                                          In The

                                   Court of Appeals
                       Ninth District of Texas at Beaumont
                                ____________________

                                 NO. 09-14-00434-CV
                                ____________________

                              CHRIS DAVIS, Appellant

                                            V.

              MOTIVA ENTERPRISES, L.L.C., Appellee
_________________________________        ______________________

                 On Appeal from the 1st District Court
                        Jasper County, Texas
                        Trial Cause No. 34022
____________________________________________                      ____________

                             MEMORANDUM OPINION

      Chris Davis sued (1) Chris Fournet for invasion of privacy by public

disclosure of private facts and by intrusion on seclusion, libel, and intentional

infliction of emotional distress; and (2) Motiva Enterprises, L.L.C. for negligent

supervision, negligent entrustment, and negligent undertaking. 1 Motiva filed a

motion to dismiss based on the Communications Decency Act (“CDA”), which the

trial court granted. In this permissive appeal, Davis raises two appellate issues

      1
          Fournet is not a party to this appeal.
                                             1
challenging the dismissal of her lawsuit against Motiva. See Tex. R. App. P. 28.3;

see also Tex. R. Civ. P. 168; Tex. Civ. Prac. & Rem. Code Ann. § 51.014(d) (West

2015). We affirm the trial court’s judgment.

                           Communications Decency Act

      In issue one, Davis contends that the trial court erred by dismissing her

claims against Motiva pursuant to section 230 of the CDA. “[A] party may move to

dismiss a cause of action on the grounds that it has no basis in law or fact.” Tex. R.

Civ. P. 91a.1. “A cause of action has no basis in law if the allegations, taken as

true, together with inferences reasonably drawn from them, do not entitle the

claimant to the relief sought.” Id. “A cause of action has no basis in fact if no

reasonable person could believe the facts pleaded.” Id. We review the trial court’s

ruling on questions of law de novo. GoDaddy.com, LLC v. Toups, 429 S.W.3d 752,

754 (Tex. App.—Beaumont 2014, pet. denied). We take the plaintiff’s allegations

as true and consider whether the petition contains “‘enough facts to state a claim to

relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)).

      In her petition, Davis alleged that, while employed by Motiva, Fournet used

Motiva’s technology and facilities to lodge “an obscene cyber-strike campaign”

against her by posting advertisements to Craig’s List and posing “as [Davis] as if

                                          2
she were soliciting for sexual encounters with strangers[.]” Davis alleged that

Fournet had previously used Motiva’s technology for several years to access

Craig’s List for “soliciting sexual encounters” and “other pornographic, swinger

life, or adult ‘friend finder’ websites” during work hours and while under Motiva’s

supervision. She alleged that “Motiva employees, including those in management,

would by their proximity and interaction with Fournet have known or suspected his

consistent interactions with pornographic and adult websites during working hours

using Motiva IT.”

      Davis claimed that Motiva’s Code of Conduct prohibits the use of its

technology to commit fraud or to access “pornography or any other form of nude,

indecent, vulgar, obscene, or otherwise objectionable material.” The Code states

that “the use of Motiva IT and communication facilities is logged [and] monitored

for the purposes of information security, operational management, and

‘cybercrime’, and to ensure it is compliant with laws, regulations, and Motiva

policies.” The Code requires anyone who suspects or has knowledge of a violation

of the Code to report the violation to Motiva’s human resources department. Given

these policies, Davis alleged that Motiva (1) had reason to know and anticipate that

employees could and were likely to access websites that were “not of a business

nature while on the premises of, or using property owned by Motiva in the course

                                         3
of their employment and outside of the scope of their employment[;]” (2) “knew or

should have known from its ‘logged’ and ‘monitored’ information that Fournet was

engaging in wrongful activity”; and (3) knew of Fournet’s “sexual and

inappropriate content internet browsing” and “of his leaving and returning to the

jobsite in order to conduct those sexual encounters he solicited using Motiva IT

property, and failed to implement procedures as described in Motiva’s Code of

Conduct to investigate and discipline such behavior.”

