NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`JUN 12 2020
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 19-16232
`
`
`D.C. No. 4:18-cv-05159-JSW
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`JASON FYK,
`
`
`
` v.
`
`
`FACEBOOK, INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Jeffrey S. White, District Judge, Presiding
`
`Submitted June 10, 2020**
`San Francisco, California
`
`Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,*** District Judge.
`
`
`
`Jason Fyk appeals the district court’s order and judgment dismissing with
`
`prejudice his state law claims against Facebook, Inc. (Facebook) as barred pursuant
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The panel unanimously concludes this case is suitable for decision
`
`
`without oral argument. See Fed. R. App. P. 34(a)(2).
`
`*** The Honorable David A. Ezra, United States District Judge for the
`
`
`District of Hawaii, sitting by designation.
`
`
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`JUN 12 2020
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 19-16232
`
`
`D.C. No. 4:18-cv-05159-JSW
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiff-Appellant,
`
`JASON FYK,
`
`
`
` v.
`
`
`FACEBOOK, INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Jeffrey S. White, District Judge, Presiding
`
`Submitted June 10, 2020**
`San Francisco, California
`
`Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,*** District Judge.
`
`
`
`Jason Fyk appeals the district court’s order and judgment dismissing with
`
`prejudice his state law claims against Facebook, Inc. (Facebook) as barred pursuant
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`** The panel unanimously concludes this case is suitable for decision
`
`
`without oral argument. See Fed. R. App. P. 34(a)(2).
`
`*** The Honorable David A. Ezra, United States District Judge for the
`
`
`District of Hawaii, sitting by designation.
`
`
`
`
`
`
`
`
`
`to the Communications Decency Act (CDA). We have jurisdiction pursuant to 28
`
`U.S.C. § 1291. “We review de novo the district court’s grant of a motion to dismiss
`
`under Rule 12(b)(6), accepting all factual allegations in the complaint as true and
`
`construing them in the light most favorable to the nonmoving party.” Ebner v. Fresh,
`
`Inc., 838 F.3d 958, 962 (9th Cir. 2016).1 We affirm.
`
`1.
`
`Pursuant to § 230(c)(1) of the CDA, 47 U.S.C. § 230(c)(1), “[i]mmunity
`
`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.’”
`
`Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019) (quoting
`
`Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100–01 (9th Cir. 2009)). “When a plaintiff
`
`cannot allege enough facts to overcome Section 230 immunity, a plaintiff’s claims
`
`should be dismissed.” Id. The district court properly determined that Facebook has
`
`§ 230(c)(1) immunity from Fyk’s claims in this case.
`
`The first and second requirements for § 230(c)(1) immunity are not in
`
`dispute.2 Fyk focuses on the third requirement. He contends that Facebook is not
`
`
`1 We reject Fyk’s argument that the district court impermissibly converted the
`motion to dismiss into a motion for summary judgment. The district court did not
`deviate from the Rule 12(b)(6) standard by alluding to the allegation in Fyk’s
`complaint that Facebook de-published one of his pages concerning urination, nor did
`that allusion affect the court’s analysis.
`
`2 Fyk concedes that Facebook is the provider of an “interactive computer
`
`
`
`2
`
`
`
`
`
`entitled to § 230(c)(1) immunity because it acted as a content developer by allegedly
`
`de-publishing pages that he created and then re-publishing them for another third
`
`party after he sold them to a competitor. We disagree.
`
`“[A] website may lose immunity under the CDA by making a material
`
`contribution to the creation or development of content.” Kimzey v. Yelp! Inc., 836
`
`F.3d 1263, 1269 (9th Cir. 2016); see also Fair Hous., 521 F.3d at 1166. Fyk,
`
`however, does not identify how Facebook materially contributed to the content of
`
`the pages. He concedes that the pages were the same after Facebook permitted their
`
`re-publication as when he created and owned them. We have made clear that
`
`republishing or disseminating third party content “in essentially the same format”
`
`“does not equal creation or development of content.” Kimzey, 836 F.3d at 1270,
`
`1271.
