Chris Davis v. Motiva Enterprises, LLC ( 2015 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00434-CV
____________________
CHRIS DAVIS, Appellant
V.
MOTIVA ENTERPRISES, L.L.C., Appellee
_________________________________ ______________________
On Appeal from the 1st District Court
Jasper County, Texas
Trial Cause No. 34022
____________________________________________ ____________
MEMORANDUM OPINION
Chris Davis sued (1) Chris Fournet for invasion of privacy by public
disclosure of private facts and by intrusion on seclusion, libel, and intentional
infliction of emotional distress; and (2) Motiva Enterprises, L.L.C. for negligent
supervision, negligent entrustment, and negligent undertaking. 1 Motiva filed a
motion to dismiss based on the Communications Decency Act (“CDA”), which the
trial court granted. In this permissive appeal, Davis raises two appellate issues
1
Fournet is not a party to this appeal.
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challenging the dismissal of her lawsuit against Motiva. See Tex. R. App. P. 28.3;
see also Tex. R. Civ. P. 168; Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West
2015). We affirm the trial court’s judgment.
Communications Decency Act
In issue one, Davis contends that the trial court erred by dismissing her
claims against Motiva pursuant to section 230 of the CDA. “[A] party may move to
dismiss a cause of action on the grounds that it has no basis in law or fact.” Tex. R.
Civ. P. 91a.1. “A cause of action has no basis in law if the allegations, taken as
true, together with inferences reasonably drawn from them, do not entitle the
claimant to the relief sought.” Id. “A cause of action has no basis in fact if no
reasonable person could believe the facts pleaded.” Id. We review the trial court’s
ruling on questions of law de novo. GoDaddy.com, LLC v. Toups, 429 S.W.3d 752,
754 (Tex. App.—Beaumont 2014, pet. denied). We take the plaintiff’s allegations
as true and consider whether the petition contains “‘enough facts to state a claim to
relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
In her petition, Davis alleged that, while employed by Motiva, Fournet used
Motiva’s technology and facilities to lodge “an obscene cyber-strike campaign”
against her by posting advertisements to Craig’s List and posing “as [Davis] as if
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she were soliciting for sexual encounters with strangers[.]” Davis alleged that
Fournet had previously used Motiva’s technology for several years to access
Craig’s List for “soliciting sexual encounters” and “other pornographic, swinger
life, or adult ‘friend finder’ websites” during work hours and while under Motiva’s
supervision. She alleged that “Motiva employees, including those in management,
would by their proximity and interaction with Fournet have known or suspected his
consistent interactions with pornographic and adult websites during working hours
using Motiva IT.”
Davis claimed that Motiva’s Code of Conduct prohibits the use of its
technology to commit fraud or to access “pornography or any other form of nude,
indecent, vulgar, obscene, or otherwise objectionable material.” The Code states
that “the use of Motiva IT and communication facilities is logged [and] monitored
for the purposes of information security, operational management, and
‘cybercrime’, and to ensure it is compliant with laws, regulations, and Motiva
policies.” The Code requires anyone who suspects or has knowledge of a violation
of the Code to report the violation to Motiva’s human resources department. Given
these policies, Davis alleged that Motiva (1) had reason to know and anticipate that
employees could and were likely to access websites that were “not of a business
nature while on the premises of, or using property owned by Motiva in the course
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of their employment and outside of the scope of their employment[;]” (2) “knew or
should have known from its ‘logged’ and ‘monitored’ information that Fournet was
engaging in wrongful activity”; and (3) knew of Fournet’s “sexual and
inappropriate content internet browsing” and “of his leaving and returning to the
jobsite in order to conduct those sexual encounters he solicited using Motiva IT
property, and failed to implement procedures as described in Motiva’s Code of
Conduct to investigate and discipline such behavior.”
