there are four broad categories of claims in the complaint the rd amended complaint against on their says and the estate brian short those broad categories are defamation contract fraud including consumer fraud and what we call alternative liability i like to start with the contract claims the district court was wrong to dismiss the three contract claims the judge ruled that there was insufficient pleadings that they were not forcible this was an argument that was not raised by the movement like the summary judgment ruling which i'll discuss later the plaintiff's was not on notice and there was no argument made both as to summary judgment or as the insufficiency of pleadings the move in was largely almost entirely basing their motion on the communications decency act now the court said that it was not plausible that the contract claim was pled and this clearly is in disregard of the complaint and the exhibits in the complaint the  complaint and the exhibits and shows how the terms of service state these terms of service are your agreement with us and by becoming a participant me on their says dot com an online community you agree to them and abide by them the same way as if you had a paper agreement with us and then there was a click through meaning above where the registering to become a member of this online community could become a registered the registered user there was this button and above that was the statement that i just  there was another statement to click through that says your participation implies full except in swith our terms of service i was a button that the registrants have to click the point is there's no question on the face of the complaint me exhibits that there was a an agreement that was being entered into now most if not all the cases that are cited with respect to  these online agreements are being objected to as an agreement from the point of the user the user is saying we didn't know about the terms but that's not what's happening here here the website is well the website didn't even claim this in their motion papers the district judge to respond to a raise this argument about insufficiency of pleading the movement was well aware didn't bring it up it was not argued that east coast has prep never had an opportunity to argue it until now and even so insufficient because of the limitations so normally as i said it's the user who's objecting in this case the district judge is basically saying the website is objecting to its own terms of service that it's not plausible that there is an agreement in this case and that just belies the facts i'm sorry the allegations and the exhibits also if if there we definitely allege the brief of the breach the judge said we didn't allege the formation of the contract as i as i explained the there was evidence that the parties intended to be back on the consideration would be that my client through their employees that registered both three different user name it that's a value to the website the whole way the website works it's a commercial enterprise and it's commercial speech that we're talking about so it gets much less scrutiny this is not political speech but what w you are free to debate and what happened here is there was negative derogatory comments posted about east coast test prep including that they were under federal investigation which dismissed from the case so those two posters both said east coast test prep is under federal investigation but the but the other one is is out of the case out of the carrots we're only on right now rowing on ross except arms that we are not just claiming defamation east coast is saying there is a whole scheme here and it is to attract to induce  negative comments to build traffic including rating number two on google when you put in achieved test prep and google on the complaint in the allegations the number two test was number two prep but getting back to your honest question so the breach of turns are that they that is cut that all nurses provides a place where they as part of their terms of service say you are free to disagree in the bait my client attempted to do that attempted to correct the record and got cut off what about that that if it is a contract what about the term that  is free to monitor our lives to to sort of shut folks off stop the conversation under their discretion how can that be a breach when that was in the contract that you're serving as an existing if you violate the policies they have the right to do that if you're not polite if you make allegations against other it's other and if you have those connected if you do this then we can then we can kick you out or is that this is what you're a permitted to do so long as you are civil and then separately for under our own discretion we can just shut you off i believe your honor that it is a condition it's tied to if you don't abide by these conditions but even so it says you are free to disagree now part of that is contract part of that is a consumer fraud that they're holding themselves out to be a fair and impartial website when in fact the allegations are that they they favor their own advertisers one of them being college which is an advertiser in a competitor to my client so there are people it is alleged that the that all nurses induces including on their website they say that they sometimes provide payment for content so when you add all of these things up it is plausible it is believable that there are others john doe posters who are being solicited either induced or paid now that all nurses hides under a cloak of of claim st amendment rights and then maty so we don't know we don't have direct evidence we only have circumstantial evidence but the pleading stage the standard doesn't require that we have to show that we are probably going to win the record as it stands now doesn't support a probable and it doesn't have to under it ball in tuam blix only has to