Hy Cite Corporation v. Badbusinessbureau.co, et al

Filing 64

REPORT re: Rule 26(f) Planning Meeting by Hy Cite Corporation. (Dana, Michael)

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Hy Cite Corporation v. Badbusinessbureau.co, et al Doc. 64 1 2 3 John C. Scheller (admitted pro hac vice; Wis. SBN No.1 031247) Kevin M. St. John (admitted pro hac vice; Wis. SBN No.1 054815) MICHAEL BEST & FRIEDRICH LLP One South Pinckney Street, Suite 700 Madison, Wisconsin 53703 4 5 (608) 257-3501 Don Bivens (#005134) 6 7 8 Michael K. Dana, (#019047) SNELL & WILMER, LLP One Arizona Center Phoenix, AZ 85004-2202 (602) 382-6000 9 10 11 Attorneys for Plaintiff Maria Crimi Speth 12 13 JABURG & WILK 3200 North Central Avenue, Suite 2000 Phoenix, AZ 85012 Fax: (602) 248-0522 Attorney for Defendants 14 15 IN THE UNITED STATES DISTRICT COURT 16 17 18 FOR THE DISTRICT OF ARIZONA Hy Cite Corporation, a Wisconsin ) Corporation, ) No: CV04-2856 PHX EHC 19 20 21 v. ) Plaintiff, ) ) ) ) badbusinessbureau.com, L.L.c., a St. ) JOINT PROPOSED CASE badbusinessbureau.com and/or ) KittslNevis Corporation d/b/a ) MANAGEMENT PLAN 22 23 badbusinessbureau.com/Rip-Off Report.com; ) ripoffreport.com and/or ) Xcentric Ventures, LLC, an Arizona Limited ) report. Liability Company d//a ) badbusinessbureau.com and/or ) ripoff 24 25 badbusinessbureau.com/Rip-Off Report.com; ) and Ed Magedson, an Arizona resident, ) com and/or ) Defendants. )) ) 26 27 28 Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 1 of 12 Dockets.Justia.com 1 Pursuant to Federal Rule of Civil Procedure 26(f) and the Court's Order Setting 2 Scheduling Conference, the Plaintiff Hy Cite Corporation ("Hy Cite") and Defendants 3 badbusinessbureau.com, LLC, Xcentric Ventures, LLC and Ed Magedson ("Defendants") 4 submit the following Joint Proposed Case Management Plan. 5 1. 6 7 8 COUNSEL WHO P ARTICIP A TED IN DEVELOPING CASE MANAGEMENT PLAN Plaintiff: John C. Scheller 9 10 11 12 13 j cschellerCfmichael best. com kmstj ohnCfmi chaelbest. com (admitted pro hac vice; Wis. SBN No. 1031247) Kevin M. St. John (admitted pro hac vice; Wis. SBN No.1 054815) MICHAEL BEST & FRIEDRICH LLP One South Pinckney Street, Suite 700 Madison, Wisconsin 53703 (608) 257-3501 (608) 283-2275 14 15 16 17 18 Don Bivens Michael K. Dana Snell & Wilmer, LLP One Arizona Center Phoenix, AZ 85004-2202 (602) 382-6000 (602) 382-6070 E-mail: mdanaCfswlaw.com 19 20 21 Defendants: Maria Crimi Speth, Esq. Jaburg & Wilk 3200 N. Central Ave., Suite 2400 Phoenix, AZ 85012 (602) 248-1000 (602) 248-0522 E-mail: mcsCfjaburgwilk.com 22 2. NATURE OF THE CASE 23 This is an action relating to certain postings published by Defendants. Hy Cite 24 alleges that Defendants operate Internet websites purporting to be a consumer advocacy 25 clearinghouse and that Defendants have posted negative, misleading, false, and 26 defamatory content about Hy Cite. After fiing an Amended Complaint in this action, 27 Defendants moved to dismiss for failure to state a claim. This Court granted in part and 28 2 Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 2 of 12 denied in part Defendants' motion. Currently pending before the Court are Hy Cite's 2 counts alleging: (1) violation of 18 D.S.C. 1962(c); RICO conspiracy; (3) common law 3 defamation; (4) disparagement-trade libel; (5) tortious interference with business 4 relationships; (6) common law trademark infringement and unfair competition; and (7) 5 violation of Wis. Stat. 110.18, 100.20. ELEMENTS OF PROOF NECESSARY FOR EACH COUNT AND DEFENSE Hy Cite's position is that the elements of 6 3. 7 8 its claims are as follows: a. Violation of 18 D.S.C. 1962(c) requires a showing that Defendants are an 9 "enterprise" within the meaning of 18 D.S.C. 1961(4) and 1962(c) and was engaged in 10 activities that affected interstate commerce; that Defendant Ed Magedson is a "person" 11 within the meaning of 18 D.S.C. 1961(3) and 1962(c); and that Magedson has control 12 over the enterprises such that he can conduct and participate in the conduct of Defendant 13 badbusinessbureau.com and Defendant Xcentric. Defendants requested payments from 14 Hy Cite, and Hy Cite feared economic loss from refusing to cede to Defendants' demands. 