Google Inc. v. American Blind & Wallpaper Factory, Inc.

Filing 302

Google Inc. v. American Blind & Wallpaper Factory, Inc.

Doc. 302

Case 5:03-cv-05340-JF

Document 302

Filed 03/02/2007

Page 1 of 16

1 KEKER& VANNEST, LLP MICHAELH. PAGE - #154913

2 MAR A. LEMLEY - #155830
KLAUS H. HAMM - #224905 3 AJAY S. KRSHNAN - #222476 710 Sansome Street
4 San Francisco, CA 94111-1704

Telephone: [phone]
5 Facsimile: [phone]

6

Attorneys for Plaintiff and Counter Defendant 7 GOOGLE INC.

8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10

12 Plaintiff,
11 GOOGLE INC., a Delaware corporation,

Case No. C 03-5340-JF (EAI)

13 v.
16

STATEMENT OF RECENT DECISION

14 AMERICAN BLIN & W ALLP APER FACTORY, INC., a Delaware corporation
15 d//a decoratetoday.com,Inc., and DOES I100, inclusive,

Defendants.
17

AMERICAN BLIN & W ALLP APER 18 FACTORY, INC., a Delaware corporation
d//a decoratetoday.com, Inc.,

19

Counter Plaintiff,
20
v.
21

GOOGLE INC.,

22
Counter Defendant

23

24
25

26 27
28
1

390938.01

STATEMENT OF RECENT DECISION CASE NO. C 03-5340-JF (EAI)

Dockets.Justia.com

Case 5:03-cv-05340-JF

Document 302

Filed 03/02/2007

Page 2 of 16

I Plaintiff and Counterdefendant Google Inc. hereby notifies the Court of a recent decision

2 from the United States Cour of Appeals from the First Circuit that relates to Google's summary
3 judgment motion, which is already under submission with the Court. See Docket Item No. 295.
4 Google believes that Universal Communication Systems, Inc. v. Lycos, Inc., -- F.3d --, No. 06-

5 1826,2007 WL 549111 at *8-*11 (1st Cir. Feb. 23,2007), pertains to the trademark use issue in
6 this case. This issue is discussed on:

7
8

.
.

Pages 6-14 of

Google's opening brief

in support of

its

summary judgment motion
(Docket

(Docket Item No. 234),
Pages 13-20 of American Blind and Wallpaper Factory's opposition brief

9

Item No. 263), and

10

.

Pages 5-10 of

Google's reply

brief

(Docket Item No. 275).

11 A copy of Universal Communication Systems is atta~hed hereto, as Exhibit A. This
12 Court's hearing on Google's sumar judgment motion took place on February 16,2007. The

13 First Circuit issued its decision on February 23,2007. Google was therefore unable to bring this
14 case to the Court's attention at a prior proceeding or in a prior filing.
15
16 Dated: March 2, 2007

KEKER & V AN NEST, LLP

17
18

By: /s/ Aiay S. Krshnan
AJA Y S. KRSHNAN Attorneys for Plaintiff and Counter Defendant
GOOGLE INC.

19

20
21

22
23

24
25

26 27
28
2
390938.01

STATEMENT OF RECENT DECISION CASE NO. C 03-5340-JF (EAI)

Case 5:03-cv-05340-JF

Document 302

Filed 03/02/2007

Page 3 of 16

EXHIBIT A

Case 5:03-cv-05340-JF

Document 302

Filed 03/02/2007

Page 4 of 16

--- F.3d ----

Page 1

--- F.3d ----, 2007 WL 549111 (C.A 1 (Mass.))
(Cite as: --- F.3d ----)

Briefs and Other Related Documents Universal Communication Systems, Inc. v. Lycos,

Affrmed.

Inc.C.AI (Mass.),2007.0nly the Westlaw citation is
currently available. United States Court of Appeals,First Circuit.

il Federal Courts 170B =O
17013 Federal Courts

UNIVERSAL COMMUICA nON SYSTEMS,
INC.; MICHAEL J. ZWEBNER, Plaintiffs, Appellants,
v.

Denial of leave to amend a complaint is reviewed for Fed.Rules Civ.Proc.Rule 15. 28 abuse of discretion.

US.C.l\.
il Federal Civil Procedure 170A ~O
170A Federal Civil Procedure

L YCOS, INC., d//a Lycos Network; Terra Networks, S.A.; Roberto Villasenor, Jr., a/a the-

worm06; John Doe # 2, a/k/a no-insiders; Roberto
Vìlasenor, Jr., a/k/a the-worm06A; John Doe #4, a/

Futility of amendment of complaint is an adequate
reason to reject it. Fed.Rules Civ.Proc.Rule 15. 28

k/a 65175R; John Doe # 5, a!a Henr-JohnsonI23;
John Doe # 6, a/a quondol; John Doe # 7, a/a To-

U.S.C.l\.

bias95; John Doe # 8, a/k/a CrawleySmith, Defendants, Appellees. Robert H. Cooper; Andrew Cunningham; Does 1 Through 8; Omar Ghaffar, Third-Part Defendants. No. 06-1826.
Heard Nov. 7, 2006. Decided Feb. 23, 2007.

il Telecommunications 372 ~O
372 Telecommunications Under Communications Decency Act (CDA), Internet message board operator was immune from liability for allegedly false and defamatory postings made
by third part subscribers; message board operator

was "interactive computer service provider," the postings were "information provided by another information content provider," and none of the misin-

Background: Publicly-traded company brought action against Internet message board operator and
those defendants which posted allegedly false and defamatory po

formation was prompted by operator's registration
process or its link strcture. Communications Act of
1934, § 230, 47 U.S.C.A. S 230.

stings on message board under pseud-

onymous screen names, alleging violations of federal and Florida law. The United States District Court for
the District of Massachusetts, Robeit E. Keeton,

il Telecommunications 372 ~O
372 Telecommunications
Notice of the unlawful nature of the information

Senior Judge, dismissed the claims, and company appealed.

Holdings: The Court of Appeals, Lynch, Circuit
Judge, held that:
il under Communications Decency Act (CDA), In-

provided on Internet web site is not enough to make it the service provider's own speech for purposes of Communications Decency Act (CDA). Communications Act of 1934. § 230, 47 US.C.A. § 230.

ternet message board operator was immune from liability for allegedly false and defamatory postings made by third part subscribers, and

il Securities Regulation 349B ~O
34913 Securities Regulation

il company failed to meet the particularity requirement for pleading fraud in violation of federal and
Florida securities laws.

