Whitney Information, et al v. Xcentric Ventures, et al

Filing 167

NOTICE of supplemental authority re 115 MOTION for summary judgment by Xcentric Ventures, LLC, Badbusinessbureau.org, Ed Magedson (Speth, Maria)

Maria Crimi Speth, #012574 (Admitted Pro Hac Vice)
JABURG & WILK, P.C.
3200 North Central Avenue, Suite 2000
Phoenix, Arizona 85012
[phone]
Attorneys for Defendants

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

WHITNEY INFORMATION NETWORK,
INC.; a Colorado corporation,
Plaintiffs,
v.
XCENTRIC VENTURES, LLC, an
Arizona limited liability company;
BADBUSINESSBUREAU.ORG, an
Arizona limited liability company; and ED
MAGEDSON, an individual,

Case No: 2:04-CV-47-ftm-29
NOTICE OF FILING
SUPPLEMENTAL AUTHORITY IN
SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Defendants.

Xcentric Ventures, LLC, (“Xcentric”), and Ed Magedson (“Magedson”)
(collectively, the “Defendants”) respectfully submit the following Notice of Filing
Supplemental Authority in support of Defendants’ Motion for Summary Judgment.
In Plaintiff’s Response (Doc. #141; 9/10/2007) to Defendants’ Motion for
Summary Judgment, Plaintiff repeatedly cited to the Ninth Circuit’s decision in Fair
Housing Council of San Fernando Valley v. Roommates.com, L.L.C, 489 F.3d 921 (9th
Cir. 2007) (“Roommates”). The Roommates decision was cited as support for Plaintiff’s
position that Defendants were not entitled to immunity pursuant to the Communications
Decency Act, 47 U.S.C. § 230(c). In fact, the Roommates case was virtually the sole
legal basis for Plaintiff’s opposition to Defendants’ Motion for Summary Judgment.

10297-8/DSG/DSG/632952_v1

However, notice is hereby given that on October 12, 2007 the Ninth Circuit
granted rehearing en banc of Roommates and simultaneously ordered the original
decision depublished: “The three-judge panel opinion shall not be cited as precedent by
or to this court or any district court of the Ninth Circuit …. .” Fair Housing Council of
San Fernando Valley v. Roommates.com, L.L.C., --- F.3d ----, 2007 WL 3013891 (9th Cir.
Oct. 12, 2007), 07 Cal. Daily Op. Serv. 12,175 (emphasis added).
Because the Roommates opinion cited by Plaintiff has been depublished, it is not
proper authority supporting Plaintiff’s opposition to Defendant’s motion. This Court
should therefore not rely upon or consider Roommates in determining whether to grant
summary judgment for Defendants.
DATED January 18, 2008.
JABURG & WILK, P.C.
s/Maria Crimi Speth
Maria Crimi Speth, Esq.
Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of January 2008, I caused the attached
document to be electronically transmitted to the Clerk’s Office using the CM/ECF
System for filing and transmittal of a Notice of Electronic Filing to the following
CM/ECF Registrants:

Steven Neil Lippman
Shawn L. Birken
Scott W. Rothstein
Rothstein Rosenfeld Adler
Suite 1650
401 E Las Olas Blvd
Ft Lauderdale, FL 33301
Attorneys for Plaintiff

Brian J. Stack
Stack, Fernandez, Anderson,
Harris & Wallace, P.A.
1200 Brickell Ave., Suite 950
Miami, FL 33131-3255
Attorneys for Defendant

s/Debra Gower

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