MEMORANDUM ORDER
THIS MATTER is before the Court on Defendant Consumeraffairs.com Inc.’s Motion to Dismiss or Strike Complaint. This case concerns negative reviews posted by consumers on Defendant’s website concerning Plaintiffs, Nemet Chevrolet, Ltd. and Thomas Nemet D/B/A Nemet Motors. Plaintiffs take issue with the veracity of the information posted on Defendant’s website, and seek to hold Defendant liable for defamation, tortious interference with a business expectancy and multiple violations of the Lanham Act. There are five issues before the Court. The first issue is whether immunity under the Communications Decency Act may be considered by the Court on a 12(b)(6) motion, and if so, whether Defendant is immune under the CDA Plaintiffs claims for defamation and tortious interference with contract. The second issue is whether Plaintiffs’ request for punitive damages on Counts I and II in excess of the applicable statutory cap bars these claims. The third issue is whether Plaintiffs have standing to bring their claims under the Lanham Act. The fourth issue is whether Plaintiffs have pled that Defendant has used an imitation of Plaintiffs’ mark that is likely to cause confusion among consumers, as required to state a claim of unfair competition under § 43(a)(1)(A) of the Lanham Act. The fifth issue is whether Plaintiffs have properly stated a false advertising claim against Defendant under § 43(a)(1)(B) of the Lan-ham Act. The Court holds that it may consider immunity under the CDA on a 12(b)(6) motion because the facts necessary for such a determination are apparent from the face of the Complaint, and because the CDA prevents Plaintiffs from establishing a set of facts that would entitle them to relief. Furthermore, the Court holds that Defendant is entitled to immunity under the CDA because it is a provide of an interactive computer service, the postings at issue in the Complaint were provided by a separate information content provider, and Plaintiffs’ claims seek to treat Defendant as a publisher of the third party content at issue. With respect to the second issue, the Court finds that while it could strike the ad *547 damnum portion of the claims at issue, that ad damnum serves no practical purpose in a contested case such as this, and it is unnecessary to address the issue further because the Court will strike the claims at issue on other grounds. The Court also finds that under any approach used by the various circuits, that Plaintiffs do not have standing to bring their claims under the Lanham Act because Plaintiffs are not competitors of Defendant, and Plaintiffs have not alleged the sort of injury that the Lanham Act sought to protect against. Alternatively, if the Court were to find that Plaintiffs had standing to bring their claims under the Lanham Act, the Court grants the Defendant’s Motion to Dismiss the counts brought under sections 43(a)(1)(A) and (B) of the Act because the two parties’ goods are unrelated as a matter of law and because the parties are not in commercial competition and it could not possibly be alleged that the statements at issue were made for the purpose of influencing consumers to buy Defendant’s goods or services instead of Plaintiffs’.
I. BACKGROUND
Defendant consumeraffairs.com operates a website through which third-party consumers post reviews of retail buying experiences with merchants and exchange information about their experiences buying products or services from particular companies. Nemet Chevrolet is a group of franchised automotive dealers who sell cars in the New York area. Several consumer reviews posted on Defendant’s website complain about individual experiences at Nemet Chevrolet. Plaintiffs’ Complaint includes the text of six consumer postings, and Plaintiffs identify the poster responsible for the information contained in all but one of the postings. Plaintiffs attempt to rebut the complaints lodged in each posting in the text of their Complaint. The following counts are alleged in the Complaint: I) defamation; II) tortious interference with a business expectancy; III) violation of § 43(a)(1)(A) of the Lanham Act; and IV) violation of § 43(a)(1)(B) of the Lanham Act. Plaintiffs claim that Defendant’s publication of the statements on its website “discredited Plaintiffs honesty, credit and business reputation.” (ComplJ 39). With respect to the claim for tortious interference, Plaintiff alleges that “Defendant’s false and misleading articles caused potential Nemet customers not to contract with Plaintiffs, resulting in monetary damages to Plaintiff.” (Comply 45). Plaintiffs assert that Defendant has violated § 43(a)(1)(A) of the Lan-ham Act by operating “in commerce under the guise of ‘consumer affairs’ for the purpose of unlawfully diverting customers and deriving a profit from misdirecting said customers” and consumers are likely to incorrectly believe that Defendant is affiliated with a state, federal or other organization. (Comply 47, 48). With respect to the alleged violation of § 43(a)(1)(B) of the Lanham Act, Plaintiffs state that Defendant’s use of the name “consumer affairs” misrepresents the nature and/or quality of its services and that this misrepresentation is likely to “influence the purchasing decision and deceive customers.” (Comply 52, 53).
