NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 12 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AYSE SEN, No. 18-56413

Plaintiff-Appellant, D.C. No. 3:16-cv-01486-JAH-JLB

v.

MEMORANDUM*

AMAZON.COM, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Ayse Sen appeals pro se from the district court’s summary judgment in her

action alleging Lanham Act and state law claims. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Surfvivor Media, Inc. v. Survivor Prods., 406

F.3d 625, 630 (9th Cir. 2005). We affirm in part, vacate in part, and remand.

* 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). The district court properly granted summary judgment on Sen’s Lanham Act

claims based on the third-party review posted on defendant’s website because

Sen’s claims are barred by the nominative fair use doctrine. See Toyota Motor

Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1175-76 (9th Cir. 2010) (setting forth

elements of doctrine and noting doctrine can apply “where a defendant uses the

mark to refer to the trademarked good itself”).

The district court properly granted summary judgment on Sen’s claim for

tortious interference with prospective and actual business relations, and

interference with an economic advantage, based on the third-party review posted

on defendant’s website. The Communications Decency Act (“CDA”) provides

immunity from liability if a claim “inherently requires the court to treat the

defendant as the ‘publisher or speaker’ of content provided by another.” Barnes v.

Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009); 47 U.S.C. § 230(c)(1). Sen

failed to raise a genuine dispute of material fact as to whether defendant is not a

“publisher or speaker” of content within the meaning of the CDA.

The district court granted summary judgment on Sen’s Lanham Act claims

and claim of tortious interference with prospective and actual business relations,

and interference with an economic advantage, based on defendant’s “online pay-

per-click” advertising campaign, because it found sua sponte that Sen’s claims

were barred by claim preclusion. However, the district court erred because it is not

2 18-56413 clear that claim preclusion applies. See Howard v. City of Coos Bay, 871 F.3d

1032, 1040 (9th Cir. 2017) (“[C]laim preclusion does not apply to claims that

accrue after the filing of the operative complaint.”); cf. Jarrow Formulas, Inc. v.

Nutrition Now, Inc., 304 F.3d 829, 838 (9th Cir. 2002) (a Lanham Act claim

accrues at “the time the plaintiff knew or should have known about his § 43(a)

cause of action.”). We vacate the judgment in part, and remand for further

proceedings on these claims only.

We do not consider documents not presented to the district court. See

United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

Sen’s motion to supplement the record (Docket Entry No. 26) and

defendant’s motion to strike (Docket Entry No. 30) are denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

3 18-56413