Case: 2:09-cv-00219-WOB-CJS Doc #: 177 Filed: 03/07/13 Page: 1 of 20 - Page ID#: 2676

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON SARAH JONES, a/k/a/ JANE DOE, Plaintiff, v. DIRTY WORLD ENTERTAINMENT RECORDINGS LLC, et al., Defendants. DEFENDANTS RENEWED MOTION FOR SUMMARY JUDGMENT AND, ALTERNATIVELY, MOTION FOR LEAVE TO TAKE INTERLOCUTORY APPEAL PURSUANT TO 28 U.S.C. 1292(b) Case No. 2:09-cv-00219-WOB Judge William O. Bertelsman

All orders made during pending litigation (except for an order terminating the entire action and resolving all claims against all parties) are necessarily non-final. Pursuant to Rule 54(b), all non-final orders may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties rights and liabilities. Fed. R. Civ. P. 54(b) (empahsis added). Thus, Rule 54(b) allows a court to change its mind as to any ruling at any time before the case is over. As permitted by Rule 54(b), this motion asks the Court to change its mind with respect to the order dated January 10, 2012 (Doc. #76) which found Defendants were not entitled to immunity under the Communications Decency Act. Since that time, events have occurred which clearly show the Courts original decision was wrong -wrong as a matter of law and wrong as a matter of evidence. Because the order mistakenly denying CDA immunity was non-final, it is subject to revision at any time under Rule 54(b). Because the Courts original order was erroneous, it should be corrected -- by granting summary judgment in favor of Defendants. If the Court rejects this argument, then in the alternative Defendants request an order certifying this matter for an immediate interlocutory appeal pursuant to 28 U.S.C. 1292(b). Each of these points are explained fully herein. 1

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I.

INTRODUCTION Before discussing the specific reasons why the Courts prior CDA decision

was incorrect, it is important to stop and consider a few big picture points, not the least of which is thissince the CDA was first enacted in 1996, there have been approximately 300 reported decisions addressing immunity claims advanced under 47 U.S.C. 230 in the lower federal and state courts. Hill v. Stubhub, Inc., 727 S.E.2d 550, 558 (N.C. App. 2012) (empahsis added). Of those 300 cases, only one has ever gone to trialthis case. The remaining matters were all resolved by dispositive motion, approximately 99% in favor of the defendant with only a tiny fractionless than 1%ending in plaintiffs favor.1 By itself, this astonishing statistic should cause serious concernhow could 300 different courts (including many federal circuit courts) view the same 26-word statute and reach exactly the opposite conclusion from the one this court reached? The answer is not due to any unique facts of this case. Indeed, many other cases involved facts that were immeasurably worse. Other plaintiffs targeted by online posts have been raped,2 stalked,3 arrested,4 received death threats,5 and have even been shot.6 Yet in every instance the courts have steadfastly refused to permit emotion or sympathy for the plaintiff to affect the application of a crystal-clear federal statute.

Despite being nearly 100% unanimous in favor of protecting website owners, these statistics are actually misleading because one of the rare pro-plaintiff rulingsFair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008)was recently terminated in favor of the defendant, thus demonstrating that the prior ruling denying CDA immunity to the website owner in that case was incorrect. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 666 F.3d 1216 (9th Cir. 2012) (finding website owner did not violate Fair Housing Act by asking users to answer questions in connection with rental service). 2 See Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008). 3 See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) 4 See Doe v. SexSearch.com, 502 F.Supp.2d 719 (N.D.Oh. 2007) (affd on other grounds, 551 F.3d 412 (6th Cir. 2008)). 5 See Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997). 6 See Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y. 2009). 2

