United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant Missouri Attorney
General Joshua Hawley's motion to dismiss pursuant to
Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6).(ECF No. 21). Plaintiff Backpage.com
opposes the motion. (ECF No. 34). The Court held a hearing on
AG Hawley's motion to dismiss. For the reasons that
follow, the Court grants AG Hawley's motion to
Factual and Procedural Background
2017, AG Hawley issued civil investigative demands (CIDs) to
Backpage, Backpage's CEO Carl Ferrer, and two other
corporate officers (collectively, “Backpage
Recipients”) for the purpose of investigating possible
violations of the Missouri Merchandising Practices Act
(MMPA), Mo. Rev. Stat. §§ 407.010, et seq. (ECF
Nos. 1 at 12, 21-2). The MMPA broadly prohibits false,
fraudulent, or deceptive merchandising practices and
“imposes criminal penalties and civil liability on
persons who engage in conduct that it deems unlawful.”
Huch v. Charter Commc'ns Inc., 290 S.W.3d 721,
725 (Mo. banc 2009).
CID advised: “The investigation will inquire into the
activities of [Backpage Recipients] in connection with the
sale or advertisement, as defined in Section 407.010, RSMo,
of commercial sexual conduct, other sexually oriented
services, massage services, dating services and other
merchandise” to “determine whether the [Backpage
Recipients] have used deception, fraud, false promise,
misrepresentation, unfair practice, or the concealment,
suppression, or omission of material fact in connection with
the sale or advertisement of the above merchandise.”
(ECF No. 21-2 at 1).
served upon Backpage demanded Backpage provide AG Hawley the
information and documents described in twenty-four numbered
paragraphs by June 7, 2017. (Id. at 3). Among other
things, the CID demanded Backpage:
• Provide all documents concerning Backpage's
reviewing, blocking, deleting, editing, or modifying
advertisements that appear on its website, either by Backpage
employees or agents, or by automated software processes,
including but not limited to policies, manuals, memoranda,
• Provide all documents concerning advertising posting
limitations, including but not limited to the “Banned
Terms List, ” the “Grey List, ” and error
messages, prompts, or other messages conveyed to users during
the advertisement drafting or creation process.
• Provide all documents concerning human trafficking,
sex trafficking, human smuggling, prostitution, or the
facilitation or investigation thereof, including but not
limited to policies, manuals, staff training materials,
memoranda, and guidelines.
• Identify every posting or advertisement posted in the
Adult Section of the Missouri Locations that was either (a)
deleted, edited, or modified by Backpage employees or agents,
or (b) blocked, deleted, edited, or modified by any automated
• For each posting or advertisement identified in
response [to the preceding paragraph], provide both (a) a
copy of the posting or advertisement as originally submitted
by the Backage user, and (b) a copy of the posting or
advertisement as it was publicly posted on Backpage.
(Id at ¶¶ 4, 5, 7, 11, 12). The CID
advised Backpage that “an extension of time or
modification of the terms of the Investigative Demand may be
sought only for good cause pursuant to the terms of Section
407.070, RSMo.” (Id at 6). In addition, the
CID warned that Section 407.080 “makes certain acts
done with the intent to avoid, evade, or prevent compliance
in whole or in part with any Investigative Demand served
hereunder a Class A Misdemeanor[.]” (Id.).
parties dispute whether Assistant Attorney General Mary
Morris extended Backpage's deadline for responding to the
CID. (ECF Nos. 21-1 at ¶ 15, 45 at ¶ 4-5). While
the parties agree that attorney Jim Grant called Ms. Morris
and requested an extension of time, they dispute whether he
identified himself as counsel for Mr. Ferrer alone or for Mr.
Ferrer and Backpage. Id According to Ms. Morris, Mr.
Grant identified himself as counsel for Mr. Ferrer, and she
agreed to extend the deadline for Mr. Ferrer's response
from June 7, 2017 until July 7, 2017. (ECF No. 21-1 at
¶¶ 16-19). Mr. Grant avers that he informed Ms.
