N O T PRECEDENTIAL

U N IT E D STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-3171

ANTHONY DIMEO III,

A p p e lla n t

v. T U C K E R MAX,

A p p e lle e

On Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

(D .C . No. 06-cv-01544)

D istric t Judge: Honorable Stewart Dalzell

Submitted Under Third Circuit LAR 34.1(a)

A p ril 20, 2007

B e f o re : MCKEE and AMBRO, Circuit Judges, and MICHEL,* Chief Circuit Judge.

(O p in io n Filed: September 19, 2007)

OPINION OF THE COURT

M IC H E L , Chief Circuit Judge A n th o n y DiMeo III appeals (1) the dismissal of his complaint against Tucker Max f o r allegedly defamatory comments on Max's website and (2) the denial of his motion to a m e n d the complaint. DiMeo v. Max, 433 F. Supp. 2d 523 (E.D. Pa. 2006). Because the D is tric t Court properly concluded that 47U.S.C. § 230 barred DiMeo's claim for d e f a m a tio n and did not abuse its discretion in denying DiMeo's motion to amend, we will a f f irm .

I.

B e c au s e the parties are familiar with the factual and procedural history of this case, w e only set forth those facts necessary for our discussion. Max is the owner of a website (w w w .tu c k e rm a x .c o m ) that allows users to write comments on various topics on message b o a rd s. DiMeo sued Max for defamation for publishing on the website allegedly d is p a ra g in g statements about DiMeo stemming from a New Year's Eve party in 2005 that h a d gone awry (Count I), violation of the Communications Act of 1943 (47U.S.C. § 2 2 3 (a )( 1 )( C )) , i.e., a criminal statute (Count II), and punitive damages (Count III).

On April 19, 2006, Max filed a motion to dismiss the complaint under Rule 1 2 (b )(6 ) of the Federal Rules of Civil Procedure, which DiMeo opposed. At the end of h is opposition brief, DiMeo added a one-sentence request for leave to file an amended c o m p lain t "to eliminate Count II as stated, without prejudice to incorporate same into P la in tif f 's claim of Defamation, as well as Plaintiff's prospective new claims for In te n tio n [sic] Infliction of Emotional Distress and Defendant's Civil Rico violation." Joint App. 188. The District Court granted DiMeo leave to file an additional brief by n o o n on May 14, 2006, but a few minutes before noon on the due date, DiMeo rested on the briefs already submitted. Thus, DiMeo did not file a memorandum of law in support o f his motion to amend or submit a proposed amended complaint. On May 26, 2006, the D is tric t Court dismissed the complaint with prejudice and denied DiMeo's motion for le a v e to amend the complaint. DiMeo, 433 F. Supp. 2d at 533. On appeal, DiMeo c h a llen g e s only the trial court's dismissal of the defamation claim (Count I) and its re f u sa l to grant leave to amend.

II.

W e exercise plenary review over the District Court's order granting a Rule 1 2 (b )( 6 ) motion to dismiss. Weston v. Pennsylvania, 251 F.3d 420, 425 (3d Cir. 2001); s e e also FED. R. CIV. P. 12(b)(6). Accepting the allegations of the complaint as true and d ra w in g all reasonable factual inferences in favor of the plaintiff, "[w]e will affirm a d is m is s a l only if it appears certain that a plaintiff will be unable to support his claim." Weston, 251 F.3d at 425. We agree with the District Court that DiMeo's defamation claim is barred by 47U.S.C. § 230. Section 230 provides, in relevant part, that "[n]o p ro v id e r or user of an interactive computer service shall be treated as the publisher or s p e a k e r of any information provided by another information content provider." 47U.S.C.

§ 230(c)(1) (emphases added). "No cause of action may be brought and no liability may b e imposed under any State or local law that is inconsistent with this section." 47U.S.C.

§ 230(e)(3); see also Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (stating th a t § 230 "`precludes courts from entertaining claims that would place a computer s e rv ic e provider in a publisher's role,' and therefore bars `lawsuits seeking to hold a s e rv ic e provider liable for its exercise of a publisher's traditional editorial functions­such a s deciding whether to publish, withdraw, postpone, or alter content.'" (quoting Zeran v. A m e ric a Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).

M a x 's website is an interactive computer service because it enables computer a c c e s s by multiple users to a computer server. See 47U.S.C. § 230(f)(2) (defining "intera ctiv e computer service" as "any information service, system, or access software p rov ider that provides or enables computer access by multiple users to a computer server, in c lu d in g specifically a service or system that provides access to the Internet and such system s operated or services offered by libraries or educational institutions"). DiMeo's co m p lain t alleges that Max is a publisher of the comments on the website. However, D iM e o does not allege that Max authored the comments on the website or that he is an in f o rm a tio n content provider. See 47U.S.C. § 230 (f)(3) (defining "information content p ro v id e r" as "any person or entity that is responsible, in whole or in part, for the creation o r development of information provided through the Internet or any other interactive c o m p u ter service"). As such, the website posts alleged in the complaint must constitute in f o rm a tio n furnished by third party information content providers. Therefore, the re q u ire m e n ts of § 230 immunity are satisfied. In Green, we affirmed the dismissal of a c o m p la in t against America Online based on § 230 immunity from tort liability stemming f ro m messages posted in chat rooms by unnamed defendants impersonating the plaintiff.

318 F.3d at 469-70. Similarly, we will affirm the dismissal of the complaint against Max b a se d on § 230 immunity from tort liability resulting from messages by third party m e s s a g e posters.

Although DiMeo argues on appeal that Max is in fact an information content p ro v id e r because he solicited and encouraged members of his message board community to engage in defamatory conduct or was otherwise partially responsible for the conduct, th e complaint is devoid of any such allegations. DiMeo also contends that by referencing w e b site s not found in the complaint, the District Court impermissibly converted the m o tio n to dismiss into a motion for summary adjudication without notice, Rose v. Bartle, 8 7 1 F.2d 331, 342 (3d Cir. 1989). We disagree. In determining that dismissal was p rop er, the District Court relied solely on § 230 as applied to the allegations in DiMeo's c o m p la in t. We see no error in the District Court's ruling.

III.

W e review the District Court's denial of a request for leave to amend a complaint f o r abuse of discretion. Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). We discern n o n e here. DiMeo requested leave to file a brief but at the eleventh hour decided not to f ile one. Instead, DiMeo rested on his one-sentence motion to amend, which sought to re a ss e rt the same defamation claim as in Count I and new claims for intentional infliction o f emotional distress and a RICO violation. The District Court concluded that, if added, th e defamation and intentional infliction of emotional distress claims would be futile in v ie w of § 230, see 47U.S.C. §§ 230(c)(1), (e)(3), and that the RICO claim w o u ld be futile in view of DiMeo's failure to plead that Max committed any of the p red icate crimes enumerated in 18U.S.C. § 1961. We agree with the District Court's re a s o n in g and conclusion with respect to the denial of the motion for leave to amend.

Certainly, the denial was not an abuse of discretion.

For the reasons set forth above, we will affirm the District Court's dismissal of the complaint, which was not tainted by the denial of the motion to amend.

* Hon. Paul R. Michel, Chief Judge of the United States Court of Appeals for the Federal Circuit, sitting by designation.