In Re: Kathleen Wilkinson v. Facebook, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2024
• Docket: 22-16888
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: FACEBOOK SIMULATED No. 22-16888 CASINO-STYLE GAMES LITIGATION, ______________________________ D.C. No. 5:21-cv-02777-EJD

KATHLEEN WILKINSON, individually and on behalf of all others similarly situated; et MEMORANDUM* al.,

Plaintiffs-Appellees,

v.

FACEBOOK, INC., a Delaware corporation,

Defendant-Appellant.

In re: FACEBOOK SIMULATED No. 22-16889 CASINO-STYLE GAMES LITIGATION, ______________________________ D.C. No. 5:21-cv-02777-EJD

KATHLEEN WILKINSON, individually and on behalf of all others similarly situated; et al.,

Plaintiffs-Appellants,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendant-Appellee.

In re: APPLE INC. APP STORE No. 22-16914 SIMULATED CASINO-STYLE GAMES LITIGATION, D.C. No. 5:21-md-02985-EJD

------------------------------

FRANK CUSTODERO; et al.,

APPLE INC.,

In re: APPLE INC. APP STORE No. 22-16916 SIMULATED CASINO-STYLE GAMES LITIGATION, D.C. No. 5:21-md-02985-EJD ______________________________

Defendant-Appellee.

In re: GOOGLE PLAY STORE No. 22-16921 SIMULATED CASINO-STYLE GAMES LITIGATION, D.C. No. 5:21-md-03001-EJD

2 ______________________________

JENNIFER ANDREWS; et al.,

GOOGLE, LLC; GOOGLE PAYMENT CORP.,

Defendants-Appellants.

In re: GOOGLE PLAY STORE No. 22-16923 SIMULATED CASINO-STYLE GAMES LITIGATION, D.C. No. 5:21-md-03001-EJD ______________________________

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Argued and Submitted April 8, 2024 San Francisco, California

3 Before: PAEZ and SUNG, Circuit Judges, and FITZWATER,** District Judge.

Defendants Apple, Google, and Meta appeal, and Plaintiffs cross-appeal, the

district court’s consolidated order granting in part and denying in part Defendants’

motions to dismiss Plaintiffs’ three Master Complaints in three class action cases.

We dismiss the appeal and cross-appeal for lack of jurisdiction.

Plaintiffs’ Master Complaints allege that Defendants engage in unlawful

conduct related to “social casino” applications and allege a total of 125 causes of

action under the laws of 23 states and the United States. In the order at issue, the

district court discussed three theories of liability and dismissed two of those

theories on the ground that they are precluded by Section 230 of the

Communications Decency Act, 47 U.S.C. § 230(c)(1). The district court sua sponte

certified its order for interlocutory appeal under 28 U.S.C. § 1292(b). Defendants

petitioned for permission to appeal the partial denial of the motion to dismiss, and

Plaintiffs opposed the petition and conditionally cross-petitioned for permission to

appeal the district court’s dismissal of “theories” on the pleadings, as opposed to

claims. A motions panel of this court granted the petition and conditional cross-

petition. No. 22-80098 Dkt. 9; Nos. 22-80099, 22-80100 Dkt. 11. Because the

district court’s certified order does not qualify as an “order” under § 1292(b), we

** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.

4 lack jurisdiction to review it. Therefore, we vacate this court’s order granting

permission for the interlocutory appeal and cross-appeal as improvidently granted.

A denial of a motion to dismiss is a non-final order generally not subject to

appeal. See Couch v. Telescope Inc., 611 F.3d 629, 632 (9th Cir. 2010). Section

1292(b), however, provides a “narrow exception to the final judgment rule,”

Couch, 611 F.3d at 633, allowing a permissive interlocutory appeal when certain

requirements are met:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

28 U.S.C. § 1292(b).

Although a motions panel granted the parties permission to appeal and cross-

appeal under § 1292(b), we have an independent obligation to confirm that we

have jurisdiction under § 1292(b). ICTSI Oregon, Inc. v. Int’l Longshore &

Warehouse Union, 22 F.4th 1125, 1130–31 (9th Cir. 2022).