      Davis asserted a claim for negligent supervision, alleging that Motiva: (1)

failed to exercise ordinary care in supervising Fournet so as to prevent his

foreseeable misconduct from causing harm to Davis; (2) “knew or had reason to

know of the reason for supervision and indeed, created a duty for the employees of

Motiva to act in supervision and report such misconduct in addition to Motiva’s

own logging and monitoring of the personal use of Motiva IT and communication

facilities[;]” and (3) failed in its duty to log and monitor the personal use of Motiva

technology and communication facilities, or to investigate and discipline Fournet

after any reporting of Fournet’s violations of Motiva’s Code of Conduct, or failed

to properly train Fournet. Davis also claimed negligent entrustment on grounds that

(1) Motiva entrusted technology and communication facilities to Fournet; (2)

Fournet was reckless and incompetent when using Motiva’s technology on

                                          4
numerous occasions; and (3) Motiva knew or should have known that Fournet was

reckless and incompetent with Motiva’s property. Finally, Davis alleged negligent

undertaking, pleading that Motiva: (1) “undertook to perform services that it knew

or should have known were necessary for [Davis’s] protection as a member of a

community in the . . . region where Motiva operates and has employees[;]” (2) did

not exercise reasonable care when performing such services; and (3) increased the

risk of harm by failing to perform those services. Davis alleged that Motiva’s

conduct proximately caused her injuries.

      In its motion to dismiss, Motiva argued that section 230(c)(1) and 230(c)(2)

of the CDA barred Davis’s claims against Motiva because (1) Motiva is a provider

of an interactive computer service in accordance with section 230; (2) Fournet, not

Motiva, was the information content provider; (3) Davis’s claims attempt to treat

Motiva as the “publisher” or “speaker” of the information Fournet posted; and (4)

Davis’s claims were entirely based on Motiva’s Code of Conduct. The trial court

agreed and dismissed Davis’s claims against Motiva with prejudice. On appeal,

Davis contends that section 230 does not foreclose all state law claims but allows

claims based on “state and local laws within the same field, so long as they are

‘consistent’ with section 230.” She contends that her claims do not attempt to treat

Motiva as a publisher, but arise from “Motiva’s failure to supervise Fournet’s

                                           5
conduct, investigate and discipline Fournet’s conduct when Motiva knew or had

reason to know of such conduct, Motiva’s negligent entrustment to Fournet with

Motiva IT and communication facilities, and Motiva’s negligence in its

undertaking to supervise, monitor, investigate and discipline its employee’s

activities.” Additionally, Davis maintains that employers have a duty to control and

supervise their employees, independent of Motiva’s Code of Conduct.

      Under section 230(c)(1), “[n]o provider or user of an interactive computer

service shall be treated as the publisher or speaker of any information provided by

another information content provider.” 47 U.S.C.S. § 230(c)(1). Nor may a

provider or user of an interactive computer service be held liable for “any action

voluntarily taken in good faith to restrict access to or availability of material that

the provider or user considers to be obscene, lewd, lascivious, filthy, excessively

violent, harassing, or otherwise objectionable, whether or not such material is

constitutionally protected[.]” Id. § 230(c)(2)(A). An “‘interactive computer

service’ means any information service, system, or access software provider that

provides or enables computer access by multiple users to a computer server,

including specifically a service or system that provides access to the Internet and

such systems operated or services offered by libraries or educational institutions.”

Id. § 230(f)(2). The “information content provider” is the person “responsible, in

                                          6
whole or in part, for the creation or development of information provided through

the Internet or any other interactive computer service.” Id. § 230(f)(3). Section 230

shall not “be construed to prevent any State from enforcing any State law that is

consistent with this section.” Id. § 230(e)(3). “No cause of action may be brought

and no liability may be imposed under any State or local law that is inconsistent

with [] section [230].” Id.

      Section 230(c)(1) “only protects from liability (1) a provider or user of an

interactive computer service (2) whom a plaintiff seeks to treat, under a state law

cause of action, as a publisher or speaker (3) of information provided by another

information content provider.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100-01

(9th Cir. 2009). The parties do not dispute that the plain language of section 230

renders Motiva a provider or user of an interactive computer service or that

Fournet qualifies as an information content provider. See id; see also Lansing v.

Sw. Airlines Co., 980 N.E.2d 630, 637 (Ill. App. 2012) (An employer qualifies as a

provider or user of an interactive computer service when it uses an information

system or service that multiple users, like its employees, use to access the

Internet.). Accordingly, we must determine whether Davis’s causes of action seek

to treat Motiva as a publisher or speaker. See Barnes, 570 F.3d at 1100-01.