15 Defendants' program amounts to attempted extortion under 18 D. S. C. 1951, which is a 16 predicate act listed in 18 D.S.C. 1961 (1). The Defendants' several acts together 17 constitute predicate acts sufficient to establish a "pattern of racketeering activity" as that 18 term is defined in 18 D.S.C. 1961(1) and (5). The overall scheme of the Defendants' 19 websites as a means to extort money from companies such as plaintiff and the fraudulent 20 claims made in furtherance of that scheme constitute a violation of 18 D.S.C. 1343. 21 These activities were undertaken intentionally and with full knowledge and appreciation 22 of the intended results of the scheme to extort money, including knowledge of false and 23 fraudulent representations to unlawfully deprive Plaintiff of its money for Defendants' 24 pecuniary gain. Plaintiff has been injured in its business and property and reputation by 25 the Defendants' extortionate scheme that comprises the violation of 18 D.S.C. 1962(c) 26 alleged in this claim. 27 28 '" .: Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 3 of 12 1 b. RICO conspiracy requires that Defendant and other unnamed individuals 2 associated with badbusinessbureau.com and Ed Magedson, have combined, conspired, 3 and agreed to violate 18 D.S.C. 1962( c) by agreeing to conduct an enterprise affecting 4 interstate commerce, directly or indirectly, through a pattern of racketeering activity all in 5 violation of 18 D.S.C. 1962(d). Plaintiff has been injured in its business and property by 6 reason of the foregoing violations of 18 D. S. C. 1962( d) as alleged in this claim in an 7 amount to be determined at triaL. 8 c. Common law defamation requires proof of publications with false 9 information about Plaintiff; knowledge by Defendants that the publications would cause 10 pecuniary and reputational harm to Plaintiff; knowledge that the publications included 11 false information or that Defendants otherwise acted with reckless disregard of the truth or 12 falsity contained in their publication; and damage to Hy Cite's business reputation and 13 property by reason of the Defendants' false publications. 14 d. Disparagement (trade libel) requires publications by Defendants knowing or 15 constructively knowing that the publication of such statements would cause pecuniary and 16 reputational harm to Hy Cite. Defendants knew the publications included false 17 information or otherwise acted with reckless disregard of the truth or falsity contained in 18 their publications. Those publications caused injury to Plaintift s reputation, business, 19 and property. 20 e. Tortious interference with business relationships requires proof of valid 21 contractual relationships between Hy Cite and purchasers of its Royal Prestige product 22 line and expected relationships between Hy Cite and persons who, but for Defendants' 23 libelous publications, would have entered into valid contractual relationships; knowledge 24 by Defendants of Hy Cite's relationships and business expectancies; intentional and 25 wrongful interference by Defendants with these relationships and business expectancies 26 by knowingly publishing and creating negative, false, misleading, and defamatory content 28 4 Case 2:04-cv-02856-EHC 27 in exchange for their own business profit; and injury to Plaintiff. Document 64 Filed 07/27/2006 Page 4 of 12 f. Common law trademark infringement and unfair competition requires 2 actions that constitute trademark infringement under the common law as well as unfair 3 competition and damage to Hy Cite as a result of those actions. 