Under Communications Decency Act (CDA), Internet message board operator was immune from liability under either the Florida securities law or the Florida cyberstalking law for misinformation spread

about a public-traded company by third part sub-

tQ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF

Document 302

Filed 03/02/2007

Page 5 of 16
Page 2

--- F.3d ------ F.3d ----, 2007 WL 549111 (C.A.I (Mass.))
(Cite as: --- F.3d ----)

scribers; liability for operator under either the Florida
securities statute or the Florida cyberstalking statute

334 Removal of Cases Presence of John Does does not destroy diversity jur-

would involve treating operator "as the publisher" of information provided by another information content provider. Communications Act of 1934. & 230, 47
U.S.C.A. & 230; West's F.S.A. SS 517.301, 784.048.

isdiction in cases removed to federal court. 28
lJ.S.C.A. S 144

Ha).

lU Securities Regulation 349B C=O
34913 Securities Regulation

il Trademarks 382T c=O
382T Trademarks

Claims based on intellectual propert laws are not subject to Communications Decency Act (CDA) immunity. Communications Act of 1934. § 230, 47

Conclusory allegations that Internet message board postings containing misinformation disparaging the financial condition, business prospects and management integrity of publicly-traded company were insufficient to meet the particularity requirement for pleading fraud in violation of federal and Florida securities laws in the absence of further allegations that such postings were in connection with a scheme involving company's stock. Fed.Rules Civ.Proc.Rule

U.S.C.A. S 230.

il Trademarks 382T c=O
382T Trademarks

Whether Internet message board operator's use of
company's trade name was viewed as a noncommercial use, as a nominative use, or in some other way,

9(b). 28 U.S.C.A.; Private Securities Litigation Reform Act of 1995, § 101, 15U.S.C.A. S 78u-4;
West's F.S.A.s 517.301.

operator's use of company's trade name to label a

Appeal from the United States District Court for the
Distrct of Massachusetts, Robeit E. Keeton, Senior

message board on which the company was discussed was not a use covered by the Florida anti-dilution statute. West's F.S.A S 495151.

U.S. District Judge.

l8 Trademarks 382T =O
382T Trademarks

John H. Faro, with whom Faro & Associates was on brief, for appellants.

Daniel 1. Clolierty, with whom David A. Bunis,
Rachel Zoob-Hìl, and Dwyer & Collora, LLP were
on brief, for appellee Lycos, Inc. Thomas G. Roliback, with whom James J. Reardon. Jr. and LeBoeuf, Lamb, Greene & MacRae LLP were on brief, for appellee Terra Networks, S.A.
Before BOI.IDIN, Chief Judge, SELY A and LYNCH, Circuit Judges. LYNCH, Circuit Judge. *1 Plaintiffs Universal Communication Systems, Inc.

Trademark injury arises from an improper association between the mark and products or services marketed by others.

il Trademarks 382T C=O
382T Trademarks

Florida antidilution statute is not intended to apply to the use of a similar mark on similar goods, but rather

only to the use of similar marks on dissimilar
products. West's F.S.A. Q 495.151.

and its chief executive offcer, Michael J. Zwebner, (collectively, "UCS") brought suit, objecting to a
series of allegedly false and defamatory postings

(101 Trademarks 382T ~O
382T Trademarks

made under pseudonymous screen names on an Internet message board operated by Lycos, Inc. UCS iden-

Anti-dilution laws should be interpreted to provide
breathing room for First Amendment concerns.

tified two of the screen names as having been registered to Roberto Vilasenor, Jr. UCS sued not only Vilasenor and tle other posters of messages, as John Does, but also Lycos and Terra Networks, S.A., Lycos's corporate parent at the time of the postings in

U.S.C.A. Const.Amend. 1.

lU Removal of Cases 334 ~O

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3d ----

Document 302

Filed 03/02/2007

Page 6 of 16
Page 3

--- F.3d ----, 2007 WL 549111 (CAI (Mass.)) (Cite as: --- F.3d ----)

question.

Israel and a secondary residence in Florida.

*1 In Section 230 of the Communications Decency Act (CDA), 47 U.S.C. Q 230, Congress has granted broad immunity to entities, such as Lycos, that facilitate the speech of others on the Internet. Whatever
the limits of that immunity, it is clear that Lycos's

*1 Lycos is a Massachusetts corporation with its
principal place of business in Massachusetts. Terra

Networks is a Spanish corporation with its principal
place of business in Spain. Terra Networks owned Lycos from 2000 to 2004.

activities in this case fall squarely within those that Congress intended to immunize. UCS attempted to plead around this Section 230 statutory immunity by
assertng that Lycos did not qualify for immunity and

that UCS's claims fell within certain exceptions to that immunity. The distrct court rejected these arguments and dismissed the claims against Lycos and

Terra Networks for failure to state a claim. We agree and affirm the dismissals, joining the other courts that have uniformly given effect to Section 230 in similar circumstances.
*1 As for the claims against the individuals who posted, UCS alleged violations offederal and state securities laws, but made only conclusory allegations that the postings at issue were in connection with a scheme involving UCS stock. It thus failed to meet the particularity requirement for pleading fraud under Federal Rule of Civil Procedure 9(b). In the absence of any substantial allegations on this point, we affirm
the district cour's dismissal of

*1 Lycos operates a network of web sites devoted to a wide array of content. At times relevant here, these web sites included Quote.com, which provides stock quotation information and financial data for publiclytraded companies, and RagingBull.com, which hosts financially-oriented message boards, including ones designed to allow users to post comments about publicly-traded companies. The message board for each
such company is generally created by a user and is generally identified using the company's stock ticker symbol-UCSY in this case. In addition, the two web

sites are linked to each other, so that a user who retrieves a stock quote from Quote.com is also given a link to the corresponding message board on Raging
BulL. Both web sites contain advertisements, and Ly-

cos derives advertising revenue that depends in some measure on the volume of usage of its sites.

those claims.

I.

*2 Individuals must register with Lycos in order to post messages on Raging Bull message boards. As part of the registration process, users are required to agree to a "Subscriber Agreement," which, inter alia,
requires users to comply with federal and state secur-

*1 Because we review here the district cour's granting of a motion to dismiss, we recite the facts as alleged in UCS's complaint, IvlcCloskev v. Mueller. 446

ities laws. Upon registration, a member obtains a "screen name." Postings on the message board are
identified by screen name, but no further identifying

F.3d 262. 264 Ost Cir.2006), but without crediting unsupported conclusions and assertions, Palmer v.
Chamvion Mortgage. 465 F.3d 24.25 (1st Cir.2006).

information is automatically included with the posting. The registration process does not prevent a single
individual from registering under multiple screen

*1 Universal Communication Systems, Inc. is a Nevada corporation with its corporate offces in Florida. The company at one point provided telecommunications services and currently is developing solar-

names.
*2 Starting at least in 2003, a number of po

stings dis-

powered water extraction systems. It is a publiclytraded company that trades under the ticker symbol

"lJCSY," a label that the company also uses in its promotional materials. Zwebner is Chairman and
CEO of the company. He is a citizen of the United Kingdom and of Israel, with his principal residence in

paraging the "financial condition, business prospects and management integrity" of UCS appeared on Raging Bull's UCSY message board. lJCS alleges that these postings were "false, misleading and/or incomplete." In particular, UCS identified postings made under eight different screen names as objectionable. ues alleges that the individuals registered under
each of these screen names "are one .rand) the same

tQ 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3d ----

Document 302

Filed 03/02/2007

Page 7 of 16
Page 4

--- F.3d ----, 2007 WL 549111 (C.A1 (Mass.))

