Westlake Legal Group v. Yelp, Inc. , 599 F. App'x 481 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1872
WESTLAKE LEGAL GROUP, d/b/a Thomas K. Plofchan, Jr., PLLC;
THOMAS K. PLOFCHAN, JR.,
Plaintiffs - Appellants,
v.
YELP, INC.,
Defendant - Appellee,
and
CHRISTOPHER SCHUMACHER,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:14-cv-00564-LO-JFA)
Submitted: February 27, 2015 Decided: March 18, 2015
Before SHEDD, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas K. Plofchan, Jr., Lavanya K. Carrithers, WESTLAKE LEGAL
GROUP, Potomac Falls, Virginia, for Appellants. Laura R.
Handman, Micah J. Ratner, DAVIS WRIGHT TREMAINE LLP, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Appellants Westlake Legal Group (“Westlake”) and Thomas K.
Plofchan, Jr., brought this defamation action in state court
against Christopher Schumacher and Yelp, Inc. (“Yelp”), alleging
that Schumacher posted defamatory comments on Yelp’s website,
which offers customer reviews of Westlake and other businesses.
Due to an error in the service of process, Yelp did not receive
notice of the suit, and Appellants obtained a default judgment.
When Appellants attempted to collect this judgment, Yelp moved
to set aside the default judgment as void for lack of service of
process and removed the case to federal court. The district
court denied Appellants’ motion to remand and granted Yelp’s
motions to set aside the judgment. The court also granted
Yelp’s motion to dismiss under Fed. R. Civ. P. 12(b)(6), finding
that Appellants’ claim against Yelp was untimely and barred by
§ 230 of the Communications Decency Act of 1996 (“CDA”). 1
Finding no error, we affirm.
1
The district court later dismissed Appellants’ claims
against Schumacher for failure to serve process. Appellants
have not appealed this order. Although the pending claims
against Schumacher rendered this appeal interlocutory when
filed, Robinson v. Parke-Davis & Co., 685 F.2d 912, 913 (4th
Cir. 1982), this defect was cured when the district court issued
its judgment on the those claims. In re Bryson, 406 F.2d 284,
287-89 (4th Cir. 2005).
3
We begin by addressing Appellants’ challenge to our
jurisdiction under the Rooker-Feldman 2 doctrine. “The Rooker-
Feldman doctrine holds that lower federal courts generally do
not have subject-matter jurisdiction to review state-court
decisions.” Shooting Point, L.L.C. v. Cumming, 368 F.3d 379,
383 (4th Cir. 2004) (internal quotation marks and brackets
omitted). This doctrine “is confined to cases of the kind from
which the doctrine acquired its name: cases brought by state-
court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005). Yelp has not brought a new
federal case seeking to challenge a state court judgment but has
removed an existing state case where a motion to set aside the
judgment was pending. Such removals are not barred by the
Rooker-Feldman doctrine. See Resolution Trust Corp. v. Allen,
16 F.3d 568, 573 (4th Cir. 1994). Accordingly, we conclude that
the Rooker-Feldman doctrine does not apply. 3
2
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fid. Trust Co., 263 U.S. 413 (1923).
3
Appellants rely on Nelson v. Uran, No. 98-2400, 1999 WL
170166 (4th Cir. Mar. 29, 1999) (unpublished), but, as an
unpublished decision, Nelson lacks precedential value; in any
event, Nelson is distinguishable.
4
Appellants argue that the district court improperly denied
their motion to remand because the notice of removal was
untimely under 28 U.S.C. § 1446(b)(l) (2012), and Yelp waived
its right to removal by moving in state court to set aside the
default judgment. 4 “[O]nce an improperly removed case has
proceeded to final judgment in federal court that judgment
should not be disturbed so long as the federal court had
jurisdiction over the claim at the time it rendered its
decision.” Aqualon Co. v. Mac Equip., Inc., 149 F.3d 262, 264
(4th Cir. 1998), abrogated in part by Grupo Dataflux v. Atlas
Global Group, L.P., 541 U.S. 567, 572 (2004) (holding that
district court must have had jurisdiction at time of removal,
not merely at time of judgment). Contrary to Appellants’
contentions, neither we nor the Supreme Court has ever held that
nonjurisdictional defects must be cured prior to judgment in
order to fall within the ambit of this holding. See Aqualon,
149 F.3d at 264-65 (applying this holding to claim that removal
was waived). Neither defect asserted by Appellants is
jurisdictional. See id.; Universal Truck & Equip. Co., Inc. v.