show plausible and we've put forth  fifteen the late founder of this corporation filed declarations and said there is no connection no relation between just between nurse and all nurses a year and a half later as a result of motion the compel two motions compel in order to forty three e c have to forty three it's not in the event them it was a magistrate judge order the court said you have to answer these objection how is that objectionable well it wasn't it wasn't a st amendment objection not there was a question provide us the identities and they objected based on st amendment anonymity but this was a nd part of that question do you know the identity of anyone they objected and as a result of our motion to compel you want to know why this case took so long why are we still in the early stages before summary before discoveries happen this is why a year and a half to get an answer of a question do you know the gant do you know the identity and as a result of that motion to compel they had to amend their answers in iraq or tories and lo and behold one of the john dos that we suspected had a relationship with the nurses douglas now the other reason discovery so important the founder is not is not alive anymore there's no one to go to would own the knowledge in this case and so actually all close with this there is one of the parts of the ruling the district judge said after two years of trying and why i have no reason to believe that what all nurses says is in truth but this is a reason to believe what all says is untrue and we want to take the deposition of just peachy nurse we want his or her identity not because we want to name him or her to the lawsuit that's over we gave up up on that claim short mr leventhal is here on behalf of ms ross very well and we will be dividing our time nine minutes and three minutes is the intended split well i think it's twelve and three hundred and twelve and rewrite my warning was nine sorry your honor you may proceed good morning infamy please the court as i mentioned i'm john wright on behalf of all nurses and david smith says the administrative state ran short we're here today because of a multi year litigation  commenced based on the comments of five posters and that's really important to remember that these posters which again are only five and a subset of their comments a limited number of comments are the entirety of the universe of this case occupies now standing the c y allegations of large scale operation it's simply about those five posters and a handful of comments of those posters the statements of three of the five have been ruled as a matter of law to be nanda fam that ruling is unchallenged quite simply there is no claim they could be made based on those actions because what they did was proper the remaining two posters have made it unequivocally clear in their responses to the case that they have nothing to do with all nurses now while the court hasn't affirmatively adjudicated what's happened with their statements and whether they are or are not a family tory the point is they've made it clear they have nothing to do with all nurses which is going to be relevant to discuss the communications decency act deficiency in any claim of agency they have none the last three just mere conclusions essentially going in pulling the jades of a claim and said all those things happened we don't have any evidence that they happened but just trust us one through five happened they're trying to assert that there's something more there and she just tonight noted there is nothing there and i think that what what's important here is at the end of the day even looking at the entirety of this all nurses is undisputed a interactive computer service under the communications decency act nomen disputes that fact the only question is are they also an information content provider and again we're here on one poster post and that poster clearly has indicated that they have nothing to do with on ourselves and what that gets into then is is there a way is there an allegation to say that all nurses a somehow responsible for that content and the district court noted no there's no way that they're responsible for that content it's clear it was created by a rd party they had nothing to do with its creation they're not responsible for the content as to the contract claims that you're imposing in a couple points that the types of conduct that they're alleging are a breach of the contract so for example editing of content shaping of a discussion general management of a website those are traditional editorial functions that would be covered by the cia however he did not reach that issue if to the extent that the court here were to take issue with his version of the pleading deficiencies the city issue is still there and has been fully brief before the district court and is ripe for a decision by this court and i do think it's important to note that the contract claim here number one there's absolutely no possible allegation that east coast house prep and all nurses are counter parties to a contract allegedly some anonymous posters went to a website supposedly joined it and that by doing so all nurses is now a counter party to a contract with some undisclosed principal of these people who are acting in an agency theory that they didn't disclose there's no way to read the complaint that that's a plausible claim that could so you're saying that it's not possible that that terms of service is a contract is that what you're saying what i'm saying is that the a contract a in just in aggregate but b specifically the contract that they're alleging is that all nurses those duties to east coast has proper by virtue of the terms of service they're saying we have an affirmative duty to police the site on their behalf anything that's negative about them we have to take it down and the argument is that because somebody who worked for them allegedly