                                         7
      Davis relies on Barnes, Lansing, and Jane Doe v. Internet Brands, Inc., 767

F.3d 894 (9th Cir. 2014), to support her position that her lawsuit is not barred by

section 230. 2 In Barnes, Barnes’s ex-boyfriend posted inappropriate profiles of

Barnes on one of Yahoo’s websites and posed as Barnes in chat rooms, after which

unfamiliar men began contacting Barnes. Barnes, 570 F.3d at 1098. Barnes

contacted Yahoo, but Yahoo failed to act, even after promising to do so, until

Barnes filed a lawsuit. Id. at 1098-99. Barnes alleged claims for negligent

undertaking and promissory estoppel. Id. at 1099, 1106. The trial court dismissed

Barnes’s lawsuit pursuant to section 230. Id. at 1099. On appeal, the Ninth Circuit

found that Barnes could not maintain a negligent undertaking claim against Yahoo

because “the duty that Barnes claims Yahoo violated derives from Yahoo’s

conduct as a publisher--the steps it allegedly took, but later supposedly abandoned,

to de-publish the offensive profiles.” Id. at 1102-03. Barnes could maintain her

promissory estoppel claim because contract liability arose from “Yahoo’s manifest

intention to be legally obligated to do something, which happens to be removal of

material from publication.” Id. at 1107-09.




      2
         The Doe opinion was withdrawn by the Ninth Circuit, but we will address
it given that Davis relies on it in her brief. See Doe v. Internet Brands, Inc., No. 12-
56638, 2015 U.S. App LEXIS 2727 (9th Cir. Feb. 24, 2015).
                                           8
      In Lansing, Lansing sued Southwest for negligent supervision on grounds

that it allowed its employee, Thomas McGrew, to use Southwest’s technology to

threaten and harass Lansing and failed to discipline McGrew despite receiving

notice from Lansing of McGrew’s conduct. Lansing, 980 N.E.2d at 631-33. The

trial court granted Southwest’s motion for summary judgment on grounds that

Southwest had immunity under section 230. Id. at 632-33. The Illinois Appellate

Court disagreed, explaining that whether Southwest acted like a publisher or

speaker of the offensive material was irrelevant to Lansing’s claim. Id. at 639, 641.

Specifically, holding Southwest “liable for its failure to supervise its employee

after defendant had received notice of the employee’s wrongful conduct does [] not

treat defendant as if it were the publisher or speaker of the alleged e-mails and

texts.” Id. at 639. The Court explained:

      Defendant’s duty to supervise its employee is distinct from any
      conduct like editing, monitoring or removing offensive content
      published on the Internet. Contrary to defendant’s argument on
      appeal, plaintiff’s theory of liability is not based on defendant
      allowing McGrew access to the Internet to publish inappropriate and
      defamatory electronic messages and then failing to either monitor his
      messages or prevent them from being sent or somehow remove them.
      Rather, plaintiff [] seeks to hold defendant liable for failing to
      investigate plaintiff’s complaint about McGrew’s wrongful conduct,
      reprimand him, and timely suspend or terminate his employment.

Id. at 639.


                                           9
      In Doe, Internet Brands, which owned a networking website called Model

Mayhem, was sued for negligence by Doe, an aspiring model, who posted her

information on Model Mayhem’s website. Doe, 767 F.3d at 895. Doe alleged that

two rapists used the website to lure her to a fake audition and that Internet Brands

knew about the rapists but failed to warn Doe and other users of the website. Id.

The trial court dismissed Doe’s lawsuit pursuant to section 230. Id. On appeal, the

Ninth Circuit found that Doe’s lawsuit was not barred by section 230 and

explained as follows:

      The duty to warn allegedly imposed by California law would not
      require Internet Brands to remove any user content or otherwise affect
      how it publishes such content. Any obligation to warn could have
      been satisfied without changes to the content posted by the website’s
      users. Internet Brands would simply have been required to give a
      warning to Model Mayhem users, perhaps by posting a notice on the
      website or by informing users by email what it knew about the
      activities of [the rapists].

      . . . A post or email warning that Internet Brands generated would
      involve only content that Internet Brands itself produced. An alleged
      tort based on a duty that would require such a self-produced warning
      therefore falls outside of section 230(c)(1). In sum, Jane Doe’s
      negligent failure to warn claim does not seek to hold Internet Brands
      liable as the “publisher or speaker of any information provided by
      another information content provider.”

