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dimeo v max

dimeo v max



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Published by internetcases
Third Circuit decision affirming dismissal of defamation claim against Tucker Max under 47 USC 230
Third Circuit decision affirming dismissal of defamation claim against Tucker Max under 47 USC 230

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Published by: internetcases on Sep 21, 2007
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Hon. Paul R. Michel, Chief Judge of the United States Court of Appeals for the Federal
Circuit, sitting by designation. NOT PRECEDENTIALUNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT  No. 06-3171 ANTHONY DIMEO III,Appellantv.TUCKER MAX,Appellee On Appeal from the United States District Courtfor the Eastern District of Pennsylvania(D.C. No. 06-cv-01544)District Judge: Honorable Stewart Dalzell Submitted Under Third Circuit LAR 34.1(a)April 20, 2007Before: MCKEE and AMBRO, Circuit Judges, and MICHEL, Chief Circuit Judge.
(Opinion Filed: September 19, 2007) OPINION OF THE COURT 
MICHEL, Chief Circuit JudgeAnthony DiMeo III appeals (1) the dismissal of his complaint against Tucker Maxfor allegedly defamatory comments on Max’s website and (2) the denial of his motion toamend the complaint.
 DiMeo v. Max
, 433 F. Supp. 2d 523 (E.D. Pa. 2006). Because theDistrict Court properly concluded that 47 U.S.C. § 230 barred DiMeo’s claim for defamation and did not abuse its discretion in denying DiMeo’s motion to amend, we willaffirm.I.Because the parties are familiar with the factual and procedural history of this case,we only set forth those facts necessary for our discussion. Max is the owner of a website(www.tuckermax.com) that allows users to write comments on various topics on message boards. DiMeo sued Max for defamation for publishing on the website allegedlydisparaging statements about DiMeo stemming from a New Year’s Eve party in 2005 thathad gone awry (Count I), violation of the Communications Act of 1943 (47 U.S.C. §223(a)(1)(C)),
, a criminal statute (Count II), and punitive damages (Count III).On April 19, 2006, Max filed a motion to dismiss the complaint under Rule12(b)(6) of the Federal Rules of Civil Procedure, which DiMeo opposed. At the end of his opposition brief, DiMeo added a one-sentence request for leave to file an amendedcomplaint “to eliminate Count II as stated, without prejudice to incorporate same intoPlaintiff’s claim of Defamation, as well as Plaintiff’s prospective new claims for 
Intention [sic] Infliction of Emotional Distress and Defendant’s Civil Rico violation.”Joint App. 188. The District Court granted DiMeo leave to file an additional brief bynoon on May 14, 2006, but a few minutes before noon on the due date, DiMeo rested onthe briefs already submitted. Thus, DiMeo did not file a memorandum of law in supportof his motion to amend or submit a proposed amended complaint. On May 26, 2006, theDistrict Court dismissed the complaint with prejudice and denied DiMeo’s motion for leave to amend the complaint.
, 433 F. Supp. 2d at 533. On appeal, DiMeochallenges only the trial court’s dismissal of the defamation claim (Count I) and itsrefusal to grant leave to amend.II.We exercise plenary review over the District Court’s order granting a Rule12(b)(6) motion to dismiss.
Weston v. Pennsylvania
, 251 F.3d 420, 425 (3d Cir. 2001);
 see also
. R. C
. P. 12(b)(6). Accepting the allegations of the complaint as true anddrawing all reasonable factual inferences in favor of the plaintiff, “[w]e will affirm adismissal only if it appears certain that a plaintiff will be unable to support his claim.”
, 251 F.3d at 425. We agree with the District Court that DiMeo’s defamationclaim is barred by 47 U.S.C. § 230. Section 230 provides, in relevant part, 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 information content provider.” 47 U.S.C.§ 230(c)(1) (emphases added). “No cause of action may be brought and no liability may

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