David McCall v. Angela Zotos

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11725
Non-Argument Calendar
____________________
DAVID MCCALL,
TATYANA ALESHONKOVA,
Plaintiffs-Appellants,
versus
ANGELA ZOTOS,
AMAZON.COM, INC.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cv-02411-SDM-TGW
____________________
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2 Opinion of the Court 22-11725
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
David McCall and Tatyana Aleshonkova appeal the district
court’s order dismissing their pro se defamation complaint against
Angela Zotos and Amazon.com. The district court determined
that it lacked personal jurisdiction over Ms. Zotos and that Amazon
was immune under the Communications Decency Act, 47 U.S.C. §
230(c)(1), (e). Because we agree with the district court on both
counts, we affirm.1
I
As background, Mr. McCall and Ms. Aleshonkova sold a
scarf to Ms. Zotos through their storefront on Amazon called the
Wrap Shop. Dissatisfied with the scarf, Ms. Zotos left the following
review on Amazon:
This is not authentic Burberry. I have several Bur-
berry scarfs and the tags on this are fake. I will be
using my own return process.
1 Mr. McCall and Ms. Aleshonkova also argue that they are entitled to a de-
fault judgment against Amazon for its failure to obey a district court order,
requiring it to file an amended motion to dismiss that complied with a local
rule. See D.E. 14. This argument is meritless. Amazon complied with the
district court’s order by timely filing an amended motion to dismiss. See D.E.
16.
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22-11725 Opinion of the Court 3
Mr. McCall and Ms. Aleshonkova asked Amazon and Ms.
Zotos to remove the review. As part of their campaign to get the
review removed, they provided Amazon, at its request, with evi-
dence of the scarf’s authenticity. Neither Amazon nor Ms. Zotos,
however, agreed to take down the review.
Mr. McCall and Ms. Aleshonkova are residents of Florida,
and Ms. Zotos lives in Illinois. Robert Godfrey, a friend of the
plaintiffs who lives in Florida, stated in a declaration that he ac-
cessed Ms. Zotos’ review in the summer of 2021.
II
We review de novo a dismissal for failure to state a claim
upon which relief may be granted, “accepting the allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff.” Leib v. Hillsborough Cty. Pub. Transp. Comm’n,
558 F.3d 1301, 1305 (11th Cir. 2009). We liberally construe pro se
filings. Sconiers v. Lockhart, 946 F.3d 1256, 1262 (11th Cir. 2020).
We review the dismissal of an action for lack of personal jurisdic-
tion de novo, but review underlying findings of fact for clear error.
See Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350
(11th Cir. 2013).
III
Mr. McCall and Ms. Aleshonkova appeal the district court’s
conclusion that the Communications Decency Act bars their
claims against Amazon. According to them, the CDA’s broad im-
munity for interactive computer service providers does not apply
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4 Opinion of the Court 22-11725
to Amazon because Amazon helped develop the defamatory post-
ing. We disagree and hold that the CDA bars the defamation claim
against Amazon.
A
Under the CDA, “[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. § 230(c)(1). The CDA preempts state law that is contrary
to this subsection. See 47 U.S.C. § 230(e) (“No cause of action may
be brought and no liability may be imposed under any State or local
law that is inconsistent with this section”).
We have recognized that “[t]he majority of federal circuits
have interpreted the CDA to establish broad federal immunity to
any cause of action that would make service providers liable for
information originating with third party user of the service.” Al-
meida v. Amazon, 456 F.3d 1316, 1321 (11th Cir. 2006) (internal ci-
tation and quotation marks omitted) (discussing CDA immunity
but not reaching the question of whether it applied). Generally
speaking, § 230 “precludes courts from entertaining claims that
would place a computer service provider in a publisher’s role.” Ze-
ran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 2008).
