Count One alleges that SexSearch breached its contract with Doe by permitting minors to become members of its service
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).
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
As noted above, 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.
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). 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. 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.” 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
Count Two alleges that SexSearch fraudulently represented that “all persons on its site are ’18+’ years of age,” and that it “verifies all members profiles prior to posting.” Compl. ¶¶ 301, 302, J.A. at 47. This allegation stems from a warning on SexSearch stating that “all persons within this site are 18+.” To state a claim of fraud, plaintiff must allege: (a) a representation (b) that is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. Orbit Elecs., Inc. v. Helm Instrument Co., 167 Ohio App.3d 301, 855 N.E.2d 91, 100 (Ohio Ct.App.2006). The most obvious deficiency comes from the requirement of justifiable reliance upon the representation. As noted, the Terms and Conditions expressly disclaim responsibility for verifying members’ ages. They also state that no “information, whether oral or written, obtained by you from SexSearch or through or from [sic] SexSearch shall create any warranty not expressly stated in the TAC.” Furthermore, having registered for the site himself, Doe knew that SexSearch merely required http://www.hookupdate.net/it/grindr-recensione/ a user to check a box stating that he or she is at least eighteen, with no corroborating evidence required from the user and no attempt at verification made by SexSearch. As a result, there could be no justifiable reliance on the warning, and thus Count Two does not state a claim for fraudulent representation.