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This Court must do the same, and this means the Court must reconsider and reverse its prior order for at least three different reasons. First, the Court simply misapplied the law and as a result it adopted the wrong legal standard. If the Court had applied the correct standard it would have had no choice but to enter summary judgment in favor of Defendants. Second, the Court based its original decision on facts which were unsupported by any evidence and which were directly contrary to the undisputed evidence. Third and perhaps most importantly, the Courts original

decision was based on a legal theory that Plaintiff has since abandonedi.e., that Mr. Richie added his own defamatory content by asking: Why are high school teachers freaks in the sack? Ms. Jones previously argued this comment was independently defamatory, and the Court apparently accepted that position when it determined that Mr. Richie was not protected by the CDA. Since then, Ms. Jones has completely changed her position. She no longer argues that Mr. Richies freak in the sack comment was actionable because she now concedes the statement was absolutely true. Based on this change, the only remaining actionable material is nothing more than content submitted to www.thedirty.com by third parties without the slightest contribution or participation by Defendants. Under the crystal-clear standards of the CDA, Defendants are entitled to absolute immunity for publishing such content. For that reason, summary judgment must be entered in favor of Defendants. However, if the Court disagrees with this conclusion, rather than forcing both parties to endure the cost and emotional hardship of a second trial, the Court should instead issue an order finding the matter appropriate for an immediate interlocutory appeal pursuant to 28 U.S.C. 1292(b). Such a result would provide a quick and efficient way for the Court of Appeals (and perhaps the U.S. Supreme Court) to review the CDA and resolve any ambiguity as to its application. Resolving that question is essential to the final disposition of this matter, so an interlocutory appeal should be granted if the Court disagrees with Defendants interpretation of the law. 3

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II.

ARGUMENT a. The Courts Prior Order Denying CDA Immunity Was Based On An Incorrect Legal Standard Before discussing the specific reasons why the Courts prior CDA ruling was

incorrect, it is important to step back and review the normal three-part legal test used by virtually all courts when determining whether CDA immunity applies. This test asks three simple yes-or-no questions: 1.) 2.) 3.) Is the defendant a provider or user of an interactive computer service? Do the plaintiffs claims require treating the defendant as a publisher or speaker of information? And Was the allegedly actionable material provided by another information content provider?

See Courtney v. Vereb, 2012 WL 2405313, *4 (E.D.La. 2012) (setting forth test) (citing Smith v. Intercosmos Media Group, Inc., 2002 WL 31844907 (E.D.La. 2002)); see also Klayman v. Zuckerberg, 2012 WL 6725588, *3 (D.D.C. 2012) (reciting same 3-part test) (citing Parisi v. Sinclair, 774 F.Supp.2d 310, 31516 (D.D.C. 2011) (same) (citing Nemet Chevrolet, Ltd., v. Consumeraffairs.com, Inc., 564 F.Supp.2d 544, 548 (E.D.Va.2008), aff'd, 591 F.3d 250 (4th Cir. 2009)); see also FTC v. Accusearch, Inc., 570 F.3d 1187, 1196 (10th Cir. 2009) (discussing three elements of immunity); DiMeo v. Max, 433 F.Supp.2d 523, 529 (E.D.Pa. 2006) (same). If the answer to all three questions is yes, then the defendant is immune under the CDA. Appling this simple test here is exceptionally easy. First, Mr. Richie and Dirty World operate the website www.thedirty.com. As such, they are providers of an interactive computer service; Courts generally conclude that a website falls within the definition of an interactive computer service. Zuckerberg, 2012 WL 6725588, *3 (holding Facebook founder Mark Zuckerberg entitled to immunity under the CDA) (quoting Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 473 (E.D.N.Y.2011) (collecting cases from the First, Fourth, and Ninth Circuits)); see also Universal 4