Davis asserted a claim for negligent supervision, alleging that Motiva: (1)
failed to exercise ordinary care in supervising Fournet so as to prevent his
foreseeable misconduct from causing harm to Davis; (2) “knew or had reason to
know of the reason for supervision and indeed, created a duty for the employees of
Motiva to act in supervision and report such misconduct in addition to Motiva’s
own logging and monitoring of the personal use of Motiva IT and communication
facilities[;]” and (3) failed in its duty to log and monitor the personal use of Motiva
technology and communication facilities, or to investigate and discipline Fournet
after any reporting of Fournet’s violations of Motiva’s Code of Conduct, or failed
to properly train Fournet. Davis also claimed negligent entrustment on grounds that
(1) Motiva entrusted technology and communication facilities to Fournet; (2)
Fournet was reckless and incompetent when using Motiva’s technology on
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numerous occasions; and (3) Motiva knew or should have known that Fournet was
reckless and incompetent with Motiva’s property. Finally, Davis alleged negligent
undertaking, pleading that Motiva: (1) “undertook to perform services that it knew
or should have known were necessary for [Davis’s] protection as a member of a
community in the . . . region where Motiva operates and has employees[;]” (2) did
not exercise reasonable care when performing such services; and (3) increased the
risk of harm by failing to perform those services. Davis alleged that Motiva’s
conduct proximately caused her injuries.
In its motion to dismiss, Motiva argued that section 230(c)(1) and 230(c)(2)
of the CDA barred Davis’s claims against Motiva because (1) Motiva is a provider
of an interactive computer service in accordance with section 230; (2) Fournet, not
Motiva, was the information content provider; (3) Davis’s claims attempt to treat
Motiva as the “publisher” or “speaker” of the information Fournet posted; and (4)
Davis’s claims were entirely based on Motiva’s Code of Conduct. The trial court
agreed and dismissed Davis’s claims against Motiva with prejudice. On appeal,
Davis contends that section 230 does not foreclose all state law claims but allows
claims based on “state and local laws within the same field, so long as they are
‘consistent’ with section 230.” She contends that her claims do not attempt to treat
Motiva as a publisher, but arise from “Motiva’s failure to supervise Fournet’s
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conduct, investigate and discipline Fournet’s conduct when Motiva knew or had
reason to know of such conduct, Motiva’s negligent entrustment to Fournet with
Motiva IT and communication facilities, and Motiva’s negligence in its
undertaking to supervise, monitor, investigate and discipline its employee’s
activities.” Additionally, Davis maintains that employers have a duty to control and
supervise their employees, independent of Motiva’s Code of Conduct.
Under section 230(c)(1), “[n]o 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.” 47 U.S.C.S. § 230(c)(1). Nor may a
provider or user of an interactive computer service be held liable for “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[.]” Id. § 230(c)(2)(A). An “‘interactive computer
service’ means any information service, system, or access software provider that
provides or enables computer access by multiple users to a computer server,
including specifically a service or system that provides access to the Internet and
such systems operated or services offered by libraries or educational institutions.”
Id. § 230(f)(2). The “information content provider” is the person “responsible, in
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whole or in part, for the creation or development of information provided through
the Internet or any other interactive computer service.” Id. § 230(f)(3). Section 230
shall not “be construed to prevent any State from enforcing any State law that is
consistent with this section.” Id. § 230(e)(3). “No cause of action may be brought
and no liability may be imposed under any State or local law that is inconsistent
with [] section [230].” Id.
Section 230(c)(1) “only protects from liability (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.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100-01
(9th Cir. 2009). The parties do not dispute that the plain language of section 230
renders Motiva a provider or user of an interactive computer service or that
Fournet qualifies as an information content provider. See id; see also Lansing v.
Sw. Airlines Co., 980 N.E.2d 630, 637 (Ill. App. 2012) (An employer qualifies as a
provider or user of an interactive computer service when it uses an information
system or service that multiple users, like its employees, use to access the
Internet.). Accordingly, we must determine whether Davis’s causes of action seek
to treat Motiva as a publisher or speaker. See Barnes, 570 F.3d at 1100-01.
