Blocher v. MindGeek USA Inc.

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 JORDAN FLEMING BLOCHER, Case No. 3:23-CV-00209-MMD-CLB

5 Plaintiff, ORDER GRANTING MINDGEEK’S MOTION TO STAY DISCOVERY AND 6 v. DENYING AS MOOT BLOCHER’S MOTION TO DETERMINE DISCOVERY 7 MINDGEEK USA INC., PLAN

8 Defendant. [ECF Nos. 18, 30]

9 10 Currently pending before the Court is Defendant MindGeek USA, Inc.’s 11 (“MindGeek”) motion to stay discovery. (ECF No. 18.) Plaintiff Jordan Fleming Blocher 12 (“Blocher”) filed a response, (ECF No. 27), and MindGeek replied. (ECF No. 29.) Also 13 pending before the Court is Blocher’s motion to determine discovery plan. (ECF No. 30.) 14 The Court has reviewed the relevant pleadings and papers, and, for the reasons set for 15 below, grants MindGeek’s motion to stay discovery and denies Blocher’s motion to 16 determine discovery plan as moot. 17 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 18 Blocher’s complaint alleges the following. In 2018, Blocher’s then-boyfriend 19 recorded sexually explicit videos of her and uploaded them to “content sites for profit.” 20 (ECF No. 1-1 at 7.) Blocher later discovered the videos on “pornhub” (“Pornhub”). (Id.) In 21 2020, Blocher was tortured in her home from late April to mid-June by being repeatedly 22 drugged and raped. (Id. at 7-8.) These events were videotaped and were released online 23 in 2022. (Id. at 8.) Blocher’s current boyfriend took additional sexually explicit videos of 24 her which were also released online. (Id. at 8-9.) Blocher alleges the “negligence of 25 MindGeek is clear” and asks for damages of $64,000,000. (Id. at 9, 14.) MindGeek claims 26 it does not own or operate Pornhub, the website referenced by Blocher. (ECF No. 6 at 4.) 27 In the complaint, Blocher does not explain the connection between MindGeek and 1 In response to the complaint, MindGeek filed a motion to dismiss the case for 2 failure to state a claim upon which relief may be granted. (ECF No. 6.) Thereafter, 3 MindGeek filed the instant motion to stay discovery arguing discovery should be stayed 4 because: (1) the pending motion to dismiss is dispositive of the entire case; (2) no 5 discovery is required to rule on the motion to dismiss; and (3) there is good cause for a 6 stay. (ECF No. 18.) 7 Blocher opposed the motion to stay and requests that discovery be allowed. (ECF 8 No. 27.) Blocher reiterates portions of her complaint and adds allegations that the 9 accounts in question violate multiple Nevada statutes. (Id. at 2-3.) Blocher also argues 10 MindGeek did not address her allegations of gross negligence. (Id. at 1-2.) MindGeek 11 filed a brief reply on July 31, 2023. (ECF No. 29.) MindGeek argues Blocher’s response 12 does not dispute that the motion to dismiss is potentially dispositive or that discovery is 13 unnecessary for the Court to decide the motion. (Id. at 1.) MindGeek reiterated that it 14 “should not be required to engage in discovery when Plaintiff has not, and may never, set 15 forth any coherent claims.” (Id. at 2.) On August 2, 2023, Blocher also filed a motion to 16 determine discovery plan. (ECF No. 30.) 17 II. LEGAL STANDARD 18 To determine if a stay is appropriate pending the ruling on a motion to dismiss, a 19 court must consider the following factors: (1) whether the pending motion is potentially 20 dispositive of the case; (2) whether the motion can be decided without additional 21 discovery; and (3) whether the court is convinced that the plaintiff cannot state a claim for 22 relief. Kor Media Group, LLC v. Green, 294 F.R.D. 579, 581 (D. Nev. 2013). The court 23 must take a “preliminary peek” at the merits of the underlying dispositive motion in order 24 to find whether the plaintiff can state a claim. Tradebay, LLC v. eBay, Inc., 278 F.R.D. 25 597, 603 (D. Nev. 2011). The “preliminary peek” does not prejudge the outcome of the 26 motion; it merely evaluates whether an order staying discovery is warranted. Id. 27 In conducting its review, the court also considers the goal of Federal Rule of Civil 1 employed by the court and the parties to secure the just, speedy, and inexpensive 2 determination of every action.” Fed. R. Civ. P. 1. With Rule 1 as its prime directive, the 3 court must decide whether it is more just to speed the parties along in discovery while a 4 dispositive motion is pending or to delay discovery to accomplish the inexpensive 5 determination of the case. See Big City Dynasty v. FP Holdings, L.P., 336 F.R.D. 507, 6 512 (D. Nev. 2020). 