NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PENNY QUINTEROS, No. 22-35333
Plaintiff-Appellant, D.C. No. 2:19-cv-01402-RSM
v. MEMORANDUM* INNOGAMES; et al.,
Defendants-Appellees.
Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding
Submitted January 8, 2024**
Before: BENNETT, SUNG, and H.A. THOMAS, Circuit Judges. Partial Dissent by Judge BENNETT.
Plaintiff Penny Quinteros appeals pro se from the district court’s dismissal
of her first amended complaint against Defendants. Quinteros’s complaint alleges a
series of state and federal law claims, stemming from harassment Quinteros states
she suffered on Defendants’ online video game platform, Forge of Empires. The
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Court assumes familiarity with the facts as alleged in the operative complaint, and
with the district court’s opinion below. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm in part and reverse and remand in part so that Quinteros may be
granted leave to amend her pleadings.
“We review the grant of a motion to dismiss de novo.” Kappouta v. Valiant
Integrated Servs., LLC, 60 F.4th 1213, 1216 (9th Cir. 2023). On a motion to
dismiss, the Court considers the operative complaint and the documents attached to
it, and we must accept well-pled allegations as true. Koala v. Khosla, 931 F.3d
887, 895 (9th Cir. 2019). The Court draws all reasonable inferences in plaintiff’s
favor, Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247–48 (9th Cir. 2013), and
construes pro se pleadings liberally, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.
2010).1
“[D]ismissal for failure to state a claim is proper only where there is no
cognizable legal theory or an absence of sufficient facts alleged to support a
cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d
1035, 1041 (9th Cir. 2010) (quotation omitted). Factual allegations, however, must
1 While the Court construes pro se pleadings liberally, this grace “does not apply to practicing attorneys.” Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir. 2023). Documents appended to the complaint indicate Quinteros was a law student when she filed this case. However, there is no evidence in the record indicating whether Quinteros is now an attorney, and we assume in this case that Huffman does not apply to law students. We leave it to the district court to determine whether Huffman applies to any future pleadings.
2 be plausible, and not merely speculative. See DeHoog v. Anheuser-Busch InBev
SA/NV, 899 F.3d 758, 765 (9th Cir. 2018) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007)). “Claims move beyond speculation when the allegations
‘allow[ ] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.’” U.S. Commodity Futures Trading Comm’n v. Monex
Credit Co., 931 F.3d 966, 972 (9th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
For the reasons explained below, the district court properly found Quinteros
failed to state a claim as to all the claims raised in the complaint. However, for
some claims, we affirm dismissal on different grounds.
1. As an initial matter, the district court erred in concluding that the
Communications Decency Act (CDA), specifically 47 U.S.C. § 230, immunizes
Defendants from liability for Quinteros’s negligence and defamation claims.
Section 230 generally applies where a plaintiff seeks to treat (1) a provider of
interactive computer services as (2) a publisher or speaker under a state law cause
of action, of (3) information provided by a third party. Dyroff v. Ultimate Software
Grp., Inc., 934 F.3d 1093, 1097 (9th Cir. 2019). Quinteros plausibly alleges that
Forge of Empires moderators improperly accessed a sensitive image of hers, and
3 unlawfully disseminated that image.2 These allegations do not treat Defendants as
publishers or speakers and therefore are not covered by the CDA.3 Additionally,
§ 230 concerns only the actions of third parties. Fair Hous. Council of San
Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008)
(en banc). Quinteros sufficiently alleges that moderators are not third parties within
the meaning of the CDA, but rather individuals with some unspecified agency
relationship to Defendants. Accordingly, the CDA does not immunize Defendants
from the alleged actions of moderators.
