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Dyer v. Dirty World Opposition to Motion for Summary Judgment

Dyer v. Dirty World Opposition to Motion for Summary Judgment

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Published by Eric Goldman

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Published by: Eric Goldman on May 18, 2011
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Page 1
 
ESPONSE
I
N
O
PPOSITION
T
O
D
EFENDANT
S
M
OTION
F
OR 
S
UMMARY
J
UDGMENT
 C
ASE
N
UMBER 
:
 
2:11-CV-00074-SRB
 12345678910111213141516171819202122232425262728
 Mitchell B. Stoddard, MoBar #38311Consumer Law Advocates11330 Olive Boulevard, Suite 222St. Louis, Missouri 63141(314) 692-2001
tel
(314) 692-2002
 fax
E-Mail: mbs@clalaw.com Attorneys for Plaintiff 
IN THE UNITED STATES DISTRICT COURT FOR THEDISTRICT OF ARIZONA 
 
Danielle M. Dyer,Plaintiff, vs.Dirty World, LLC,Defendant.Case No.: 2:11-CV-00074-SRB
ESPONSE IN
O
PPOSITION TO
D
EFENDANT
S
M
OTION FOR 
S
UMMARY 
 J
UDGMENT
 I
 NTRODUCTION
 Defendant 
‟s owner
, Nik Richie, admits posting the following statement abouPlaintiff on his website:
“No, it looks like she just had a baby, and if a girl is willingto take 2 guys on then I suggest you use a rubber.”
Richie does not deny the
statement violates Plaintiff‟s right to privacy; rather, he
claims the First Amendment protects him from liability because the statement reflects his opinion rather than fact.Richie further claims that even if the First Amendment is inapplicable, the
Communications Decency Act, 47 U.S.C. § 230 (“CDA”) grants him immunity.
 
Case 2:11-cv-00074-SRB Document 14 Filed 05/14/11 Page 1 of 16
 
 
Page 2
 
ESPONSE
I
N
O
PPOSITION
T
O
D
EFENDANT
S
M
OTION
F
OR 
S
UMMARY
J
UDGMENT
 C
ASE
N
UMBER 
:
 
2:11-CV-00074-SRB
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Defendant misperceives its rights under the First Amendment. The First  Amendment has
no “wholesale defamation exception
.
1
 
 Milsap v. Journal/Sentinel, Inc
., 100 F.3d 1265, 1268 (7 
th
Cir. 1996). Rather, the Court must analyze threefactors: (1) whether the language was sufficiently figurative or hyperbolic so as tonegate the impression the statement was true, (2) whether the overall context of thestatement negated the impression the statement was true, and (3) whether thestatement is susceptible of being proved true or false.
Unelko Corp. v. Rooney
, 912F.2d 1049, 1053 (9
th
Cir. 1990). This is an objective standard.
 Meyerkord v. ZipatoniCo
., 276 S.W.3d 319, 323 (Mo.App. E.D. 2008). Since
Richie‟s
statement does not meet any of these criteria, Defendant may not avail itself of the First Amendment.S
 TATEMENT OF
F
 ACTS
 Plaintiff has maintained a Facebook account since 2005, where she regularly postsphotographs, videos, messages, and exchanges e-mails with friends and family.(Affid. of Danielle Dyer, ¶ 2).
2
In June 2008, Plaintiff starting dating Tommy Duecker
, who for over a year had access to Plaintiff‟s computer and passwords,including the password to Plaintiff‟s Facebook account.
(Affid. of Danielle Dyer, ¶¶
1
 
 The analysis for a defamation claim is the same as for a false light invasion of privacy claim where the First Amendment is concerned.
Gardner v. Martino
, 2005 WL 3465349, 11 (D. Or. 2005).
2
 
Plaintiff‟s Affidavit is attached hereto and incorporated by reference as if fully set forth herein as Plaintiff‟s Exhibit 1.
 
Case 2:11-cv-00074-SRB Document 14 Filed 05/14/11 Page 2 of 16
 
 
Page 3
 
ESPONSE
I
N
O
PPOSITION
T
O
D
EFENDANT
S
M
OTION
F
OR 
S
UMMARY
J
UDGMENT
 C
ASE
N
UMBER 
:
 
2:11-CV-00074-SRB
 12345678910111213141516171819202122232425262728
3, 4). While Plaintiff and Duecker were still dating, Duecker showed Plaintiff a
 website called “theDirty.com
,
which Duecker visited frequently. (Affid. of DanielleDyer, ¶ 4). Plaintiff forgot about this website until August 10, 2010, when shereceived an instant message from a distant friend, Brett Kamp. (Affid. of DanielleDyer, ¶ 5). Kamp told Plaintiff he saw her
photographs on “TheDirty.com,” and 
that she needed to look at the site. (Affid. of Danielle Dyer, ¶ 6).Plaintiff went to
“theDirty.com” and saw two photographs of herself that 
she had taken about three months earlier.
3
(Affid. of Danielle Dyer, ¶ 7). Plaintiff had recently lost 30 lbs. and wanted to show the results her weight loss to some friendsand family members. (Affid. of Danielle Dyer, ¶ 7). Nobody other than Plaintiff,and a limited number of 
Plaintiff‟s
friends, could view these photographs on herFacebook page. (Affid. of Danielle Dyer, ¶ 7).Beneath the photographs, Duecker made some scathing comments about Plaintiff,including Plaintiff had transmitted a venereal disease to Duecker and his friend,
Plaintiff was “sleeping around 
,
Plaintiff was unclean and lived in a house covered  with animal feces and cat urine, and Plaintiff had gotten lipo-suction and lipinjections, none of which was true. (Affid. of Danielle Dyer, ¶ 10). In response to
Duecker‟s posting,
 Nik Richie responded:
 No, it looks like she just had a baby, and 
3
 
 A copy of the photographs is
attached to Plaintiff‟s Complaint as Plaintiff‟s Exhibit 
1. [Doc. #6].
 
Case 2:11-cv-00074-SRB Document 14 Filed 05/14/11 Page 3 of 16

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