Federal Rules of Procedure

Communications Decency Act Update: A CDA Defense Can Be Raised in a Rule 12(b)(6) Motion to Dismiss

Two recent decisions have eliminated questions about a defendant’s ability to use the Communications Decency Act (CDA) to obtain a quick dismissal of a lawsuit. Federal rules permit a defendant, under certain circumstances, to get an immediate dismissal of a lawsuit, without every being required to file an “answer” to the complaint, make any disclosures, or engage in any discovery. Winning such a “motion to dismiss” cuts off a lawsuit at its knees, immediately eliminating the costs and risks associated with the suit.
One of the bases on which a motion to dismiss can be brought is “failure to state a claim on which relief can be granted” — a Federal Rules of Procedure “Rule 12(b)(6)” motion. In general, a Rule 12(b)(6) motion can only be used if the complaint is so defective that the plaintiff’s allegations against the defendant, even if true, would not qualify for any form of relief from the court. For example, a complaint for common-law fraud would be dismissed on a Rule 12(b)(6) motion if it failed to allege that the defendant made a false statement that the plaintiff actually relied on — because to get damages for a false statement made by a plaintiff, the defendant must have actually relied on that false statement.
Internet service providers have often used Rule 12(b)(6) to obtain dismissal of suits brought against then for their publication of third-party material by successfully asserting that the Communications Decency Act (47 U.S.C. ยง 230) barred the claim. However, a recent ruling from the Ninth Circuit threatened to overturn this practice. In a May 7, 2009 opinion in Barnes v. Yahoo!, Inc., __ F.3d___, 2009 WL 1232367 (9th Cir. 2009), the Ninth Circuit stated that “section 230(c) provides an affirmative defense” and that [t]he assertion of an affirmative defense does not mean that the plaintiff has failed to state a claim, and therefore does not by itself justify dismissal under Rule 12(b)(6).” The proper procedure, according to the opinion, was for the defendant Yahoo to have filed answer asserting its CDA defense, and then to have filed a motion to dismiss under Federal Rule of Procedure 12(c) — a motion for judgment on the pleadings.
A Rule 12(c) motion can’t be filed until all the pleadings are “settled” — i.e., after the complaint and all answers have been filed, and all Rule 12(b) motions resolved. This might not occur until many months after a suit is filed. Following the procedure suggested by the Ninth Circuit would have forced Yahoo to start making unwanted disclosures in its answer and possibly under federal automatic disclosure and discovery rules, and to have continued to burn through cash defending the suit.
When I first read this portion of the Ninth Circuit opinion on Barnes v. Yahoo, it struck me as a little odd. Every litigator knows that courts don’t like to waste time with obviously meritless suits and that courts often will grant a motion to dismiss if the plaintiff’s allegations reveal the presence of an affirmative defense that would bar the case from proceeding. The most common example would be if the allegations in the complaint show that the claim is barred by the statute of limitations. I have participated in successfully bringing several such motions.