behalf of the opponent mary kay beckman if i could reserve three minutes for a bottle your honor if you recall we were here last year on the same case and we hashed out a number of issues the ny circuit ruled in light of jane doe number fourteen that if in fact the information in question came from a third party and was received by the defendant in the defendant failed to warn its users of this dangerous condition that they would be liable or  failure to warn claim would be viable and it would be allowed to proceed certainly past the pleading stage so what we're asking for because these are requirements in the state of nevada we are requesting that this court recognize a special his or her own protection has been limited in some way by the submission to the control of the other a duty should be imposed upon the one possessing control and thus the power to act to take reasonable precautions to protect the other from assaults from third parties was the relationship in that case this was a woman who rented an apartment in a brand new apartment complex she went into her brand new apartment when she had moved in and across the hall was an unfinished apartment that was on locked a killer was hiding in there and living in there and she was attacked in brutally maimed now she sued the apartment complex and the builder and the court found in her favor saying that the builder exercise control over the premises sufficient enough to have finished the door put a lock on it take a reasonable precaution is the court had said quoting the court take a reasonable precaution to protect this individual other tenant and by leaving the door unlocked and unfinished they  guest and innkeeper or teacher student restaurant her so because when we're deciding whether the parties have a special relationship as in that case that you look like you were referring to we look to whether the defendant had control over the safety and i'm just trying to figure out what aspect of  safety did match have control over her they had control over whether or not she would interact with or choose to interact with a known killer a serial killer so if they miss beck minutes mary came back and how the question was how just like this court ruled last year and jane doe number fourteen if the internet service provider in that case internet brands has received information of a dangerous situation or condition they have an obligation to warn other users in that case it was the two guys who were raping women who were attempting to be models of the fake model should they drug done and the website knew of this information and failed to post a warning fail to let these models who were meeting with these gentlemen know that this was a risk it was a known risk now in matches case very simply if mary came back and visits wade ridley's profile and they've received communications that he is a serial killer or a rapist or vet has very violent propensities and email generated a match could be sent as a warning that is not content i'm not asking match to edit contact i'm not even asking match to remove the profile of a murderer even though they should c d a of nine hundred ninety six protects them from that obligation of having to remove the profile of a serial killer even if they know he's a serial killer they could leave it up because forcing them to take his profile down would be editorial in nature and i understand that what we are asking just like in jane doe number fourteen is that this court impose an obligation when there is a legitimate warning just like they had in that internet brands jean to a number fourteen or brett internet brands case when there's a legitimate warning to generate their own an outside source that two particular individuals were using their site to locate victims or a rape scheme seems a little bit different especially because you're arguing under the that a special relationship yes any interesting fact jean don't number fourteen was the sentence that stands out that says we are not being asked to consider if a special relationship exists in this other words that's a matter you could take up later if you want but we're not addressing that right now what the court the ny circuit was addressing in jane doe was whether or not they had a obligation an affirmative obligation to warn so what i'm asking this court to find is that special relationship and this was tragic this was terrible what occurred here with without a doubt i don't think anybody can say anything other than this was just horrific what beckman went through we're trying to sort out the legal principles here and figure out whether there was the special relationship trying also i'm curious at the last art argument on this case i was very intrigued because you mentioned that mr ridley had attacked two other women you stood there there we know of why wasn't this included in your amended complaint to show knowledge and foreseeability i'm just curious i know you're focusing on special relationship as this court had asked  asked had ruled in the last decision that if mary kay backman could amend her a complaint if you recall to specifically allege that they knew not that they should have known but that they knew he was dangerous then we should be allowed to make that allegation which we did we amended the complaint and said they knew and you know this heightened pleading standard that i keep reading in the other side in there there are referencing cases that are predominately about rule nine which would be fraud and you have to plead with particularity essentially they want you to make the case in the complaint where twamley just says it has to be plausible you have to make i if you have in front of you because i can't find it on the fly but if you have in front of me the fact that it was alleged in front of yourself that it was alleged that way i mean i'm it's my recollection i don't have the paragraph that we allege specifically that match knew and continued to match unsuspecting subscribers i mean never had it so many times i can quote it failed to warn of the dangerous propensities of wave ridley when they knew in advance that he was in fact dangerous outside the four corners of your amended pleading you provide information based on your own