The purpose of this statutory immunity is to “maintain the
robust nature of Internet communication” and to avoid the “obvi-
ous chilling effect” that would result from the specter of tort liabil-
ity on service providers for millions of postings by third parties. Id.USCA11 Case: 22-11725 Document: 38-1 Date Filed: 06/12/2023 Page: 5 of 13
22-11725 Opinion of the Court 5
(citing 47 U.S.C. § 230(b)). Congress also enacted the CDA “to re-
move the disincentives to selfregulation” created by Stratton Oak-
mont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. May 24,
1995), in which a New York trial court held that a computer service
provider that regulated the dissemination of offensive material on
its service risked subjecting itself to liability for the material be-
cause “the regulation cast the service provider in the role of a pub-
lisher.” Zeran, 129 F.3d at 331 (citing Stratton Oakmont, 1995 WL
323710, at *3–5); Force v. Facebook, Inc., 934 F.3d 53, 63–64 (2d
Cir. 2019) (one of § 230’s “objectives” was “[t]o overrule Stratton”);
Doe v. Internet Brands, Inc., 824 F.3d 846, 852 (9th Cir. 2016) (Ҥ
230 was in part a reaction to Stratton . . . a New York state decision
holding that an internet service provider became a publisher of of-
fensive content on its message boards because it deleted some of-
fensive posts but not others”); NetChoice, LLC v. Paxton, 49 4th
439, 466 (5th Cir. 2022) (“Congress disagreed with Stratton Oak-
mont and abrogated it by enacting § 230”). See also S. Conf. Rep.
104–230, at *194 (1996) (“One of the specific purposes of [the CDA]
is to overrule Stratton-Oakmont v. Prodigy and any other similar
decisions”).
B
As noted above, § 230 immunity only applies to interactive
computer services. According to the CDA, an “interactive com-
puter service” means “any information service, system, or access
software provider that provides or enables computer access by
multiple users to a computer server[.]” 47 U.S.C. § 230(f)(2).
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6 Opinion of the Court 22-11725
Courts typically have held that website exchange systems and
online message boards are interactive computer services. See, e.g.,
Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist,
Inc., 519 F.3d 666, 671 (7th Cir. 2008) (applying interactive com-
puter service definition to Craigslist); Universal Commc’ns Sys. v.
Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (applying definition to
internet message board operator). Amazon is an interactive com-
puter service provider. Amazon’s website allows customers to
view, purchase, and post reviews online, and therefore provides
computer access by multiple users similar to an online message
board or a website exchange system.
The CDA also requires the claim to be based on content pro-
vided by another information content provider. It defines “infor-
mation content provider” as “any person or entity that is responsi-
ble, in whole or in part, for the creation or development of infor-
mation provided through the Internet or any other interactive
computer service.” 47 U.S.C. § 230(f)(3). This definition “cover[s]
even those who are responsible for the development of content
only in part.” FTC v. Accusearch Inc., 570 F.3d 1187, 1197 (10th
Cir. 2009) (internal citation and quotation marks omitted). There
may be several information content providers of a single piece of
content, each responsible for its creation or development in part.
See id. If the claim is based on content that the interactive com-
puter service developed, even if only in part, then the service could
be held liable. See FTC v. LeakClick Media, LLC, 838 F.3d 158, 174
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22-11725 Opinion of the Court 7
(2d Cir. 2016). In other words, Amazon can be held liable for de-
famatory content if it was responsible for the development of that
content in part.
According to the complaint, Ms. Zotos wrote the allegedly
defamatory review, and therefore she functioned as the infor-
mation content provider. See D.E. 1 at 5. Mr. McCall and Ms.
Aleshonkova do not dispute this, but argue that Amazon also func-
tioned as an information content provider because it set rules gov-
erning customer feedback. As support for this argument, Mr.
McCall and Ms. Aleshonkova cite to Fair Housing Council of San
Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162
(9th Cir. 2008), in which Roommates.com was held liable for dis-
criminatory content it partly developed.
In that case, Roommates.com published a profile page for
each subscriber seeking housing on its website. See id. at 1165.
Each profile had drop-down menu on which subscribers seeking
housing had to specify whether there are currently straight males,
gay males, straight females, or lesbians living at the dwelling. This
information was then displayed on the website, and Room-
mates.com used this information to channel subscribers away from
the listings that were not compatible with the subscriber’s prefer-
ences. See id. The Ninth Circuit determined that Roommates.com
was an information content provider (along with the subscribers
seeking housing on the website) because it helped develop the in-
formation at least in part. Id. (“By requiring subscribers to provide
the information as a condition of accessing its service, and by
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8 Opinion of the Court 22-11725
providing a limited set of prepopulated answers, Room-
mate[s.com] . . . becomes the developer, at least in part, of that in-
formation.”).