(Cite as: --- F.3d ----)

individual, Roberto Vilasenor, Jr. and/or are indi-

viduals acting in concert with Roberto Vilasenor,
Jr."

*2 On January 19, 2005, UCS fied suit against Lycos

sponse to UCS's request for limited discovery in the interim, the district court judge stated that he would "not allow that until I've had an opportnity to hear you on the matter. That wil be an issue that we wil take up at the (later) conference." *3 Lycos and Terra Networks again filed motions to
dismiss, and on October 11, 2005, the district court

and Terra Networks in federal district court in the Southern District of Florida. On February 2, 2005,
before either defendant responded to the complaint,

UCS fied a "First Amended Complaint," adding as defendants eight John Does, each identified by a Raging Bull screen name. In this First Amended Complaint, UCS alleged four claims: (1) fraudulent securities transactions under Fla. Stat. § 517.30 I; (2) cy-

berstalking under 47 U.S,C. § 223; (3) dilution of
trade name under

Fla. Stat. § 495.151; and (4) cyber-

granted the motions. The court ruled from the bench that Section 230 "immunizes Lycos (and Terra Networks) from all of the four counts in the plaintiffs' complaint" and did not address any of the alternate arguments for dismissaL. At that hearing, UCS made no mention of any need for discovery in order to properly oppose the motions to dismiss.
*3 UCS then moved for leave to amend its complaint
again; In the proposed second amended complaint,

stalking under Fla. Stat. § 784.048. The Florida securities claim was made against all of the defendants,
and the remaining claims were made against Lycos and Terra Networks only.

UCS alleged essentially the same four causes of ac-

tion, but added factual allegations going to the
"construct and operation" of Lycos's web sites, evid-

*2 In response, Lycos fied a motion to dismiss, arguing that UCS's claims were barred under Section 230 of the Communications Decency Act, 47 U.S.C.
S 230, and that there was no basis for either the federal cyberstalking claim or the state dilution claim. Section 230 provides that "( n)o provider or user of an in-

ently assuming that such facts would take Lycos outside Section 230 immunity.

teractive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," id. § 230(c)(J),
and that "(n)o cause of

*3 On December 21, 2005, the district court denied the motion to amend the complaint as to Lycos and Terra Networks, finding that the claims against those
defendants, as framed in the proposed second

action may be brought and no
law

liability may be imposed under any State or local

that is inconsistent with this section," id S 230(e)(3).

*2 In the alternative, Lycos moved to transfer the case to the District of Massachusetts, citing a forum
selection clause in its Subscriber Agreement. In addi-

amended complaint, would continue to be barred by Section 230. In addition, the district court held that the claim for cyberstalking under 47 U.S.C. S 223 would be dismissed for failure to state a claim, because that statute does not provide a private right of action. As to the Florida trademark dilution claim, the
cour held that because Lycos was not using "the

'UCSY' trademark to market incompatible products

tion, Lycos sought a stay of discovery pending the
resolution of

these motions. The district court in Florida granted the stay and shortly thereafter transferred the case to Massachusetts. This left pending the motion to dismiss.
*2 Following the transfer, the distrct court in Massachusetts held a hearing on July 26, 2005, at which

or services," but was only using it "on the Raging Bull message board," the claim was "effectively... a
defamation claim in the guise of an anti

dilution

claim," and was thus barred by Section 230.

it denied all pending motions without prejudice. It then scheduled a later conference at which to consider any renewed motions, and held that it would "not lift the stay on discovery at this time." In re-

*3 The district court did, however, grant leave to fie a complaint against the John Doe defendants to assert a claim under the Florida securities statute. On February 27, 2006, UCS fied a "Second Amended Complaint" against Vilasenor and the John Does. In this complaint, UCS substituted Roberto Villasenor, Jr.

for two of the John Does, previously identified as

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
-- F.3d ----

Document 302

Filed 03/02/2007

Page 8 of 16
Page 5

_n F.3d ----, 2007 WL 549111 (C.A.1 (Mass.))
(Cite as: --- F.3d ----)

"the-worm06" and "the-worm06A ." FN 1 The complaint alleged that Villasenor was a citizen of Califor-

basis made apparent by the record." Id.

nia. In addition to asserting a cause of action under Florida securities laws against Vilasenor and the remaining John Does, the complaint alleged causes of
action, founded on the same set of operative facts,

*4 il We begin with the Florida law claims against
Lycos and Terra Networks. - Because these

FN2

under federal securities laws, Massachusetts securities laws, and Massachusetts common law fraud. Sub-

claims are based, at least in part, on the alleged impropriety of postings made by third parties on Raging Bull, UCS must contend with the statutory immunity provided by Section 230. UCS has attempted to plead

ject matter jurisdiction was alleged based on both
federal question jurisdiction and diversity jurisdiction. UCS then moved for entry of separate and final judgment against Lycos and Terra Networks. On April 6, 2006, Vilasenor fied an answer to the com-

around that immunity by casting its claims only in terms of Lycos's actions and by asserting causes of action that purportedly fall into one of the statutory
exceptions to Section 230 immunity. Whatever the

plaint, also assertng counterclaims and third-part
claims.

viability of UCS's legal theories in the abstract, however, the facts pleaded simply do not fit those
theories. On the facts alleged, Congress intended that, within broad limits, message board operators would not be held responsible for the postings made by oth-

*3 On April 18, 2006, the distrct court denied the
motion for entry of separate and final judgment as to Lycos and Terra Networks, finding that the court lacked subject matter jurisdiction over the remaining claims and so judgment should be entered on all claims filed against all defendants. The court found that diversity jurisdiction was destroyed by the pres-

ers on that board. No amount of artful pleading can
avoid that result.
A. Applicabilty ojeDA Section 230

