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Dyroff v. Ultimate Software Grp., Inc.

United States Court of Appeals for the Ninth Circuit

June 4, 2019, Argued and Submitted, Seattle, Washington; August 20, 2019, Filed

No. 18-15175


 [*1094]  D.W. NELSON, Circuit Judge:

Plaintiff Kristanalea Dyroff appeals the district court's dismissal of her claims against Defendant The Ultimate Software Group ("Ultimate Software"), operator of the Experience Project website, for its alleged role in the death of her son, Wesley Greer. While the circumstances and facts of this case are no doubt tragic, we find that Ultimate Software is immune from liability under Section 230 of the Communications Decency Act. We therefore affirm.


This being an appeal from a motion to dismiss, we describe the case as Plaintiff presents it. We take her plausible allegations as true and draw all reasonable inferences in her favor.

Experience Project was a social networking website made up of various online communities or groups where users anonymously shared their first-person experiences, posted and answered [**4]  questions, and interacted with other users about different topics. The site did not limit or promote the types of experiences users shared. The site's "blank box" approach to user content resulted in an array of topics and forums ranging from "I like dogs" and "I am going to Stanford" to "I have lung cancer" and "I Love Heroin."

 [*1095]  Users registered with the site anonymously; in other words, the site did not collect users' identifying information, including name, phone number, or mailing address. The site's operator, Ultimate Software, believed that anonymity would promote users to share more personal and authentic experiences without inhibition. Experience Project's founder stated, "We don't want to know [users'] real name, their phone number, what town they're from." Id. "The impetus behind this policy [of anonymity] was to encourage users to share experiences with the least amount of inhibition possible. The greater the anonymity, the more 'honest' the post . . . ."

Experience Project was live from 2007 until March 2016, during which its users shared 67 million experiences, made 15 million connections, and asked 5 million questions. Users could join groups and the site also recommended [**5]  groups for users to join, based on the content of their posts and other attributes, using machine-learning algorithms. When a user posted content to a group, the site would send an email notification to the other users active in that group. The site generated revenue through advertisements and the sale of tokens that users used to post questions to other users in their groups.

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934 F.3d 1093 *; 2019 U.S. App. LEXIS 24737 **; 2019 WL 3926107

KRISTANALEA DYROFF, individually and on behalf of the estate of Wesley Greer, deceased, Plaintiff-Appellant, v. THE ULTIMATE SOFTWARE GROUP, INC., Defendant-Appellee.

Subsequent History: US Supreme Court certiorari denied by Dyroff v. Ultimate Softwis Group, 2020 U.S. LEXIS 2805 (U.S., May 18, 2020)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of California. D.C. No. 3:17-cv-05359-LB. Laurel D. Beeler, Magistrate Judge, Presiding.

Dyroff v. Ultimate Software Grp., Inc., 2017 U.S. Dist. LEXIS 194524 (N.D. Cal., Nov. 26, 2017)


users, Software, website, posted, immunity, site, interactive, provider, computer service, district court, notification, anonymity, Roommates, functions, heroin, drug dealer, publisher, recommendation, experiences, allegations, facilitated, questions, features, online, content-neutral, prong, words

Civil Procedure, Appeals, Standards of Review, De Novo Review, Governments, Legislation, Interpretation, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Business & Corporate Compliance, Computer & Internet Law, Content Regulation, Communications Decency Act, Communications Law, Federal Acts, Telecommunications Act, Torts, Procedural Matters, Multiple Defendants, Alternative Liability, Duty, Affirmative Duty to Act, Failure to Act