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

Filing 173

NOTICE OF MOTION AND MOTION for Leave to Under Rule 56(f) to Take Discovery and Continue Determination of Defendants' SUmmary Judgment Motion filed by Plaintiffs Asia Economic Institute, Iliana Llaneras, Raymond Mobrez. Motion set for hearing on 11/29/2010 at 01:30 PM before Judge Stephen V. Wilson. (Attachments: # 1 Exhibit 1 (Transcript of Sept. 20, 2010), # 2 Exhibit 2 (Def's Discovery Responses to RFD July 22, 2010), # 3 Exhibit 3 (Draft Powerpoint for Verified Safe and CAP Program), # 4 Exhibit 4 (Sept. 23 2010 emails))(Borodkin, Lisa)

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Gmasla Economic Institute et adv. Asia - Stipulation LLC et al A i i - FW: Xcentric Ventures al v. Xcentric Ventures https://mail.google.com/mail/?ui=2&ik=0d9198f21b&vDoc.pt&q=dav4 ... iew = 173 Att. id Lisa Borodkin <lborodkin@gmail.com> FW: Xcentric Ventures adv. Asia - Stipulation Lisa Borodkin <lborodkin@gmail.com> T hu, Sep 23, 2010 at 9:51 PM To: Lisa Borodkin <lborodkin@gmail.com> Cc: Maria Crimi Speth <mcs@jaburgwilk.com>, Daniel Blackert <blackertesq@yahoo.com>, "<david@ripoffreport.com>" <david@ripoffreport.com> Maria and David, This confirms that we met and conferred yesterday from approximately 12 to 1 p.m. on a proposed set of motions: 1. Your contemplated motion for summary judgment to be heard on November 1, 2010 2. Plaintiffs' contemplated motion under Rule 56(f) to permit discovery on the state law claims. I suggested that we consolidate the hearings on this and the motion for summary judgment 3. The timing of the pending Rule 11 motion and refiling with a second Rule 11 motion, possibly to be heard on November 1, 2010. We did not discuss the merits of the second Rule 11 motion. With respect to the first Rule 11 motion, I noted that you failed to file Exhibit A and I also drew your attention to the 9th Circuit case of Sneller v. City of Bainbridge Island, 606 F.3d 636, 639 (9th Cir. 2010) (reversing imposition of Rule 11 sanctions). Where a Rule 11 motion is directed to less than all claims in a pleading, filing a motion under Rule 15 to amend the pleading to eliminate the challenged claim within the 21-day safe harbor period constitutes "w ithdrawal" of the claim under Rule 11(c)(2). See Sneller v. City of Bainbridge Island, 606 F.3d 636, 639 (9th Cir. 2010)("Filing a motion for leave to amend the complaint under Rule 15 thus constitutes effective withdrawal because it is the only procedure available under the rules to withdraw individual challenged claims")(citing Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 687-88 (9th Cir. 2005)). Therefore, if you refile your first Rule 11 motion, I expect you will revise it to conform with Sneller to eliminate any arguments based on the wire fraud RICO claim that was effectively withdrawn by Plaintiffs' Rule 15 motion. With respect to your questions yesterday about the discovery Plaintiffs would seek in a contemplated Rule 56(f) motion, I imagine it will have a great deal to do with your clients' policies and representations about the circumstances in which they will remove or redact names from reports. I have listened to your representations in the oral argument in the Seventh Circuit today in Blockowicz v. Williams, particularly with respect to your stated policy. Y ou had a colloquy today in which Judge Wood asked you the following and you gave the following answer: "The Court: And you flout all of these Court orders, I take it? For the 30 orders you're talking about, you have refused to comply with. Ms. Speth: Your Honor, we have complied with Court orders against our client. We have not complied with Court orders in cases in which we are not a party. We're not a defendant, had no opportunity to be heard, and were [sic] not applicable to us because we're not aiding and abetting the actual author of the report." First, I would ask you to stipulate to the accuracy of that quote. It is about halfway through your argument, at the following link: http://w ww .ca7.uscourts.gov/tmp/1C1A9U2L.mp3 If you will not stipulate to the accuracy of that quote and others, I will seek an extension of time so that we can get a properly authenticated copy of the official written transcript. Second, Plaintiffs would seek discovery on the circumstances you referred to in today's oral argument in which you "have complied with Court orders against our client." 1 of 2 Dock29s2Just11:52m 10/ et / . 010 ia.co PM Gmail - FW: Xcentric Ventures adv. Asia - Stipulation https://mail.google.com/mail/?ui=2&ik=0d9198f21b&view =pt&q=david... One of the representations on your clients' website is: "As explained above, one thing you can't do is to sue Ripoff Report. Sorry, but the law just does not allow this. You can always sue the person who wrote the report if it contains false and defamatory information about you. Of course, you should talk to an experienced lawyer in your area if you are unsure about your options." We have certain allegations in the pleadings about both the factual and legal accuracy of that advice. One of the areas of discovery Plaintiffs have under the state law claims is why do you tell people they can "always sue the person who wrote the report" if you do not disclose that your client will not comply with a court order unless they name your client as a defendant. Another is to identify the cases in which your clients have complied with court orders against them. Finally, I would ask why you think a claim against your client is per se frivolous when your client has complied with court orders against them? I would appreciate your answers to the above before Monday. Lisa [Quoted text hidden] 2 of 2 10/29/2010 11:52 PM Gmail - FW: Xcentric Ventures adv. Asia - Stipulation https://mail.google.com/mail/?ui=2&ik=0d9198f21b&view =pt&q=david... Lisa Borodkin <lborodkin@gmail.com> FW: Xcentric Ventures adv. Asia - Stipulation David Gingras <david@ripoffreport.com> Fri, Sep 24, 2010 at 7:10 AM Reply-To: david@ripoffreport.com To: Lisa Borodkin <lborodkin@gmail.com> Cc: Maria Crimi Speth <mcs@jaburgwilk.com>, Daniel Blackert <blackertesq@yahoo.com> Lisa, Based on your comments below, in addition to the MSJ which Judge Wilson ordered us to file, I intend to bring a new anti-SLAPP motion as to the fraud-based claims in the FAC. As your comments expressly state, those claims seek to impose liability on Xcentric for its public speech regarding matters of substantial public importance such as its opinions on the law, its analysis of the CDA, and its policies and conduct regarding removal of reports. Although Judge Wilson denied our first anti-SLAPP motion because he did not believe the reports about your clients involved matters of public concern, since that ruling you have substantially broadened your theory to include Xcentric's speech on legal issues which are undeniably matters of substantial public importance. As such, your new fraud claims implicate the anti-SLAPP law and are subject to another special motion to strike. Please let me know when you are free to meet and confer on the new anti-SLAPP motion. David Gingras, Esq. General Counsel Xcentric Ventures, LLC http://w ww .ripoffreport.com/ David@RipoffReport.com PO BOX 310, Tempe, AZ 85280 Tel.: (480) 668-3623 Fax: (480) 248-3196 From: Lisa Borodkin [mailto:lborodkin@gmail.com] Sent: Thursday, September 23, 2010 9:52 PM To: Lisa Borodkin Cc: Maria Crimi Speth; Daniel Blackert; <david@ripoffreport.com> Subject: Re: Xcentric Ventures adv. Asia - Stipulation [Quoted text hidden] 1 of 1 10/29/2010 11:53 PM

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