7 III. DISCUSSION 8 A. MindGeek’s Motion to Dismiss is Dispositive 9 The Court must first determine whether MindGeek’s motion to dismiss is potentially 10 dispositive. Kor Media Group, LLC., 294 F.R.D. at 581. Here, MindGeek’s motion to 11 dismiss argues that Blocher has failed to state a claim upon which relief can be granted. 12 (ECF No. 6 at 1-6.) MindGeek argues Blocher falls well short of stating any plausible claim 13 because the complaint contains almost no allegations related to MindGeek, and none of 14 the claims asserted would give rise to any recovery if proven. (Id. at 2.) MindGeek further 15 argues that even if Plaintiff had adequately pleaded any viable claim, that claim would in 16 turn be barred by Section 230 of the Communications Decency Act (“Section 230”), which 17 affords a provider of an interactive computer service provider (“ICS”) broad immunity from 18 liability for content posted to its websites by third parties. 47 U.S.C. § 230(c)(1). 19 If the motion to dismiss is granted, it appears all of the claims asserted in the 20 complaint would likely be subject to dismissal for failure to state a claim upon which relief 21 may be granted. Therefore, the Court finds Defendants’ motions to dismiss are potentially 22 dispositive. 23 B. No Discovery is Needed to Decide the Motion to Dismiss 24 Next, the Court must determine whether additional discovery is necessary for a 25 ruling on the motion to dismiss. Kor Media Group, LLC., 294 F.R.D. at 581. MindGeek 26 argues that no discovery is necessary because the motion to dismiss deals purely with 27 questions of law. (ECF No. 18 at 3.) The Court agrees with MindGeek’s description of the 1 whether Defendant is immune from liability under Section 230.” (Id. (citing 47 U.S.C. § 2 230).) Whether Blocher sufficiently pled her claims requires a legal determination of 3 whether she met the standard of a “short and plain statement of [any] claim showing that 4 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 5 677 (2009). Liability under Section 230 also is a pure question of law, as it requires 6 determination of whether the defendant is “(1) a provider or user of an interactive 7 computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as 8 a publisher or speaker (3) of information provided by another information content 9 provider.” Dyroff v. Ultimate Software Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019); see 10 also Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir. 2009). Where the motion to 11 dismiss concerns questions of law, additional discovery is not required. Segal v. Lefebvre, 12 2013 WL 12130553, *2 (D. Nev. Nov. 14, 2013). Therefore, as MindGeek’s motion to 13 dismiss concerns only questions of law, no discovery is required to rule on the motion to 14 dismiss. Id. 15 C. The Court is Convinced the Motion to Dismiss is Likely to be Granted 16 Finally, the Court must conduct a “preliminary peek” of the motions to determine 17 whether as stay is warranted. Tradebay, 278 F.R.D. at 603. In conducting this preliminary 18 peek, it is the Court’s duty is to ensure an inexpensive determination of this action, and 19 delaying discovery would prevent economic waste, since conducting discovery before the 20 ruling on the motions to dismiss would be futile. Fed. R. Civ. P. 1; see Big City Dynasty, 21 336 F.R.D. at 512. Having conducted this preliminary peek, the Court finds a stay is 22 warranted. 