joined the website we've now got a contract with them that is absolutely  know maybe i read it wrong i thought it was that that by signing up on the terms of service that the that the user was in gaijin agreement and part of that was at if you are civil you ma widely in a lively debate fashion and the issues related to this topic i think i thought that was the contract and i missed the contract is the terms of service as a whole and the district court noted that the clerk the pleading can this is the th complaint that the pleadings were deficient in alleging a contract between the parties to the case he didn't truly opine on whether or not the owners as web sites format and structure would allow for the creation of a contract with other parties what he said is this complaint again the th complaint they didn't get it right this time either and what i'm saying is in addition to that even if they had got it right even if they had shown that they did all the things they needed to do to create a valid contract between the user and all nurses there is no way for that contract to live between east coast has prep and all nurses who is the party complaining of the contract breach is close to saying you breached the contract with us by not doing something even though as you correctly noted we reserve almost absolute discretion in the terms of service so it's not a breach but there's also not a contract between the named plain so back to to the c d a issues and i think it it ties into that contract issue because even if there were a contract here the the analysis the chief judge to harm does when he  ca to the side references barnes and barnes is a case where an individual had problematic post essentially fake identity was created by that about them and they directly reached out to yahoo and representative of yahoo believes the v p specifically reached back out and said we will do this for you i will walk down the hallway and take care of it that contract is what survives under the current case not any terms of service related claim and so in this case even if there were to be a contract claim the only claim is at best a general supervisory agreement or something which has been specifically disallow in the cases after bar and saying look you that's just not enough you don't a portion of that claim i do think that the discourse can address that claim and i do believe that at the end of the day the c d a i had the district court got through the pleading analysis i think the district court would have concluded the same thing based on his comments in other areas about the traditional editorial functions of a site like owners looking looking forward because of the the disconnect here i think it's important that if this court is going to opine on the c d a that it does look at that standard of when is somebody's an information content provider and as we noted jones is essentially the leading case on this point talking about material contributions standard that it's not enough simply to have touched the content or in this case updated a hyperlink of again on temporary comments but you have to be involved in the creation of what makes the content on  number one is going to be unlawful which we don't really have here and then you have to be involved in its creation you can't just be involved post hoc and commenting on it liking it doing any of the things that are alleged here you'd actually have to have been involved in creating it and but we do still that we went to her and said hey you should post on awful things are going to she were an agent it would depend on the scope of her agency and the problem is there is no agency so we can't speculate on that what's clear is that we have no connection to ms ross she's made that very clear we had adoption and ratification of all those which again is barred by the material contribution standard and to contain verted those not offended her statements in defamatory statements it doesn't actually make any sense but no she didn't and i do want to correct one point at one time a moderator she was not a moderator of the time of her post and this is very important because this thread was open for such a long period of time because there were some comments than there was a lol there were some comments of then there was a low and then there was a flurry of activity and if you read what have said they said she was a moderator at that times of posting in the thread not the time she posted in the threat whether the time that somebody else posted in the thread like a year and a half before she posted and they would not that because in her signature she would say moderator if she was a moderator just like casey so it wasn't are you saying that there are cases out there that address this idea of disliking something or responding so i'm having some kind of response as to whether that and now to make it a part of the here all nurses website i think that there's there's two things one is the ratification theory was wholesale thrown out by most courts and specifically the jones court with the material contributions so liking wouldn't by definition be a post hoc contribution you couldn't have been involved in the but i think the district court's analysis of alike and its reference to common sense definitions of it is very clear liking does not mean wholesale odd option of it in total and that's a very important number one and number two it would have to require the adoption of a ratification standard that's just simply not here and with that i believe my time is up if there are no further questions very well thank you for your argument mr leventhal hear from she raised the issue whether this claim against your minnesota violated her due process she raised that when she was pro se i raised it once i represented her i don't want to spend any more time on the personal jurisdiction aspect of the case because i don't represented here was there