Roommates.com is not applicable, as the complaint here al-
leges that Ms. Zotos wrote the review in its entirety. See generally
D.E. 1. Amazon did not create or develop the defamatory review
even in part—unlike Roommates.com, which curated the allegedly
discriminatory dropdown options and required the subscribers to
choose one. There are no allegations that suggest Amazon helped
develop the allegedly defamatory review.
The plaintiffs seek to hold Amazon liable for failing to take
down Ms. Zotos’ review, which is exactly the kind of claim that is
immunized by the CDA—one that treats Amazon as the publisher
of that information. See 47 U.S.C. § 230(c)(1). See also D.E. 1 at 5
(“Amazon . . . refused to remove the libelous statements posted by
Defendant Zotos”). “Lawsuits seeking to hold a service provider
[like Amazon] liable for its exercise of a publisher’s traditional edi-
torial functions—such as deciding whether to publish, withdraw,
postpone, or alter content—are barred.” Zeran, 129 F.3d at 330.
We therefore affirm the dismissal of the claims against Amazon.
IV
To exert personal jurisdiction over a nonresident defendant,
both prongs of a two-prong inquiry must be satisfied: (1) there
must be a basis for asserting personal jurisdiction under the fo-
rum-state’s long-arm statute; and (2) sufficient minimum contacts
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22-11725 Opinion of the Court 9
must exist to satisfy the Due Process Clause, such that “mainte-
nance of the suit does not offend traditional notions of fair play and
substantial justice.” Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990) (internal citation and quotation marks omitted).
The first prong is satisfied. Florida’s long-arm statute pro-
vides that persons submit themselves to jurisdiction in Florida for
suits arising out of the commission of “a tortious act” in Florida.
See Fla. Stat. § 48.193(1)(a)(2). The Eleventh Circuit has concluded,
after certifying the question to the Florida Supreme Court, that the
posting of defamatory material about a Florida resident “that was
both accessible in Florida and accessed in Florida constituted the
commission of a tortious act of defamation within Florida.” Inter-
net Solutions Corp. v. Marshall, 611 F.3d 1368, 1370 (11th Cir. 2010)
(citing Internet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1216
n.11 (Fla. 2010)). Here, the district court correctly determined that
the first prong was satisfied because the review was accessible in
Florida and, according to his declaration, Mr. Godrey accessed the
review in Florida. See D.E. 38–1.
The second, “more restrictive” prong is next. See Internet
Solutions, 611 F.3d at 1371 n.1 (remanding for the district court to
consider the “more restrictive” step of whether the exercise of ju-
risdiction would violate due process). In specific personal jurisdic-
tion cases like this one, we apply a three-part due process test: “(1)
whether the plaintiff’s claims ‘arise out of or relate to’ at least one
of the defendant’s contacts with the forum; (2) whether the non-
resident defendant ‘purposefully availed’ himself of the privilege of
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10 Opinion of the Court 22-11725
conducting activities within the forum state, thus invoking the ben-
efit of the forum state’s laws; and (3) whether the exercise of per-
sonal jurisdiction comports with ‘traditional notions of fair play
and substantial justice.’” Louis Vuitton Malletier, 736 F.3d at 1355(citations omitted). The plaintiff bears the burden of establishing
the first two requirements, and if the plaintiff does so, the “defend-
ant must make a compelling case that the exercise of jurisdiction
would violate traditional notions of fair play and substantial jus-
tice.” Id. at 1355 (internal quotation marks and citation omitted).
Mr. McCall’s and Ms. Aleshonkova’s claim arose out of the
review that Ms. Zotos posted, which was her contact with Florida.
The first requirement is therefore met. See Fraser v. Smith, 594
F.3d 842, 850 (11th Cir. 2010) (“our inquiry must focus on the direct
causal relationship among the defendant, the forum, and the litiga-
tion”).