Morris that he represented Backpage and Mr. Ferrer, as
evidenced by his subsequent email to Ms. Morris thanking the
AG's office for granting “my clients” an
extension. (ECF Nos. 14-11, 45).
15, 2017, AG Hawley filed in the Circuit Court of St. Charles
County a “Petition for Order to Enforce Civil
Investigative Demand” against Backpage pursuant to Mo.
Rev. Stat. § 407.090. (ECF Nos. 1 at ¶ 43, 21-5). In the
petition, AG Hawley stated that he initiated the
investigation into possible violations of the MMPA and issued
the CID based upon a report by the United States Senate's
Permanent Subcommittee on Investigations, which revealed
Backpage's role in facilitating and concealing illegal
activity, such as human trafficking and commercial sexual
exploitation. (ECF No. 21-5 at ¶ 1). AG Hawley alleged
that Backpage had neither “produced any requested
documentation or information, nor . . . filed a petition to
extend the return date for, or to modify or set aside the
[CID]” pursuant to Mo. Rev. Stat. § 407.070, and
therefore requested an order enforcing the CID. (Id.
at ¶¶ 18, 22, 23).
11, 2017, Backpage filed in this Court a “complaint for
injunctive and declaratory relief, ” asking the Court
to “enjoin and declare unlawful” AG Hawley's
efforts to investigate and prosecute it under the MMPA. (ECF
No. 1). In the complaint, Backpage argues that Section 230 of
the Communications Decency Act (CDA), 47 U.S.C. § 230,
bars state law claims against internet websites and
publishers arising from content created by a third party.
(Id. at 17-18). Backpage also claims that AG
Hawley's investigation and the CID violated: the rights
of Backpage and its users under the First and Fourteenth
Amendments; Backpage's rights under the Fourth, Fifth,
and Fourteenth Amendments; and the MMPA. (Id. at
18-21). Approximately two weeks later, Backpage filed a
motion for preliminary injunction based on its purported
immunity under the CDA and its constitutional rights under
the First, Fourth, and Fifth Amendments. (ECF No. 11).
Hawley moved to dismiss Backpage's complaint pursuant to
Rules 12(b)(1) and 12(b)(6). (ECF No. 21). In his motion, AG
Hawley argues that the Court should dismiss the case pursuant
to Younger v. Harris, 401 U.S. 37 (1971) and that
Backpage failed to state a claim upon which relief can be
granted. (ECF No. 21 at 10-11). Backpage responded (ECF No.
34), and the Court heard arguments regarding the application
of the Younger doctrine. Backpage has since filed a
“Second Motion for Preliminary Injunction to Prevent
Enforcement of 15 CSR 60-16.040” (ECF No. 48). In that
motion, Backpage contends that the state regulation, entitled
“Conducting Sex Trafficking Under False
Pretenses” and effective October 30, 2017, directly
conflicts with the Section 230 of the CDA and
unconstitutionally restricts free speech. (Id.).
courts have a “virtually unflagging obligation ... to
exercise the jurisdiction given them.” Barzilay v.
Barzilay, 536 F.3d 844, 849 (8th Cir. 2008) (quoting
Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976)). However, the United
States Supreme Court has articulated several abstention
doctrines as exceptions to the rule, including the
Younger doctrine. Id. Under
Younger, the district court has discretion to
decline jurisdiction when federal action would needlessly
interfere with an ongoing state proceeding. Geier v.
Missouri Ethics Comm'n, 715 F.3d 674, 678 (8th Cir.
Hawley argues that the Younger doctrine bars this
Court's consideration of Backpage's complaint because
the state-court action: (1) is ongoing; (2) implicates
important state interests, namely, enforcement of
Missouri's consumer-protection laws; and (3) provides
Backpage ample opportunity to raise its federal-law arguments
in opposition to enforcement of the CID. (ECF No. 21 at
11-13). In response, Backpage contends that AG Hawley based
his motion to dismiss on “outdated authority” and
that “this case presents no basis for abstention under
the limited exceptions of Younger and Sprint
Communications v. Jacobs, [134 S.Ct. 584 (2013)
(“Sprint”)].” (ECF No. 34 at 26).