23 Construed broadly, Blocher’s complaint alleges a negligence claim, violations of 24 California Penal Code Sections 647(j)(4), 261, 286, 236.1, 289, and 264.1, and a violation 25 of the Thirteenth Amendment. (ECF No. 1-1.) MindGeek’s motion to dismiss argues 26 Blocher’s claims must be dismissed because Blocher: (1) failed to state a claim for 27 negligence; (2) has not alleged that MindGeek violated any section of the California Penal 1 Constitution; and (4) brings claims that are barred by Section 230 of the Communications 2 Decency Act (47 U.S.C. § 230) (“Section 230”). (ECF No. 6.) MindGeek argues “[a]part 3 from the conclusory statement at the end of the Complaint’s fact section that ‘the 4 negligence of MindGeek is clear,’ and one passing reference to ‘pornhub,’ the Complaint 5 does not include any factual allegations remotely related to Defendant, let alone 6 allegations of wrongdoing.” (Id. at 3 (quoting ECF No. 1-1 at 7, 9.).) 7 Blocher opposed the motion to dismiss, arguing: (1) there had been no judgment 8 in the Nevada State Court from which this case was removed;1 (2) the complaint received 9 by MindGeek was not the final copy and was served despite Blocher attempting to stop 10 the process server; (3) Blocher requested a stay in the state court and asks for one in the 11 federal court; (4) Blocher does not feel as if she is being heard and that her complaint is 12 being misunderstood by MindGeek; and (5) Blocher continues to fight a serious medical 13 condition as well as homelessness. (ECF No. 16.) 14 MindGeek replied, arguing Blocher’s opposition did not contain any law or facts in 15 opposition to the motion to dismiss and reiterated that the complaint does not set forth 16 “‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on 17 its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).” (ECF No. 17.) 18 1. Negligence Claim 19 First, MindGeek’s motion to dismiss argues Blocher’s complaint should be 20 dismissed for failure to state a claim upon which relief may be granted or, in the 21 alternative, dismissed because MindGeek is immune from liability under Section 230 of 22 the Communications Decency Act. (ECF No. 6.) First, MindGeek argues Blocher fails to 23 1 Here, given Blocher’s status as a pro se party, a brief explanation of removal would 24 be helpful. Removal gives a defendant who has been sued in a state court the right to “remove,” or in other words to transfer, the case to federal court from the state court 25 originally selected by the plaintiff. 4 Charles Alan Wright & Arthur R. Miller, Federal 26 Practice and Procedure § 3721 (Rev. 4th ed.). Once an action is removed to federal court, the federal district court acquires full and exclusive subject-matter jurisdiction over the 27 litigation and the case will proceed as if it originally had been brought in the federal court. Id. at § 3738. Therefore, no judgment in the Nevada State Court will be entered because 1 state a sufficient claim for negligence. (ECF No. 6 at 3-4.) MindGeek argues that Blocher 2 has not adequately plead any of the required elements for negligence: “(1) [D]efendant[] 3 owed … a duty of care; (2) [D]efendant[] breached that duty; (3) this breach was the actual 4 cause of [the] injury; (4) the breach was the proximate cause of [the] injury; and (5) 5 [P]laintiff suffered damages.” Wesco Ins. Co. v. Smart Indus. Corp., 2018 WL 3447171, 6 at *3 (D. Nev. Jul. 17, 2018) (citing Scialabba v. Brandise Const. Co., Inc., 112 Nev. 965, 7 967, 921 (Nev. 1996)); see also Garcia-Garrido v. Outback Steakhouse of Florida, LLC, 8 2018 WL 2434062, at *4 (D. Nev. May 30, 2018). Blocher’s only reference to negligence 9 in her complaint is a conclusory statement that the “negligence of MindGeek is clear.” 10 (ECF No. 1-1 at 9.) This is clearly insufficient to satisfy the required elements for 11 negligence. Therefore, the Court is convinced the motion to dismiss will be granted as to 12 the negligence claim. 13 2. California Penal Code 14 Next, MindGeek argues Blocher failed to allege MindGeek violated any section of 15 the California Penal Code. (ECF No. 6 at 5.) MindGeek points out that, as an initial matter, 16 it is unlikely any of these laws are applicable because the complaint alleges that the 17 events detailed took place in Nevada. (Id.) Additionally, MindGeek argues that for all but 18 one of these statutes, it is unclear how MindGeek supposedly violated the criminal 19 provisions which require actions by a person because MindGeek is a corporation, not a 20 human being. (Id.) The remaining California statute, California Penal Code § 647(j)(4), 21 criminalizes the unauthorized intentional distribution of images