Southworth-Milton, Inc., 765 F.3d 103, 110 (1st Cir. 2014)
4
Appellants also argue that the notice of removal was
untimely under 28 U.S.C. § 1446(c)(1) (2012). However, that
subsection only restricts removal under subsection (b)(3).
Because this case was removed under subsection (b)(1), not
subsection (b)(3), subsection (c)(1) is inapplicable.
5
(collecting cases holding that § 1446(b)(1)’s deadline is not
jurisdictional). Accordingly, these issues are not cognizable
on appeal.
Appellants next challenge the district court’s order
setting aside the state default judgment under Fed. R. Civ. P.
60(b). We review the denial of relief under Rule 60(b) for
abuse of discretion. Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94
(4th Cir. 1997). To obtain relief under Rule 60(b), Yelp was
required to “show: (1) that the Rule 60(b) motion is timely; (2)
that [Appellants] will not suffer unfair prejudice if the
default judgment is set aside; and (3) that [their defense] is
meritorious.” Id. at 94 n.3. After making this threshold
showing, Yelp was required to demonstrate entitlement to relief
under one of Rule 60(b)’s six subsections. Id. at 94. The
subsections applied by the district court allow a judgment to be
set aside if that judgment is void, or upon a showing of “any
other reason that justifies relief.” Fed. R. Civ. P. 60(b)(4),
(6); see Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733
F.2d 1087, 1089 (4th Cir. 1984) (holding that lack of service
voids judgment).
Appellants challenge only the district court’s findings
that there was no unfair prejudice and that the challenged
6
judgment was void for lack of proper service of process. 5 With
respect to prejudice, Appellants assert generally that the
passage of time caused evidence to grow stale but cite no
specific evidence that was compromised or any other harm that is
not “the inevitable result whenever a judgment is vacated.” See
Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 265 (4th Cir.
1993) (internal quotation marks omitted). Accordingly, we
conclude that the district court did not abuse its discretion in
holding that setting aside the default judgment did not
prejudice Appellants. We do not reach Appellants’ challenge to
the district court’s finding that the judgment was void because,
even if this finding was erroneous, the court’s finding that
exceptional circumstances justified relief, which Appellants do
not contest, adequately supports its ruling.
Finally, Appellants argue that the district court erred in
dismissing the case as barred by the statute of limitations and
by § 230 of the CDA. We review this dismissal de novo. Kenney
v. Indep. Order of Foresters, 744 F.3d 901, 905 (4th Cir. 2014).
In assessing the propriety of a Fed. R. Civ. P. 12(b)(6) ruling,
5
Appellants also state that the district court erred by
finding that Yelp had meritorious defenses but make no arguments
in support of this assertion. Even assuming that it is properly
raised, however, the district court’s finding was not an abuse
of discretion because, as discussed hereinafter, Yelp did
possess meritorious defenses.
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we accept as true the factual allegations in the complaint and
any attached exhibits incorporated by reference. Tellabs, Inc.
v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The
CDA bars “state-law plaintiffs from holding interactive computer
service providers legally responsible for information created
and developed by third parties.” Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009).
“To further the policies underlying the CDA, courts have
generally accorded § 230 immunity a broad scope.” Id.
Dismissal of a case on this basis is appropriate unless the
complaint pleads nonconclusory facts that plausibly indicate
that “any alleged drafting or revision by [the defendant] was
something more than a website operator performs as part of its
traditional editorial function,” thereby rendering it an
information content provider. Id. at 255-56, 258.
Here, the facts alleged in the complaint and attached
exhibits indicate, at most, that Yelp has an automated system
that filters reviews. Such activities constitute traditional
editorial functions that do not render Yelp an information
content provider. Cf. id. at 256-58 (applying § 230 where
website’s involvement with allegedly defamatory reviews was far
more extensive than here). Because Appellants’ claims against
Yelp are barred by the CDA, we do not reach the question of
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whether Yelp’s updates to its website constituted republication
for purposes of Virginia’s statute of limitations.
Accordingly, we affirm the judgment of the district court.
We deny Appellants’ motions for leave to file a surreply brief
and to supplement the record. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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