II. DISCUSSION
A. Standard of Review
In a recent decision, the Supreme Court held that a Federal Rule of Civil Procedure 12(b)(6) motion should be granted unless an adequately stated claim is “supported by showing any set of facts consistent with the allegations in the complaint.”
Bell Atlantic Corp. v. Twombly,
— U.S. -, -,
B. Analysis
The Court grants Defendant’s Motion to Dismiss Counts I (defamation) and II (tortious interference with business expectancy) because it is apparent from the facts contained in the Complaint that Defendant is entitled to immunity under the Communications Decency Act.
By its plain language § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions such as deciding whether to publish, withdraw, postpone or alter content-ore barred.
Zeran v. America Online, Inc.
The crucial inquiry for determining immunity is the role of the Defendant as it pertains to the statements at issue in the Complaint. The parties do not disagree that Defendant runs a website. Defendants are indisputably an interactive computer service. The question is whether Defendant assisted in the creation and development of the content at issue so as to render it also an information content provider for these purposes. The Complaint consists largely of isolated statements made by various consumers posted on Defendant’s website. Plaintiffs are not only *549 able to provide the first and last names of the customers who authored the postings on Defendant’s website, but Plaintiffs also provide their own account of the events that transpired when these people were customers at Nemet Motors. As far as alleging in the Complaint that Defendant played a role in the development or creation of the content at issue, the closest Plaintiffs come is the generic statement that follows each instance of conduct, wherein Plaintiffs state that, “upon information and belief, Defendant participated in the preparation and publication of a false, defamatory, malicious, and libelous article of and concerning Plaintiffs.... ” Such bald allegations of Defendant’s participation are insufficient to meet the Rule 8(a) requirements. Plaintiff has failed to sufficiently or substantively allege that Defendant participated in the creation or development of the website content at issue in this claim.
On a Rule 12(b)(6) motion, the Court’s analysis is limited to the four corners of the Complaint. Plaintiffs essentially seek to amend their Complaint through the attachment of declarations to their Opposition and the inclusion of new allegations and arguments in their responsive pleading. Plaintiffs allege for the first time in their Opposition that Defendant was responsible for the creation of original content that defamed Plaintiffs. (Pl.Opp.3). Plaintiffs also advance for the first time, arguments in their Opposition regarding the inclusion of titles, headings and categories by Defendants on the website, as grounds for Defendant to be found ineligible for immunity and attempt to draw a parallel between the facts in this case and
MCW Inc. v. Badbusinssbureau.com.
3:02cv2727G,
Factually, MCW is very similar to this case. There, the plaintiff was a corporation engaged in the business of helping individuals seeking individual job and career counseling. Defendant operated an internet-based consumer complaint forum. In addition to posting consumer complaints, Defendants used the site to “solicit donations, sell advertising space, assist and encourage the formation of class action law suits, charge promotional fees on amounts collected by consumers, and advertise and sell ‘rip-off revenge’ packs that encourage consumers to avenge themselves on companies.” Id. at *1. The complaint in MCW alleged that the defendants “reproduce^] and/or us[ed] the Bernard Haldane marks and confusingly similar variations thereof-without any consent or authorization-in connection with the publishing and posting of false, misleading and disparaging statements about MCW and its goods or services on the defendants web sites.” Id. at * 2. Defendant asserted five causes of action: 1) unfair competition under the Lan-ham Act; 2) false advertising under the Lanham Act; 3) unfair competition under Texas common law; 4) business disparagement under Texas common law; and 5) trademark infringement under Texas common law. Id. In MCW, the Court found that immunity did not exist because “MCWs claims are clearly based on the disparaging titles, headings, and editorial messages that MCW alleges the defendants created.” Id. at *10.
