NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PENNY QUINTEROS, AKA TwoCents, No. 24-6332 D.C. No. Plaintiff - Appellant, 2:19-cv-01402-RSM v. MEMORANDUM*
INNOGAMES; HENDRIK KLINDWORTH; MICHAEL ZILLMER; JULIE BLAN, also known as Jill; RICHARD STEPHENSON,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding
Submitted March 31, 2026** San Francisco, California
Before: NGUYEN, MILLER, and COLLINS, Circuit Judges.
Penny Quinteros appeals the district court’s dismissal of her third amended
complaint asserting various claims based on harassment Quinteros says she
* 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). suffered while playing defendants’ online video game, Forge of Empires. After the
district court dismissed her first amended complaint with prejudice, we affirmed
the dismissal but held that the district court abused its discretion in denying leave
to amend, and we remanded to allow amendment. Quinteros v. Innogames, No. 22-
35333, 2024 WL 132241 (9th Cir. Jan. 8, 2024). On remand, Quinteros filed a
second and then a third amended complaint, which is the operative pleading here.
The district court dismissed without further leave to amend. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
We review de novo a grant of a motion to dismiss for failure to state a claim.
Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th Cir. 2021). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). We review for abuse of discretion a district court’s decision to
dismiss without leave to amend, but we review de novo whether amendment would
be futile. In re Cloudera, Inc., 121 F.4th 1180, 1190 (9th Cir. 2024).
1. Quinteros brings claims based on several negligence theories, but none are
adequately pleaded. The district court concluded that “[d]espite the amendments,
Plaintiff’s negligence claims remain speculative and vague.” We agree.
2 24-6332 Quinteros’s negligence per se claim, resting on various Washington, federal,
and foreign statutes, alleges that an InnoGames employee was able to “access . . .
information” about Quinteros, including a photograph, and “release it to third-party
players.” This claim necessarily relies on a vicarious-liability theory because an
unknown third-party moderator, rather than any defendant, engaged in the
allegedly wrongful conduct of accessing and distributing the photograph of
Quinteros. The vicarious-liability theory fails, however, because Quinteros does
not allege that the moderator was “acting on [InnoGames’s] behalf.” Niece v.
Elmview Grp. Home, 929 P.2d 420, 426 (Wash. 1997). Under Washington law, if
an employee “steps aside from the employer’s purposes in order to pursue a
personal objective of the employee,” as Quinteros alleges the moderator did here,
then “the employer is not vicariously liable.” Id. The same result follows if the
moderator was InnoGames’s agent rather than its employee. See Deep Water
Brewing, LLC v. Fairway Res. Ltd., 215 P.3d 990, 1011 (Wash. Ct. App. 2009).
Quinteros’s negligent-supervision claim also fails. Although an employer
has a duty to “prevent the tasks, premises, or instrumentalities entrusted to an
employee from endangering others,” it is “not liable for negligent supervision of an
employee unless the employer knew, or in the exercise of reasonable care should
have known, that the employee presented a risk of danger to others.” Niece, 929
P.2d at 426. A plaintiff must therefore “show that the employer knew or should
3 24-6332 have known of the dangerous tendencies of a particular employee.” Anderson v.
Soap Lake Sch. Dist., 423 P.3d 197, 210 (Wash. 2018). Because the moderator
who allegedly wronged Quinteros was unknown to InnoGames, Quinteros does not
plausibly allege that InnoGames knew or should have known of any “dangerous
tendencies” of that particular moderator.
Quinteros’s failure-to-protect claim fails for similar reasons. A business’s
duty to its invitees is limited to protecting them from “reasonably foreseeable”
conduct by third parties. Nivens v. 7-11 Hoagy’s Corner, 943 P.2d 286, 293 (Wash.
1997). Even assuming that InnoGames knew that in-game moderators would be
given support tickets (a form of customer-service complaint) with links to photos,
Quinteros does not plausibly allege that defendants knew, or had reason to know,
that moderators would then distribute the photos to other players, leading to the
alleged harassment of Quinteros. Quinteros’s mention of another plaintiff in a
different lawsuit against InnoGames raising different issues does not suggest that
defendants should have been on notice of the potential for Quinteros suffering the
type of harm that she alleges she did in the way that she did.
Finally, the statements by defendants Julie Blan and Richard Stephenson to
Quinteros “that they would enforce the rules equally against all players in order to
prevent [her] harassment,” did not create an affirmative duty to rescue Quinteros
from other players’ conduct. Without more, these statements by defendants at most
4 24-6332 reiterated game policy and expressed an intent to investigate. They do not plausibly
amount to the voluntary undertaking of a special duty to “aid an individual in
need.” Folsom v. Burger King, 958 P.2d 301, 311 (Wash. 1998).
