Slip CopyPage 1Slip Copy, 2009 WL 62173 (N.D.Tex.)
(Cite as: 2009 WL 62173 (N.D.Tex.))
Only the Westlaw citation is currently available.United States District Court, N.D. Texas, DallasDivision.GW EQUITY LLC, Plaintiff,v.
XCENTRIC
VENTURES LLC, et al., Defendants.
Civil Action No. 3:07-CV-976-O.
Jan. 9, 2009.John T. Cox, III,Angela V. Colmenero,Lynn
Tillotson & Pinker, Dallas, TX, for Plaintiff.Jeffrey Scot Seeburger , Kane Russell Coleman &Logan, Dallas, TX,Maria Crimi Speth,Jaburg &
Wilk PC, Phoenix, AZ, for Defendant.
MEMORANDUM OPINION AND ORDER RESOLVING OBJECTIONS AND AFFIRMING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
REED O'CONNOR , District Judge.
*1
On June 2, 2008, this Court referred Defendants'Motion for Summary Judgment (Doc. # 164) to themagistrate judge for recommendation.
See
Order of Reference (Doc. # 225). On October 8, 2008, themagistrate judge found that Defendants pointed to theabsence of a genuine issue of material fact, and thatPlaintiff failed to raise an issue, regardingDefendants' immunity under the CommunicationsDecency Act (“CDA”). Based on this finding, themagistrate judge recommended that this Court grantDefendants' Motion for Summary Judgment becausePlaintiff's claims are barred, as a matter of law, by theCDA. Plaintiff filed a timely objection to themagistrate judge's findings and recommendation.Having determined
de novo
those parts of themagistrate judge's findings and recommendation towhich Plaintiff has objected, the Court affirms themagistrate judge's order and
GRANTS
Defendants'Motion for Summary Judgment.
I. Background
FN1. A detailed summary of the underlyingfacts is provided within the magistrate judge's Findings and Recommendationregarding Defendants' Motion for SummaryJudgment, as well as the magistrate judge'sFindings and Recommendation regardingPlaintiff's motion for sanctions.
See
Doc. Nos. 241, 242 (3:07-CV-976-O) (N.D.Tex.Oct. 8, 2008).Plaintiff GW Equity (“Plaintiff”) is a mergers andacquisition firm which acts as a consultant to business owners who seek to sell or merge their business. Doc. No. 109 (3:07-CV-976-O) (N.D.Tex.Mar. 20, 2008) (“Amd.Compl.”). Defendant XcentricVentures, LLC operates a website known as “TheRip-Off Report,” which is located atwww.ripoffreport.com andwww.badbusinessbureau.com (“websites”). Doc. No.166 (3:07-CV-976-O) (N.D.Tex. Jun. 2, 2008)(“Defs' Appx”).
Defendant Edward Magedson isthe manager of Xcentric Ventures, LLC.
Id.
Plaintiff alleges Xcentric Ventures LLC,www.ripoffreport.com,www.badbusinessbureau.com, and EdwardMagedson (collectively “Defendants”) publisheddefamatory reports about Plaintiff on their websites,and developed, wrote, created, edited, and publishedinformation contained in the titles and headings of the reports. Plaintiff demanded in writing thatDefendants remove these statements. Doc. No. 186(3:07-CV-976-O) (N.D.Tex. Jul. 7, 2008) (“Pl'sAppx.”).
Defendants refused and Plaintiff filed suiton June 1, 2007. Plaintiff brings claims for defamation/libel, interference with businessrelationship, business disparagement, disclosure of trade secrets and confidential information, and civilconspiracy, and asks the court to permanently enjoinDefendants from disseminating, using, or publishingdisparaging comments about Plaintiff. Amd. Compl.FN2. Defendants' appendix in support of itsmotion for summary judgment is found atdocket numbers 166 and 179, with all sealedmaterials at docket entry 179.FN3. Plaintiff's appendix is found at docketnumbers 186 and 205, with all sealedmaterials at docket entry 205.© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Slip CopyPage 2Slip Copy, 2009 WL 62173 (N.D.Tex.)
(Cite as: 2009 WL 62173 (N.D.Tex.))
Defendants move for summary judgment on all of Plaintiff's claims, alleging the undisputed evidenceshows that (1) Plaintiff has no admissible evidence tosupport its claims, and (2) Plaintiff's claims are barred by the Communications Decency Act,47 U.S.C. § 230(c)(1) (“CDA”). Doc. No. 164 (3:07-CV-976-O) (N.D.Tex. Jun. 2, 2008) (“Defs' Mot.”).Plaintiff responds that the CDA does not bar itsclaims because Defendants are “information content providers” in that they created and developed titlesand headings to the published reports regardingPlaintiff. Doc. No. 184 (3:07-CV-976-O) (N.D.Tex.Jul. 7, 2008) (“Pl's Resp.”). Plaintiff also argues thatDefendants are not entitled to CDA immunity because they profit by publication of defamatorycontent on their websites.
Id.
*2
On October 8, 2008, the magistrate judge foundthat the undisputed evidence before the Courtdemonstrates that Defendants are entitled toimmunity under the CDA.
See
Doc. No. 241 (3:07-CV-976-O) (N.D.Tex. Oct. 8, 2008) (“FRC”). Basedon this finding, the magistrate judge recommends thisCourt grant Defendants' Motion for SummaryJudgment.
Id.
Plaintiff objects on a variety of grounds.
See
Doc. No. 245 (3:07-CV-976-O)(N.D.Tex. Oct. 24, 2008) (“Pl's Obj.”). The Courtnow considers Plaintiff's objection.