Immunity

ence of the John Doe defendants. The cour also
found that the claim under the federal securities laws

against Vilasenor and the John Does was not suffciently substantial to confer federal question jurisdiction, as UCS had failed to "allege that any individual defendant owned, borrowed, sold, or purchased any

*4 Scction 230 provides that "(n)o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider," 47 U.S.C. §

230(c)(l), and that "(n)o cause of action may be
brought and no liabilty may be imposed under any
State or local law that is inconsistent with this sec-

shares in UCSY." As a result, the distrct court
ordered the case "dismissed as to all defendants."
II.

tion," id. S 230(e)(3t Thus, unless an exception applies, Lycos is immunized from a state law claim if: (1) Lycos is a "provider or user of an interactive
computer service"; (2) the claim is based on
"information provided by another information con-

*4 u. We review a denial of leave to amend the
complaint for abuse of discretion, "deferring to the district court for any adequate reason apparent from the record." Resolution Trust Corp. v. Gold. 30 F.3d 251. 253 (1st Cir.1994). The futility of the amendment is an adequate reason to reject it, see id., and

tent provider"; and (3) the claim would treat Lycos
"as the publisher or speaker" of that inforration.

*4 Although this court has not previously interpreted CDA Section 230, we do not write on a blank slate.

The other courts that have addressed these issues
have generally interpreted Section 230 immunity broadly, so as to effectuate Congress's "policy choice ... not to deter harmful online speech through the ...

here the district court found that the amendment
would be futile because the amended complaint

would be subject to dismissaL. Our review of a dismissal for either failure to state a claim or lack of subject matter jurisdiction (so long as made without factfinding) is de novo. McCloskev. 446 F.3d at 266. We are not limited by the district court's reasoning,

route of imposing tort liability on companies that
serve as intermediaries for other parties' potentially

injurious messages." Zeran v. Am. Online. Inc.. 129
F .3d 327. 330-31 (4th Cìr.1997); see also Carafàno

and we "may affirm an order of dismissal on any

v. Metrosvlash.com, fne.. 339 F.3d 1119. 1123-24

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
n_ F.3d nn

Document 302

Filed 03/02/2007

Page 9 of 16
Page 6

--- F.3d ----, 2007 WL 549111 (C.A.l (Mass.))
(Cite as: --- F.3d ----)

(9th Cir .2003); Ben Ezra. Weinstein & Co. v. Am. Online Inc.. 206 F.3d 980. 985 n. 3 (10th Cir.2000).
In Zeran, the Fourth Circuit noted the "obvious

*5 UCS argues that Lycos might not be such a provider because it "does not provide user access to the

internet." Providing access to the Internet is,
however, not the only way to be an interactive com-

chilling effect" that such intermediary tort liability
could have, given the volume of material communic-

puter service provider. While such providers are
"specifically" included, tlere is no indication that the

ated through such intermediaries, the diffculty of
separating lawful from unlawful speech, and the relative lack of incentives to protect lawful speech. 12

definition should be so limited. Other courts have
reached the same conclusion. See, e.g., Carafano.
339 F.3d at 1123.

F.3d at 331. The Fourth Circuit also recognized the
congressional purpose of removing the disincentives

to self-regulation that would otherwse result if liability were imposed on intermediaries that took an active role in screening content. Id

2. "Information Provided By Another"
*5 The message board postings to which UCS objects are, on their face, "information provided by another
information content provider ." Section 230 defines

*5 In light of these policy concerns, we too find that
Section 230 immunity should be broadly constred. In the context of this case, we have no trouble finding that Lycos's conduct in operating the Raging Bull

"information content provider" to be "any person or

entity that is responsible, in whole or in part, for the
creation or development of information provided

web site fits comfortbly within the immunity intended by Congress. In particular: (1) web site operators,
such as Lycos, are "provider(s) ... of an interactive computer service"; (2) message board postings do not cease to be "information provided by another information content provider" merely because the "constrct

through the Internet or any otler interactive computer service." 47 U.S.C. S 230(f)(3). This is a broad definition, covering even those who are responsible for the development of content only "in part." In this case, it is clear that the individual posters on the Raging Bull web site are information content providers.

the web site might have some influence on the content of the postings; and (3) immunity extends beyond publisher liability in defamation law
and operation" of

*5 A key limitation in Section 230, however, is that immunity only applies when the information that

to cover any claim that would treat Lycos "as the
publisher."
1. "Interactive Computer Service" Provider

forms the basis for the state law claim has been
provided by "another information content provider."

*5 There is no merit to UCS's suggestion that Lycos
might not be a provider of an interactive computer

service and so is not entitled to Section 230 immunity. The statute defines "interactive computer service" to be "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server,

Id. S 230(c)(I) (emphasis added). Thus, an interactive computer service provider remains liable for its own speech. See Anthonv v. Yahoo! fnc.. 421 F.Supp.2d 1257. 1262-63 (N,D.Ca1.2006) (finding an online dating service not immune under Section 230 from claims that it "manufactured false profiles" and "sent
profiles of actual, legitimate former subscribers

whose subscriptions had expired" (internal quotation
marks omitted)).
*6 il It is, by now, well established that notice of

including specifically a service or system that

the

provides access to the Internet." 47 U.S.C. S
230(f)(2). A web site, such as the Raging Bull site, "enables computer access by multiple users to a computer server," namely, the server that hosts the web
site. Therefore, web site operators, such as Lycos, are providers of interactive computer services within the meaning of Section 230.

unlawful nature of the information provided. is not enough to make it the service provider's own speech.

See Zeran. .129 F.3d at 332-33: see also Barrett v.
Rosenthal. 40 Ca1.4th 33. 51 Cal.Rptr.d 55. 146

P.3d 510.514.525 (Ca1.2006). We confirm that view

and join the other courts that have held that Section 230 immunity applies even after notice of the potentially unlawful nature of the third-part content.

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3d ----

Document 302

Filed 03/02/2007

Page 10 of 16
Page 7

m F.3d ----,2007 WL 549111 (C.A1 (Mass.))
(Cite as: --- F.3d ----)

*6 UCS "emphasize(s)" that Lycos was "manifestly
aware of the ilegal nature of (the) subscriber post-

ings," but does not rely on notice alone in arguing

against immunity. UCS argues instead that Lycos
"has involved itself with its subscriber(s') conduct!