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Comm. Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (explaining web site operators ... are providers of interactive computer services because [a] web site ... enables computer access by multiple users to a computer server, namely, the server that hosts the web site.) Because Mr. Richie and Dirty World operate an interactive website, it is undisputed the answer to the first question is YES. The second question asks whether the plaintiffs claims require treating the defendant as either a publisher or speaker of information. Little need be said on this point because Ms. Joness defamation claim fits squarely in that category. See Collins v. Purdue Univ., 703 F.Supp.2d 862 (N.D.Ind. 2010) (finding CDA applies to defamation claims because such claims require proof that the defendant published something); see also Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th Cir. 2009) (noting, The cause of action most frequently associated with the cases on section 230 is defamation.) Because Ms. Jones defamation claim treats Defendants as publishers/speakers, the answer to the second question is also YES. The final question asks whether the actionable material was provided by another information content provider; i.e., a third party. If yes, then the inquiry ends and the website owner is entitled to absolute immunity under the CDA. See Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929, 933 (D.Ariz. 2008) (explaining, Through the CDA, Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.) (empahsis added); see also Barrett v. Rosenthal, 40 Cal.4th 33, 62, 146 P.3d 510, 529 (Cal. 2006) (holding that By declaring that no user may be treated as a publisher of third party content, Congress has comprehensively immunized republication by individual Internet users.) Here, despite Plaintiffs flagrant disregard for the truth, the evidence is undisputedevery aspect of her defamation claim is based entirely on content created solely by third parties without even the slightest participation by Mr. Richie or Dirty World. This is precisely the scenario in which CDA immunity applies; A Web site 5

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is generally not a content provider with respect to comments posted by third-party users. We reject [plaintiffs] contention that defendants should be deemed content providers because they created and ran a Web site which implicitly encouraged users to post negative comments ... . Creating an open forum for third parties to post contentincluding negative commentaryis at the core of what section 230 protects. Shiamili v. The Real Estate Group of New York, Inc., 952 N.E.2d 1011, 1018, 17 N.Y.3d 281, 290 (N.Y. 2011) (empahsis added). The fact that Mr. Richie acts as an editor or publisher by choosing which posts to publish and which posts to remove is absolutely irrelevant to this analysis; In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didnt edit or delete. Roommates.com, 521 F.3d at 1163. See also Ben Ezra, Weinstein, and Company, Inc. v. America Online Inc., 206 F.3d 980, 986 (10th Cir. 2000) (holding, Congress clearly enacted 230 to forbid the imposition of publisher liability on a service provider for the exercise of its editorial and selfregulatory functions.) Again, the third prong of the test is concerned only with the source of the allegedly defamatory speech. If the source was a third party who acted independently, then the website owner is immune. See Global Royalties, supra, 544 F.Supp.2d at 933 (explaining, Through the CDA, Congress granted most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party.) (empahsis added). In sum, applying the CDAs three-part test to the facts of this case shows that Defendants are entitled to immunity because the answer to all three questions is YES1.) YES, Defendants operate an interactive website; 2.) YES, Ms. Jones seeks to hold Defendants responsible for publishing material; and 3.) YES, all of the material Ms. Jones claims to be actionable was submitted to the site by a third party. For this reason, Defendants are entitled to CDA immunity. 6

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b. Comments re: S.C. v. Dirty World, 2012 WL 3335284 (W.D.Mo.) At the Court will recall, at the close of Plaintiffs evidence at trial, Defendants moved for judgment as a matter of law based on, inter alia, CDA immunity. As part of that discussion, Defendants informed the Court that after it denied immunity in January 2012, a different federal court in Missouri reviewed a case arising from a posting on www.thedirty.com and reached exactly the opposition conclusionthe Missouri court held that Mr. Richie and Dirty World were protected by the CDA. That case was S.C. v. Dirty World, LLC, 2012 WL 3335284 (W.D.Mo. 2012). The facts of S.C. were basically identical to the facts here. In S.C. a third party submitted a post to www.thedirty.com with comments about the plaintiff which she alleged were defamatory. In keeping with his usual practice, after selecting and approving the post for publication, Mr. Richie added a short one-line, non-defamatory comment about the plaintiffs appearance, observing: Her gumlines as big as her teeth, thats amazing.-nik. 2012 WL 3335284, *1. Mr. Richies comment was based on a photograph of the plaintiff included in the post which showed the plaintiff smiling widely. Defendants immediately moved for summary judgment. The motion argued the CDA applied because Mr. Richies comment about the plaintiffs teeth/gums was non-defamatory and thus the only allegedly actionable content was from a third party who submitted the post without any specific encouragement or instruction from Defendants. Not surprisingly, because the summary judgment motion in the Missouri case was filed after this Courts January 2012 order denying immunity, the plaintiff in S.C. argued that the Missouri court should adopt this Courts legal analysis and find that Defendants were not protected by the CDA. The Missouri court rejected this request and refused to follow this Courts decision. Instead, the court found that Mr. Richie and Dirty World were entitled to CDA protection. 7

