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Herman v Xcentric Dismissal

Herman v Xcentric Dismissal

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Published by Eric Goldman

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Published by: Eric Goldman on Feb 15, 2011
Copyright:Attribution Non-commercial


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O R D E R 
This matter is before the court on the defendants’ motion forsummary judgment [Doc. No. 30].
I.Factual Background
Melissa A. Herman and David A. Russo are partners with Herman& Russo, P.C., a consumer bankruptcy law firm providing legalservices to clients seeking to file for bankruptcy relief [Doc. No.1, page 4]. The defendant Xcentric Ventures operates a websiteknown as the “Rip-Off Report,” which is located atwww.ripoffreport.com, and the defendant Edward Magedson is themanager of Xcentric Ventures [Doc. No. 30-3, page 2]. This casearises from a “report” posted on the defendants’ website onFebruary 11, 2009, by an anonymous author identified as “John orJane Doe” [Doc. No. 1, pages 10-11]. The report is written fromthe perspective of an unhappy former client who claims theplaintiffs accepted $30,000 to handle the author’s case but then
Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 1 of 7
failed to return phone calls and otherwise neglected the case[Id.]. The plaintiffs allege that the defendants published thisdefamatory report about the plaintiffs on their website and addedoriginal content to the report by creating a title for the report,keyword metatags for the report which are used by Internet searchengines to determine the subject of the webpage, and originalcontent on the website itself [Doc. No. 1, pages 11-13].On February 11, 2010, the plaintiffs filed this suit [Doc. No.1]. The plaintiffs bring claims for defamation/libel, defamationper se/libel per se, false light, tortious interference withcontract and other business expectancies, and misappropriation ofname or likeness. The plaintiffs seek a permanent injunction andrecovery of monetary damages. The defendants move for summaryjudgment on all of the plaintiffs’ claims, alleging that theundisputed evidence shows that they are entitled to immunitypursuant to the Communications Decency Act, 47 U.S.C. § 230(c)(1)[Doc. No. 30].
II.Legal Standard
The party seeking summary judgment bears the burden ofdemonstrating that no dispute as to any material fact exists.Adickes v. S.H. Kress & Co., 398 U.S. 144, 156 (1970); Johnson v.Clifton, 74 F.3d 1087, 1090 (11th Cir. 1996). The moving party'sburden is discharged merely by “‘showing’ – that is, pointing out
Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 2 of 7
to the district court – that there is an absence of evidence tosupport [an essential element of] the nonmoving party’s case.”Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determiningwhether the moving party has met this burden, the district courtmust view the evidence and all factual inferences in the light mostfavorable to the party opposing the motion. Johnson, 74 F.3d at1090. Once the moving party has adequately supported its motion,the non-movant then has the burden of showing that summary judgmentis improper by coming forward with specific facts showing a genuinedispute. Matsushita Electric Industrial Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986).In deciding a motion for summary judgment, it is not thecourt’s function to decide issues of material fact but to decideonly whether there is such an issue to be tried. Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The applicablesubstantive law will identify those facts that are material. Id.at 247. Facts that in good faith are disputed, but which do notresolve or affect the outcome of the case, will not preclude theentry of summary judgment as those facts are not material. Id.Genuine disputes are those by which the evidence is such that areasonable jury could return a verdict for the non-movant. Id. Inorder for factual issues to be “genuine” they must have a realbasis in the record. Matsushita, 475 U.S. at 586. When the record
Case 1:10-cv-00398-CAP Document 58 Filed 02/14/11 Page 3 of 7

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