UCS criticizes are anything but standard for message boards and other web sites. To impose liability here would contravene Congress's intent and eviscerate Section 230 immunity.

activities and/or rendered culpable assistance to its registered subscribers to the Lycos Network, through the construct and operation of its web site," and that
such conduct falls outside Section 230 immunity. UCS has alleged nothing, however, that suggests that
Lycos should be considered to have been

*7 In a related argument, UCS argues that Lycos has provided "culpable assistance" to subscribers wishing to disseminate misinformation, and hence Lycos exceeded the bounds of Section 230 immunity. UCS
draws an analogy to the copyright case of MGi\t Stu-

"responsible," even "in part," "for the creation or development" of the alleged misinformation. At best,
UCS's allegations establish that Lycos's conduct may have made it marginally easier for others to develop and disseminate misinformation. That is not enough to overcome Section 230 immunity.

dios. Inc. v. Grokçter. Ltd.. 545 U.S. 913. 125 S.Ct. 2764. 162 L.Ed.2d 781 (2005), In Grokster, the Supreme Court held that copyright liability could be premised on a theory of active. inducement of inwho distrbutes a device fringement, so that "one with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmat-

*6 In Carafano, the Ninth Circuit rejected the
plaintiffs suggestion that an online dating service

should have been considered a developer of a false

profie because it provided the questionnaire that a
user of the service answered falsely. 339 F.3d at

ive steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." Id. at 2770. UCS argues that, similarly, Lycos should enjoy no immunity if it actively induces its subscribers to post unlawful content.
*7 It is not at all clear that there is a culpable assist-

1124-25. The court reasoned that the "underlying misinformation" that formed the basis for the complaint was contained entirely in the responses

ance exception to Section 230 immunity. The language of "culpable assistance" used by UCS appears
to have been drawn from Doe v. Gl1i' CorD. 347 Fo3d 655. 659 (7th Cir.2003). But that court used the
language in the context of determining whether the

provided by the user, and that the particularly objec-

tionable content "bore (no) more than a tenuous relationship to the actual questions asked." ld. at 1125.
*6 Compared to Carafano, the allegations in this case provide an even less substantial basis to find that Lycos was a developer of the alleged misinformation.

UCS points to the fact that Lycos does not prevent a
single individual from registering under multiple

defendant might be secondarily liable under the Electronic Communications Privacy Act of 1986 (ECPA), Pub.L. No. 99-508. 100 Stat. 1848 (codified as C.). We note amended in scattered sections of 18 U.S. that liability under the ECP A is specifically exempted
from Section 230 immunity. See 47 U.S.C. S

screen names, and to the fact that Lycos links sites providing objective financial information to the Raging Bull site. UCS's theory is that these features of
the Raging Bull site make it possible for individuals

230(e)(4). There is no ECPA claim here. Similarly,

Grokster itself was a copyright case, and secondary liability for copyright infrngement is not affected by

Section 230 because intellectual propert laws are
also exempted. See id. S 230(e)(2).

to spread misinformation more credibly, by doing so under multiple screen names and in a context that is associated with objective content. In Carafano, the

plaintiff at least had a colorable argument that the
misinformation may have been prompted by the dating service's questions. Here there is not even a color-

*7 We need not decide whether a claim premised on active inducement might be consistent with Section
230 in the absence of a specific exception. Even as-

able argument that any misinformation was prompted by Lycos's registration process or its link structure. There is no indication that the Lycos features that

suming arguendo that active inducement could negate Section 230 immunity, it is clear that UCS has not alleged any acts by Lycos that come even close to constituting the "clear expression or other affirmative

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3 d ----

Document 302

Filed 03/02/2007

Page 11 of 16
Page 8

--- F.3d __n, 2007 WL 549111 (C.A.1 (Mass.))
(Cite as: --- F.3d ----)

steps taken to foster" unlawful activity that would be
necessary to find active inducement. See Grok~ter.

Lycos "as the publisher" only immunizes Lycos's

125 S.Ct. at 2770. UCS relies in part on Lycos's registration process and link structure; as described

"exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw,
postpone or alter content," Zeran. 129 Fo3d at 330.

above, these are standard elements of web sites "with

and not its decisions regarding the "construct and op-

(both) lawful and unlawful potential," see id at 2780.

eration" of its web sites. This argument misapprehends the scope of Section 230 immunity. If the

and hence, without more, cannot form the basis to
find inducement. UCS's complaint also cites the fact that Lycos has taken legal action to protect its subscribers, including moving to quash subpoenas and intervening in relevant cases. Actions taken to protect

cause of action is one that would treat the service
provider as the publisher of a particular posting, im-

subscribers' legal rights, however, cannot be construed as inducement of unlawful activity, and UCS does not allege that Lycos lacked a reasonable basis

munity applies not only for the service provider's decisions with respect to that posting, but also for its inherent decisions about how to treat postings generally. UCS is ultimately alleging that the construct and
operation of Lycos's web sites contributed to the pro-

for its legal activities. Cf Profl Real Estate Investors. Inc. v. Columbia Pictures Indus.. lnc.. 508
U.S. 49. 51. 113 S.Ct. 1920. 123 L.Ed.2d 611 (1993)

liferation of misinformation; Lycos's decision not to reduce misinformation by changing its web site
policies was as much an editorial decision with re-

("(L)itigation cannot be deprived of (antitrust) immunity as a sham unless the litigation is. objectively

spect to that misinformation as a decision not to delete a particular posting. Section 230 immunity does

baseless."). The "unmistakable" evidence of an
"unlawful objective" found in Grokster. 125 S.Ct. at 2782. is entirely absent here.FN3

not depend on the form that decision takes. See
Green v. Am. Online (AOH 318 F.3d 465. 470 (3d
Cir.2003) (finding that liability for the "alleged negligent failure to properly police (AOL's) network for content transmitted by its users ... would 'treat' AOL
'as the publisher or speaker' of

*8 Thus, it is clear that, taking UCS's allegations as true, Lycos has done nothing in this case that might make the misinformation at issue its own, rather than that of "another information content provider."

that content").

*8 We hold that, given the allegations in UCS's com-

plaint, liability for Lycos under either the Florida se-

3. Treatment "as the Publisher"
*8ll Finally, liability under either the Florida secur-

curities statute or the Florida cyberstalking statute

would involve treating Lycos "as the publisher" of
ities law or the Florida cyberstalking law would involve treat.in.lg Lycos "as the publisher" of the misin"information provided by another information con-

formation.~ UCS's securities claims are based on the theory that individuals were taking a short position in UCS stock and then spreading misinformation to depress the stock price, so as to profit from their
short position.FN5 There is no allegation that Lycos

FN4

tent provider." Thus, we affrm tle district court's ruling that both claims are barred by Section 230.