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In reaching that conclusion, the Missouri court extensively reviewed and analyzed this Courts ruling and found that it was flawed in several major ways. First, the Missouri court recognized the three main reasons this Court offered for its denial of immunity: 1.) The name of Defendants website (www.thedirty.com); 2.) The manner in which Mr. Riche manages the site; and 3.) The personal comments Mr. Richie added to the posts about Ms. Jones. The Missouri court then rejected this Courts analysis because it found that these reasons were either legally incorrect or factually unsupported. explained further below. i. A Websites Name Is Irrelevant To CDA Immunity First, the Missouri court explained: the CDA focuses on the specific content at issue and not the name of a website. Id. at *5 (empahsis added) (citing Global Royalties, supra , 544 F.Supp.2d at 933 (holding that website called Each point is

www.ripoffreport.com might encourage third parties to post defamatory content, but concluding, there is no authority for the proposition that this makes the website operator responsible, in whole or in part, for the creation or development of every post on the site.)). To be clearin more than 300+ reported CDA cases, no court anywhere (except this Court) has ever found that the name of the defendants website affects the sites immunity under the CDA. In fact, every court to consider that same argument has rejected it, holding that the name of a website has no bearing on the sites CDA immunity. See Global Royalties, supra, see also Whitney Information Network, Inc. v. Xcentric Ventures, 2008 WL 450095 (M.D.Fla. 2008) (same); Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 473 (E.D.N.Y. 2011) (rejecting argument that website named www.pissedconsumer.com was responsible for every post on site); Shiamili, supra, 952 N.E.2d 1011, 17 N.Y.3d 281, 2011 WL 2313818 (N.Y. 2011) (holding website called www.shittyhabitats.com was entitled to CDA immunity). 8

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The reasons for this rule are clearjust because a website has a controversial or evocative name does not mean that 100% of all content on the site is always tortious nor is there any evidence to support that conclusion in this case. Rather, the undisputed facts show that www.thedirty.com contains substantial amounts of nontortious material including generic news stories on a wide variety of topics such as President Obama, Mitt Romney, Vice President Biden, sports, politics, and so forth. Examples of such content were submitted with Mr. Richies prior summary judgment affidavit (Doc. #64-2) and additional examples are included with this motion. Furthermore, if a websites name was somehow relevant to its CDA immunity, this would lead to freakish (and almost certainly unconstitutional) results where the owner of a website with a benign name such as www.TheClean.com would be entitled to absolute immunity for publishing the exact same content that appears on www.TheDirty.com while Mr. Richie and Dirty World are denied immunity simply because the Court disliked the name of their site. Nothing in the plain language of the CDA would support such an arbitrary and capricious result. Furthermore, granting or withholding immunity based on a websites name ignores the fact that offensive material is extremely common on virtually all sites that allow user-generated comments, even if the website name is unquestionably benign like www.facebook.com or www.google.com. This is because the nature of third party comments depends entirely on the viewpoint of the author, not the name of the forum in which the authors comment is posted. This point is easily demonstrated. For example, in late 2012 Ms. Jones filed a new lawsuit against the Cincinnati Enquirer accusing it of defamation based on a news article it published in March 2012. The article reported that Ms. Jones was charged with having sex with one of the students at Dixie Heights High School (the same crime to which Ms. Jones later pleaded guilty). Not surprisingly, because the facts reported in the story were true, Ms. Jones lawsuit against the Enquirer was subsequently dismissed. 9