any waiver and i would argue strongly that the answer is no there is a certain indulgence and obviously important indulgence for pro se litigants in our system because they don't know the complexities of our legal system she raised the issue of violation of due process and as your honour's know the issue of personal jurisdiction is a matter of due process so yes she did make filings in the court she had no  to give them the benefit of the doubt about how what claim they're raising the question here is whether you know by filing things that if a lawyer had filed might have been a waiver or like a counter claim she  because she's pro se that she doesn't waive the jurisdictional issue are you saying that that doesn't waive you know i would i would submit that if she had been represented by counsel and brought a she would have waived well that makes it a pretty stark issue then we'd have to say we'd have to say she would have waived if a lawyer had done this but because she's pro se it's not a construed because it was pro se as i object to personal jurisdiction just said that this violates due process do you want to address the transfer issue i did your honor and unfortunately i'm out all time well it's an important issue so we'll out has been around had been around for an enormous and conditioning amount of time and for amended complaint what about the fact that the judge thought there was no argument made against transfer and  there's a question whether he really analyzed the issue would he say to that i say that in fact he did address the issue regardless of that they raised it in response to a namak his grief but he said that  the court dismissed every claim against every other defendant in this case almost all on the merits how does that inform the transfer analysis because what what the court looks at is in the interests of justice and when you have a case such as this one where the district court exercising its discretion determines that it's unlikely that the case has any merit then transfer is unwarranted and this court is bound to respect the discretion of the district court in that decision if i might make one last just on that is there any authority on our member in the belief as well but your bill saying there is even though the court in no jurisdiction over the defend in the court can analyze the merits of the case in thousand and four in that case the th circuit held that the transfer would not be granted and was not granted and affirm that decision saying that the complaint was unlikely to have merit it  there's a paragraph that says terms of service although the constitution of the us guarantees that congress shall make no law abridging the freedom of speech or nurses dot com i not congress period freedom of speech rights are not extend to all nurses dot com period this terms of service print guidelines governs behaviors and activities of its members if you choose not to follow the guidelines agreed to during registration the result is disabling your account and there are other instances in the terms of service which link up whatever action they're go cases in a positive to this to this case is that where russ postin rush was one of the two posters that said that east coast test prep was under federal investigation yes our theory of the case does not rely on every statement being actionable it is true that this court has said the warrant statement not actionable defamation the liking defamation obsolete and redundant not actionable for defamation granted we didn't appeal that what we are saying is that those negative comments if they were none the less if the website operator induces or encourages or solicit then they their website is liable and that's what we're alleging  here i just want to say that this whole bit about standing which is what mr reddell was talking about that mr a lineker or east coast test prep rather doesn't have standing to make a contract claim this was not raised below by the movement we did not have an opportunity to address that again their entire theory was c d a and we address that and then the and and then the district judge and his own raise these other things so at the you know at the least it should be remanded on that issue if this this court thinks you know that that would be appropriate and i just want to close with an issue of inducement there again there doesn't have to we don't have to prove probability we don't even have to prove a material issue in dispute at this point this is a motion for judgment on the pleading and all we needed to do was prove plausibility believability and when you have a commercial website  that makes profit by operating and drawing traffic and you have allegations where one of the posters was an agent was a moderator and we're into a we say that we're entitled to test we shouldn't have to take their word for it and mr ruddle i was shocked to hear that he's now introducing an oral argument in fact allege fact that russ is denying any connection with what business does that fact coming from russ have in this at this stage and so we should have the opportunity like any other litigation what we want to do is take some depositions finish our discovery this case was at the very beginning of this government pleadings got closed the motion for judgment occurred despite record judge saying after two years of trying discovery that that passage yes we tried but most of that discovery was aimed at identity identification not for america  may apparently had a gut instinct about this case maybe he's right we don't know we haven't had a chance to take discovery clearly the the court did not like this case understandable but that's not the test and i just ask that this corey give my client the opportunity at this early stage to go a little further to take the discovery to see if there is a case here or not but we have made a good faith allegations based on the information that we had