investigation and  gather that's what you have in mind when you say you could prove actual knowledge yes the other side points out that even on that score you can't prove actual knowledge because all you have are people telling you that they told third party it's right and so let me ask you suppose you were given an opportunity to  amend yet again could you allege facts on a good faith basis the match dot com actually knew that this individual had a propensity to attack women and again that's a yes or no i yank related to the allegations i guess my question would be and i don't mean to be overbearing here so you know my question would be what basis do you have fo stating that match dot com actually knew about this man's dangerous propensities to two things there first we let me get right to the facts we have we spoke to the family of one of the deceased former individuals who is matched up with match and a ex husband had stated that she met wade ridley on match dot com that she knew he was crazy and violent and made it known she went to the police she filed a restraining order which we tried to get a copy of but because they filed a motion to stay discovery we were not obligate we could not proceed in that but when we inquired of him do you think she communicated this to match he said i'm sure of it she told everyone feel sure that she told match because she told everybody right in our next step would have been to get a subpoena to because we have a yahoo email address we would have been able to or would still like to be able to arm worried about  point because it's ten years or eight nine years old now but we were hoping in two thousand and three to send a subpoena to yahoo for the contents of her e mail we would have been able to prove conclusively if in fact it existed that she communicated to match amongst other legal authorities that she was that this person was dangerous but we were precluded from doing that so could we still do that of course if we're given the opportunity to proceed  discovery they have taken great pains to stop us from investigating the case deeply the other part of the investigation was a girl out of texas because this guy's kind of a nomad killed a girl in arizona attacked my client in las vegas and broke the orbital bone of a girl in texas the individual in texas had made she had made reference that she met match she met with ridley on match and we would be able to explore that but now these people really are too happy about participating in this the family of an simons and said that they've been destroyed by this event and they want to let it go and sensually leave us alone and this is not an easy route to pursue without any authority to conduct discovery but the special relationship i'm asking this court to acknowledge the same judge that ruled on this case recognized a special relationship between a businessman and a patron wherein a guy went to bass pro shops bought a crow a crossbow and it snapped and hurt him and the judge said yeah there is a duty to warn there there is a special relationship between bad a asked pro shop salesman named kevin williams recently and a person who walks in the purchase of bow and arrow mary kay backman had a special relationship with match dot com by paying her membership fees and assuming that this sea of people that match dot com was going to pair her up wherever at one of the elements of the special relationship in this case would create the special relationship it's very clear in sheila it's as the ability of one of the parties to provide for the protection of themself is limited by the information of rate information and they digest the data and they go a step further than just throwing up profiles actually match people in this particular case they sent an email to my client mary kay backman and they said to mary kate these are your disclaimer like oh you know we will make an representation on our own the background of any member or something like that judge interesting question they have provided in their brief and they have provided sense they have provided multiple times years after the fact there are terms of service with no date no reference and i'm not able to conduct discovery and say that wasn't the of service there you weren't as clear about the risks of dating because it was newer then they attached in their motion to dismiss which really should convert it to a motion for summary judgment there are terms of service that might have had the warning your honor is referencing but i don't know if that warning was there when mary came back and signed up in september of two thousand and ten i would like to conduct the discovery to make that determination and see how specific they were in regard to the perils of dating and their lack of guarantees of the safety of the people that they were pairing up mary kate backman with our thank you thank you judge your  honor the police the courts michael chia for match dot com you speak right into the microphone yes your honor michael shifter match dot com a please the court with curt anderson whom you've heard from earlier i want to start off by responding to a few of the questions that the panel as here to to answer the question about where in the complaint does any allegation appear it's in paragraph twenty four in which it says upon information and belief match received complaints that subscribers come out commonly known as wade ridley wade williams or others harassed threatened and or violently attacked other women you lies it matches service that's as bare bones as a allegation can get that is nothing more than a conclusory allegation that is not intitled to the presumption of truth well although it could have been more specific i don't i don't think it's a mere legal conclusion there are some facts there my question to  that because at the last hearing he i thought that would be the first thing in his complaint the question is whether what he was required to put in his complaint and it seems like this there's some reference to some facts here these are legal trade in it ball the plaintiff alleged that tourney general ashcroft and f b i director mueller conspired against him based on his his race nationality  exciter of those are also those are