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As it often does, the Enquirer posted a story about the lawsuit on its website:http://news.cincinnati.com/article/20130129/NEWS0103/301290128/Lawsuit -accusing-Enquirer-libel-Jones-case-dismissed. As most websites do (including

www.thedirty.com) the Enquirer allowed users to post comments expressing their opinions and thoughts about the story. In light of Ms. Jones odd decision to file a defamation lawsuit based on a news article which was completely true, virtually all of the comments on the Enquirers website are harshly critical of Ms. Jones and her lawyer. In particular, one person referred to Plaintiffs counsel as a filthy scum bag and a liar and stated that Jones is a known whore and a spreader of disease.

These comments are, of course, virtually identical to those posted on www.thedirty.com which Ms. Jones seeks to impose liability on Mr. Richie for publishing. Thus, it is clear that the name of the website where the comments were posted (www.cincinnati.com) played no role in encouraging the caustic nature of the commentsthe harsh comments were simply expressions of the readers view of the story and the people involvedexactly as is true of www.thedirty.com. Of

course, as the operator of an interactive website which allows third parties to post 10

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comments, the Cincinnati Enquirer is entitled to CDA immunity for such comments. See Collins, supra, 703 F.Supp.2d at 87879 (finding newspaper owner was entitled to CDA immunity for reader comments about news article posted on its website). Thus, it is improper to suggest that CDA immunity should turn on the name of the website at issue. Such a rule would produce unfairly arbitrary results and would create such a large and vague exception to the CDA that the law would be rendered virtually useless. By the same logic, courts have consistently held that website owners cannot be denied immunity merely because they created a category for content that might be potentially illegal. For instance, in Chicago Lawyers Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008) the Seventh Circuit rejected the argument that the website www.craigslist.org could be held responsible for causing unlawful discriminatory content to be posted on its site: Doubtless craigslist plays a causal role in the sense that no one could post a discriminatory ad if craigslist did not offer a forum. That is not, however, a useful definition of cause. One might as well say that people who save money cause bank robbery, because if there were no banks there could be no bank robberies. (emphasis added). Courts have used the same logic to conclude that www.craigslist.org is also not responsible for causing advertisements for prostitutes merely because it features an adult services category on its website; Section 230(c)(1) would serve little if any purpose if companies like Craigslist were found liable under state law for causing or inducing users to post unlawful content in this fashion. Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 969 (N.D.Ill. 2009). The same is true here. There is absolutely nothing per se unlawful about the name of Defendants website www.thedirty.com. Moreover, there is nothing per se unlawful about suggesting that Ms. Jones (or any other person) is dirty; this word is simply is a non-actionable expression of opinion. See Dyer v. Dirty World, LLC, 2011 WL 2173900, *4 (D.Ariz. 2011) (granting summary judgment in favor of Mr. 11

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Richie and Dirty World as to claims arising from post on www.thedirty.com because No reasonable viewer of Defendants website would conclude that Mr. Ritchies comments represented anything but the authors highly subjective opinion about Plaintiff.) In addition, even if the term dirty was somehow independently actionable, Mr. Richie and Dirty World would still be entitled to CDA immunity because the decision to post a story about Ms. Jones on www.thedirty.com was made solely by the third party author(s) who created the posts. In other words, Mr. Richie had nothing to do with the decision to call Ms. Jones dirtythat choice was made solely by the third party author who decided to submit a post about Ms. Jones. Again, this is precisely the situation where CDA immunity applies. See Whitney Information Network, Inc. v. Xcentric Ventures, 2008 WL 450095, *10 (M.D.Fla. 2008) (explaining, the mere fact that [defendant] provides categories from which a poster must make a selection in order to submit a report on the [ripoff report] website is not sufficient to treat Defendants as information content providers of the reports about WIN that contain the con artists, corrupt companies, and false TV advertisements categories. [citations] Rather, the authors of the postings made the decision to select these categories to describe [plaintiff].) (empahsis added). In sum, this Court erred when it concluded that the name of Defendants website somehow affected their immunity under the CDA. That aspect of the Courts decision was without merit and it should be reversed. ii. Mr. Richies Editorial Conduct Is Absolutely Protected The second basis for this Courts denial of CDA immunity was the manner in which [www.thedirty.com] is managed. On this point, the Court offered the

