BLD-183                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-3584
                                      ____________

                                    DENNIS OBADO,
                                                          Appellant
                                             v.

              ED MAGEDSON; XCENTRIC VENTURES, LLC;
      WW.BADBUSINESSBUREAU.COM; DIOP KAMAU, a/k/a Don Jackson;
       THE POLICE COMPLAINT CENTER; WWW.POLICEABUSE.COM;
            GOOGLE, INC.; BLOSSOM SOFTWARE; YAHOO, INC.;
        NEUSTAR, INC; THE GODADDY GROUP, INC.; INTELIUS, INC.;
          WWW.BLOSSOM.COM; BING, INC.; SWITCHBOARD.COM;
       JOHN DOE(S); JANE DOE(S); SOFTLAYER TECHNOLOGIES, INC;
           ENOM, INC.; DZMTRY SHELEST; DNC HOLDINGS, INC.
                   __________________________________

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civ. No. 3-13-cv-02382)
                        District Judge: Honorable Joel A. Pisano
                       __________________________________

                    Submitted on Motions for Summary Affirmance
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 30, 2015

               Before: AMBRO, JORDAN and KRAUSE, Circuit Judges

                                  (Filed: May 11, 2015)
                                        _________

                                        OPINION*
                                        _________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Dennis Obado appeals from an order of the District Court dismissing his second

amended complaint with prejudice. For the reasons that follow, we will summarily

affirm.

          Obado sued numerous defendants in the United States District Court for the

District of New Jersey but successfully served only these eight: Intelius, Inc.; Xcentric

Ventures, LLC; Switchboard LLC; eNom.com; Softlayer Technologies, Inc.; Neustar,

Inc.; Yahoo!, Inc.; and Google, Inc.1 Obado alleged that the defendants defamed him by

republishing on the internet defamatory comments authored by a blogger known as

“Mama Duka” and an individual named Diop Kamau. The second amended complaint

included counts for defamation, intentional and negligent infliction of emotional distress,

and invasion of privacy, among many others. Obado sought money damages and

injunctive relief.

          Each defendant filed a motion to dismiss Obado’s second amended complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing, in the main, that because

Obado did not allege that any of them actually authored any of the posts at issue, they

were immune from suit under the Communications Decency Act (“CDA”), 47 U.S.C. §

230, and our decision in Green v. America Online (AOL), 

, 470-71 (3d Cir.

2003). In an order entered on July 31, 2014, the District Court granted the defendants’

motions and dismissed the second amended complaint with prejudice, determining that §

230 and Green barred Obado’s action because the defendants are all providers of an

1
  “It is a principle of general application in Anglo-American jurisprudence that one is not
bound by a judgment in personam in a litigation … to which he has not been made a
party by service of process.” Hansberry v. Lee, 

, 40 (1940). The defendants
who were not served are not parties to the action, and, contrary to Obado’s assertion in
his summary action response, he is not entitled to entry of a default judgment against
them.
                                                2
“interactive computer service,” as defined in 47 U.S.C. § 230(f), and Obado had treated

the defendants as publishers and not the creators of the defamatory content.

       Obado appeals. We have jurisdiction under 28 U.S.C. § 1291. Appellee Softlayer

Technologies moved for summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6,

a motion that was joined by all of the other appellees. Obado has submitted numerous

responses in opposition to summary affirmance, a motion for summary reversal,

numerous amendments to both, and a motion for appointment of counsel.

       We will grant the motions for summary affirmance and summarily affirm the order

of the District Court because no substantial question is presented by this appeal. Third

Circuit LAR 27.4 and I.O.P. 10.6. We exercise plenary review over a Rule 12(b)(6)

dismissal. See Weston v. Pennsylvania, 

, 425 (3d Cir. 2001). When

considering a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon

which relief may be granted, a court must accept as true all material allegations, read the

complaint in the light most favorable to the plaintiff, and decide whether, under any

reasonable understanding of the complaint, the plaintiff may be entitled to relief. See

Fleisher v. Standard Ins. Co., 

, 120 (3d Cir. 2012). To survive such a

motion, a complaint must include sufficient allegations, taken as true, to state a facially

plausible claim for relief. 

Atlantic Corp. v. Twombly, 

, 570

(2007)). Here, the District Court applied the correct Rule 12(b)(6) standard of review.

Obado’s argument that Federal Rule of Civil Procedure 52 applies to his case is meritless

for the reasons given by Softlayer Technologies in its opposition to his motion for

summary reversal.