2. Although we conclude that § 230 does not immunize Defendants, we affirm
the dismissal of Quinteros’s negligence claims for different reasons. Quinteros
alleges a handful of negligence claims relating to Defendants’ recruitment and
supervision of moderators. Quinteros sufficiently alleges that moderators are not
2 The district court found that Quinteros’s allegations that moderators improperly accessed her image were “fanciful” and therefore implausible. This finding, however, overlooked other factual allegations in the complaint, including allegations that: (1) Quinteros only sent the image to a single non-moderator, who confirmed he had not further distributed the image; (2) in two separate, detailed instances moderators had inappropriately accessed private information on the Forge of Empires platform. On a motion to dismiss, these allegations—combined with the pleading leniency afforded pro se plaintiffs—should have allowed the court to draw the reasonable inference that one or more moderators inappropriately accessed and disseminated Quinteros’s image. 3 Quinteros also appears to allege a violation of her privacy rights under Wash. Rev. Code § 9.73.030 based on these same allegations. Quinteros fails to state a claim under Washington law, however, because she does not allege that these violations occurred in Washington state, or at the behest of someone located in Washington state. See State v. Fowler, 139 P.3d 342, 347 (Wash. 2006).
4 third parties within the meaning of the CDA. However, she fails to allege specific
facts that show the relationship between Defendants and moderators is sufficient to
render Defendants vicariously liable for moderators’ actions under Washington
law. For instance, Quinteros does not allege facts that establish Defendants and
moderators have an employer-employee relationship, which could give rise to
vicarious liability under Washington law. See Anderson v. Soap Lake Sch. Dist.,
423 P.3d 197, 214 (Wash. 2018) (stating Washington imposes vicarious liability on
an employer for the torts of an employee acting on the employer’s behalf and
within the scope of employment). And to the extent Quinteros alleges Defendants
were negligent in their supervision of the moderators, she has not shown any of the
defendants knew or should have known that moderators would pose a risk of
danger to her. She does not plausibly allege, for instance, that Defendants were
aware that similar messages had been intercepted in the past, or that Defendants
had a reason to believe moderators would intercept such messages. Without more,
Quinteros fails to state a claim for negligence.
3. We also agree with the district court that Quinteros failed to state a claim for
defamation. “The elements a plaintiff must establish in a defamation case are
falsity, an unprivileged communication, fault, and damages.” Mohr v. Grant, 108
P.3d 768, 773 (Wash. 2005). “Before the truth or falsity of an allegedly defamatory
statement can be assessed, a plaintiff must prove that the words constituted a
5 statement of fact, not an opinion.” Robel v. Roundup Corp., 59 P.3d 611, 621
(Wash. 2002). Here, the district court properly found that the statements alleged in
the complaint are not defamatory because they are not statements of fact. Read in
context, these statements are nonactionable insults. See id. at 622 (undertaking a
totality of circumstances test to conclude that “plainly abusive words not intended
to be taken literally as statements of fact” such as “idiot” and “snitch” are not
defamatory).
4. Quinteros also fails to state a claim for negligent infliction of emotional
distress. Washington courts allow claims for negligent infliction of emotional
distress absent physical injury only where emotional distress is “within the scope
of foreseeable harm of the negligent conduct.” Bylsma v. Burger King Corp., 293
P.3d 1168, 1170 (Wash. 2013). Because Quinteros fails to state a claim for
negligent conduct, or plausibly allege any physical injury stemming directly from
Defendants’ conduct, she cannot state a claim for negligent infliction of emotional
distress.
5. Likewise, Quinteros fails to state a claim for intentional infliction of
emotional distress. Such a claim requires showing conduct “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Lyons v. U.S. Bank Nat’l Ass’n, 336 P.3d 1142, 1151 (Wash. 2014);
6 see also Kloepfel v. Bokor, 66 P.3d 630, 632 (Wash. 2003) (outrageous conduct
generally does not include “mere insults, indignities, threats, annoyances, petty
oppressions, or other trivialities”). Here, Quinteros only alleges that Defendants
inconsistently applied certain rules to her, helped her alleged harassers ban her
from the game, and attempted to cover up the misconduct of moderators. None of
these allegations rise to the level of outrageous conduct.
6. The district court properly dismissed Quinteros’s gender discrimination in
public accommodations claim, which it construed as an alleged violation of Wash.
Rev. Code § 49.60.215. To make a prima facie case of gender discrimination,
Quinteros must show that her gender was a substantial factor causing the alleged
discrimination. See W.H. v. Olympia Sch. Dist., 465 P.3d 322, 325 (Wash. 2020).