Younger abstention doctrine provides that, in
“exceptional circumstances, ” a federal court
must “refus[e] to decide a case in deference to the
States.” Sprint, 134 S.Ct. at 591 (quoting
New Orleans Pub. Serv., Inc. v. Council of the City of
New Orleans, 491 U.S. 350, 368 (1989)
(“NOPSI”)). This doctrine originates from the
underlying principles of: equity, which provides that
“courts of equity should not act…when the moving
party has an adequate remedy at law and will not suffer
irreparable injury if denied equitable relief”; and
“‘comity, ' that is, a proper respect for
state functions.” Younger, 401 U.S. at 43-44.
See also Ohio Bureau of Emp't Servs. v. Hodory,
431 U.S. 471, 479 (1977) (Younger abstention
“allow[s] the State an opportunity to ‘set its
own house in order' when the federal issue is already
before a state tribunal.”).
the Younger doctrine originally applied only to
state criminal proceedings, the Supreme Court has enlarged
the doctrine to include certain civil actions. See, e.g.,
Juidice v. Vail, 430 U.S. 327 (1977); Huffman v.
Pursue, Ltd., 420 U.S. 592 (1975). Nevertheless, as the
Supreme Court recently clarified, Younger does not
apply to “all parallel state and federal
proceedings.” Sprint, 134 S.Ct. at 593. In
Sprint, the Court reaffirmed its holding in
NOPSI that Younger abstention only limits
federal-court intervention in the following three categories
of state proceedings: (1) ongoing state criminal
prosecutions; (2) “certain ‘civil enforcement
proceedings'”; and (3) “pending civil
proceedings involving certain orders . . . uniquely in
furtherance of the state courts' ability to perform their
judicial functions.” Id. at 591 (citing
NOPSI, 491 U.S. at 368).
Sprint Court employed a three-step approach to
Younger abstention. First, a court determines
whether a particular state proceeding falls within one of the
Sprint categories. Sprint, 134 S.Ct. at
591. If so, a court must consider whether the three factors
articulated in Middlesex Cty. Ethics Comm'n v. Garden
State Bar Ass'n, 457 U.S. 423, 432 (1982) support
abstention. Id. at 593. In Middlesex, the
Supreme Court identified three factors a court must consider
before invoking Younger: (1) the existence of an
“an ongoing state judicial proceeding, ” which
(2) “implicate[s] important state interests, ”
and (3) provides “an adequate opportunity to raise the
constitutional claims.” Middlesex, 457 U.S. at
432. See also Sprint, 134 S.Ct. at 593 (the
Middlesex factors are “not dispositive; they
[are] instead, additional factors appropriately considered by
the federal court[.]”).
case satisfies the requirements of Sprint and
Middlesex, a court considers whether any of the
exceptions to the Younger doctrine apply.
Middlesex, 457 U.S. at 435. The Supreme Court has
held that, even where all of the above factors are satisfied,
a court should decline to invoke Younger if there is
a “showing of bad faith, harassment, or some other
extraordinary circumstance that would make abstention
argues that Younger abstention is improper because
the state-court action does not fit any of the state
proceeding categories set forth in Sprint. (ECF No.
34 at 28-29). More specifically, Backpage contends that the
state-court action: (1) is not a criminal
proceeding; (2) is not a “civil enforcement
proceeding” because the State has not brought any civil
claims or criminal charges against Backpage; and (3) does not
concern an order “uniquely in furtherance of the state
court['s] ability to perform [its] judicial
functions.” Id. at 28-29 (quoting
Sprint, 134 S.Ct. at 591). In his reply brief, AG
Hawley asserts that the state-court action ...