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Yue v. Miao

United States District Court, D. South Carolina, Columbia Division

November 19, 2019

DONGXIAO YUE, Plaintiff,
v.
CHUN-HUI MIAO, BIAN-WANG.COM, and DOE 1, aka lawand, Defendants.

          ORDER ADOPTING THE REPORT AND RECOMMENDATION AND GRANTING DEFENDANT MIAO'S MOTION TO DISMISS AND DISMISSING BIANG-WANG.COM AND DOE 1 FROM THE CASE

          MARY GEIGER LEWIS, UNITED STATES DISTRICT JUDGE.

         Plaintiff Dongxiao Yue (Yue), proceeding pro se, filed a complaint for breach of contract, tortious breach of implied covenant of good faith and fair dealing, promissory estoppel, intentional infliction of emotional distress, and violations of California Business & Professions Code § 17200 et seq (California's Unfair Competition Law). The matter is before the Court for review of the Report and Recommendation (Report) of the United States Magistrate Judge recommending the Court grant Defendant Chun-Hui Miao's (Miao) motion to dismiss and dismiss Bian-Wang.com (BW) and Doe 1 (collectively with Miao, Defendants) as defendants. The Report was made in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo review, however, “when a party makes general and conclusory objections that do not direct the court to a specific error in the [Magistrate Judge's] proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982); see Fed. R. Civ. P. 72(b).

         The Magistrate Judge filed the Report on June 27, 2019, and the Clerk of Court entered Yue's objections on July 12, 2019. The Clerk entered Miao's reply to Yue's objections on July 26, 2019. The Court has carefully reviewed Yue's five objections but holds them to be without merit. Therefore, it will enter judgment accordingly.

         A. Yue's objections to dismissal of his intentional infliction of emotional distress (IIED) claim

         Yue objects to dismissal of his IIED claim, arguing section 230 of the Communications Decency Act (CDA) is inapplicable to Defendants' actual postings. The CDA mandates “[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). The Fourth Circuit has interpreted the CDA to bar “state-law plaintiffs from holding . . . providers legally responsible for information created and developed by third parties” on their website. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). Yue's objection is limited to any posts made by Miao himself, not those made by others but hosted on BW, Miao's website.

         Even if Yue is correct his IIED claim applied only to Maio's posts-which is unclear from the direct language of the complaint, Compl. ¶ 77 (“Defendants deliberately kept the defamatory and insulting postings against Plaintiff on [BW] for years.”)-the claim would fail to survive a motion to dismiss.

         Under South Carolina law, an IIED claim requires a plaintiff to show:

(1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result for his conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, and utterly intolerable in a civilized community; (3) the actions of the defendant caused by the plaintiff's emotional distress; and (4) the emotional distress suffered by the plaintiff was severe so that no reasonable [person] could be expected to endure it.

Bass v. S.C. Dep't of Soc. Servs., 780 S.E.2d 252, 260-61 (2015). The South Carolina Supreme Court mandates a “heightened burden of proof” for the second and fourth elements. Id. Yue's complaint fails to sufficiently allege the second element.

         The second element of an IIED claim requires the defendant's conduct be “so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community.” Bass, 780 S.E.2d at 261.

         It is permissible for a court to hold as a matter of law, based on allegations contained in the complaint, the defendant's conduct is not so extreme and outrageous as to allow recovery for IIED. Todd v. S.C. Farm Bureau Mutual Ins. Co., 278 S.E.2d 607, 609 (1981) rev'd on other grounds, 321 S.E.2d 602 (1984), quashed in part on other grounds, 336 S.E.2d 472 (1985).

         Yue alleges Miao posted comments with “indecent language, ” as part of a three-year online assault on his character. Compl. ¶¶ 31, 72. He, however, provides scant evidence of the offending comments, the sole example being Maio calling him a “son of a b**ch, ” and stating he would provide more examples at trial. Compl. ¶ 16. “[I]nconsiderate and insulting” behavior is insufficient to rise to the level of an IIED claim. Hartsell v. Duplex Prod., Inc., 123 F.3d 766, 774 (4th Cir. 1997) (applying is a similarly worded North Carolina statute).

         In fact, insulting online barbs are neither extreme nor outrageous, as they seemingly have become a mainstay in modern society. See, e.g., An Increasingly Polarized America, Is It Possible to Be Civil on Social Media, NPR, Mar. 31, 2019, https://www.npr.org/2019/03/31/708039892/in-an-increasingly-polarized-america-is-it-possible-to-be-civil-on-social-media. Yue failed to allege facts sufficient to meet the second element of ...


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