13 Trademark Dilution
*8 il UCS's remaining claim against Lycos was

brought under Florida trademark law, alleging dilu-

has been involved in any UCS stock transactions;
thus, any liability against it must be premised on imputing to it the alleged misinformation, that iSt on

tion of the "UCSY" trade name under Fla. Stat. § 495. 151. Claims based on intellectual propert laws
are not subject to Section 230 immunity. See 47 U.S.C. S 230(e)(2) ("Nothing in this section shall be constred to limit or expand any law pertaining to intellectual propert."); see also Gucci Am.. Inc. v. Hall

treating it as the publisher of that information. N6 Similarly, the alleged cyberstalking involves only the publication of a series of postings on the Raging Bull

web site. Again, Lycos's liability would depend on treating it as the publisher ofthose postings.

& Assocs.. 135 F.Supp.2d 409. 4q (S.D.N.Y200l)
(finding that the "plain language ofSectIon 230(e)(2) precludes (the defendant's) claim of immunity" from a claim for trademark infringement).

*8 UCS argues that the prohibition against treating

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3d ----

Document 302

Filed 03/02/2007

Page 12 of 16
Page 9

--- F.3d ----,2007 WL 549111 (C.A.1 (Mass.))
(Cite as: --- F.3d ----)

*9 il Thus, "the pivotal issue for consideration here

is whether Plaintiffs complaint would withstand a
motion to dismiss even in the absence of ~ 230." ¡d.

mitting a trademark owner to enjoin the use of his mark in a noncommercial context found to be negative or offensive, then a corporation could shield itself

at 412. We hold that, because of the serious First
Amendment issues that would be raised by allowing UCS's claim here, the claim would not survive, even
in h b sence . ection,, .. tea f S 0 'l30 FN7

from criticism by forbidding the use of its name in
commentaries critical of

its conduct." Id.

*9 To be sure, UCS does allege that in this case the
criticism is false and misleading. But

while such an

*9 During the relevant time period, Fla. Stat. 9
495.151 (2006) provided that one who adopts and
uses a trademark or trade name has a cause of action the same or *9 to enjoin subsequent use by another of

allegation might be relevant to a defamation claim, it whether UCS's allegations can is not determinative of support a trademark claim. If the injury alleged is one of critical commentary, it falls outside trademark law,
whether the criticism is warranted or unwarranted.

any similar mark (or) trade name ... if it appears to
the court that there exists a likelihood of injury to

UCS itself makes no distinction between lawful and

business reputation or of dilution of the distinctive quality of the mark (or) trade name ... of the prior
user, notwithstanding the absence of competition

unlawful criticism in its proposed remedy under
trademark law: it requests an injunction that. would

require Lycos to "permanently and irrevocably delete

between the parties or of confusion as to the source
o goo s or services.-

the UCSY message board" and refrain "from creat(ing) and maintaining ... a UCSY message board ... in the future."

f d . FN8

*9 UCS's theory is that Lycos is liable under this statute for suggesting to its subscribers that they use the " 'UCSY' mark for designation of a message board on the Raging Bull web site" and then "contrbut(ing) to the development" of misinformation on that message board and failing to remove such misinforma-

*10 UCS tries to avoid the thrust of cases like L.L
Bean by characterizing Lycos's use of the UCSY

trade name as "commerciaL." It certainly appears from the complaint that Lycos derives advertising
revenues from the use of its web sites, including Raging Bull, and that Lycos is a commercial venture.

tion. UCS alleges tlat these acts have caused injury to its business reputation and dilution of its UCSY
trade name.
*9 il The injury that UCS alleges, however, is not a

This does not imply, however, that Lycos's use ofthe

UCSY trade name is "commercial" in the relevant
sense under trademark law. In 1.1. Bean, the defendant had used the plaintiffs trademark in a parody article published in a "monthly periodicaL." 811 F.2d at
27. We found the use noncommercial because the

form of trademark injury. Trademark injury arises from an improper association between the mark and
products or services marketed by others. See L.L. Bean. InG. v. Drake Publishers. Inc.. 811 F.2d 26.31

(1 st Cir.1987t But any injury to UCS ultimately arises from its being criticized on the Raging Bull site. To premise liability on such criticism would raise serious First Amendment concerns. See id. at
33. In 1.1. Bean, this court held that the "application

mark had not been used "to identify or promote goods or services to consumers," id. at 32. regardless of whetler the article appeared in a magazine being sold for profit. Similarly, cours have interpreted the
"noncommercial use" exemption in the Federal

Trademark Dilution Act, 15 U.S.c. § 1125(c), to apply to commentary about trademarked products, even
if that commentary takes the form of a commercial product, such as a widely-marketed song. See MatteI. lnG. v. MeA Recordy. InG.. 296 F.3d 894. 899. 907 (9th Cir.2002). Thus, Lycos might profit by encouraging others to talk about UCS under the UCSY
name, but neither that speech nor Lycos's providing a
forum for that speech is the type of

of the Maine anti-dilution statute to (defendant's)
noncommercial parody cannot withstand constitu-

tional scrutiny" under the First Amendment, recognizing the role of parody "as a form of social and lit-

erary criticism." Id. (quoting Berlin v. B.G Publns.
Inc.. 329 F.2d 541. 545 (2d Cir.1964)) (internal quo-

tation marks omitted). In that case, as in this one, "(i)f the anti-dilution statute were construed as per-

use that is subject

to trademark liability.

tQ 2007 Thomsonlest. No Claim to Orig. US. Govt. Works.

Case 5:03-cv-05340-JF
--- F .3d ----

Document 302

Filed 03/02/2007

Page 13 of 16
Page 10

--- F.3d m_, 2007 WL 549111 (C.A.1 (Mass.))
(Cite as: --- F.3d ----)

*10 Other courts have dealt with similar issues under

similar goods," but rather only to the use of "similar
marks on dissimilar

the rubric of a "nominátive fair use defense." New
Kids on the Block v,News Am. Pub!'l¡. Inc., 971 F.2d 302. 308 (9th Cir. 1 992). Unlike a classic fair use de-

products." Harlev-Davidson Mo-

tor Co. v. Iron Ea'lle (If

Cent. Fla.. Inc.. 973 F.Supp. 1421. 1426 (M.D.Fla 1997). Lycos is not using the

fense, "where the defendant has used the plaintiffs
mark to describe the defendant's own product," a

"UCSY" trade name "on" a product (or business) at all, but is simply referrng to the existing company
that has adopted that trade name.

nominative fair use defense is designed to protect the
ability of others to use a mark "to describe the

plaintiffs product." ld. Thus, the Ninth Circuit found
that a newspaper's use of a musical group's trademarked name to conduct a poll about the group was a nominative fair use, even though the poll was conducted for profit. See id. at 309.