II. Standard of Review
A district court must determine
de novo
any portionof the magistrate judge's conclusions andrecommendations on dispositive matters to which the parties have filed specific, written objections.
See
.Thedistrict court may accept, reject, or modify, in wholeor in part, those portions of the proposed findings andrecommendations.
See
III. Summary Judgment Standard
Summary judgment is proper when the pleadings andevidence on file show that no genuine issue exists asto any material fact and that the moving party isentitled to judgment as a matter of law. FED. R. CIV.
P. 56(c).“[T]he substantive law will identify whichfacts are material.”
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists “if theevidence is such that a reasonable jury could return averdict for the non-moving party.”
Id.
The movantmakes a showing that there is no genuine issue of material fact by informing the court of the basis of itsmotion and by identifying the portions of the recordwhich reveal there are no genuine material factissues.
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); FED. R.
CIV. P. 56(c).Once the movant makes this showing, the non-movant must then direct the court's attention toevidence in the record sufficient to establish thatthere is a genuine issue of material fact for trial.
. To carry this burden, the“opponent must do more than simply show ... somemetaphysical doubt as to the material facts.”
538 (1986). Instead, the non-movant must show thatthe evidence is sufficient to support a resolution of the factual issue in his favor.
249. Neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden.
(en banc);
Cir.1992).The party opposing summary judgment isrequired to identify specific evidence in the recordand to articulate the precise manner in which thatevidence supports his claim.
. Summary judgment in favor of the Defendant is proper if, after adequate time for discovery, thePlaintiff fails to establish the existence of an elementessential to her case and to which she will bear the burden of proof at trial.
*3
When weighing the evidence on a motion for summary judgment, the court must decide allreasonable doubts and inferences in the light mostfavorable to the non-movant.
. The court cannot make a credibility determination inlight of conflicting evidence or competing inferences.© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Slip CopyPage 3Slip Copy, 2009 WL 62173 (N.D.Tex.)
(Cite as: 2009 WL 62173 (N.D.Tex.))
.As long as there appearsto be some support for the disputed allegations suchthat “reasonable minds could differ as to the importof the evidence,” the motion for summary judgmentmust be denied.
IV. Analysis
The Communications Decency Act 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 informationcontent provider.”47 U.S.C. § 230(c)(1).
It further provides that “[n]o cause of action may be broughtand no liability may be imposed under any State or local law that is inconsistent” with this immunity provision.
(3). The CDA defines an“information content provider” as “any person or entity that is responsible, in whole or in part, for thecreation or development of information providedthrough the Internet or any other interactive computer service.”47 U.S.C. § 230(f)(3). Thus, under the CDA,an interactive computer service qualifies for immunity so long as it does not also function as aninformation content provider for the portion of thecontent at issue.
.Courtshave construed immunity under the CDA broadly inall cases arising from the publication of user-generated content.
413, 418 (5th Cir.2008).FN4. The CDA also provides that nointeractive computer service is liable for “any action voluntarily taken in good faithto restrict access to or availability of material that the provider or user considersto be obscene, lewd, lascivious, filthy,excessively violent, harassing, or otherwiseobjectionable” or for providing “technicalmeans to restrict access” to such material.47 U.S.C. § 230(c)(2).Plaintiff objects to the magistrate judge's finding thatthere is no genuine issue of fact regarding whether Defendants are information content providers under the CDA. Specifically, Plaintiff argues that themagistrate judge erred in (a) misapplying
2004 WL 833595 (N.D.Tex.2004); (b) placing undueweight on case law from other jurisdictions that isdistinguishable; (c) improperly weighing evidenceestablishing that Defendants created content in theform of titles and headings; (d) failing to attributeweight to the fact that Defendants destroyedevidence; (e) incorrectly analyzing the significance of administrative reports; (f) excluding former deposition testimony of non-party witness DicksonWoodard; (g) failing to attribute weight to Mr.Bammel's testimony; and (h) finding Defendantsimmune even though they profit by the publication of defamatory content on their websites.
A.
MCW, Inc. v. Badbusinessbureau.com
MCW
is factually analogous precedent thatwas overlooked by the magistrate.
MCW
sued some of thesame defendants as Plaintiff sues in thiscase.
*4
The Court does not find the magistrate judgerefused to consider or overlooked
MCW.
The Courtnotes the magistrate judge's ruling contains a detaileddiscussion distinguishing this case from
MCW. See
FRC at 5-7.In addition,
MCW
does not demonstrate that there is agenuine issue of fact regarding whether Defendantsare information content providers here. In
MCW,
thecourt considered, among other things, defendants'motion to dismiss plaintiff's complaint for failure tostate a claim. Plaintiff's complaint alleged thatdefendants had created disparaging titles, headings,and editorial messages.
at *10. Defendants did not dispute the substance of these allegations, and instead argued these allegationswere insufficient as a matter of law to prevent themfrom receiving immunity under the CDA.
Id.
TheCourt denied this argument, noting that titles andheadings of reports are part of web page content.
Id.
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Search History:
Result 00 of 00
00 results for result for
p.
GW Equity v. Xcentric Ventures
Ruling on Motion for Summary Judgment
1.9K
Reads
1
Readcasts
0
Embed Views
Get Scribd Mobile
To get Scribd mobile enter your number and we'll send you a link to the Scribd app for iPhone & Android.We've sent a link to the Scribd app. If you didn't receive it, try again.
We'll never share your phone number.
More From This User
Notes
Load more