`
`That Facebook allegedly took its actions for monetary purposes does not
`
`
`service.” 47 U.S.C. § 230(f)(2); see also Fair Hous. Council v. Roommates.com,
`LLC, 521 F.3d 1157, 1162 n.6 (9th Cir. 2008) (en banc) (“[T]the most common
`interactive services are websites[.]”). He has also not challenged the district court’s
`determination that his claims seek to treat Facebook as a publisher and has therefore
`waived that issue. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir.
`2003) (“[W]e will not consider any claims that were not actually argued in
`appellant’s opening brief.”). In any event, it is clear that Fyk seeks to hold Facebook
`liable as a publisher for its decisions to de-publish and re-publish the pages. See
`Barnes, 570 F.3d at 1103 (“[R]emoving content is something publishers do . . . . It
`is because such conduct is publishing conduct that we have insisted that section 230
`protects from liability any activity that can be boiled down to deciding whether to
`exclude material that third parties seek to post online.” (emphasis in original)
`(citation and internal quotation marks omitted)).
`
`
`
`3
`
`
`
`
`
`somehow transform Facebook into a content developer. Unlike 47 U.S.C. §
`
`230(c)(2)(A), nothing in § 230(c)(1) turns on the alleged motives underlying the
`
`editorial decisions of the provider of an interactive computer service. We otherwise
`
`reject Fyk’s argument that his case is like Fair Housing because Facebook allegedly
`
`“discriminated” against him by singling out his pages. Fyk mistakes the alleged
`
`illegality of the particular content at issue in Fair Housing with an anti-
`
`discrimination rule that we have never adopted to apply § 230(c)(1) immunity.
`
`2.
`
`Contrary to Fyk’s arguments here regarding a so-called “first party” and
`
`“third party” distinction between §§ 230(c)(1) and 230(c)(2)(A), the fact that he
`
`generated the content at issue does not make § 230(c)(1) inapplicable. We have
`
`explained that “[t]he reference to ‘another information content provider’ [in §
`
`230(c)(1)] distinguishes the circumstance in which the interactive computer service
`
`itself meets the definition of ‘information content provider’ with respect to the
`
`information in question.” Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003),
`
`superseded in part by statute on other grounds as stated in Breazeale v. Victim
`
`Servs., Inc., 878 F.3d 759, 766–67 (9th Cir. 2017). As to Facebook, Fyk is “another
`
`information content provider.” See Sikhs for Justice “SFJ”, Inc. v. Facebook, Inc.,
`
`144 F. Supp. 3d 1088, 1094 (N.D. Cal. 2015), aff’d, 697 F. App’x 526, 526 (9th Cir.
`
`2017).
`
`3. We reject Fyk’s argument that granting § 230(c)(1) immunity to
`
`
`
`4
`
`
`
`
`
`Facebook renders § 230(c)(2)(A) mere surplusage. As we have explained, §
`
`230(c)(2)(a) “provides an additional shield from liability.” Barnes, 570 F.3d at 1105
`
`(emphasis added). “[T]he persons who can take advantage of this liability shield are
`
`not merely those whom subsection (c)(1) already protects, but any provider of an
`
`interactive computer service. Thus, even those who cannot take advantage of
`
`subsection (c)(1), perhaps because they developed, even in part, the content at issue
`
`can take advantage of subsection (c)(2).” Id.
`
`4.
`
`Finally, we reject Fyk’s argument that Facebook is estopped from
`
`relying on § 230(c)(1) immunity based on its purported pre-suit reliance on §
`
`230(c)(2)(A) immunity to justify its conduct. The CDA precludes the imposition of
`
`liability that is inconsistent with its provisions. 47 U.S.C. § 230(e)(3).
`
`AFFIRMED.
`
`
`
`5
`
`
`
`
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