Id. at 897-98 (internal citations omitted).

      The record in this case does not demonstrate that Davis directly notified

Motiva of Fournet’s conduct. Davis’s petition alleges that Motiva had actual or
                                          10
constructive knowledge of the acts Fournet committed against Davis and should

have known of Fournet’s propensity to use Motiva’s technology to interact with

Craig’s List and inappropriate websites. The petition does not contain facts

alleging how Motiva received notice of Fournet’s conduct against Davis. “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.’” 3 Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. “Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.” Id. Unlike in Barnes, Lansing, and

Doe, in which the plaintiffs presented the facts underlying the defendants’ receipt

of notice regarding the conduct of another information content provider, Davis’s

allegations are nothing more than conclusory statements that cannot support a

reasonable inference that Motiva is liable as alleged. See id.; see also Tex. R. Civ.

P. 91a.1.




      3
        Because Rule 91a is analogous to Federal Rule 12(b)(6), case law
interpreting Rule 12(b)(6) is instructive. GoDaddy.com, LLC v. Toups, 429 S.W.3d
752, 754 (Tex. App.—Beaumont 2014, pet. denied).
                                           11
      Based on her pleadings, Davis suggests that because Fournet engaged in

inappropriate internet usage before creating the Craig’s List accounts referencing

her, Motiva should have known of Fournet’s propensity to engage in such conduct.

Thus, had Motiva supervised Fournet by logging and monitoring, investigating and

disciplining, and properly training Fournet, the fake Craig’s List posts could have

been prevented from being published. Unlike in Lansing, therefore, Davis’s theory

of liability is based on Motiva allowing Fournet access to the Internet, after it knew

or should have known of Fournet’s prior inappropriate internet activity, to publish

fake Craig’s List posts and failing to prevent those posts from being published. See

Lansing, 980 N.E.2d at 639.

      Moreover, Davis alleges that Motiva negligently undertook to perform

services it knew or should have known were necessary to protect Davis by failing

to exercise reasonable care to perform those services. This allegation appears to be

based on Motiva’s monitoring and logging policy. “Section 230(c)(2) immunizes

from liability providers and users of interactive computer service who voluntarily

make good faith efforts to restrict access to material they consider to be

objectionable[.]” Green v. Am. Online (AOL), 318 F.3d 465, 472 (3rd Cir. 2003);

47 U.S.C.S. § 230(c)(2)(A). Because § 230(c)(2) allows an interactive computer

service provider to “establish standards of decency without risking liability for

                                         12
doing so[,]” Motiva cannot be held liable for its good faith efforts to restrict access

to or availability of certain material. See Green, 318 F.3d at 472; see also 47

U.S.C.S. § 230(c)(2)(A).

      Under these circumstances, taking Davis’s pleadings as true, we conclude

that the trial court did not err by finding that her claims have no basis in law or

fact. See Tex. R. Civ. P. 91a.1.; see also GoDaddy.com, 429 S.W.3d at 754.

Because the trial court properly granted Motiva’s motion to dismiss, we overrule

issue one.

                                 Emotional Distress

      In issue two, Davis argues that the trial court erred by dismissing her claims

against Motiva on grounds that she is not entitled to damages for emotional

distress. Davis contends that she has not filed a claim for negligent infliction of

emotional distress, but “asserts these damages as a recoverable element of

Motiva’s violation of other duties, specifically duties to act reasonably in

supervising its employees, in undertaking to supervise and monitor its employees’

conduct, and in entrusting its employees with equipment.” Under certain

circumstances, a plaintiff may be entitled to recover mental anguish damages from

a negligent defendant. See Temple-Inland Prods. Corp. v. Carter, 993 S.W.2d 88,

91 (Tex. 1999); see also City of Tyler v. Likes, 962 S.W.2d 489, 494-96 (Tex.

                                          13
1997). Given our conclusion that the trial court did not err by dismissing Davis’s

claims against Motiva under section 230, we need not determine whether dismissal

was also appropriate because Davis’s claims do not entitle her to damages for

emotional distress. See Tex. R. App. P. 47.1. We overrule issue two and affirm the

trial court’s judgment.

      AFFIRMED.

                                            ______________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice

Submitted on February 26, 2015
Opinion Delivered April 2, 2015

Before McKeithen, C.J., Kreger and Horton, JJ.




                                       14