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       The CDA reflects Congress’s decision not to treat providers of interactive

computer services like other information providers, such as newspapers, magazines or

television and radio stations, all of which may be held liable for publishing or distributing

defamatory material written by others. 

.2 See also Zeran v.

America Online, Inc., 

, 330 (4th Cir. 1997); Ben Ezra, Weinstein & Co., Inc.

v. America Online, Inc., 

, 986 (10th Cir. 2000). The CDA provides that

“[n]o provider or user of an interactive computer service shall be treated as the publisher

or speaker of any information provided by another information content provider,” 47

U.S.C. § 230(c)(1), and that “[n]o cause of action may be brought and no liability may be

imposed under any State or local law that is inconsistent with this section,” 

230(e)(3). Together, these sections “provide[] immunity to [an interactive computer

service provider] as a publisher or speaker of information originating from another

information content provider.” 

.

       The District Court correctly determined that all of the defendants were alleged by

Obado to be internet host providers who provided an interactive computer service, as

defined by the CDA; that the allegedly actionable content originated from other

information content providers, namely Mama Duka and Diop Kamau; and that the

defendants were treated in the second amended complaint as publishers of the allegedly

actionable content. When these conditions are met, the CDA’s immunity applies.

Obado’s suit is, therefore, barred. His arguments before the District Court make clear

that he was attempting to hold the defendants liable as publishers of information


2
 In Green, we affirmed the dismissal of a complaint against America Online based on §
230 immunity from tort liability stemming from messages posted in chat rooms by
unnamed defendants impersonating the plaintiff. 

                                            4
originating from other information content providers. The CDA prevents him from doing

so.

       The Court further correctly determined that Obado’s allegation that the defendants

manipulated search engines to maximize search results relating to the alleged defamatory

content does not affect their immunity from suit. 

(holding that §

230 “bars lawsuits seeking to hold a service provider liable for its exercise of a

publisher’s traditional editorial functions -- such as deciding whether to publish,

withdraw, postpone, or alter content”). In addition, § 230 proscribes liability in situations

where an interactive service provider makes decisions “relating to the monitoring,

screening, and deletion of content from its network -- actions quintessentially related to a

publisher’s role.” 

Thus, the defendants also cannot be held liable for

failing to withdraw any of the alleged defamatory statements or for failing to make

Obado’s “rebuttal statements” more widely available. Obado’s arguments to the contrary

are unavailing for the reasons given by the District Court in its thorough opinion.

       The Court further correctly determined that Obado’s promissory estoppel

argument fails because he did not allege the existence of a legally enforceable promise.

The elements of promissory estoppel are: “(1) a clear and definite promise; (2) made with

the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite

and substantial detriment.” Toll Bros., Inc. v. Board of Chosen Freeholders of County of

Burlington, 

, 19 (N.J. 2008). An email from an interactive computer service

provider indicating that a complaint by a defamed user will be investigated is not a clear

and definite promise to actually remove the content. The District Court also correctly

determined that Obado’s First Amendment argument was meritless. Obado specifically

                                              5
argued that the defendants engaged in hate speech directed at his African ethnicity,

falsely accused him of being a criminal, and used “fighting” words. He also argued that

hate speech is not protected by the First Amendment. The Court acknowledged Obado’s

First Amendment argument and correctly reasoned that, because the CDA is meant to

shield interactive computer service providers from liability for unprotected otherwise

actionable speech originating from other information content providers, it applies

regardless of whether the third-party speech itself is unlawful. The immunity provided

by the CDA would be rendered meaningless if it applied only to protected speech. See

.

       Obado claims in his summary action responses that the District Court was biased

against him because the Court also presided over another of his pro se civil actions

involving his student loans. We see no evidence of bias here. The Court’s knowledge of

his prior civil action appears to have had no bearing on the decision to dismiss the second

amended complaint, and the Court’s general familiarity with Obado did not warrant

recusal. Cf. Securacomm Consulting, Inc. v. Securacom, Inc., 

, 278 (3d Cir.

2000) (party’s displeasure with legal rulings does not form an adequate basis for recusal).

       For the foregoing reasons, we will grant the motions for summary affirmance and

summarily affirm the order of the District Court dismissing Obado’s second amended

complaint as to all party-defendants. Obado’s motion for summary reversal, as amended,

and motion for appointment of counsel are both denied as moot.




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