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Herman v Xcentric Defendant SJ Motion

Herman v Xcentric Defendant SJ Motion

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Published by Eric Goldman

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Published by: Eric Goldman on Feb 15, 2011
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11/03/2012

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A MKO1 2123664 v12916906-000001 08/17/2010
 
IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF GEORGIAATLANTA DIVISIONHERMAN & RUSSO, P.C.;MELISSA A. HERMAN;DAVID A. RUSSO,Plaintiffs,v.XCENTRIC VENTURES, LLC, andEDWARD MAGEDSON, and JOHNOR JANE DOE,Defendants.Case No: 10-CV-0398-CAPDEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIRMOTION FOR SUMMARY JUDGMENT
Pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, Defendants XcentricVentures, LLC and Ed Magedson (“Defendants”) move the court for an ordergranting summary judgment as to all claims in this matter. This motion is based onone basic point—in light of the undisputed material facts, Defendants are entitledto judgment as a matter of law as to the issue of immunity pursuant to theCommunications Decency Act, 47 U.S.C. § 230(c)(1) (the “CDA”).
I.
 
INTRODUCTION
Since the CDA was enacted in 1996, every state and federal court that hasconsidered the merits of a claim against the Ripoff Report has—withoutexception—agreed that Xcentric and Magedson are entitled to immunity under the
Case 1:10-cv-00398-CAP Document 30-1 Filed 08/17/10 Page 1 of 27
 
 
A MKO1 2123664 v12916906-000001 08/17/2010
 2
CDA for statements posted by third party users.
See
,
e.g.
,
GW Equity, LLC v. Xcentric Ventures, LLC 
, 2009 WL 62173 (N.D.Tex. 2009) (holding Xcentric andMagedson entitled to immunity under the CDA);
 Intellect Art Multimedia, Inc. v. Milewski
, 2009 WL 2915273 (N.Y.Sup. 2009) (same);
Whitney Info. Network Inc.v. Xcentric Ventures, LLC 
, 2008 WL 450095 (M.D.Fla. 2008) (same);
Global Royalties, Ltd. v. Xcentric Ventures, LLC,
544 F.Supp.2d 929 (D.Ariz. 2008)(same).Like every prior case in which the CDA was found to protect Defendants,the current action attempts to use creative lawyering and fancy-soundingallegations to accomplish exactly what the law does not permit—imposing liabilityon Defendants for material they did not create or alter in any material respect.Courts have unanimously determined the CDA expressly prohibits this result andnothing about this case warrants a different result. As such, Defendants areentitled to summary judgment.
II.
 
BACKGROUND FACTS
Defendants Xcentric and Ed Magedson operate the websitewww.RipoffReport.com which allows consumers to post complaints and to reviewcomplaints written by other users. Defendants’ Statement of Facts (“DSOF”) ¶ 1.Plaintiffs Melissa A. Herman and David A. Russo are bankruptcy lawyers and
Case 1:10-cv-00398-CAP Document 30-1 Filed 08/17/10 Page 2 of 27
 
 
A MKO1 2123664 v12916906-000001 08/17/2010
 3
partners in a firm, Herman & Russo, P.C., with offices in Woodstock, Georgia.First Amended Complaint (“FAC”; Doc. #12) ¶¶ 1–3.This case arises from a single “report” posted on www.RipoffReport.com onFebruary 11, 2009 by an anonymous author identified as “John or Jane Doe”. Thetext of this report is set forth in ¶ 39 of Plaintiffs’ First Amended Complaint.DSOF ¶ 2. The report is written from the perspective of an unhappy former clientwho stated that Plaintiffs accepted $30,000 to handle the author’s case but thenfailed to return phone calls and otherwise neglected the case. DSOF ¶ 3. Thereport contains a title with a similar message. DSOF ¶ 4.The Complaint does not allege that the substance of the report was createdby Defendants. Rather, the Complaint alleges that the report was created solely byJohn/Jane Doe without any input from Defendants. DSOF ¶ 5. Defendants agreethat this allegation is entirely correct—the report was created solely by a thirdparty without any input or encouragement from Defendants. DSOF ¶ 6.Likewise, the Complaint does not allege that the title of the report wascreated by Defendants. Rather, Paragraph 40 of the FAC alleges the authorJohn/Jane Doe created the report’s title without any input or co-development byDefendants. DSOF ¶ 7. Again, Defendants agree that this is correct; every wordin the title as quoted in the FAC was created solely by a third party. DSOF ¶ 8.
Case 1:10-cv-00398-CAP Document 30-1 Filed 08/17/10 Page 3 of 27

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