4 g. Violation of Wis. Stat. 110.1 8, 100.20 requires proof that Defendants 5 made untrue, deceptive, or misleading representations about Hy Cite and/or Royal 6 Prestige for the purpose of increasing Defendants' service revenues and resulting in losses 7 and increased costs to Plaintiff. 8 For Defendants, the elements of their defenses are as follows: 9 a.. Counts I and II - Violation of 18 D.S.C. 1962 and RICO Conspiracy 10 Pursuant to the Racketeer Influenced and Corrupt Organizations act ("RICO"), it is 11 "unlawful for any person employed by or associated with any enterprise engaged in, or in 12 the activities of which affect, interstate or foreign commerce, to conduct or participate, 13 directly or indirectly, in the conduct of such enterprise's affairs through a pattern 0 14 racketeering activity." 18 D.S.C. 1962(c). Racketeering activity includes the predicate 15 act of extortion under 18 D.S.C. 1951. "Extortion" is defined as "the obtaining 0 16 property from another, with his consent, induced by wrongful use of actual or threatened 17 force, violence or fear." 18 D.S.C. 1951 (b )(2). 18 The predicate acts alleged by Plaintiff do not rise to the level of conduct 19 contemplated by the statute. To support its claim for damages under 18 1962, Plaintif 20 has attempted to allege that Defendants "predicate act" was attempted extortion. 21 However, extortion requires the wrongful use of actual or threatened force, violence or 22 fear to obtain property. 18 D.S.C. 1951. Plaintiff has not made an allegation of 23 wrongful use of force or fear but instead alleges that it "feared economic loss from 24 refusing to cede to Defendants' demands, but nonetheless did not accept Defendant's 25 offer." Plaintiff has alleged nothing more than an offer to provide services for 26 compensation, which offer was rejected. Such a claim is not actionable under RICO. See, 28 5 Case 2:04-cv-02856-EHC 27 e.g., Suirs v. Mew Metro Fed. Svgs. & Loan, 873 P .2d 1401, 1401 (11 th Cir. 1989). Document 64 Filed 07/27/2006 Page 5 of 12 1 b. Count III and Count iv - Common Law Defamation and Disparagement- 2 3 Trade Libel This cause of action fails against Defendant because the claim is barred by the Communications Decency Act, 47 USC 230. The Ninth Circuit has expressly held that 4 5 the Communications Decency Act ("CDA") immunizes a web site operator, such as Defendants, for defamation it publishes if it is not the information content provider of the 6 7 8 content at issue. Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). Three elements are required for 230 immunity: the defendant must be a provider or users of an interactive computer service; the asserted claims must treat the defendant as a publisher or speaker or information; and the information must be provided by another information content 9 10 11 provider. Schneider v. Amazon.com, Inc., 31 P.3d 37, 40 (Wash.App.2001). Here, Defendants are not the information content providers because they did not author the reports that are alleged to be defamatory. Defendants are not responsible for 12 13 14 15 the creation of the reports and the information is provided by the actual author of the content. c. Count V - Tortious Interference with Business Relationships 16 17 18 Plaintiff has no proof that Defendants knew about Plaintifts contractual relationships with purchasers of its Royal Prestige product line or that Defendants intentionally 19 interfered with such relationships. Moreover, as set forth above, Defendants are not responsible for the creation of the alleged defamatory or disparaging remarks that Plaintif alleges interfered with its business relationship. As such there are no damages resulting. d. Count VI - Common Law Trademark Infringement and Unfair Competition 20 21 22 23 Likelihood of confusion is the governing standard for common law trademark infringement claims. Plaintiff 24 25 has not and cannot allege likelihood of confusion here. Wis. Stat. 110.18, 100.20 e. Violation of 26 Defendants maintain that there is no proof that Defendants did anything other than 28 6 Case 