also factual allegations in some sense but at the end of the day there's nothing to support that's conclusory and in the other cases this course decided that relate to user generated content like the yelp cases the score  specifically rejected claims like yeah yelp made up the reviews is it your position that even if the match had actual knowledge that mr ridley had violently attacked these two other women he met through match that plane of still has no relief under nevada law well first of all your honor let me just be clear before i answer this question because last time i answered this question like this i was  words were take out of context matched does do a lot of things to take down content and it would have had it had knowledge done something there's a lot of things that match does do that it doesn't have a legal obligation to do our position though is that under nevada law what we have here there's there's no information that would be useful to convey to anyone this is a very big supposition of prior harm there would be nothing to convey to people and we are view is there's no first of all there's no special relationship between match dot com and million what a question there is whether this circumstance you should be recognizes that's relationship where you said if knew those things there are a lot of things measure would do like what who what's matches baltar now suppose you know hypothetically speaking they had information that some guy signed up you know had been had been  remove the profile promptly matches policy is to be liberal in removing contents of pop profiles where it has allegations from other users that this person has done something bad the reason we have these reports but they're not verified right but then we're simply saying that we would have to then disclose the user's personal information people sign up and match their anonymous we would have to say this person that was you know right nevada guy sixty six really john smith and he's actually you know a serial rapist would be well in math of what sufficient to enable match in your view to disclose the information a criminal conviction i would think that would be a helpful information but again i don't think i think we're looking through it through the wrong lens it's we there has to be a special ation before there is a duty to disclose that the duty here is soley based on the asymmetry of information that's not enough to create a duty to disclose if that's true then every plaintiff and a duty to that information about us on other subscribers that leads to a situation where everyone is constantly warning everyone else in the world and i understand i'm sorry but my understanding is that the claim is predicated on the defendant informing the plaintiff that this match is one that she should consider pursuing by that act the defendant set in motion this chain of events the act was not known to be unreasonable at the time but according to the plaintiff in due course match dot com found out that this person violently attacked women at that juncture as i understand the claim match dot com knew that it's original act had created a danger to this foreseeable victim this person who was readily identifiable the one they told to wink at mr ridley and on that basis whether you want to call it a special relationship or something else they had an obligation to warn not an obligation to control the behavior of mr woodley an obligation to control their own behavior they had an obligation to issue a warning to a foreseeable victim your honor it's in the act the brick and mortar cases concerning third parties and like such as the ones we've been cited here to sparks and scallops which plaintiff has relied on there's generally no duty to control once the person's off the premises i'm not asking you  to discuss that i'm one i would like to know why the defendant's own apt in pairing the plaintiff with mr ridgeley did not provide a basis for a duty to warn when they learned according to the plaintiff that mr ridley was a killer that your honor that provides only a but for relationship with the harm it doesn't create a special duty in and of itself matches in the business of showing people other daters who are compatible with them based on the personal characteristics that they and the other persons have provided there's no human being at match that's looking through profiles and seeing them out when you get a to control in the hands of the dater the website doesn't play a role in telling people who to date how to communicate with them what to say whether or not publicly but what about the week i th wink i that's not even in pleaded in the complaint and that would be a user generate that wink is a user generated action so if to the extent that occurred it would have been either ms beckman or mr ridley winking to one another match doesn't do that on its own initiative  all we have is a website where you can look at profiles it is not you know making any representations or warranties about what is in those profiles counsel i don't want to be unfair to  you but let me raise a question the restatement second of torts includes section three twenty one which is entitled duty to act when prior conduct is found to be dangerous i grant you this has not been cited but following up on our colloquy a moment ago let me read this to you if the actor doesn't act and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another he is under a duty to exercise reasonable care to prevent the risk from taking effect now as far as i know nevada has never cited this section of the restatement but i wonder whether nevada wouldn't want to consider something like that principle in this context and should we give them an opportunity to do so now i don't think it's a referral would be appropriate in this case there are multiple reasons to dismiss this case to a firm that have nothing to do with nevada state law including the pleading issue including the communications decency act and then we have the back drop the communications decency act which is a federal law this is also a matter of applying established nevada cases to a specific fact pattern not creating you know new law in of itself the one thing i would say on just just on the