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

Filing 181

PLAINTIFF'S RESPONSE in opposition and Memorandum of Law re 168 Motion to supplement Motion for Summary Judgment and Plaintiff's Motion to Strike Defendants' Motion to Supplement Record filed by Whitney Information Network, Inc. (Birken, Shawn) Modified on 2/12/2008 to correct docket text (drn).

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 2:04-cv-47-FtM-34 SPC
WHITNEY INFORMATION
NETWORK, INC., a Colorado corporation,
Plaintiff,
v.
XCENTRIC VENTURES, LLC., an
Arizona limited liability company;
BADBUSINESSBUREAU.ORG, an
Arizona limited liability company; and
ED MAGEDSON, an individual,
Defendants.
____________________________________/
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO ADMIT
NEWLY DISCOVERED EVIDENCE IN SUPPORT OF DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO STRIKE
SAID MOTION
AND INCORPORATED MEMORANDUM OF LAW
Plaintiff, Whitney Information Network, Inc. (“WIN”), hereby files this Response
to Defendants’ Motion to Admit Newly Discovered Evidence in Support of Defendants’
Motion for Summary Judgment and Plaintiff’s Motion to Strike Defendants’ Motion to
Admit Newly Discovered Evidence in Support of Defendants’ Motion for Summary
Judgment [Court Document No. 168] and Incorporated Memorandum of Law and states:
On September 27, 2005, WIN filed its First Amended Complaint [Court
Document No. 56] against defendants, Xcentric Ventures, LLC, Badbusinessbureau.org
and Ed Magedson, alleging a cause of action for defamation per se based upon
derogatory comments about WIN contained on the “Rip-off Report” website. On April
16, 2007, this Court entered its Amended Case Management and Scheduling Order,

wherein the deadline to file Motions for Summary Judgment was set for November 5,
2007. [Court Document No. 105]
On June 21, 2007, Defendants filed their Motion for Summary Judgment and
Alternatively, Motion for Reconsideration RE: Motion to Dismiss Plaintiffs’ [sic] First
Amended Complaint for Lack of Personal Jurisdiction and Motion for Sanctions. [Court
Document No. 115] Since Defendants’ Motion for Summary Judgment was filed four (4)
months prior to the discovery deadline and prior to WIN’s opportunity to take the
depositions of Ed Magedson and Xcentric’s Rule 30(b)(6) corporate representative, on
June 26, 2008, WIN was forced to file a Motion for Additional Discovery Time to
Respond to Defendants’ Motion for Summary Judgment. [Court Document No. 119]
WIN concluded its necessary discovery, and on September 10, 2007, WIN filed
its Response to Defendants’ Motion for Summary Judgment. [Court Document No. 141]
United States District Court Judge Marcia Morales Howard deemed WIN’s Response to
Defendants’ Motion for Summary Judgment as timely filed. [Court Document No. 149]
(October 5, 2007 Order)
On January 28, 2008, almost five months after WIN responded to Defendants’
Motion for Summary Judgment, Defendants’ filed the instant Motion, seeking to use
additional evidence to support their Motion for Summary Judgment. Defendants’ Motion
interjects and utilizes the new evidence and further incorporates the evidence into legal
analysis. In essence, in lieu of appropriately waiting for this Court to determine whether
Defendants can supplement the record, Defendants went ahead and added the new
evidence without leave of court. Consequently, the Motion at issue is an impermissible
reply.
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ROTHSTEIN ROSENFELDT ADLER
Las Olas City Centre, Suite 1650, 401 East Las Olas Boulevard, Fort Lauderdale, Florida 33301

In Bach v. Florida R/S, Inc., 838 F.Supp. 559 (M.D. Fla. 1993), this Court found:
“Additionally, Plaintiff’s ‘notice’ includes two pages of legal argument. It appears that
Plaintiff’s notice is, in effect, a reply, which is not permitted without leave of Court. The
Court will consider only the cases cited by Plaintiff in her supplement and not the legal
argument.” Bach v. Florida R/S, Inc., 838 F.Supp. 559 at 560. Similarly, this Court
should not consider Defendants’ impermissible argument.
Having filed an impermissible reply, WIN is prejudiced because it is deprived of
responding to the new discovery, facts and legal analysis. This would be fundamentally
unfair to WIN.
It should be noted that on February 6, 2008, this Court granted in part and denied
in part Defendants’ Motion for Leave to File Reply Brief. [Court Document no. 177]
The instant motion cannot qualify as Defendants’ reply as it contains facts and argument
that do not address WIN’s Response to Defendants’ Motion for Summary Judgment.
United Broadcasting Corp. v. Miami Tele-Communications, 140 F.R.D. 12 (S.D. Fla.
1991) (“[A] ‘notice of supplemental authority’ that raises an argument that is not in
defendant’s previous memorandum in opposition is in fact an attempt at a sur-response,
which is not permitted in the absence of court order.”) Accordingly, Defendants’ instant
Motion is clearly an attempt at an impermissible Reply, and any subsequent attempts by
Defendants to include new argument or facts would clearly deprive WIN of the ability to
address said argument or facts, and should therefore be discouraged.

