NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 6 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCO CARACCIOLI, No. 16-15610
Plaintiff-Appellant, D.C. No. 5:15-cv-04145-EJD
v.
MEMORANDUM*
FACEBOOK, INC., a Delaware corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted May 24, 2017**
Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.
Franco Caraccioli appeals pro se from the district court’s judgment
dismissing his diversity action alleging various state law claims arising from
Facebook, Inc.’s refusal to remove private images and videos of Caraccioli posted
*
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). Caraccioli’s request for oral
argument, set forth in his opening brief, is denied.
on Facebook’s website by a third party. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a district court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,
1040 (9th Cir. 2011). We affirm.
The district court properly dismissed Caraccioli’s defamation, libel, false
light, public disclosure of private facts, intrusion upon seclusion, intentional and
negligent infliction of emotional distress, negligent supervision and retention, and
California’s Unfair Competition Law (“UCL”) claims because the basis for each of
these claims is Facebook’s role as a “republisher” of material posted by a third
party, and the claims are, therefore, barred by the Communications Decency Act
(“CDA”). See 47 U.S.C. § 230(c)(1); Barnes v. Yahoo!, Inc., 570 F.3d 1096,
1100-01 (9th Cir. 2009) (§ 230(c)(1) of the CDA “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”). Contrary to Caraccioli’s
argument, Facebook did not become the “information content provider” under
§ 230(c)(1) merely by virtue of reviewing the contents of the suspect account and
deciding not to remove it. See Fair Hous. Council of San Fernando Valley v.
2 16-15610
Roommates.com, LLC, 521 F.3d 1157, 1170 (9th Cir. 2008) (en banc) (explaining
that “determin[ing] whether or not to prevent [the] posting” of third-party material
online is “precisely the kind of activity” covered by the CDA); Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1122 (9th Cir. 2003) (explaining that
through § 230(c)(1), “Congress granted most Internet services immunity from
liability for publishing false or defamatory material so long as the information was
provided by another party.”)
The district court properly dismissed Caraccioli’s breach of contract claim
and UCL claim, to the extent it was premised on an alleged breach of contract,
because these claims are barred by Facebook’s terms of service, which expressly
disclaim Facebook’s responsibility for the content published by third parties. See
Maybe Block v. eBay, Inc., 747 F.3d 1135, 1138 (9th Cir. 2014) (“If a contract is
reduced to writing, the intention of the parties is to be ascertained from the writing
alone, the words being interpreted in their ordinary and popular sense, provided
that the language is clear and explicit, and does not involve an absurdity.”
(citations omitted)). We reject as without merit Caraccioli’s argument that
Facebook’s terms of service are unconscionable. See AT & T Mobility LLC v.
Concepcion, 563 U.S. 333, 340 (2011) (explaining that under California law, “[a]
3 16-15610
finding of unconscionability requires a procedural and a substantive element, the
former focusing on oppression or surprise due to unequal bargaining power, the
latter on overly harsh or one-sided results” (citation omitted)).
The district court did not abuse its discretion in denying Caraccioli’s motion
for leave to amend because amendment would be futile. See Cervantes, 656 F.3d
at 1041 (setting forth standard of review and explaining that dismissal without
leave to amend is proper when amendment would be futile).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
4 16-15610