*10 This court has not previously decided whether to endorse the Ninth Circuit's test for nominative fair
uses, and we have no occasion to do so here. We have, however, recognized the underlying principle. In WCVE-TV v. Eoston Athletic Ass'n. 926 F.ld 42 the mark "Boston Mara(1st Cir.l991), the owner of

*11 L1 It is not our role to define the specific contours of the Florida anti-dilution law, and we do not do so here. As other courts have also found, however, anti-dilution laws should be interpreted to provide breathing room for First Amendment concerns. See klCA Records. 296 Fo3d at 904. Whether Lycos's use of the "UCSY" trade name is viewed as a noncommercial use, as a nominative use, or in some other way, we hold that using a company's trade name to label a message board on which the company is discussed is not a use covered by the Florida anti-di-

lution statute. As a result, we affirm the district
court's dismissal ofUCS's dilution claim for failure to state a claim.
C. Discovery

thon" tried to enjoin the use of the mark on an unlicensed broadcast of the marathon. ld. at 44. In rejecting a right to such an injunction, we noted *10 (T)he words "Boston Marathon" ... do more tlan call attention to Channel 5's program; they also de-

scribe the event that Channel 5 will broadcast..
(T)he use of words for descriptive purposes is called a "fair use," and the law usually permits it even if the words themselves also constitute a trademark.
*10 ld. at 46. The unlicensed broadcaster, Channel 5, was not asserting a right to use the mark for a different marathon located in Boston; it was using the mark
to indicate that it was broadcasting the "Boston

*11 UCS argues that its claims against Lycos would
not have fared so poorly had the distrct cour given it

the opportnity to conduct preliminary discovery. We review this claim for an abuse of the district court's broad discretion in managing discovery, and we wil
not "interfere unless it clearly appears that a

'discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved part.' " Ib

Marathon." We held that it had the right to use the
mark to indicate what it was in fact broadcasting.

mimic 1ma'le Tech\'. Inc. v. United States. 221 F.3d 34. 38 (1st Cir.200m (quoting Mack v. Great At!. & Pac. Tea Co. 871 F.2d 179.186 (lstCir.1989)).

Similarly here, trademark law should not prevent Lycos from using the "UCSY" mark to indicate that a particular company is the subject of a particular message board.
*11 il While Florida courts do not appear to have

addressed this particular issue with respect to the
Florida anti-dilution statute, there is every indication that the Florida courts would read the Florida statute

*11 At the outset, UCS may well have forfeited this point by failing to explain to the district court its need for discovery either in its opposition to the motions to dismiss or at the October 11, 2005 hearing on those motions. See id. UCS argues that the need for discovery was apparent from its request at the July 26, 2005

to exclude the uses made in this case. Despite its broad language, "the Florida antidilution statute is
not intended to apply to the use of a similar mark on

hearing, together with' the nature of the arguments made at the October 11 hearing, but it was not the district court's job to infer an explanation from these
scattered statements.

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3d ----

Document 302

Filed 03/02/2007

Page 14 of 16
Page 11

n_ F.3d ----, 2007 WL 549111 (C.A.1 (Mass.))
(Cite as: --- F.3d ----)

*11 In any event, it is clear that even before this
court, UCS has not pointed to any discovery that would support a viable claim against Lycos that falls

specifically allege UCS stock transactions by the defendants.
*12 Such a conclusory allegation of securities fraud

outside of Section 230 immunity.FN9 Cf id. at 39.
UCS focuses on discovery concerning the "construct

runs afoul of the requirement of Federal Rule of Civil
ProcediifC 9(b) to plead "the circu!lstances constitut-

and operation" of Lycos's web sites, but as we have above, Lycos is as entitled to immunity for explained its decisions about how to construct its web sites as for its decisions with n;spect to individual message board postings. Any suggestion that Lycos may have done more specifically to encourage the postings at issue is sheer speculation. "(P)laintiffs should not be permitted to conduct fishing expeditions in hopes of discovering claims that they do not know they have."
McCloskey. 446 F.3d at 271. The district court did not err in not permitting preliminary discovery.

. rau h . i . "I'NI2 ingfi d....wit particu arity. - Not only has

UCS failed to specifically allege a connection
between the postings and a scheme involving lJCS

stock, the sole allegation of a short-sellng scheme is made on information and belief. "Where allegations of fraud are explicitly or ... implicitly based only on information and belief, the complaint must set forth
the source of the information and the reasons for the

II.
*12 UJ The remaining issue concerns UCS's claims

belief." Romani v. Shew'son Lehman Hutton, 929 F.2d 875. 878 (lst Cir.199l). UCS has not done so here. UCS does not purort to state a claim for securities fraud based solely on negative effects that the
Raging Bull po

stings had on the company's stock

against the individual posters: Vilasenor and six
John Does. The district court found that it lacked subjectmatter jursdiction over these claims because the

price; in the absence of fuher factual allegations, it cannot proceed merely on the hope that it wil find more. See Hayduk v Lanna. 775 F 2d 441. 443 (1st
Cir.1985).

putative federal claim was insubstantial, and because
the presence of John Does destroyed diversity juris-

*12 Finally, these pleading defects are also fatal to
UCS's claims under state law based on the same al-

d. ion.- FN ioW e b h"ictionai' iC t' e ypass t juris d" issues
raised and hold, on similar reasoning, that UCS's allegations ary insufficient to plead a claim for securities rau .

legations. "Although state law governs the burden of

. fi d Et

proving fraud at trial, the procedure for pleading fraud in federal courts in all diversity suits is govRule of

*12 JJ UCS's theory of securities fraud appears to
be, as we have described, that Vilasenor and the John Does first took short positions in UCS stock and
then spread misinformation to depress the stock

erned by the special pleading requirements of Federal Civil Procedure 9(b)." ¡d.
IV.

00 Civ. 6635,2004 U.S. Dist. LEXIS 19143, at *1 (S.D.N.Y. Sept. 27,
price. Cf SEC v. Mandaci, No. 2004) (describing scheme to "purchase

*12 Therefore, while some of UCS's claims are
barred by Section 230 immunity, the remaining ones simply do not state a claim based on the facts alleged. If lJCS has in fact been injured, redress is not available through any of the avenues it has chosen to pursue in this case. The district cour's dismissal of all claims is affrmed. Costs are awarded to appellees.