following clarification: Richie acts as editor of the site and selects a small percentage of submissions to be posted. He adds a tagline. He reviews the postings but does not verify their accuracy. If someone objects to a posting, he decides if it should be 12

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removed. It is undisputed that Richie refused to remove the postings about plaintiff that are alleged to be defamatory or an invasion of privacy. These observations closely echoed the arguments of Plaintiffs counsel throughout this proceedingi.e., that because Mr. Richie screens, reviews, and selects content, he is acting like an editor and therefore he cannot deny responsibility for the material he edits. This conclusion is literally the opposite of the law; The CDA protects the exercise of a publishers traditional editorial functionssuch as deciding whether to publish. S.C., 2012 WL 3335284, *1 (quoting Zeran v. American Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). This aspect of the courts decision is further supported by the Ninth Circuits decision in Roommatesany activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230. Roommates.com 521 F.3d at 117071. To be clearthroughout this proceeding Ms. Jones counsel has argued ad nauseum that Mr. Richie cannot invoke CDA immunity because he engages in editorial conduct such as selecting what posts to publish, choosing which posts to remove, choosing which posts not to remove, editing content submitted by users, adding his own commentary, etc. By picking and choosing content submitted by users, Plaintiffs counsel feels that Mr. Richie is acting like an editor or publisher and thus he must be accountable for everything appearing on www.thedirty.com. In an off-line context (or in an online context prior to 1996), this argument would entirely correctwebsites are treated differently than newspapers, magazines or television and radio stations, all of which may be held liable for publishing obscene or defamatory material written or prepared by others. S.C., 2012 WL 3335284, *2. However, since the CDA was adopted in 1996, websites are no longer subject to the same liability standards as newspapers or magazines. For that reason, Mr. Richies editorial practices have no impact on his immunity claim. On the contrary, these practices require a finding that Mr. Richie is protected by the CDA even if his 13

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imperfect screening results in offensive or defamatory content being published on the site; In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted. Blumenthal v. Drudge, 992 F.Supp. 44, 52 (D.D.C. 1998) (empahsis added). Thus, Plaintiff simply misses the point when she mistakenly argues that Mr. Richies role in screening, reviewing, and removing of content weighs against his claim to CDA immunity. On the contrary, the opposite is truethe cases are 100% unanimous without any exceptionsthis sort of editorial conduct is absolutely protected under the CDA: Congress enacted 230 to remove the disincentives to self-regulation created by the [Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995)] decision. Under that courts holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted 230's broad immunity to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material. 47 U.S.C. 230(b)(4). In line with this purpose, 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions. Zeran, 129 F.3d at 331 (empahsis added). The CDA was enacted to specifically encourage this sort of editorial conduct, not to punish it (as Ms. Jones seeks to do). Thus, immunity is never lessened by a website owners decision to screen or moderate content. On the contrary, the core purpose of the CDA was to permit website owners to actively review and monitor third party content so they might block or remove at least some blatantly inappropriate content without fear of being sued for anything that remained: a central purpose of the Act was to protect from liability 14