2:04-cv-02856-EHC 27 act as a website internet operator for the content authored by others. Document 64 Filed 07/27/2006 Page 6 of 12 1 4. ISSUES IN DISPUTE 2 4.1 Factual Issues 3 a. The corporate structures of Defendants (Defendants do not agree that this is 4 a material issue 5 b. Defendants' involvement in providing content for their website 6 c. Defendants' processes for posting reports 7 d. Defendants' communications, if any, with alleged reporters 8 e. Identification of alleged reporters 9 f. Investigation into Defendants' corporate advocacy program 10 g. Details surrounding Defendants' request for money from Hy Cite 11 h. Defendants' knowledge of false postings (Defendants do not agree that this 12 is a material issue 13 1. Defendants' investigation, if any, into postings (Defendants do not agree 14 that this is a material issue) 15 J. Financial benefits reaped by Defendants connected to their po stings 16 k. Whether there is any likelihood of confusion 17 L. Whether there was a wrongful use of actual or threatened force, violence, or 18 fear to obtain property 19 4.2 Legal Issues 20 a. Whether Defendants can establish protection under the Communications 21 Decency Act 22 b. Whether the Communications Decency Act, if applicable, provides an 23 affirmative defense for "Publisher Liability" 24 c. Whether Defendants are liable under the counts alleged by Plaintiff 25 5. JURISDICTIONAL BASIS OF CASE 26 This Court has jurisdiction under 28 U.S.c. 1331, 18 U.S.c. 1964(a), (c), 28 jurisdiction under 28 U.S.C. 1367. 28 7 27 U.S.c. 1338 and supplemental Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 7 of 12 6. 2 SERVICE OF PARTIES Defendants Xcentric Ventures, LLC and Ed Magedson have been served. 3 Badbusinessbureau.com, L.L.C., an entity organized under the laws of St. Kitts/Nevis has 4 not been served. Plaintiff understands that the entity has been dissolved, and that Xcentric 5 Ventures, LLC and/or Ed Magedson have successor liability. Defendant denies that there 6 is any successor liability. 7 7. 10 8. PARTIES EXPECTED TO BE ADDED OR AMENDED PLEADINGS 8 The parties do not contemplate adding any other parties or otherwise amending the 9 pleadings. DISPOSITIVE ISSUES TO BE DECIDED BY PRE-TRIAL MOTIONS 11 8.1 Hy Cite 12 Hy Cite contemplates eventually filing motions for summary judgment on most, i 13 not all, claims, following discovery. 14 8.2 Defendants 15 Defendants also contemplate filing motions for summary judgment following 16 discovery. 17 9. 18 MASTER, OR UNITED STATES MAGISTRATE JUDGE FOR TRIAL special master, or a United States Magistrate Judge. SUITABILITY FOR REFERENCE TO ARBITRATION, SPECIAL The parties do not agree that this case is suitable for reference to arbitration, a 19 20 10. STATUS OF RELATED CASES 21 22 23 Not applicable. 11. INITIAL DISCLOSURES The parties agree to make initial disclosures within 30 days of the scheduling 24 conference. 25 26 27 28 8 Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 8 of 12 1 12. PROPOSED DEADLINES 2 12.1 Completion of Discovery. 3 The parties propose discovery completion on February 28,2007. 12.2 Disclosure of Expert Testimony under Rule 26(a)(2)(C) of the Federal 4 5 Rules of Civil Procedure. The parties propose that all experts and reports be disclosed pursuant to Rule 6 7 8 26(a)(2)(B) no later than March 16,2007, and that any and all rebuttal experts be disclosed, with reports, no later than April 30, 2007. 9 12.3 Completion of Expert Depositions. 10 The parties propose that expert depositions, not including rebuttal experts, be 11 concluded no later than April 16, 2007, and that depositions of rebuttal experts conclude 12 no later than May 31, 2007. 13 12.4 Filng of Dispositive Motions. 14 The parties propose that all dispositive motions be fied no later than June 15, 15 2007. 16 12.5 Settlement Talks. 17 The parties have undertaken settlement talks and are currently negotiating a 18 potential settlement of this matter. 