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Davis relies on Barnes, Lansing, and Jane Doe v. Internet Brands, Inc., 767
F.3d 894 (9th Cir. 2014), to support her position that her lawsuit is not barred by
section 230. 2 In Barnes, Barnes’s ex-boyfriend posted inappropriate profiles of
Barnes on one of Yahoo’s websites and posed as Barnes in chat rooms, after which
unfamiliar men began contacting Barnes. Barnes, 570 F.3d at 1098. Barnes
contacted Yahoo, but Yahoo failed to act, even after promising to do so, until
Barnes filed a lawsuit. Id. at 1098-99. Barnes alleged claims for negligent
undertaking and promissory estoppel. Id. at 1099, 1106. The trial court dismissed
Barnes’s lawsuit pursuant to section 230. Id. at 1099. On appeal, the Ninth Circuit
found that Barnes could not maintain a negligent undertaking claim against Yahoo
because “the duty that Barnes claims Yahoo violated derives from Yahoo’s
conduct as a publisher--the steps it allegedly took, but later supposedly abandoned,
to de-publish the offensive profiles.” Id. at 1102-03. Barnes could maintain her
promissory estoppel claim because contract liability arose from “Yahoo’s manifest
intention to be legally obligated to do something, which happens to be removal of
material from publication.” Id. at 1107-09.
2
The Doe opinion was withdrawn by the Ninth Circuit, but we will address
it given that Davis relies on it in her brief. See Doe v. Internet Brands, Inc., No. 12-
56638, 2015 U.S. App LEXIS 2727 (9th Cir. Feb. 24, 2015).
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In Lansing, Lansing sued Southwest for negligent supervision on grounds
that it allowed its employee, Thomas McGrew, to use Southwest’s technology to
threaten and harass Lansing and failed to discipline McGrew despite receiving
notice from Lansing of McGrew’s conduct. Lansing, 980 N.E.2d at 631-33. The
trial court granted Southwest’s motion for summary judgment on grounds that
Southwest had immunity under section 230. Id. at 632-33. The Illinois Appellate
Court disagreed, explaining that whether Southwest acted like a publisher or
speaker of the offensive material was irrelevant to Lansing’s claim. Id. at 639, 641.
Specifically, holding Southwest “liable for its failure to supervise its employee
after defendant had received notice of the employee’s wrongful conduct does [] not
treat defendant as if it were the publisher or speaker of the alleged e-mails and
texts.” Id. at 639. The Court explained:
Defendant’s duty to supervise its employee is distinct from any
conduct like editing, monitoring or removing offensive content
published on the Internet. Contrary to defendant’s argument on
appeal, plaintiff’s theory of liability is not based on defendant
allowing McGrew access to the Internet to publish inappropriate and
defamatory electronic messages and then failing to either monitor his
messages or prevent them from being sent or somehow remove them.
Rather, plaintiff [] seeks to hold defendant liable for failing to
investigate plaintiff’s complaint about McGrew’s wrongful conduct,
reprimand him, and timely suspend or terminate his employment.
Id. at 639.
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In Doe, Internet Brands, which owned a networking website called Model
Mayhem, was sued for negligence by Doe, an aspiring model, who posted her
information on Model Mayhem’s website. Doe, 767 F.3d at 895. Doe alleged that
two rapists used the website to lure her to a fake audition and that Internet Brands
knew about the rapists but failed to warn Doe and other users of the website. Id.
The trial court dismissed Doe’s lawsuit pursuant to section 230. Id. On appeal, the
Ninth Circuit found that Doe’s lawsuit was not barred by section 230 and
explained as follows:
The duty to warn allegedly imposed by California law would not
require Internet Brands to remove any user content or otherwise affect
how it publishes such content. Any obligation to warn could have
been satisfied without changes to the content posted by the website’s
users. Internet Brands would simply have been required to give a
warning to Model Mayhem users, perhaps by posting a notice on the
website or by informing users by email what it knew about the
activities of [the rapists].
. . . A post or email warning that Internet Brands generated would
involve only content that Internet Brands itself produced. An alleged
tort based on a duty that would require such a self-produced warning
therefore falls outside of section 230(c)(1). In sum, Jane Doe’s
negligent failure to warn claim does not seek to hold Internet Brands
liable as the “publisher or speaker of any information provided by
another information content provider.”
Id. at 897-98 (internal citations omitted).