“An announcement by a trial court of its then opinion on an abstract question

of law prior to the taking of final, definitive action affecting the substantial rights

of the parties is not an ‘order’ under 28 U.S.C. § 1292(b) which will support an

interlocutory appeal.” Nickert v. Puget Sound Tug & Barge Co., 480 F.2d 1039,

5 1041 (9th Cir. 1973).1

In its order, the district court deduced “three theories of liability” from the

Master Complaints and concluded that the first and third theories—but not the

second—were barred by Section 230. See 47 U.S.C. § 230(c)(1). The district court,

however, did not apply its ruling to each of the 125 causes of action to determine

which, if any, should be dismissed under Federal Rule of Civil Procedure 12(b)(6).

The parties have yet to brief and the district court has yet to determine which

causes of action should be dismissed. Thus, even though the certified order is

characterized as a “dismissal order,” it presents the district court’s opinion on an

abstract question of law without finally and definitively dismissing any claims.

Consequently, it is not an “order” that supports jurisdiction under 28 U.S.C.

§ 1292(b). Nickert, 480 F.2d at 1041.

Were we to rule on the merits of the district court’s dismissal of certain

theories of liability, as the parties ask us to do, we would be issuing an advisory

opinion. Section 1292(b) does not displace the prohibition against advisory

opinions, which is “the oldest and most consistent thread in the federal law of

justiciability.” Ctr. for Biological Diversity v. U.S. Forest Serv., 925 F.3d 1041,

1 See also Wright & Miller, § 3930 Criteria for Permissive Appeal, 16 Fed. Prac. & Proc. Juris. § 3930 (3d ed.) (“The basic requirement for interlocutory appeal under § 1292(b) is that the district court have made an order. The statute does not contemplate that a district court may simply certify a question without first deciding it.”).

6 1047 (9th Cir. 2019) (quoting Flast v. Cohen, 392 U.S. 83, 96 (1968)); see also

Benoit v. Saint-Gobain Performance Plastics Corp., 959 F.3d 491, 508 (2d Cir.

2020) (“Inherent in the requirements of section 1292(b) is that the issue in the

certified order be ripe for judicial determination, because the purpose of section

1292(b) is not to offer advisory opinions rendered on hypotheses which evaporate

in the light of full factual development.” (cleaned up)).

Defendants urge us to reverse the district court’s order as to the second

theory of liability; they argue that we could avoid issuing an advisory opinion by

dismissing the Master Complaints in their entirety. But doing so would not cure the

advisory nature of such an opinion because we would still lack jurisdiction over the

district court’s order that dismisses theories, not claims. Rule 12(b)(6) permits

dismissal for failure to state a claim. And Section 230 requires a claim-specific

analysis.

To determine whether a particular claim should be dismissed under Section

230, a court must identify “the underlying legal duty” and determine whether “it

seek[s] to hold the defendant liable as a ‘publisher or speaker’ of third-party

content. HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676, 682 (9th Cir.

2019) (citing Doe v. Internet Brands, 824 F.3d 846, 851, 853 (9th Cir. 2016)); see

also Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100–09 (9th Cir. 2009), as amended

(Sept. 28, 2009) (conducting claim-specific analysis). In doing so, the court must

7 consider what the underlying legal duty “actually requires.” Id. at 682; see also

Internet Brands, 824 F.3d at 850 (“The essential question . . . is whether [the

p]laintiff’s . . . cause of action ‘inherently requires the court to treat’ [the

defendant] ‘as a publisher or speaker’ ‘of information provided by another

information content provider.’” (quoting Barnes, 570 F.3d at 1100–02)). A court

may also need to consider other claim-specific issues, such as the source of the

underlying duty. Internet Brands, 824 F.3d at 850–51 (considering source of duty

to warn plaintiff). Disposition of the claims in this case will thus require examining

each individual claim.

We are mindful that in complex cases involving many claims, a district court

may decide to address pivotal threshold issues—such as the viability of certain

legal theories—before applying its reasoning to specific claims. There is nothing

wrong with such an approach, but we may not exercise jurisdiction under

§ 1292(b) until the district court has ruled on the claims at issue. Once the district

court has done so, it may certify its order for interlocutory appeal.

Accordingly, we VACATE our December 13, 2022, order granting

permission for an interlocutory appeal, DISMISS the cross-appeals for lack of

jurisdiction, and REMAND to the district court.