Based on this harm, Doe filed suit against fifteen corporate and individual defendants, whom he believed were the owners of SexSearch
” Its members use the website to meet one another for sexual encounters. In e a “Gold Member” of SexSearch, which required him to pay $ per month and agree to the site’s Terms and Conditions, including a promise on Doe’s behalf that he was at least eighteen years old. Using the service, Doe met Jane Roe, who likewise had become a “Gold Member” after agreeing to SexSearch’s Terms and Conditions and warranting that she was at least eighteen. In her profile, she stated that she was born June 15, 1987. After meeting online, Roe invited Doe to her home on , at which point they had sexual relations.
At some point thereafter, Roe, who was actually fourteen, told the police about her encounter with Doe. On , police surrounded Doe’s home, arrested him, and charged him with three counts of engaging in unlawful sexual conduct with a minor, a third-degree felony. For reasons that are unclear, the charges were later dismissed and Doe’s records were sealed. Doe claims, however, that the arrest and prosecution-and the publicity that accompanied them-caused lasting harm to his reputation, family life, and employment prospects.
The complaint contained fourteen causes of action, which, as the district court noted, “boil down to either (a) Defendants failed to discover [that]Jane Roe lied about her age to join the website, or (b) the contract terms are unconscionable.” Doe v. SexSearch, 502 F.Supp.2d 719, 724 (N.D.Ohio 2007).
But the Terms and Conditions state that SexSearch “cannot guarantee, and assume[s]no responsibility for verifying, the accuracy of the information provided by other users of the Service
Defendants then filed motions to dismiss for lack of personal jurisdiction and for failure to state a claim. For the sake of judicial economy, defendant/intervenor Cytek, Ltd., which claims to be the true owner of SexSearch, agreed to enter an appearance and waive all issues related to service of process and personal jurisdiction so that the court could consider the 12(b)(6) motion before undertaking the time-consuming task of evaluating personal jurisdiction for each remaining defendant.
The district court granted the motion to dismiss, concluding that Doe had failed to state a claim as to each of the fourteen causes of action and, in the alternative, concluding that many of the claims were barred by the Communications Decency Act. This appeal followed.
We review the district court’s judgment de novo. Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.2008). We construe the complaint in the light most favorable to the nonmoving party and accept all well-pleaded factual allegations as true to determine whether the moving party is entitled to judgment as a matter of lawmercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007). While our analysis primarily focuses on the complaint, “matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint ? ini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.2001).
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we do not adopt the district court’s analysis of the Communications Decency Act and explicitly reserve the question of its scope for another day. We do, however, affirm the district court’s decision to dismiss Doe’s complaint for failure to state a claim.
Count One alleges that SexSearch breached its contract with Doe by permitting minors to become members of its service. Under Ohio law, to prove breach of contract, a plaintiff must prove that (1) a contract existed; (2) plaintiff fulfilled his obligations; (3) defendant failed to fulfill his obligations; and (4) damages resulted from this failure. Lawrence v. Lorain County Cmty Coll., 127 Ohio App.3d 546, 713 N.E.2d 478, 480 (Ohio Ct.App.1998). A contract between Doe and SexSearch was formed when Doe checked a box indicating that he was over eighteen and had read and agreed to SexSearch’s Terms and Conditions and privacy policy. The Terms and Conditions constitute the content of the contract. Doe alleges that SexSearch failed to fulfill its obligations by “permitt[ing]minors to become paid members” and by “deliver[ing]a minor to Plaintiff for the purpose of sexual relations.” Compl. ¶¶ 296-97, J.A. at 46. ” The contract requires that members be “eighteen or over to register,” but nowhere does SexSearch promise to prevent minors from registering or to monitor members’ profiles for accuracy. Therefore, the complaint does not state a breach-of-contract claim because Doe has not alleged that SexSearch has breached any promise that is actually part of the contract.
