without prejudice, and Plaintiffs are granted
leave to replead their claims. Plaintiffs may file an amended complaint on or before April
30, 2018. Failure to file an amended complaint by this deadline may result in dismissal of
Plaintiffs? claims with prejudice without further notice.

DONE and ORDERED in Orlando, Florida,

   

 

. (I,
JOHN ANTOON ll 
nited States District Judge
I,




Copies furnished to:
Counsel of Record

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