2. The district court correctly determined that Quinteros has not stated a
defamation claim. Quinteros alleges that a moderator disclosed an “intimate
image” she had sent to another player “for the express purpose of creating sexually
explicit and harassing comments against Plaintiff” and also “directly” made
harassing statements. Even if dissemination of an altered image may support a
defamation claim, see Seaquist v. Caldier, 438 P.3d 606, 614 (Wash. Ct. App.
2019), Quinteros does not allege that the “intimate image” was altered. Any
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 17 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PENNY QUINTEROS, AKA TwoCents, No. 24-6332 D.C. No. Plaintiff - Appellant, 2:19-cv-01402-RSM v. MEMORANDUM*
INNOGAMES; HENDRIK KLINDWORTH; MICHAEL ZILLMER; JULIE BLAN, also known as Jill; RICHARD STEPHENSON,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding
Submitted March 31, 2026** San Francisco, California
Before: NGUYEN, MILLER, and COLLINS, Circuit Judges.
Penny Quinteros appeals the district court’s dismissal of her third amended
complaint asserting various claims based on harassment Quinteros says she
* 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). suffered while playing defendants’ online video game, Forge of Empires. After the
district court dismissed her first amended complaint with prejudice, we affirmed
the dismissal but held that the district court abused its discretion in denying leave
to amend, and we remanded to allow amendment. Quinteros v. Innogames, No. 22-
35333, 2024 WL 132241 (9th Cir. Jan. 8, 2024). On remand, Quinteros filed a
second and then a third amended complaint, which is the operative pleading here.
The district court dismissed without further leave to amend. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
We review de novo a grant of a motion to dismiss for failure to state a claim.
Benavidez v. County of San Diego, 993 F.3d 1134, 1141 (9th Cir. 2021). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). We review for abuse of discretion a district court’s decision to
dismiss without leave to amend, but we review de novo whether amendment would
be futile. In re Cloudera, Inc., 121 F.4th 1180, 1190 (9th Cir. 2024).
1. Quinteros brings claims based on several negligence theories, but none are
adequately pleaded. The district court concluded that “[d]espite the amendments,
Plaintiff’s negligence claims remain speculative and vague.” We agree.
2 24-6332 Quinteros’s negligence per se claim, resting on various Washington, federal,
and foreign statutes, alleges that an InnoGames employee was able to “access . . .
information” about Quinteros, including a photograph, and “release it to third-party
players.” This claim necessarily relies on a vicarious-liability theory because an
unknown third-party moderator, rather than any defendant, engaged in the
allegedly wrongful conduct of accessing and distributing the photograph of
Quinteros. The vicarious-liability theory fails, however, because Quinteros does
not allege that the moderator was “acting on [InnoGames’s] behalf.” Niece v.
Elmview Grp. Home, 929 P.2d 420, 426 (Wash. 1997). Under Washington law, if
an employee “steps aside from the employer’s purposes in order to pursue a
personal objective of the employee,” as Quinteros alleges the moderator did here,
then “the employer is not vicariously liable.” Id. The same result follows if the
moderator was InnoGames’s agent rather than its employee. See Deep Water
Brewing, LLC v. Fairway Res. Ltd., 215 P.3d 990, 1011 (Wash. Ct. App. 2009).
Quinteros’s negligent-supervision claim also fails. Although an employer
has a duty to “prevent the tasks, premises, or instrumentalities entrusted to an
employee from endangering others,” it is “not liable for negligent supervision of an
employee unless the employer knew, or in the exercise of reasonable care should
have known, that the employee presented a risk of danger to others.” Niece, 929
P.2d at 426. A plaintiff must therefore “show that the employer knew or should
3 24-6332 have known of the dangerous tendencies of a particular employee.” Anderson v.
Soap Lake Sch. Dist., 423 P.3d 197, 210 (Wash. 2018). Because the moderator
who allegedly wronged Quinteros was unknown to InnoGames, Quinteros does not
plausibly allege that InnoGames knew or should have known of any “dangerous
tendencies” of that particular moderator.
Quinteros’s failure-to-protect claim fails for similar reasons. A business’s
duty to its invitees is limited to protecting them from “reasonably foreseeable”
conduct by third parties. Nivens v. 7-11 Hoagy’s Corner, 943 P.2d 286, 293 (Wash.