of intimate body parts of 22 another. MindGeek argues Blocher at most alleges that third parties, not MindGeek, 23 uploaded the videos or released them online. (Id.) Additionally, the complaint contains no 24 allegation that it obtained any videos unlawfully or with the understanding that MindGeek, 25 as opposed to third parties, would keep those videos private as the statute requires. (Id.) 26 As the applicability of the California statutes to events which occurred in Nevada is 27 questionable at best, the Court is fairly convinced that the motion to dismiss will be 1 confident the motion to dismiss will be granted as Blocher has not alleged sufficient claims 2 of violations of the specified statutes by MindGeek itself. 3 3. Thirteenth Amendment 4 MindGeek next argues that Blocher has not actually alleged it violated the 5 Thirteenth Amendment. (ECF No. 6 at 5-6.) The final section of Blocher’s complaint states 6 “because of the reasons stated here, court cases CV20-0083, CV-23-0077, and all the 7 pleadings and papers on file in this case; the attached exhibits hereto, if any; and the 8 argument that the actions of MindGeek USA Incorporated have violated the 13th 9 Amendment, if allowed to argue at the time of hearing.” (ECF No. 1-1 at 14.) MindGeek 10 argues “to the extent Plaintiff is seeking to pursue a claim directly under the Constitution 11 or an equivalent common law provision, those claims again fail because she has not 12 pleaded the existence of any actions taken by Defendant, let alone actions that could 13 support a claim of involuntary servitude.” (ECF No. 6 at 6.) The Court agrees with 14 MindGeek that “[i]t is unclear what wrongdoing is being alleged or relief sought from this 15 language.” (Id.) Therefore, the Court finds that MindGeek is likely to succeed on its 16 argument that Blocher fails to state a claim upon which relief may be granted as to the 17 Thirteenth Amendment. 18 4. Section 230 19 Finally, MindGeek argues Blocher’s complaint should be dismissed with prejudice 20 because “[e]ven if Plaintiff were to amend her Complaint to set forth some substantive 21 claim against the entity that operates Pornhub, claims premised on the upload of content 22 created by third parties are barred by Section 230 of the Communications Decency Act. 23 47 U.S.C. § 230.” (ECF No. 6 at 6.) MindGeek explains that “websites cannot be held 24 liable as the publishers of user-generated content like the videos Plaintiff alleges were 25 uploaded to Pornhub. [] Thus, because Plaintiff seeks to hold Defendant liable for third- 26 party content posted to Pornhub, her claims are proscribed by Section 230.” (Id. (citing 27 Caraccioli v. Facebook, Inc., 167 F.Supp.3d 1056, 1067 (N.D. Cal. 2016), aff’d, 700 F. 1 must be “(1) a provider or user of an interactive computer service (2) whom a plaintiff 2 seeks to treat, under a state law cause of action, as a publisher or speaker (3) of 3 information provided by another information content provider.” Dyroff, 934 F.3d at 1097; 4 see also Barnes, 570 F.3d at 1100. 5 In the motion to dismiss, MindGeek argues that Pornhub is an ICS because the 6 definition includes websites where videos can be shared. (ECF No. 6 at 7 (citing e.g., Doe 7 v. Reddit, Inc., 2021 WL 5860904, at *3 (C.D. Cal. Oct 7, 2021), aff’d sub. nom., Does 1- 8 6 v. Reddit, Inc., 51 F.4th 1137, 1139 (9th Cir. 2022).) Ninth Circuit precedent establishes 9 that content creators are not entitled to immunity and ICSs “can be both a service provider 10 and a content provider.” Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157, 11 1162 (9th Cir. 2008) (“If [a website provider] passively displays content that is created 12 entirely by third parties, then it is only a service provider with respect to that content. But 13 as to content that it creates itself, or is ‘responsible, in whole or in part’ for creating or 14 developing, the website is also a content provider.”). Here, the complaint specifically 15 alleges the content was created by Jeff Fenwick (Blocher’s former boyfriend), the persons 16 who held Blocher captive between April and June of 2020, and Ian Frankland (Blocher’s 17 current boyfriend). (ECF No. 1-1 at 7-8.) As the content in question is not alleged to have 18 been created by the website, the Court is fairly convinced that Pornhub meets the 19 standard for an ICS provider. 