NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ADRIENNE SEPANIAK KING; No. 22-15602

CHRISTOPHER EDWARD SEPANIAK

KING, D.C. No. 3:21-cv-04573-EMC

Plaintiffs-Appellants,

MEMORANDUM*

v.

FACEBOOK, INC., a Delaware corporation,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California Edward M. Chen, District Judge, Presiding

Submitted August 16, 2023** San Francisco, California

Before: CALLAHAN, BADE, and BRESS, Circuit Judges.

Plaintiff-Appellant Adrienne King (King) was a Facebook user whose

account was permanently disabled for failing to follow Facebook’s “Community

Standards.” King’s son, Plaintiff-Appellant Christopher King, a computer

* 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). engineer, attempted to help get her account reinstated, but was unsuccessful.

Appellants, both citizens of Hawaii, sued Facebook, Inc. (Facebook)1 in the

Northern District of California, bringing emotional distress-based tort claims,

contract-based claims, and a claim alleging violation of Section 230 of the

Communications Decency Act (CDA), 47 U.S.C. § 230 et seq. The district court

dismissed Appellants’ First Amended Complaint (FAC), almost in its entirety with

prejudice, but granted King leave to amend her cause of action for breach of the

implied covenant of good faith and fair dealing as it related to Facebook’s alleged

failure to provide her with an explanation for disabling her account.

After King filed her Second Amended Complaint (SAC), the district court

granted Facebook’s motion to dismiss, holding that King had failed to articulate a

cognizable damages theory relating to the loss of the photos on her account

because (1) her damages were not proximately caused by the alleged misconduct

by Facebook, (2) the type of damages she sought—special damages—were

expressly barred by Facebook’s Terms of Service (TOS), and (3) the photos did

not hold any ascertainable economic value. The district court held that because

King could not establish a cognizable damages theory, it was a “legal certainty”

that she could not establish the requisite amount in controversy to maintain

1 On October 28, 2021, Facebook changed its name to Meta Platforms, Inc. Because the parties’ briefing and the district court orders still refer to Defendant- Appellee as “Facebook,” we do the same to avoid confusion.

2 diversity jurisdiction. Accordingly, the district court dismissed the action for lack

of subject-matter jurisdiction and declined to exercise supplemental jurisdiction

under 28 U.S.C. § 1367(c)(3). Appellants timely appeal the dismissal of their

action.

We have jurisdiction under 28 U.S.C. § 1291 and review de novo dismissals

for lack of subject-matter jurisdiction under Rule 12(b)(1) and for failure to state a

claim under Rule 12(b)(6). Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015)

(citation omitted). We affirm.

1. King’s CDA theory is foreclosed by existing authority. See, e.g., Barnes

v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).2 And as the district court correctly

explained, there is no private right of action under the CDA. A private right of

action to enforce federal law “must be created by Congress,” and without a

statutory manifestation of congressional intent, “a [private] cause of action does

not exist and courts may not create one.” Alexander v. Sandoval, 532 U.S. 275,

286–87 (2001). King does not contest this on appeal, and thus waives any

challenge to it. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir.

2013) (failure to contest issue in opening brief results in waiver).

2. The district court also properly concluded that King’s breach of the

2 Appellants’ motion for initial en banc review of this case is DENIED without prejudice to appellants seeking en banc review in the normal course.

3 implied covenant of good faith and fair dealing claim relating to her account

termination was foreclosed by Barnes. King contends that Barnes establishes a

categorical rule that contract-based claims are never barred by Section 230(c)(1).

We disagree. The specific promise to take down explicit content at issue in Barnes

does not compare to the general promise made by Facebook, and incorporated into

its TOS, to use “good faith” or make an “honest” determination before deciding to

exercise publishing or editorial discretion. See 570 F.3d at 1105, 1107–09.

Regardless, the district court properly determined that King had not alleged

cognizable damages relating to her account determination.

3. The district court did not err in dismissing the SAC for lack of subject-

matter jurisdiction because it was a “legal certainty” that King could not establish

the amount in controversy exceeded $75,000. See 28 U.S.C. § 1332(a)(1). The

district court identified several deficiencies with King’s damages theory, each of

which are independently fatal to her claim, including as it relates to Facebook

allegedly failing to provide her with an explanation for terminating her account.

King does not address the district court’s holding that she is seeking special

damages as opposed to general damages. Nor does she address the district court’s

conclusion that Facebook’s TOS expressly bars recovery for such damages.

4. The district court did not err in dismissing Appellants’ claims of

intentional and negligent infliction of emotional distress. Appellants argue in

4 conclusory fashion that Facebook’s conduct was “outrageous” and that it “went out

of its way to be malicious,” but the district court was not required to accept such

conclusory allegations as a matter of law. See Berkley v. Dowds, 61 Cal. Rptr. 3d

304, 317 (Cal. Ct. App. 2007) (“Whether a defendant’s conduct can reasonably be

found to be outrageous is a question of law that must initially be determined by the

court.”).

AFFIRMED.

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