The district court correctly found Quinteros’s allegations as to this claim were
vague and conclusory.
7. Quinteros also fails to meet the heightened pleading standards for fraud. See
Fed. R. Civ. P. 9(b) (fraud must be pled “with particularity”); Benavidez v. Cnty. of
San Diego, 993 F.3d 1134, 1145 (9th Cir. 2021) (stating particularity includes the
“who, what, when, where, and how” including what is false and why); see also
Adams v. King Cnty., 192 P.3d 891, 902 (Wash. 2008) (outlining the nine elements
for fraud under Washington law). Here, Quinteros’s main allegation is that
Defendants represented that game rules on the Forge of Empires platform would
7 be applied fairly when they were applied unfairly. However, she fails to allege with
particularity what specific statements Defendants made to her, who made these
statements, when, and how she was deceived.
8. Quinteros fails to state a claim for unfair business practices under
Washington’s Consumer Protection Act (CPA), Wash. Rev. Code § 19.86.020. A
private plaintiff bringing a CPA claim must show that their lawsuit would serve the
public interest. Michael v. Mosquera-Lacy, 200 P.3d 695, 700 (Wash. 2009).
Washington courts consider a number of factors to assess whether a claim concerns
the public interest, including whether acts: (1) were carried out in the course of
business, (2) were part of a pattern or generalized course of conduct, (3) were
repeated prior to the involvement of the plaintiff, (4) created a “real and substantial
potential for repetition,” and (5) if the act is a single transaction, whether many
consumers were affected. Mason v. Mortg. Am., Inc., 792 P.2d 142, 148 (Wash.
1990); see also Michael, 200 P.3d at 700 (identifying similar factors). Applying the
Mason factors to Quinteros’s complaint, she fails to allege that her CPA claims
concern the public interest.
9. Quinteros fails to state a products liability claim based on a design defect.
“The elements of proof for a design defect products liability claim require a
showing of (1) a manufacturer’s product (2) not reasonably safe as designed (3)
causing harm to the plaintiff.” Pagnotta v. Beall Trailers of Oregon, Inc., 991 P.2d
8 728, 732 (Wash. Ct. App. 2000) (citing Wash. Rev. Code § 7.72.030(1)); see also
Ayers By & Through Ayers v. Johnson & Johnson Baby Prods. Co., 818 P.2d 1337,
1340 (Wash. 1991). Here, Quinteros conclusorily alleges that Defendants created
an unsafe product that causes gaming addiction in its consumers. While she
identifies certain features of Forge of Empires which she asserts are addictive and
harmful, she fails to allege specific, factual allegations that are sufficient to show
that the game was, as designed, unreasonably addictive. Consequently, the
allegations fail to state the second element of the design defect claim.
10. The district court properly dismissed Quinteros’s breach of contract claim,
finding Quinteros failed to plead a material breach that caused damages to her. “A
breach of contract is actionable only if [1] the contract imposes a duty, [2] the duty
is breached, and [3] the breach proximately causes damage to the claimant.” Nw.
Indep. Forest Mfrs. v. Dep’t of Lab. & Indus., 899 P.2d 6, 9 (Wash. Ct. App. 1995)
(citing Larson v. Union Inv. & Loan Co., 10 P.2d 557 (Wash. 1932)). “Washington
courts have recognized that a party must be intended as a third-party beneficiary to
benefit from a contract.” Minton v. Ralston Purina Co., 47 P.3d 556, 562 (Wash.
2002). Quinteros fails to plausibly allege the existence of a contract between her
and Defendants, which imposed an obligation on Defendants to refrain from
transmitting images or engaging in verbal harassment. Likewise, none of the
allegations in the complaint represent that Quinteros is a third-party beneficiary of
9 an agreement between Defendants and other users.
11. Quinteros also fails to make a claim for promissory estoppel. To make out a
promissory estoppel claim, a promise must be “clear and definite” and include
“manifestation of intention to act or refrain from acting in a specified way, so made
as to justify a promisee in understanding that a commitment has been made.”