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service providers and users who take some affirmative steps to edit the material posted. Also, the exclusion of publisher liability necessarily precludes liability for exercising the usual prerogative of publishers to choose among proffered material and to edit the material published ... . Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003). For that reason, courts are unanimous in holding that a website owner can never lose immunity by engaging in editorial conduct like picking which posts to publish and which to reject. See Green v. America Online, Inc., 318 F.3d 465, 471 (3rd Cir. 2003) (holding plaintiffs claims were barred by the CDA because plaintiff thus attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network - actions quintessentially related to a publishers role. Section 230 specifically proscribes liability in such

circumstances.) (empahsis added) (quoting Zeran, supra). For the same reasons, the CDA also protects a website owner even if he refuses remove material upon notice or demand; immunity is not vitiated because a defendant fails to take action despite notice of the problematic content. Black v. Google, 2010 WL 3222147, *3 (N.D.Cal. 2010) (citing Universal Commc'ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 420 (1st Cir. 2007) (It is, by now, well established that notice of the unlawful nature of the information provided is not enough to make it the service providers own speech.); Zeran, 129 F.3d at 333 (Liability upon notice would defeat the dual purposes advanced by 230 of the CDA.)); see also Global Royalties, 544 F.Supp.2d at 932 (finding owner of www.ripoffreport.com remained protected by the CDA even after refusing to remove allegedly defamatory posts); Giordano v. Romeo, 76 So.3d 1100 (Fla. 3d Dist. 2011) (same); Shrader v. Biddinger, 2012 WL 97632, *8 (D.Colo. 2012) (finding CDA applied even though defendants did not remove the posting when they were alerted ... to plaintiffs assertion that the posting was defamatory. The court agrees with the ... defendants that such conduct as asserted is precisely the type of conduct that is protected by the CDA.) (empahsis added); Mmubango v. Google, Inc., 2013 WL 664231, *3 (E.D.Pa. 2013) (holding 15

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Google entitled to CDA immunity even though it refused to remove defamatory content; Google cannot be held liable for state law defamation on the facts that it decided to publish a third partys statements, which has been identified by the Third Circuit as a traditional editorial function. In the same vein, Google cannot be held liable for failing to withdraw this statement once it has been published.) As this authority shows, this Courts decision to deny CDA immunity because of the manner in which Mr. Richie moderates, reviews and screens content was fundamentally wrong in every respect. Denying immunity on this basis is equivalent to repealing the CDA entirely because it has the effect of punishing Mr. Richie for doing exactly what Congress encouraged website owners to do. iii. Mr. Richies Own Comments Are Non-Actionable The sole remaining difference between S.C. and this case was Ms. Jones previous argument that Mr. Richies own words (Why are all high school teachers freaks in the sack?) were defamatory. In order to gain a tactical advantage by preventing Defendants from relying on text messages which could show this comment was true, Ms. Jones has withdrawn that part of her claim. As such, the facts of this case are now identical to the facts in S.C.. To reiterate that courts holding: [T]he Court finds that the Defendants did not materially contribute to the development of the Church Girl Post. Most importantly, it is undisputed that the Church Girl Post was unilaterally drafted and submitted by a third-party. The Defendants have further established that (a) they did nothing to induce a post specifically directed at the Plaintiff; (b) Richie does not personally know and has never knowingly spoken to the author of the Church Girl Post; (c) Richie had never heard of the Plaintiff prior to commencement of this action; and (d) the Defendants did not add to or otherwise alter the substance of the post. In addition, the Website does not require the posting of actionable material, and it does not pay for such information. To the contrary, users of the Website may submit posts on any topic. S.C., 2012 WL 3335284, *3. 16

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All of these same facts are present here. For that reason, this Court should find that Defendants are immune under the CDA; In sum, a third party unilaterally created and submitted the [post about the plaintiff] without specific instructions or requests from the Defendants to do so. This is precisely the type of situation that warrants CDA immunity. S.C., 2012 WL 3335284, *4 (citing Doe v. MySpace, Inc., 528 F.3d 413, 419 (5th Cir. 2008) ([S]o long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process.) c. If Summary Judgment Is Denied, Permission To Immediately Appeal Under 28 U.S.C. 1292(b) Should Be Granted If this Court decides not to enter summary judgment in favor of Defendants, then is should issue an order finding that the matter is appropriate for an immediate interlocutory appeal pursuant to 28 U.S.C. 1292(b). To grant such relief, four elements must be established: (1) the question involved must be one of law; (2) it must be controlling; (3) there must be substantial ground for difference of opinion about it; and (4) an immediate appeal must materially advance the ultimate termination of the litigation. Cardwell v. Chesapeake & Ohio Railway Co., 504 F.2d 444, 446 (6th Cir. 1974). Each of these factors are clearly present here. As has been previously

