Adrienne Sepaniak King v. Facebook, Inc. ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADRIENNE SEPANIAK KING; No. 22-15602
CHRISTOPHER EDWARD SEPANIAK
KING, D.C. No. 3:21-cv-04573-EMC
Plaintiffs-Appellants,
MEMORANDUM*
v.
FACEBOOK, INC., a Delaware corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted August 16, 2023**
San Francisco, California
Before: CALLAHAN, BADE, and BRESS, Circuit Judges.
Plaintiff-Appellant Adrienne King (King) was a Facebook user whose
account was permanently disabled for failing to follow Facebook’s “Community
Standards.” King’s son, Plaintiff-Appellant Christopher King, a computer
*
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).
engineer, attempted to help get her account reinstated, but was unsuccessful.
Appellants, both citizens of Hawaii, sued Facebook, Inc. (Facebook)1 in the
Northern District of California, bringing emotional distress-based tort claims,
contract-based claims, and a claim alleging violation of Section 230 of the
Communications Decency Act (CDA), 47 U.S.C. § 230 et seq. The district court
dismissed Appellants’ First Amended Complaint (FAC), almost in its entirety with
prejudice, but granted King leave to amend her cause of action for breach of the
implied covenant of good faith and fair dealing as it related to Facebook’s alleged
failure to provide her with an explanation for disabling her account.
After King filed her Second Amended Complaint (SAC), the district court
granted Facebook’s motion to dismiss, holding that King had failed to articulate a
cognizable damages theory relating to the loss of the photos on her account
because (1) her damages were not proximately caused by the alleged misconduct
by Facebook, (2) the type of damages she sought—special damages—were
expressly barred by Facebook’s Terms of Service (TOS), and (3) the photos did
not hold any ascertainable economic value. The district court held that because
King could not establish a cognizable damages theory, it was a “legal certainty”
that she could not establish the requisite amount in controversy to maintain
1
On October 28, 2021, Facebook changed its name to Meta Platforms, Inc.
Because the parties’ briefing and the district court orders still refer to Defendant-
Appellee as “Facebook,” we do the same to avoid confusion.
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diversity jurisdiction. Accordingly, the district court dismissed the action for lack
of subject-matter jurisdiction and declined to exercise supplemental jurisdiction
under 28 U.S.C. § 1367(c)(3). Appellants timely appeal the dismissal of their
action.
We have jurisdiction under 28 U.S.C. § 1291 and review de novo dismissals
for lack of subject-matter jurisdiction under Rule 12(b)(1) and for failure to state a
claim under Rule 12(b)(6). Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015)
(citation omitted). We affirm.
1. King’s CDA theory is foreclosed by existing authority. See, e.g., Barnes
v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).2 And as the district court correctly
explained, there is no private right of action under the CDA. A private right of
action to enforce federal law “must be created by Congress,” and without a
statutory manifestation of congressional intent, “a [private] cause of action does
not exist and courts may not create one.” Alexander v. Sandoval, 532 U.S. 275,
286–87 (2001). King does not contest this on appeal, and thus waives any
challenge to it. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir.
2013) (failure to contest issue in opening brief results in waiver).
2. The district court also properly concluded that King’s breach of the
2
Appellants’ motion for initial en banc review of this case is DENIED without
prejudice to appellants seeking en banc review in the normal course.
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implied covenant of good faith and fair dealing claim relating to her account
termination was foreclosed by Barnes. King contends that Barnes establishes a
categorical rule that contract-based claims are never barred by Section 230(c)(1).
We disagree. The specific promise to take down explicit content at issue in Barnes
does not compare to the general promise made by Facebook, and incorporated into
its TOS, to use “good faith” or make an “honest” determination before deciding to
exercise publishing or editorial discretion. See 570 F.3d at 1105, 1107–09.
Regardless, the district court properly determined that King had not alleged
cognizable damages relating to her account determination.
3. The district court did not err in dismissing the SAC for lack of subject-
matter jurisdiction because it was a “legal certainty” that King could not establish
the amount in controversy exceeded $75,000. See 28 U.S.C. § 1332(a)(1). The
district court identified several deficiencies with King’s damages theory, each of
which are independently fatal to her claim, including as it relates to Facebook
allegedly failing to provide her with an explanation for terminating her account.
King does not address the district court’s holding that she is seeking special
damages as opposed to general damages. Nor does she address the district court’s
conclusion that Facebook’s TOS expressly bars recovery for such damages.
4. The district court did not err in dismissing Appellants’ claims of
intentional and negligent infliction of emotional distress. Appellants argue in
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conclusory fashion that Facebook’s conduct was “outrageous” and that it “went out
of its way to be malicious,” but the district court was not required to accept such
conclusory allegations as a matter of law. See Berkley v. Dowds, 61 Cal. Rptr. 3d
304, 317 (Cal. Ct. App. 2007) (“Whether a defendant’s conduct can reasonably be
found to be outrageous is a question of law that must initially be determined by the
court.”).
AFFIRMED.
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