The record in this case does not demonstrate that Davis directly notified
Motiva of Fournet’s conduct. Davis’s petition alleges that Motiva had actual or
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constructive knowledge of the acts Fournet committed against Davis and should
have known of Fournet’s propensity to use Motiva’s technology to interact with
Craig’s List and inappropriate websites. The petition does not contain facts
alleging how Motiva received notice of Fournet’s conduct against Davis. “To
survive a 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.’” 3 Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. Unlike in Barnes, Lansing, and
Doe, in which the plaintiffs presented the facts underlying the defendants’ receipt
of notice regarding the conduct of another information content provider, Davis’s
allegations are nothing more than conclusory statements that cannot support a
reasonable inference that Motiva is liable as alleged. See id.; see also Tex. R. Civ.
P. 91a.1.
3
Because Rule 91a is analogous to Federal Rule 12(b)(6), case law
interpreting Rule 12(b)(6) is instructive. GoDaddy.com, LLC v. Toups, 429 S.W.3d
752, 754 (Tex. App.—Beaumont 2014, pet. denied).
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Based on her pleadings, Davis suggests that because Fournet engaged in
inappropriate internet usage before creating the Craig’s List accounts referencing
her, Motiva should have known of Fournet’s propensity to engage in such conduct.
Thus, had Motiva supervised Fournet by logging and monitoring, investigating and
disciplining, and properly training Fournet, the fake Craig’s List posts could have
been prevented from being published. Unlike in Lansing, therefore, Davis’s theory
of liability is based on Motiva allowing Fournet access to the Internet, after it knew
or should have known of Fournet’s prior inappropriate internet activity, to publish
fake Craig’s List posts and failing to prevent those posts from being published. See
Lansing, 980 N.E.2d at 639.
Moreover, Davis alleges that Motiva negligently undertook to perform
services it knew or should have known were necessary to protect Davis by failing
to exercise reasonable care to perform those services. This allegation appears to be
based on Motiva’s monitoring and logging policy. “Section 230(c)(2) immunizes
from liability providers and users of interactive computer service who voluntarily
make good faith efforts to restrict access to material they consider to be
objectionable[.]” Green v. Am. Online (AOL), 318 F.3d 465, 472 (3rd Cir. 2003);
47 U.S.C.S. § 230(c)(2)(A). Because § 230(c)(2) allows an interactive computer
service provider to “establish standards of decency without risking liability for
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doing so[,]” Motiva cannot be held liable for its good faith efforts to restrict access
to or availability of certain material. See Green, 318 F.3d at 472; see also 47
U.S.C.S. § 230(c)(2)(A).
Under these circumstances, taking Davis’s pleadings as true, we conclude
that the trial court did not err by finding that her claims have no basis in law or
fact. See Tex. R. Civ. P. 91a.1.; see also GoDaddy.com, 429 S.W.3d at 754.
Because the trial court properly granted Motiva’s motion to dismiss, we overrule
issue one.
Emotional Distress
In issue two, Davis argues that the trial court erred by dismissing her claims
against Motiva on grounds that she is not entitled to damages for emotional
distress. Davis contends that she has not filed a claim for negligent infliction of
emotional distress, but “asserts these damages as a recoverable element of
Motiva’s violation of other duties, specifically duties to act reasonably in
supervising its employees, in undertaking to supervise and monitor its employees’
conduct, and in entrusting its employees with equipment.” Under certain
circumstances, a plaintiff may be entitled to recover mental anguish damages from
a negligent defendant. See Temple-Inland Prods. Corp. v. Carter, 993 S.W.2d 88,
91 (Tex. 1999); see also City of Tyler v. Likes, 962 S.W.2d 489, 494-96 (Tex.
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1997). Given our conclusion that the trial court did not err by dismissing Davis’s
claims against Motiva under section 230, we need not determine whether dismissal
was also appropriate because Davis’s claims do not entitle her to damages for
emotional distress. See Tex. R. App. P. 47.1. We overrule issue two and affirm the
trial court’s judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on February 26, 2015
Opinion Delivered April 2, 2015
Before McKeithen, C.J., Kreger and Horton, JJ.
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