Asia Economic Institute et al v. Xcentric Ventures LLC et al

Filing 118

NOTICE OF MOTION AND MOTION for Reconsideration re Order,, 94 filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. Motion set for hearing on 9/20/2010 at 01:30 PM before Judge Stephen V. Wilson. (Blackert, Daniel)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DANIEL F. BLACKERT, CSB No. 255021 LISA J. BORODKIN, CSB No. 196412 Asia Economic Institute LLC 11766 Wilshire Boulevard Suite 260 Los Angeles, California 90025 Telephone (310) 806-3000/Facsimile (310) 826-4448 Blackertesq@yahoo.com lisa_borodkin@post.harvard.edu Attorneys for Plaintiffs, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) Plaintiffs, ) ) vs. ) ) XCENTRIC VENTURES, LLC, an Arizona LLC, d/b/a as BADBUSINESS ) ) BUREAU and/or ) BADBUSINESSBUREAU.COM ) and/or RIP OFF REPORT and/or ) RIPOFFREPORT.COM; BAD ) BUSINESS BUREAU, LLC, organized ) ) and existing under the laws of St. ) Kitts/Nevis, West Indies; EDWARD MAGEDSON an individual, and DOES ) ) 1 through 100, inclusive, ) ) Defendants. ) ) ASIA ECONOMIC INSTITUTE, a California LLC; RAYMOND MOBREZ an individual; and ILIANA LLANERAS, an individual, Case No.: 2:10-cv-01360-SVW-PJW The Honorable Stephen V. Wilson NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF ORDER GRANTING PARTIAL SUMMARY JUDGMENT ON PLAINTIFFS RICO CLAIMS PREDICATED ON EXTORTION AND FOR RECONSIDERATION OF ORDER DNYING RELIEF UNDER RULE 56(F) [Fed. R. Civ. Proc. 52(b); 59(e); Local Rule 7-18] [REQUEST FOR JUDICIAL NOTICE; MEMORANDUM OF POINTS AND AUTHORITES: DECLARATION OF RAYMOND MOBREZ AND LISA J. BORODKIN FILED CONCURRENTLY HEREWITH] Date: Time: Ctrm: September 20, 2010 1:30 p.m. 6 1 Notice of Mot & Motion for Reconsideration - 10-CV-1360 1 2 3 4 5 6 7 8 9 10 11 12 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on September 20, 2010, at 1:30 p.m., in Courtroom 6 of the above-entitled Court, located at 312 N. Spring Street, Los Angeles, California 90012, Plaintiffs Asia Economic Institute LLC, Raymond Mobrez and Iliana Llaneras ("Plaintiffs") will and hereby do move this Honorable Court under Federal Rules of Civil Procedure 59(e) and 60 under Local Civil Rule 7-18(a) and (b) for reconsideration of the portions of its Order of July 19, 2010 ("Order of July 19, 2010") granting partial summary judgment to Defendants on Plaintiffs' claims for civil violations of RICO predicated on extortion, 18 U.S.C. 1962(c), and conspiracy to violate civil RICO predicated on extortion, 18 U.S.C. 1962(d), and denying Plaintiffs' Motion under Rule 56(f) for leave to take additional discovery on the RICO claim. The grounds for this Motion are the discovery of a material difference 13 14 in fact or law from that presented to the Court, the emergence of new material 15 facts or law occurring after the time of such decision, and the manifest showing of 16 a failure to consider material facts presented to the Court pursuant to Local Rule 17 18 19 20 21 22 23 24 25 26 27 28 7-18. The manifest showing of a failure to consider material facts presented to this Court are: The failure to consider evidence identified at Paragraph 39 of Plaintiffs' Statement of Genuine Issues in Opposition to Defendants' Motion for Summary Judgment ("PSGI") that the May 5, 2010 email sent by Defendant Edward Magedson to Plaintiff Raymond Mobrez, as referenced in the May 3, 2010 Declaration of Raymond Mobrez at Paragraph 11, 4:20-5:2, and Exhibit G at 6 (expressly promising that the Corporate Advocacy Program "changes the negative listings on search engines into a positive along with all the Reports on Rip-off report") in making the 2 Notice of Mot & Motion for Reconsideration - 10-CV-1360 1 2 3 4 5 6 7 8 9 10 findings that Mobrez does not dispute the fact that Magedson "never told Mobrez that the payment of a fee to Xcentric would result in negative information being changed into a positive," Order of July 19, 2010 at 36:5-10, and that "none of the communications Defendants sent to Plaintiffs contain any suggestion that the CAP Program (or the payment of fees) would result in . . . that such reports would no longer be featured in search results." Order of July 19, 2010 at 38:9-12. The