Plaintiffs point to MCW in their Opposition in support of their argument that Defendant’s creation of titles and headings and solicitation of comments and dissemination of information to attorneys serves to strip Defendant of any asserted immunity. MCW is easily distinguished on this issue in several ways. Nowhere in the Complaint in this matter have Plaintiffs made any claims pertaining to the creation of titles and headings by Defendant, let alone any injury suffered by Plaintiffs as a result of such headings. The Court in *550 MCW also found the defendants to be information content providers, however the active conduct alleged pertaining to the defendants in that matter are far more severe and sufficiently distinct from the conduct alleged in the Complaint here. In MCW, the defendants were encouraging posters to take pictures to add to the website, and were actively soliciting postings. There have been no allegations as to any such active solicitation of information by Defendants in this matter.
Plaintiffs also argue that it is improper for the Court to consider this matter on a 12(b)(6) motion, arguing that the issue of immunity requires further factual development and goes to the merits of the claims. Plaintiffs’ pleadings selectively rely on the holdings of
MCW,
electing to ignore the statement by the court in that case that, “[t]he CDA, if applicable, is an appropriate ground for dismissal of the complaint under Rule 12(b)(6) because the Act would preclude MCW from establishing a set of facts that would entitle it to relief.”
Id.
at *7. Additionally the Fourth Circuit has held that “[a] motion to dismiss filed under Federal Rule of Procedure 12(b)(6), which tests the sufficiency of the complaint, generally cannot reach the merits of an affirmative defense.... But in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair Inc.,
The Court also finds Plaintiffs attempts to draw parallels between this matter and
Energy Automation Systems Inc. v. Xcentric Ventures LLC
unpersuasive and misguided. 306-1079
Generally when a court faces questions going to the merits of a case in a Rule 12(b)(2) motion, that motion may be converted to a Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim. In the present case, the defendants’ arguments on the merits rely on affidavits and other documents; the defendants do not argue that the Amended Complaint is deficient on its face. Therefore, in order for the court to consider the defendants’ arguments on the merit s, the defendants’ motion must be analyzed as a Motion for Summary Judgment.
*551 Id. at *14. The court implicitly acknowledged that a court could properly address this issue on a 12(b)(6) motion, and that it was precluded from doing so in that case 1) because it was before the Court on a 12(b)(2) motion; and 2) it could not convert the pleading into a 12(b)(6) motion because of the inclusion of additional extrinsic evidence by the parties.
The Court therefore holds that it is proper to evaluate Defendant’s immunity defense in the context of a 12(b)(6) motion because the necessary facts are apparent on the face of the Complaint, and that the immunity available under the CDA precludes Plaintiff from stating a claim of defamation or tortious interference with business expectancy in this instance.
The Court declines to address Defendant’s request to strike Counts I and II based on a request for punitive damages over the statutory cap because the issue is moot in light of the Court’s ruling on CDA immunity, and the issue is largely irrelevant at this stage in the litigation. Virginia trial courts are split on the issue of whether a request for damages in excess of the statutory cap preclude the associated action or merely require the court to reduce any award in excess of the cap.
See Paul v. Gomez
The Court finds that Plaintiffs lack standing to bring Counts III (unfair competition) and IV (false advertising) because regardless of which approach the Court takes to the issue of standing, the fact that the parties are not competitors and that this claim is not within the type of injury that the Lanham Act seeks to prevent, precludes Plaintiffs from bringing their claims based on Defendant’s use of the term “consumer affairs” under the Lanham Act. “Standing jurisprudence contains two strands: Article III standing, which enforces the Constitution’s case-or-controversy requirements ... and prudential standing, which embodies judicially self-imposed limits on the exercise of federal jurisdiction.”
