Black et al v. Google Inc.

Filing 37

ORDER by Judge Claudia Wilken DENYING 32 PLAINTIFFS' Motion to Stay; DENYING 29 DEFENDANT'S Motion to Strike; 28 DENYING PLAINTIFFS' Objection; CERTIFICATE OF SERVICE as to GARY BLACK and HOLLI BEAM-BLACK (cwlc2, COURT STAFF) (Filed on 9/20/2010)

Black et al v. Google Inc.

Doc. 37

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. GOOGLE INC.,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GARY BLACK and HOLLI BEAM-BLACK, Plaintiffs, No. 10-02381 CW ORDER ON PLAINTIFFS' OBJECTION, DENYING DEFENDANT'S MOTION TO STRIKE AND DENYING PLAINTIFFS' MOTION TO STAY (Docket Nos. 28, 29 and 32)

Defendant.

/

Plaintiffs Gary Black and Holli Beam-Black, who are proceeding pro se, asserted several claims against Defendant Google Inc. related to an anonymous "online comment" on Defendant's website. On August 13, 2010, the Court granted Defendant's motion to dismiss, finding Plaintiffs' claims barred by the Communications Decency Act (CDA) of 1996, 47 U.S.C. § 230. On August 25, 2010,

Plaintiffs filed an "objection" to the Court's August 13 Order, which Defendant has moved to strike. Plaintiffs have also filed a

motion to stay the Court's judgment pending their appeal. Defendant opposes that motion. Read liberally, Plaintiffs' objection appears to be a motion under Federal Rule of Civil Procedure 59(e) to alter or amend the Court's judgment. Rule 59(e) motions are interpreted as motions

for reconsideration, and are appropriate if the district court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch.

Dockets.Justia.com

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Dist. No. 1J, Multnomah County, Oregon v. AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). motion for reconsideration shall not "repeat any oral or written argument made by the applying party in support of or in opposition to the . . . order which the party now seeks to have reconsidered." Civil L.R. 7-9(c). Plaintiffs' objection raises many of the same arguments they made in their opposition to Defendant's Motion to Dismiss. For the A

reasons stated in the Court's Order of August 13, Plaintiffs' action is barred by the CDA. Plaintiffs' objection does not

warrant reconsideration of this ruling. Further, Plaintiffs have not established that a stay of the Court's decision is warranted. A party seeking a stay must show

either (1) a strong likelihood of success on the merits of its appeal and the possibility of irreparable harm, or (2) that serious questions regarding the merits exist and the balance of hardships tips sharply in its favor. See Golden Gate Restaurant Ass'n v.

City and County of San Francisco, 512 F.3d 1112, 1115-16 (9th Cir. 2008). These two alternatives "represent two points on a sliding

scale in which the required degree of irreparable harm increases as the probability of success decreases." internal quotation marks omitted). Id. at 1116. (citation and

A court must "consider where

the public interest lies separately from and in addition to whether the applicant for stay will be irreparably injured absent a stay." Id. (citation and internal quotation and alteration marks omitted). Plaintiffs do not establish a strong likelihood that they will prevail on their appeal or the existence of serious questions 2

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regarding the merits of this case.

Without citation, Plaintiffs

appear to argue that Congress did not intend to grant immunity under § 230 in circumstances involving anonymity.1 to Stay at 7. See Pls.' Mot.

However, there is no provision in the CDA that Further, in Carafano v. Metrosplash.com

imposes such a limit.

Inc., the Ninth Circuit held that § 230 immunized an interactive computer service from liability based on an anonymous post on the defendant's website. 339 F.3d 1119, 1121 (9th Cir. 2003). The

Ninth Circuit later explained the Carafano holding as follows: The allegedly libelous content there -- the false implication that Carafano was unchaste -- was created and developed entirely by the malevolent user, without prompting or help from the website operator. To be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content -- indeed, the defamatory posting was contrary to the website's express policies. The claim against the website was, in effect, that it failed to review each user-created profile to ensure that it wasn't defamatory. That is precisely the kind of activity for which Congress intended to grant absolution with the passage of section 230. With respect to the defamatory content, the website operator was merely a passive conduit and thus could not be held liable for failing to detect and remove it. Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1171-72 (9th Cir. 2008) (discussing Carafano). Here, as stated above, Plaintiffs attempt to hold Defendant liable for an anonymous comment. Plaintiffs' claims. For the foregoing reasons, the Court DENIES (1) Plaintiffs' Thus, the CDA and Carafano preclude

Plaintiffs also appear to assert that Google authored the disputed comment. However, this allegation runs contrary to Plaintiffs' complaint, which states that the comment was anonymous. Compl. ¶ 19. 3

1

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motion to alter or amend the Court's judgment, styled as an objection (Docket No. 28); (2) Defendant's motion to strike (Docket No. 29); and (3) Plaintiffs' motion to stay the Court's judgment (Docket No. 32). IT IS SO ORDERED.

Dated: September 20, 2010

CLAUDIA WILKEN United States District Judge

4

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

GARY BLACK and HOLLI BEAM-BLACK, Plaintiffs, v. GOOGLE INC., Defendant. /

Case Number: CV10-02381 CW CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on September 20, 2010, I SERVED a true and correct copy of the attached, by placing said copy in a postage paid envelope addressed to the persons hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy into an inter-office delivery receptacle located in the Clerk's office.

Gary Black 101 Auld Court Green Valley Falls, CA 94534 Holli Beam-Black 101 Auld Court Green Valley Falls, CA 94534 Dated: September 20, 2010 Richard W. Wieking, Clerk By: MP, Deputy Clerk