restatement is that the the most on point case in nevada is wil versus red which is the alarm case and one could arguably argue that by summoning the police to an alarm by an alarm the alarm company has created a danger for which it ought to notify the police they should tell the police that there are dangerous dogs on the premises in the nevada supreme court said there's a germ of a relationship here yes they the profit from from the police responding to the to the to these home and home owners but there should not be a duty as a matter of public policy because that would obligations that would make it very expensive to provide alarm services at low cost and at the same we have the same kind of issues here look in a case where we absolutely know as a that there's a serial killer perhaps but in most cases we're going to get some kind of a complaint that falls very short of that is going to be a complaint of you know this guy was a creep i don't like the state and to to impose a duty of warn in that circumstance really opens up match to a plethora of liability and duty to investigate a duty to look into things of which it really has no control and it which it is not the best suited person to to be investigating all these things and that setting aside the issue of privacy rights for the people involved this this could create a you know a cost free way to you know harm people online don't go around saying they have done something to me a match dot com match dot com or go publish that and tell the world that you are now a child molester that would be an absolutely awful result wouldn't match this process of suggesting or match individuals together perhaps qualify as the creation or development of content and therefore maybe not be subject to the sea immunity i think the court's already addressed that by dismissing the negligence claims which you know i had that in bedded in but that's all versus mass makes very clear that the whether you approach content creation as to you know the rejection of content or the affirmative selection it makes no difference so once match receives information that was meant to be published online any act of publishing that piece of information is subject to the c they might be under bad sol if it was if its objective lea reasonable that the person sending the you know intends for that information to be published that's the standard in battle but by the same token by even sending those things imagine being thrust into the role of a publisher publisher decides what to publish and what not to publish same and it's no different from getting a letter from the editor and from it from a citizen and deciding whether or not to publish that so even if there are these complaints that should be viewed as a separate grounds for bringing this case within the c d a ok thank you thank you very much  one more thing if i could add to your honor's is that the internet brands case there was actually a on the remain a decision which is unpublished it's on pacer i'd be happy to provide that to the court but the court actually just the district court judge walter actually decides that there is no special honestly the basis for finding a special relationship in this particular case it's has a rationale that runs across the board for the duty to war and that is its on point that since the ability of one of the parties to provide for their own protection has been limited in some way by his or her submission to the other a duty should be imposed upon the one possessing control and thus the power to act to take reasonable precaution precautions to protect the other from assault by third parties now if they send mary kay backman your matches of the day and the computers they know it's and they know that if she clicks the profile and has viewed it they could easily generate a warning that is an e mail that is sent in response to that connection that says this person has received numerous complaints about violent tendencies or this person has you know proceed at your own caution or be where same thing with internet brands jane doe number fourteen they want the court this court held that internet brands should have put up something that said hey proceed at your own caution because we have actual knowledge of these people's danger asking for the exact same thing in this situation but even smaller because we're not saying you post you know tom smith sixty two on the main board warning to all uner users because they mention their brief that they defaming tom smith to millions of people know it in individual warning to the email perhaps automatically generated that could put this person on notice that hey he's my match of the day but this guy has fourteen complaints in the last three months not even the specifics of the complaint but just give these individuals an opportunity to protect themselves matches in control of the information matches in a superior position to help other people make good conscious decisions and they are choosing to not do that that is why i'm asking this court to find a special relation ship between mary kay back then and people similarly situated and the defendants so that moving forward their ability to warn individuals of other dangerous individuals is set as your investigation revealed whether mr ridley was arrested prior to the act of the defendant six i produced a timeline what we were trying to conduct discovery and the timeline was just riddled with criminal history yes and that was three criminal history sorry that history predated the defendant's act yes but yours and it included attacks on women yes violent actions with weapons physical attacks yes on women i have a timeline tucked in here somewhere but i don't waste the court's time and that's also something we could use the subpoena power to subpoena that particular criminal case from let's say two thousand and eight make a determination where she met the victim where she met it could be match it could and did you communicate with match yes i did she could provide proof so we need this case to be able to move forward and recognize a special relationship thank you thank you thank you both for your arguments today mr ciggies mr chair the case of mary kay backman versus match dot com is submit