19 13. SCOPE OF DISCOVERY 20 13.1 The extent, nature and location of discovery anticipated by the parties. 21 The parties intend to seek discovery of information reasonably calculated to lead 22 to the discovery of admissible evidence relating to the factual and legal issues in this case 23 to the full extent permitted by the Federal Rules of Civil Procedure. 24 The parties intend that discovery shall include depositions, document requests, 25 inspection, interrogatories, and requests for admission. Unique issues presented in this 26 case include issues arising out of the need to discover electronic information. Plaintiff 28 9 Case 2:04-cv-02856-EHC 27 intends to inspect Defendants electronic equipment. Plaintiff intends that all documents Document 64 Filed 07/27/2006 Page 9 of 12 1 produced shall include any and all "meta-data" or other "hidden" information contained in 2 electronic documents, including, but not limited to IP addresses. The parties intend for 3 the location of discovery to be taken in accordance with the Rules. 4 5 13.2 Suggested changes, if any, to the discovery limitations imposed by the Federal Rules of Civil Procedure and LRCiv 16.2 of the Rules of Practice for the United States District Court for the District of Arizona ("Local Rules"). 6 7 The parties understand this case to be on a "standard" track. The parties recognize that the standard time for the preliminary scheduling conference provided for by LRCiv. 8 16.2 has been altered due to motion practice and the need for alternative service of 9 process. All other dates are addressed herein. 10 13.3 The number of hours permitted for each deposition, unless extended by 11 agreement of the parties. 12 The parties intend depositions shall be conducted in accordance with Rule 30, and 13 that 7 hours shall be permitted for each deposition, absent a stipulation or court 14 intervention by motion to extend or limit the same. 15 14. ESTIMATED DATE AND LENGTH OF TRIAL 5 days. 16 17 18 15. JURY TRIAL REQUEST Plaintiff requests a jury triaL. 19 16. PROSPECTS FOR SETTLEMENT Settlement discussions have occurred and the paiiies are continuing to engage in 20 21 productive discussions to resolve all claims. 22 17. SUGGESTIONS ON HOW TO EXPEDITE DEPOSITIONS 23 The Parties have no suggestions on how to expedite depositions. III III III III 10 24 25 26 27 28 Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 10 of 12 1 RESPECTFULL Y SUBMITTED this 27th day of July, 2006. 2 MICHAEL BEST & FRIEDRICH LLP 3 4 5 BY:~~ fcr John C. c eller ~ Madison, Wisconsin 53703 6 7 8 Kevin M. St. John One South Pinckney Street, Suite 700 Don Bivens Michael K. Dana Snell & Wilmer, LLP One Arizona Center Phoenix, AZ 85004-2202 (602) 382-6000 9 10 11 Attorneys for Plaintiff 12 13 JABURG & WILK 14 15 B~~ hMaria Crimi Speth / 3200 North Central Avenue, Suite 2000 Phoenix, AZ 85012 Fax: (602) 248-0522 16 17 18 Attorney for Defendants 19 20 21 22 23 24 25 26 27 28 11 Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 11 of 12 1 CERTIFICATE OF MAILING I hereby certify that on July 27, 2006, I electronically transmitted the foregoing to the 2 3 Clerk's Offce using the CM/ECF System for filing to the following CM/ECF participant: Maria Crimi Speth 4 5 6 7 8 J aburg & Wilk 3200 North Central Avenue Suite 2000 Phoenix, Arizona 85012 Attorneys for Defendants I further certify that on July 27, 2006, I served a courtesy copy of the aforementioned document and transmittal of a Notice of Electronic Filing by mail on the following: The Honorable Earl H. Carroll United States District Court 401 West Washington Street, SPC 48 Suite 521 Phoenix, AZ 85003-2151 John C. Scheller 9 10 11 12 13 14 15 Kevin M. St. John MICHAEL BEST & FRIEDRICH LLP One South Pinckney Street Suite 700 Madison, Wisconsin 53703 16 17 18 19 (!~t!~ 1865957 20 21 22 23 24 25 26 27 28 12 Case 2:04-cv-02856-EHC Document 64 Filed 07/27/2006 Page 12 of 12

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