explained, the application of the CDA is a question of law for the Court and the law is clearly controlling. Although Defendants believe the CDA is so clear as to leave no room for any difference of opinion, this Court rejected that conclusion thereby showing that there apparently is some basis for reasonable minds to differ. Of course, a resolution of the CDA issue would clearly advance the ultimate termination of the litigation. On these points, it is important to note the relief Defendants request here is essentially identical to that discussed in Hill v. StubHub, Inc, 727 S.E.2d 550 17

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(N.C.App. 2012).

In that case, the defendant ran a website that permitted users to

buy and sell tickets for concerts and sporting events. The website owner was sued for violating a local anti-scalping law, but it moved for summary judgment arguing that it was entitled to immunity under the CDA. The trial court rejected that

argument and found the defendant lost CDA immunity by designing and operating its website in a manner that assisted third parties in violating the anti-scalping law. This reasoning was closely analogous to this Courts view of the CDA. Although orders denying summary judgment are generally interlocutory and thus non-appealable, the North Carolina court found that the interpretation of the CDA raised important questions of controlling law which were matter of first impression for that state. As such, after it denied defendants motion for summary judgment immunity, the court allowed the defendant to immediately appeal. Notably, after reviewing the law and the trial courts interpretation of the CDA, the appeals court found that the trial courts decision was wrong. It therefore reversed and remanded with an instruction to enter summary judgment in favor of the website operator. See Hill, 727 S.E.2d at 564. Defendants are confident this same result would occur here. By the same logic, if this Court refuses to reconsider its denial of CDA immunity Defendants must be allowed to seek immediate appellate review. As noted at the start of this motion, in more than 300 published CDA cases, this is the only case ever to result in a website owner being taken to trial for publishing content posted by a third party. Having already been unfairly burdened with the costs of defending one trial, fairness mandates that Defendants should not suffer through a second trial, the outcome of which will likely be no different than the first. Such a result would be an affront to the clear command of Congress which sought to prevent exactly this result; Section 230 therefore sought to prevent lawsuits from shutting down websites and other services on the Internet. Batzel, 333 F.3d at 1028.

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For these reasons, if the Court is unwilling to reconsider its denial of CDA immunity, it should issue an order finding that the matter is appropriate for an immediate interlocutory appeal pursuant to 28 U.S.C. 1292(b). III. CONCLUSION

For the reasons stated above, Defendants motion should be granted and summary judgment should be entered in their favor. RESPECTFULLY SUBMITTED: March 7, 2013. NIK LAMAS-RICHIE DIRTY WORLD, LLC /s/ David S. Gingras Of Counsel
David S. Gingras, Esquire (admitted pro hac vice) GINGRAS LAW OFFICE, PLLC 4025 E. Chandler Blvd., #70-A26 Phoenix, AZ 85048 480.668.3623 And Alexander C. Ward, Esquire HUDDLESTON BOLEN LLP 855 Central Avenue, Suite 301 P.O. Box 770 Ashland, KY 41105 606.329.8771 Counsel for Defendants Nik Lamas-Richie and Dirty World, LLC Alexis B. Mattingly, Esquire HUDDLESTON BOLEN LLP 611 Third Avenue P.O. Box 2185 Huntington, WV 25722-2185 304.529.6181

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CERTIFICATE OF SERVICE

I hereby certify that on March 7, 2013, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all counsel of record.

/s/ David S. Gingras Counsel for Defendants, Dirty World, LLC and Nik Lamas-Richie

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