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ROTHSTEIN ROSENFELDT ADLER
Las Olas City Centre, Suite 1650, 401 East Las Olas Boulevard, Fort Lauderdale, Florida 33301

WIN certifies that it has made a good faith effort to resolve the issue, by sending
Defendants’ counsel email correspondence, and in fact, the case law cited supra, but
Defendants chose to file the Motion regardless of the authority.
WHEREFORE Whitney Information Network, Inc. respectfully requests this
Court deny Defendants’ Motion to Admit Newly Discovered Evidence in Support of
Defendants’ Motion for Summary Judgment and grant Plaintiff’s Motion to Strike s
Defendants’ Motion to Admit Newly Discovered Evidence in Support of Defendants’
Motion for Summary Judgment and for any other relief this Court deems necessary and
proper.
Dated: February 11, 2008

Respectfully submitted,

By: /s/ Shawn L. Birken
Scott W. Rothstein
Florida Bar No.: 765880
Steven N. Lippman
Florida Bar No.: 709638
Shawn L. Birken
Florida bar No.: 418765
ROTHSTEIN ROSENFELDT ADLER
Counsel for Plaintiffs
401 East Las Olas Boulevard, Suite 1650
Fort Lauderdale, Florida 33301
Tele: 954/522-3456
Fax: [phone]
E-Mail: [e-mail]

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ROTHSTEIN ROSENFELDT ADLER
Las Olas City Centre, Suite 1650, 401 East Las Olas Boulevard, Fort Lauderdale, Florida 33301

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11th day of February, 2008, I electronically
filed the forgoing document with the Clerk of Court using CM/ECF. I also certify that the
foregoing is being served this day upon all counsel of record identified on the attached
Service List in the manner specified, either via transmission of Notices of Electronic
Filing generated by CM/ECF or in some other authorized manner for those counsel or
parties who are not authorized to receive electronically Notices of Electronic Filing.
/s/ Shawn L. Birken
Shawn L. Birken
H:\swrdocs\03-8471\Pleadings\motion to strike motion for leave to add evidence.doc

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ROTHSTEIN ROSENFELDT ADLER
Las Olas City Centre, Suite 1650, 401 East Las Olas Boulevard, Fort Lauderdale, Florida 33301

SERVICE LIST
United States District Court, Middle District of Florida
Fort Myers Division
Whitney Information Network, Inc. vs. Xcentric Ventures, LLC., et al.
Case No. 2:04-cv-47-FtM-34SPC
Scott W. Rothstein, Esq.
[e-mail]
Steven N. Lippman, Esq.
[e-mail]
Shawn L. Birken, Esq.
[e-mail]
ROTHSTEIN ROSENFELDT ADLER
401 East Las Olas Boulevard, Suite 1650
Fort Lauderdale, Florida 33301
Tele: 954/522-3456
Fax: [phone]
Counsel for Plaintiff
Whitney Information Network, Inc.
Brian J. Stack, Esq.
Stack, Fernandez, Anderson, Harris & Wallace, P.A.
1200 Brickell Ave., Suite 950
Miami, Florida 33131
[e-mail]
Tele.: 305/371-0001
Fax: [phone]
Counsel for Defendants
Xcentric Ventures, LLC, badbusinessbureau.org and EdMagedson
Maria Crimi Speth, Esq.
[e-mail]
Jaburg & Wilk, PC
3200 North Central Avenue, Suite 2000
Phoenix, Arizona 85012
Tele.: 602/248-1089
Fax: [phone]
Counsel for Defendants
Xcentric Ventures, LLC, badbusinessbureau.org and EdMagedson

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ROTHSTEIN ROSENFELDT ADLER
Las Olas City Centre, Suite 1650, 401 East Las Olas Boulevard, Fort Lauderdale, Florida 33301