Next, we look at whether Ms. Zotos “purposefully availed”
herself of “the privilege of conducting activities” within Florida,
thus “invoking the benefit” provided by Florida’s laws. See Louis
Vuitton, 736 F.3d at 1355. In intentional tort cases like this one
courts may apply the “effects test” articulated in Calder v. Jones,
465 U.S. 783 (1984), in lieu of or in addition to the traditional mini-
mum contacts test to determine whether the defendant purpose-
fully availed herself of the forum. See Louis Vuitton, 736 F.3d at
1356. The test is met when the tort was intentional, aimed at the
forum state, and caused harm that the defendant should have an-
ticipated would be suffered in the forum state. See id.USCA11 Case: 22-11725 Document: 38-1 Date Filed: 06/12/2023 Page: 11 of 13
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In Calder, for example, an allegedly libelous magazine arti-
cle concerned the activities of a California resident—an enter-
tainer—in California. The article impugned the professionalism of
the entertainer, whose career was centered in California. See 465
U.S. at 788–789. The article was drawn from California sources,
and the brunt of the harm, in terms of both the entertainer’s emo-
tional distress and the injury to her professional reputation as an
actress, was suffered in California. See id. The entertainer sued
those responsible for the article in California, and the Supreme
Court held that due process permitted a California court to exercise
personal jurisdiction over the defendants, who were based in Flor-
ida. It explained that the defendants could reasonably expect to be
haled into court in California because their article was directed at a
California resident and they knew the brunt of the injury would be
felt in California. See id. at 788–90.
The circumstances are different here. Ms. Zotos wrote the
allegedly defamatory review while in Illinois about a scarf she or-
dered on Amazon. Unlike the entertainer in Calder, whose repu-
tation was harmed in the California-based entertainment industry,
the alleged harm here was felt across the United States, as buyers
from all 50 states can read the review on Amazon (and decide not
to purchase items from Mr. McCall and Ms. Aleshonkova based on
the review). See id. at 789.
Posting information on the internet “is not sufficient by itself
to subject[ ] that person to personal jurisdiction in each State in
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12 Opinion of the Court 22-11725
which the information is accessed.” Young v. New Haven Advo-
cate, 315 F.3d 256, 263 (4th Cir. 2002). Otherwise, a “person plac-
ing information on the Internet would be subject to personal juris-
diction in every State[.]” Id. “Something more than posting
[online] and accessibility” from the forum is required—Ms. Zotos
must, through her internet posting, “manifest an intent to target
and focus on [Florida] readers.” Id. See also Shrader v. Biddinger,
633 F.3d 1235, 1240 (10th Cir. 2011) (for personal jurisdiction in the
internet context, “the internet user [must] intentionally direct[ ]
his/her/its activity or operation at the forum state rather than just
having the activity or operation accessible there”); Johnson v. Ar-
den, 614 F.3d 785, 797–98 (8th Cir. 2010) (holding that Missouri
court lacked personal jurisdiction over a nonresident defendant
who posted about Missouri residents because the website did not
“specifically target” Missouri); Revell v. Lidov, 317 F.3d 467, 473
(5th Cir. 2002) (holding that a Texas court lacked personal jurisdic-
tion over a nonresident defendant because the article “contains no
reference to Texas, nor does it refer to the Texas activities of [the
plaintiff], and it was not directed at Texas readers as distinguished
from readers in other states.”).
“Although the place that the plaintiff feels the alleged injury”
occurred is relevant to the jurisdictional inquiry, “it must ulti-
mately be accompanied by the defendant’s own [sufficient mini-
mum] contacts with the state if jurisdiction . . . is to be upheld.”
Young, 315 F.3d at 262. The mere fact that Ms. Zotos knew that
the plaintiffs resided in Florida is not sufficient to show that Florida
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22-11725 Opinion of the Court 13
was targeted as the focal point of the statements. See id. at 264(quoting Griffis v. Luban, 646 N.W.2d 527, 536 (Minn. 2002) (“that
[the defendant, who posted allegedly defamatory statements about
the plaintiff on the Internet] knew that [the plaintiff] resided and
worked in Alabama is not sufficient to extend personal jurisdiction
over [the defendant] in Alabama, because that knowledge does not
demonstrate targeting of Alabama as the focal point of the state-
ments”)).
There are no allegations that Ms. Zotos targeted Florida
readers. Ms. Zotos posted the review on Amazon, which was ac-
cessible in all 50 states. The allegations that the review was acces-
sible and accessed in Florida and that Mr. McCall and Ms. Aleshon-
kova resided in Florida are not sufficient to confer personal juris-
diction over Ms. Zotos. 2
V
We affirm the district court’s order granting Amazon’s mo-
tion to dismiss with prejudice and granting Ms. Zotos’ motion to
dismiss without prejudice.
AFFIRMED.
2
This is not a case like Louis Vuitton, 736 F.3d at 1357–58 or Del Valle v.
Trivago, 56 F.4th 1265, 1276–77 (11th Cir. 2022), where the defendants solic-
ited business from Florida residents on a website and then sold products or
services to those residents.