20 As to the second requirement for Section 230 immunity, MindGeek argues that a 21 claim premised on the upload of videos to a website would treat the defendant as the 22 publisher or speaker of third-party content. (Id.) Critically, “any activity that can be boiled 23 down to deciding whether to exclude material that third parties seek to post online is 24 perforce immune under section 230.” Roommates.com, 521 F.3d at 1170-71. In her 25 opposition to the motion to stay discovery, Blocher emphasizes the “need for additional 26 constraints on the requirements for verification, such as ‘a clear indication that all parties 27 are aware that there is a camera’ should be obvious” and “demand[s] reparations for 1 which allows for the profitability of abuse and exploitation.” (ECF No. 27 at 2.) From this 2 description, the Court is fairly convinced that Blocher’s claims do “boil[] down to deciding 3 whether to exclude material that third parties seek to post online” because she alleges 4 harm based on the failure of Pornhub to remove material uploaded by third parties.2 5 The final element for immunity under Section 230 asks whether the ICS provider 6 itself created or developed the specific content at issue. Dyroff, 934 F.3d at 1097; see 7 also Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1125 (9th Cir. 2003) (ICS is 8 immune unless it creates the “particular information” that provides the basis of the 9 plaintiff’s claim). As mentioned above, the complaint specifically alleges the content was 10 created by Jeff Fenwick, the persons who held Blocher captive between April and June 11 of 2020, and Ian Frankland. (ECF No. 1-1 at 7-8.) From these allegations, the Court is 12 fairly convinced that Pornhub did not create the content itself. Therefore, the Court is fairly 13 convinced that MindGeek or the entity that operates Pornhub would be entitled to 14 immunity under Section 230 because both entities are: (1) a provider or user of an ICS; 15 (2) whom Blocher seeks to treat, under a state law cause of action, as a publisher or 16 speaker; (3) of content provided by a third party. Dyroff, 934 F.3d at 1097; see also 17 Barnes, 570 F.3d at 1100. 18 Accordingly, the Court is fairly convinced that MindGeek’s motion to dismiss will 19 be granted for failure to state a claim upon which relief will be granted or, in the alternative, 20 granted because the claims are barred by Section 230. The undersigned recognizes the 21 District Court may disagree and find that dismissal is not proper. However, based on the 22 undersigned’s review of the motions, statutes, and caselaw, this Court is fairly convinced 23 that Defendants’ motions to dismiss are likely to be granted. Based on the above analysis 24 2 The second element for Section 230 immunity requires that the plaintiff seeks to 25 treat the defendant, under a state law cause of action, as a publisher or speaker. Dyroff, 26 934 F.3d at 1097. The only potential non-state law claim in the complaint relates to the Thirteenth Amendment. As explained above, it is entirely unclear how Blocher seeks to 27 hold MindGeek liable for violating the Thirteenth Amendment. Therefore, the Court finds it likely that the requirement that the cause of action be under a state law will not hinder and review, the Court finds that each of the motion to stay factors support staying discovery and, therefore, MindGeek’s motion to stay discovery should be granted. IV. CONCLUSION 4 IT IS THEREFORE ORDERED that MindGeek’s motion to stay discovery, (ECF No. 18), is GRANTED and discovery is stayed in this case pending resolution of the 6 | motion to dismiss. 7 IT IS FURTHER ORDERED that if the motion to dismiss is denied, the parties shall 8 | file a Proposed Discovery Plan and Scheduling Order within 30 days of the entry of the 9) order denying the motion to dismiss. 10 IT IS FURTHER ORDERED that Blocher’s motion to determine discovery plan, (ECF No. 30), is DENIED as moot. 12 IT IS SO ORDERED. 13| DATED: August 4, 2023. .

14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4n)