failure to consider Defendants' own evidence that Defendants add the keywords "rip-off," "ripoff" and "rip off" into the meta tags of every page on the website, See Order of July 19, 2010 at 7:13-15 (Ben Smith Declaration at 15) in making the finding that Plaintiffs do not offer any 11 12 evidence that Defendants added the term "Ripoff Report" to user13 generated reports at the times relevant to this action, see Order of July 19, 14 2010 at 6:27-28, fn.3, which is a material fact, given that the meta tags 15 influence the appearance of search results and are a significant part pf the 16 17 18 19 20 21 22 23 24 25 26 27 28 3 harm caused by Reports. The failure to consider and make separate findings on Plaintiffs' claim for conspiracy to violate RICO through a pattern of racketeering and attempted extortion, as Plaintiffs submitted evidence of the pattern of racketeering, attempts to commit the inchoate offense and acts taken with knowledge of the purpose of the conspiracy that had the effect of damaging Plaintiffs. The newly discovered material difference in fact or law or the new material facts that could not have been known to Plaintiffs at the time of the Order of July 19, 2010 are: Notice of Mot & Motion for Reconsideration - 10-CV-1360 1 2 3 4 5 6 7 8 9 10 Evidence that Defendants expressly offered on July 20, 2010 to redact Plaintiffs' names from the Rip-off Reports about them in exchange for a payment demanded of $35,000 or $50,000 and withdrawing their claims The "Second Questionnaire" provided by Defendants to Plaintiffs for the first time on July 13, 2010 expressly promising to alter Google search results to be positive about CAP members and pointing to a retraction of an example CAP member; Evidence that Defendants have on at least two occasions in October 2009 and December 2009 taken down or deactivated "Rip-off Reports" in compliance with a global settlement including counter-claims by the subject of Rip-off Reports and which included payment of $100,000 11 12 because the Reports were erroneously posted without verification; 13 14 15 Evidence that Defendants used fear and threats to coerce Plaintiffs into paying money by posting a "wall of shame" Rip-off Report about a witness in this case attacking the witness' character and qualifications as an 16 17 18 19 20 21 22 23 24 25 26 27 28 attorney, although the witness gave percipient testimony and issued a press release, neither of which involve the practice of law; Evidence that Defendants used fear and threats to coerce Plaintiffs into paying money by telling Plaintiffs' counsel that a Rip-off Report "will happen to you," and that they would be on the cover of a book about bad lawyers, and by offering a release of future affirmative claims of malicious prosecution against Plaintiffs' counsel personally if Plaintiff would pay either $35,000 or $50,000 and drop this case. A new highly-publicized decision in United States v. Sypher, 09-CR-85 (W.D. Ky. August 6, 2010) convicting the defendant, Karen Sypher, of a violation of an alternative federal extortion statute, 18 U.S.C. 875(d), and which used jury instructions clarifying the elements of 18 U.S.C. 875(d), 4 Notice of Mot & Motion for Reconsideration - 10-CV-1360 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "which makes it a federal crime for anyone to knowingly and willfully transmit in interstate commerce a threat to injure another person's reputation or a threat to accuse another person of a crime." This Motion is based on the Memorandum of Poitns and Authorities, request for Judicial Notice, Declarations of Raymond Mobrez, Kenton Hutcherson, Lisa J. Borodkin and attached exhibits, all pleadings, papers and proceedings in this action, and such other matters as the Court deems proper. This motion is made following the conference of counsel pursuant to L.R. 7-3, which took place on July 20, 2010. DATED: August 16, 2010 Respectfully submitted, By: /s/ Daniel F. Blackert Daniel F. Blackert Lisa J. Borodkin Attorneys for Plaintiffs, Asia Economic Institute LLC, Raymond Mobrez, and Iliana Llaneras 5 Notice of Mot & Motion for Reconsideration - 10-CV-1360

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