1997). Even assuming that InnoGames knew that in-game moderators would be
given support tickets (a form of customer-service complaint) with links to photos,
Quinteros does not plausibly allege that defendants knew, or had reason to know,
that moderators would then distribute the photos to other players, leading to the
alleged harassment of Quinteros. Quinteros’s mention of another plaintiff in a
different lawsuit against InnoGames raising different issues does not suggest that
defendants should have been on notice of the potential for Quinteros suffering the
type of harm that she alleges she did in the way that she did.
Finally, the statements by defendants Julie Blan and Richard Stephenson to
Quinteros “that they would enforce the rules equally against all players in order to
prevent [her] harassment,” did not create an affirmative duty to rescue Quinteros
from other players’ conduct. Without more, these statements by defendants at most
4 24-6332 reiterated game policy and expressed an intent to investigate. They do not plausibly
amount to the voluntary undertaking of a special duty to “aid an individual in
need.” Folsom v. Burger King, 958 P.2d 301, 311 (Wash. 1998).
2. The district court correctly determined that Quinteros has not stated a
defamation claim. Quinteros alleges that a moderator disclosed an “intimate
image” she had sent to another player “for the express purpose of creating sexually
explicit and harassing comments against Plaintiff” and also “directly” made
harassing statements. Even if dissemination of an altered image may support a
defamation claim, see Seaquist v. Caldier, 438 P.3d 606, 614 (Wash. Ct. App.
2019), Quinteros does not allege that the “intimate image” was altered. Any
statement made through its disclosure thus could not have been false. Nor can any
negative implication the image conveyed support Quinteros’s claim, because “a
plaintiff may not base a defamation claim on the negative implication of true
statements.” Yeakey v. Hearst Commc’ns, Inc., 234 P.3d 332, 335 (Wash. Ct. App.
2010).
Quinteros further alleges that the disclosure of the image prompted harassing
and defamatory statements, but as the district court recognized, she pleaded no
facts about who made the statements or when, where, or to whom they were made.
See M.G. v. Bainbridge Island Sch. Dist. #303, 566 P.3d 132, 147 (Wash. Ct. App.
2025). As for the statements allegedly made by Blan and Stephenson that
5 24-6332 Quinteros was “crazy” or “a liar,” those were not actionable because their audience
and context suggest that they were “expressions of personal opinion,” and they did
not imply undisclosed facts. Robel v. Roundup Corp., 59 P.3d 611, 622 (Wash.
2002).
3. In the earlier appeal, we affirmed the dismissal of Quinteros’s claims for
gender discrimination in public accommodations, negligent and intentional
infliction of emotional distress, fraud, product liability, breach of contract,
copyright infringement, and violations of the Washington Consumer Protection
Act. Quinteros, 2024 WL 132241, at *2–3. We agree with the district court that the
third amended complaint did not meaningfully add to the allegations that we
previously determined were insufficient to state a claim.
4. Quinteros attempted to assert three new claims in her third amended
complaint, but our previous order remanded only so that she could add “additional
facts to cure the various deficiencies” in the claims she had already pleaded.
Quinteros, 2024 WL 132241, at *4. It did not grant leave to add new claims. The
district court therefore correctly determined that the addition of the new claims
exceeded the scope of the remand. See Hall v. City of Los Angeles, 697 F.3d 1059,
1067 (9th Cir. 2012).
5. The district court did not err in considering documents that were
incorporated by reference in the complaint, namely the photograph, the Forge of
6 24-6332 Empire game rules, and the Terms and Conditions. See United States v. Ritchie,
342 F.3d 903, 908 (9th Cir. 2003). Quinteros argues that the court erroneously
relied on the international, rather than the American, version of the Terms and
Conditions, but she does not explain how those versions differ or why the
difference matters.
6. Quinteros received several opportunities to amend but still has not cured
the deficiencies in her complaint. “The district court evidently saw no reason to
believe that [she] would do better with another try, and neither do we.” In re
Cloudera, 121 F.4th at 1190. The district court did not abuse its discretion when it
denied leave to amend.
7. The motion to seal or proceed under a pseudonym (Dkt. No. 22) is denied.
Normally, “[t]he title of the complaint must name all parties,” Fed. R. Civ. P.
10(a), and a party may use a pseudonym only “in the ‘unusual case’ when
nondisclosure of the party’s identity ‘is necessary . . . to protect a person from
harassment, injury, ridicule, or personal embarrassment.’” Does I thru XXIII v.
Advanced Textile Corp., 214 F.3d 1058, 1067–68 (9th Cir. 2000) (ellipsis in
original) (quoting United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1981)).
This case has been proceeding publicly since 2019, and Quinteros has identified no
additional threat to her privacy if it remains unsealed and she remains named.
AFFIRMED.
7 24-6332