                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 26 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

HECTOR CASILLAS, on behalf of                    No.   17-56065
himself and all others similarly situated,
                                                 D.C. No.
              Plaintiff-Appellant,               2:15-cv-04763-AG-JEM

 v.
                                                 MEMORANDUM*
CYPRESS INSURANCE COMPANY, a
California Corporation; et al.,

              Defendants-Appellees.



ADELA GONZALEZ, on behalf of herself             No.   17-56071
and all others similarly situated,
                                                 D.C. No.
              Plaintiff-Appellant,               2:16-cv-02690-AG-JEM

 v.

CYPRESS INSURANCE COMPANY, a
California Corporation; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                        Argued and Submitted March 7, 2019
                               Pasadena, California

Before: THOMAS, Chief Judge**, and GILMAN*** and NGUYEN, Circuit Judges.

      In these appeals, Plaintiffs Hector Casillas and Adela Gonzales (“Plaintiffs”)

contest the district court’s dismissal of their complaints alleging, in relevant part,

that Defendants violated the Stored Communications Act (“SCA”), 18 U.S.C. §

2701, when they gained unauthorized access to Plaintiffs’ personal information

from the website operated by Defendant HQ Sign-Up Services (“HQSU”). The

district court determined that Plaintiffs failed to state a claim and dismissed the

complaints pursuant to Federal Rule of Civil Procedure 12(b)(6). Because the

parties are familiar with the history of this case, we need not recount it here. We

review the district court’s dismissal de novo, Wilson v. Lynch, 835 F.3d 1083, 1090

(9th Cir. 2016), and we affirm.

      The SCA defines an electronic communication service (“ECS”) as “any

service which provides to users thereof the ability to send or receive wire or

electronic communications.” 18 U.S.C. § 2510(15). When Congress enacted the



      **
      Following argument, Chief Judge Thomas was drawn to replace Judge
Raymond Fisher.
      ***
        The Honorable Ronald Lee Gilman, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
                                            2
SCA, it stated that one of the Act’s primary purposes was to protect email

communication, noting that a primary example of an ECS was an email service in

which “messages are typed into a computer terminal, and then transmitted . . . to a

recipient computer operated by [email].” S. Rep. 99-541, at 8, 14 (1986).

      In the ensuing years, we have held that websites and services that permit

users to communicate directly with one another are considered ECS providers. For

instance, an email provider is “undisputedly” an ECS provider. Quon v. Arch

Wireless Operating Co., 529 F.3d 892, 902 (9th Cir. 2008), rev’d on other grounds

sub nom. City of Ontario v. Quon, 560 U.S. 746 (2010); see also Theofel v. Farey-

Jones, 359 F.3d 1066, 1075 (9th Cir. 2004) (holding that an email service provider

constituted an ECS provider).

       Plaintiffs allege that “HQSU’s website, database and servers were used by

Plaintiff[s] and [their] counsel to send electronic communications among

themselves by uploading and downloading documents, as well as by appending

notes to those documents.” However, taking this allegation as true, it is evident

that HQSU does not permit users to communicate directly with each other. The

documents and accompanying comments do not travel directly from the sender to

the recipient; instead, the recipient of any message would have to retrieve it by

downloading it from HQSU’s server. Because Plaintiffs do not allege that any


                                          3
direct communication takes place, the district court correctly determined that

Plaintiffs fail to plead that HQSU constitutes an ECS provider.

      Plaintiffs argue that the district court drew a false dichotomy between a

Remote Computing Service (“RCS”) and an ECS when it determined that HQSU

can be characterized only as an RCS.1 This argument lacks merit. An RCS is an

off-site provider that processes and stores data, such as “physicians and hospitals

maintain[ing] medical files in offsite data banks.” Id. at 902 (citing S. Rep. No.

99-541, at 3). In other words, an RCS is a “virtual filing cabinet.” Quon, 529 F.3d

at 902.

      Plaintiffs correctly point out that, in some cases, a single entity may be both

an ECS and an RCS. See Theofel, 359 F.3d at 1076–77 (noting this possibility).

But such a duality will exist only when the service provider fulfills both of the

provided definitions; separate analyses are required. See id. (suggesting that, while

some RCSs are also ECSs, the two categories were not subject to the same

analysis). Here, even if HQSU’s website, database, and servers constitute an RCS,




      1
         The SCA establishes different standards of protection for messages in an
RCS and an ECS. Most relevantly, § 2701(a)(1) of the SCA, which outlines
liability for unauthorized access to stored communications and forms the basis for
Plaintiffs complaints, applies only to an ECS.
                                          4
the inability to communicate directly with users leaves HQSU outside of the SCA’s

definition of an ECS.

      Finally, Plaintiffs’ arguments that HQSU’s website functions as an

electronic bulletin board are not persuasive. Although an electronic bulletin board

is an example of an ECS, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 875 (9th

Cir. 2002), the definition of an electronic bulletin board is more specific than

Plaintiffs suggest. The plain meaning of a bulletin board requires that a posting be

readily viewable by an intended audience. Plaintiffs do not allege that their

comments or the documents stored by HQSU were immediately viewable by

anyone with access to the file. Thus, HQSU is not an electronic bulletin board.

      In sum, the district court properly concluded that Plaintiffs failed to state a

claim that HQSU’s website, database, or server functioned as an ECS provider

pursuant to the SCA. Given our conclusion, we need not—and do not—decide any

other issue presented by the parties on appeal.

      AFFIRMED.




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