Legal Memorandum: Immunity from Motion to Dismiss

Issue: Can immunity be used as a basis for a Fed. R. Civ. P. 12(b)(6) motion to dismiss?

Generally, immunity is an affirmative defense.  See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998); Rubin v. Islamic Republic of Iran, 408 F. Supp. 2d 549, 554 (N.D. Ill. 2005).  Unless this affirmative defense appears on the face of the complaint, it cannot be the basis for a 12(b)(6) motion to dismiss.  Pani, 152 F.3d at 74.

The immunity provision provides that “[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).  As construed, this means that the “immunity under the Act applies [only] to any cause of action that would make service providers liable for information originating with a third-party user of the service.”  800-JR Cigar, Inc. v. Goto.com, Inc. 437 F. Supp. 2d 273, 295 (D.N.J. 2006). 

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