Washington Educ. Ass’n v. Washington Dep’t of Ret. Sys., 332 P.3d 428, 435
(Wash. 2014) (citations and quotations omitted). Quinteros fails to allege a clear
and definite promise. She alleges only that she “relied on [unspecified] statements
of fairness” for her promissory estoppel claims.
12. The district court also properly dismissed Quinteros’s copyright
infringement claim. Quinteros alleges the copyright violation here took place
before she registered the photograph in question with the U.S. Copyright Office.
However, Quinteros “is entitled to statutory damages and attorneys’ fees only to
the extent infringement occurred after the work was registered.” Enter. Mgmt. Ltd.,
Inc. v. Construx Software Builders, Inc., 73 F.4th 1048, 1056 n.6 (9th Cir. 2023)
(citing 17 U.S.C. § 412). Because Quinteros fails to allege any other damages
arising from the alleged copyright infringement with any specificity, this claim was
properly dismissed.
13. Quinteros’s gender discrimination in employment claim fails because it
simply recites the elements of a cause of action, and fails to contain “sufficient
10 allegations of underlying facts to give fair notice and to enable the opposing party
to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Specifically, Quinteros merely asserts “[u]pon information and belief, the reason
[she] was not hired [was] because she was a woman[.]” Quinteros alleges no
underlying facts to support this bald assertion, and without more, she does not
elevate her claim from the speculative to the plausible.
14. Finally, we conclude that the district court abused its discretion in denying
Quinteros, a pro se plaintiff, leave to amend. Even where a plaintiff fails to state a
claim, district courts “should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). This rule is liberally applied for pro se litigants.
Watison v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012). A district court’s denial of
leave to amend is reviewed for abuse of discretion, and a “court abuses its
discretion by denying leave to amend unless amendment would be futile or the
plaintiff has failed to cure the complaint’s deficiencies despite repeated
opportunities.” Garmon v. Cnty. of Los Angeles, 828 F.3d 837, 842 (9th Cir. 2016).
Here, amendment would not be futile. Quinteros could plead additional facts to
cure the various deficiencies identified above. And under the liberal standard we
apply to pro se litigants, Quinteros should be given more than one opportunity to
cure the deficiencies in her pleading.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
11 FILED Quinteros v. InnoGames, No. 22-35333 JAN 8 2024 MOLLY C. DWYER, CLERK BENNETT, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I respectfully dissent from the majority’s holding that the district court abused
its discretion in denying Quinteros leave to amend her complaint a second time.
Even with a liberal policy favoring amendment for pro se litigants, 1 “[a] district court
acts within its discretion to deny leave to amend when amendment would be futile.”
Chappel v. Lab’y Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000); see also
Albrecht v. Lund, 845 F.2d 193, 195 (9th Cir.), amended, 856 F.2d 111 (9th Cir. 1988)
(“If the district court determines that the ‘allegation of other facts consistent with the
challenged pleading could not possibly cure the deficiency,’ then the dismissal
without leave to amend is proper.” (quoting Schreiber Distrib. Co. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986))).
The majority states without elaboration that “Quinteros could plead additional
facts to cure the various deficiencies identified above.” Mem. at 11. But I don’t
know what possible additional facts Quinteros could plausibly allege to cure the
significant (and to me incurable) deficiencies in her complaint, and the majority
identifies none. And neither in the district court, nor on appeal, has Quinteros
identified any such facts.
1 Quinteros, a law student while this case was pending in district court, is now a licensed attorney. Plus, here, Quinteros has already been afforded the opportunity to amend her
complaint. “[W]hen a district court has already granted a plaintiff leave to amend,
its discretion in deciding subsequent motions to amend is ‘particularly broad.’”
Chodos v. W. Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (quoting Griggs v. Pace
Am. Grp., Inc., 170 F.3d 877, 879 (9th Cir. 1999)); Godwin v. Christianson, 594 F.
App’x 427, 428 (9th Cir. 2015) (applying this rule to a pro se prisoner); Snyder v.
Allison, F. App’x 329, 330 (9th Cir. 2021) (same).
I believe the district court did not abuse its discretion in denying Quinteros a
second opportunity to amend her complaint, and thus I respectfully dissent from that
portion of the majority’s disposition.