Elk Grove Unified Sch. Dist. v. Newdow,
The Third, Fifth and Eleventh Circuits have adopted a five factor test for determining prudential standing to bring claims under the Lanham Act. In conducting this inquiry the Court must assess the following five issues: 1) whether the injury alleged is of a type that Congress sought to
*?
redress in
the
Lanham
Act; 2)
how directly the defendant’s conduct affected the plaintiff; 3) the proximity of the Plaintiff to the allegedly harmful conduct — more specifically if there is an identifiable class of people with a self-interest in vindicating the public interest who are better suited to bring this claim; 4) how speculative damages would be; and 5) the risk of duplicative damages or the complexity of apportioning damages.
Conte Bros. Auto. Inc. v. Quaker State-Slick 50 Inc.,
Looking briefly to the tests for prudential standing on Lanham Act claims applied by other circuits, the Court finds that Plaintiffs lack standing under any criteria that the Fourth Circuit is likely to employ. The Seventh, Ninth and Tenth Circuits utilize what is known as the categorical test, wherein the plaintiffs must show that they have suffered a commercial injury based upon a misrepresentation and the injury harms the plaintiffs’ ability to compete with the defendant.
Jack Russell Terrier Network of N. Ca. v. Am. Kennel Club, Inc.
Finally, the First and Second Circuits have adopted the reasonable interest test, wherein the plaintiff must have a reasonable interest to be protected
against the type of harm that the Lanham Act is intended to prevent. Ortho Pharm. Corp. v. Cosprophar, Inc.,
Plaintiffs have cited to
Made in the USA Foundation v. Phillips Foods
as being the controlling case in the Fourth Circuit on this matter and as standing for the proposition that “[i]n the Fourth Circuit, the touchstone of the analysis of Lanham Act standing is whether the claimant is trying to protect purely commercial interests against unscrupulous commercial conduct.” (Pl.Opp.16)(referencing
Ultimately, the Court finds that regardless of which existing standard for prudential standing were to be applied to this Lanham Act claim, the Court would be forced to find that Plaintiffs lack standing because they are not in competition with Defendant and their alleged injury is not of the sort that the Lanham Act sought to prevent.
Alternatively, the Court finds that even were it to concede that Plaintiffs had standing to bring their claims, that they would still be dismissed on this 12(b)(6) motion for failure to state a claim on the unfair competition claim because the parties are unrelated as a matter of law, and on the false advertising claim because the
*554
representations at issue do not constitute commercial advertising as required to state a claim for false advertising under the Lanham Act. In the Fourth Circuit, in analyzing a claim for unfair competition under the Lanham Act the court must look at: 1) type of mark allegedly infringed; 2) similarity between the two marks; 3) similarity of the products or services; 4) identity of the retail outlets and purchasers; 5) identity of the advertising media used; 6) defendant’s intent; and 7) evidence of actual confusion.
Lone Star Steakhouse & Saloon, Inc. v. Alpha ofVa. Inc.,
Finally the Court finds that even if Plaintiffs were found to have standing to bring their false advertising claim under the Lanham Act, that this claim must be dismissed for failure to state a claim because it has not been, and cannot be, alleged that the representations at issue constitute commercial advertising as required to state a claim of false advertising. The elements of a claim of false advertising under the Lanham Act are: 1) defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another’s product; 2) the misrepresentation is material, in that it is likely to influence the purchasing decision; 3) the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience; 4) the defendant placed the false or misleading statement in interstate commerce; and 5) plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.
Scotts Co. v. United Indus. Corp.,
III. CONCLUSION
This Court holds that Defendant Con-sumeraffairs.com is immune from Plaintiffs Nemet Chevrolet and Nemet Motors’ claims for defamation and tortious interference under the Communications Decency Act because the statements at issue were provided by a separate information content provider and Defendant was merely a interactive computer service as it pertains to these statements. Furthermore, the Court holds that Plaintiffs lack standing to bring their claims under the Lan-ham Act, and that alternatively, they have failed to state a claim under the Act because the parties are unrelated as a matter of law and because the parties are not in commercial competition.
For the foregoing reasons, it is hereby
ORDERED that Defendant Consumer-affairs.com’s Motion to Dismiss or Strike Complaint is GRANTED. This case is dismissed.
The Clerk is directed to forward a copy of this Order to counsel.
Notes
. The Fourth Circuit has not presently adopted any of these approaches.