( ) certain

stocks and then ... artificially inflate the market prices of those stocks by posting false information ... on In-

ternet message boards"). However, UCS does not suffciently allege such a scheme. UCS's Second
Amended Complaint contains copious allegations regarding the postings on Raging Bull, but as to a

short-selling scheme, only a single allegation that "(u)pon information and belief," the individual defendants "fraudulently manipulate

FNI. Despite UCS's suggestion to the contrary, the complaint squarely alleged that the John Does might not all be Vilasenor, but

( d) the market in

might be "individuals acting in concert
with" Vilasenor.
FN2. Both before the district court and in

the securities for publicly traded companies" using a
short-selling scheme. Nowhere does the complaint

tQ 2007 Thomson/est. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3d ----

Document 302

Filed 03/02/2007

Page 15 of 16
Page 12

--- F.3d ----,2007 WL 549111 (C.A 1 (Mass.))
(Cite as: --- F.3d ----)

this court, Terra Networks has argued that, in addition to the bases for dismissal applicable to Lycos, the claims against it should be
dismissed for lack of personal jurisdiction.

state statutes. UCS's brief might be read to

suggest something along these lines, but
"issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United

Because we find that all claims against both Lycos and Terra Networks were properly

States v. Zannino. 895 F ,2d 1. 17 (i st
Cir.1990).

dismissed for failure to state a claim, we need not reach this alternative arguent. In
the remainder of this opinion, we refer only
to claims against Lycos, but the disposition

FN5. To take a short position in a stock
means to sell borrowed stock at the current price in the hope that the stock price wil decline and the borrower will be able to retu the borrowed stock by purchasing it at the later, lower price.
FN6. We express no view on the viability of such a claim, absent Section 230 immunity.

of the claims against Terra Networks is the
same.

FN3. UCS also argues that because it bases its claims on Lycos's alleged "intentional misconduct," those claims are not subject to Section 230 immunity. It is not clear how UCS is using the phrase "intentional misconduct." If this refers to Lycos's acting in-

tentionally with knowledge of the thirdpart misinformation, then such claims are

FN7. After noting the same First Amendment concerns, the district court held that
UCS's trademark claim was "effectively... a defamation claim in the guise of an antidilution claim," and that "Lycos and Terra

barred under our holding that notice does not preclude Section 230 immunity. If this refers to Lycos's acting with intent to harm
UCS, then this is a variant on an active in-

would therefore be shielded from (the claim)

by CDA immunity." We reason somewhat
differently, holding that even though Section 22 immunity does not apply, the claim was properly dismissed as a matter of trademark
law.

ducement theory, which, as we have described, has no basis in UCS's factual allegations.
FN4. On the federal cyberstalking claim un-

der 47 U.S.c. Q 223, in addition to finding

the claim barred by Section 230, the distrct
court also found that the cyberstalking stat-

ute does not provide a private right of action. UCS does not challenge this dispositive ruling on appeal, so we affrm the dismissal
of the claim on that basis, expressing no

FN8. The statute has since been amended, effective January 1, 2007, and now applies only to "a mark that is famous in this state." Fla. Stat. S 495.151 (2007). The new statute

contains an explicit exception for
"(n)oncommercial use of the mark." Id. §

495.151 (3)(b ì. Our discussion below would apply equally to the new statute.

view on the appropriateness of applying

Section 230 immunity to a putative civil
claim under 47 U.S.C. 9 223. See 47 U.S.C.

S 230(e)(I) ("Nothing in this section shall be

construed to impair the enforcement of ~ tion 223 or 231 of this (title 471, ... or any
other Federal criminal statute." (emphasis

FN9. UCS does argue that discovery as to the identity (and citizenship) of the persons using particular screen names to post the allegedly unlawful comments would have allowed it to stave offthe district court's juris-

added)).

Nor do we express a view on whether the specific exception in § 230(e)(I) for federal criminal statutes might apply to analogous

dictional dismissaL. Since we affrm the dismissal on alternate grounds below, we need such discovery. not address the propriety of

FNlO. The presence of John Does does not

tQ 2007 Thomsonlest. No Claim to Orig. U.S. Govt. Works.

Case 5:03-cv-05340-JF
--- F.3d n__

Document 302

Filed 03/02/2007

Page 16 of 16
Page 13

-- F.3d ----,2007 WL 549111 (C.A1 (Mass.))
(Cite as: --- F.3d ----)

destroy diversity jurisdiction in cases removed to federal cour. See 28 D.S.C. §
144J(a) ("For purposes of removal under
this chapter, the citizenship of defendants

ings also fall short of the standard required
by the Private Securities Litigation Reform

Act of 1995, 15 D.S.C. & 78u-4, which we have held to embody "at least the standards
of Rule 9(b )." Greebel v. FTP Software.
lnc.. 194 F.3d 185. 193 (lst Cír.1999).

sued under fictitious names shall be disregarded."); see also Howell v. Tribune Enim'i
Co.. 106 F.3d 215. 218 nth Cir.997). Fed-

eral courts do not agree on whether John
Does are permitted in diversity cases originally filed in federal court, as this case was. ComlJare Howell 106 F.3d at 218(no) with Macheras v. Gir. Art Galleries-Hawaìì. Inc.,
776 F,Supp. 1436. 1440 (D.Haw.199i)

C.A.1 (Mass.),2007. Universal Communication Systems, Inc. v. Lycos, Inc. _n F.3d ----,2007 WL 549111 (C.A1 (Mass.))

Briefs and Other Related Documents (Back to top)

. 06-1826 (Docket) (May 23, 2006)
END OF DOCUMENT

(yes). The First Circuit has never directly

addressed this issue, nor do we do so here.
See

McMann v. Doe. 460F.Supp.2d 259.

264 (D.Mass.2006).

FN 11. The Supreme Court has held that courts must resolve issues of Article II jur-

isdiction before reaching questions on the
merits, even if "(1) the merits question is

more readily resolved, and (2) the prevailing
part on the merits would be the same as the

prevailing part were jurisdiction denied."
Steel Co. . v. Citizens for a BelieI' Env't, 523
u.s. 83. 91-94. 118 S.c. 1003. 140 L.Ed.2d

210 (1998), However, the rule is well estab-

lished in this circuit that "while Article II jurisdictional disputes are subject to Steel Co., statutory jurisdictional disputes are
not." Restoration Pres. lvfasonrv. Inc. v.

Grove Eur. Ltc!.. 325 F.3d 54. 59 (1st
Cir.2003). Article II requires only

"minimal diversity" for jurisdiction based on diversity

of citizenship, that is, "two adverse parties (who) are not co-citizens." State Farm Fire
&: Cas. Co. v. Tashire. 386 U.S. 523.

530-31. 87 S.c. 1199. 18 L.Ed.2d 270

(1967). In this case, Vilasenor, a citizen of California, is diverse from Universal Communication Systems, a Nevada corporation

with its principal place of business in Florida. Thus, the district court did have Article II jurisdiction over the claims in the Second Amended Complaint fied by UCS.

FN12. To the extent applicable, the plead-

tQ 2007 Thomson/est. No Claim to Orig. U.S. Govt. Works.