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

Filing 184

NOTICE by Xcentric Ventures, LLC, Ed Magedson of Filing Proposed Verdict Form and Proposed Jury Instructions and Proposed Voir Dire (Attachments: # 1 Defendants' Proposed Verdict Form, # 2 Defendants' Proposed Jury Instructions, # 3 Defendants' Proposed Voir Dire)(Speth, Maria)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

WHITNEY INFORMATION NETWORK,
INC.; a Colorado corporation,
Plaintiffs,

Case No: 2:04-CV-47-ftm-29
DEFENDANTS’ PROPOSED
JURY INSTRUCTIONS

v.
XCENTRIC VENTURES, LLC, an
Arizona limited liability company;
BADBUSINESSBUREAU.ORG, an
Arizona limited liability company; and ED
MAGEDSON, an individual,
Defendants.

Xcentric Ventures, LLC, (“Xcentric”), and Ed Magedson (“Magedson”)
(collectively, the “Defendants”) respectfully request that the Court issue the following
pattern jury instructions at trial in this matter:
Eleventh Circuit Pattern Jury Instructions (Civil Cases) 2005 – Basic Instructions
1, 2.2, 3, 4, 6, 7, 8, 9,
Eleventh Circuit Pattern Jury Instructions (Civil Cases) 2005 – Supplemental
Damage Instructions - 1.1 Duty to Mitigate in General
Eleventh Circuit Pattern Jury Instructions (Civil Cases) 2005 – Supplemental
Damage Instructions - 6.1 Attorneys Fees and Court Costs
In addition, Defendants request the following instructions:
. . . .
. . . .
. . . .

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 1
(Defamation)
Plaintiffs claim that Defendants defamed them. The issues for your determination
on the claim of Whitney Information Network, Inc. against Edward Magedson and
Xcentric Ventures, LLC are:
Whether Mr. Magedson and Xcentric made the statement concerning Whitney
Information Network as Whitney Information Network contends, and if so;
Whether Mr. Magedson and Xcentric’s statement concerning Whitney was in
some significant respect a false statement of fact and tended to injure Whitney in its
business, reputation or occupation.
A statement is in some significant respect false if its substance or gist conveys a
materially different meaning than the truth would have conveyed. In making this
determination, you should consider the context in which the statement is made and
disregard any minor inaccuracies that do not affect substance of the statement.
If the greater weight of the evidence does not support the claim of Whitney
Information Network on the issues on the issues I have just mentioned, your verdict
should be for Edward Magedson and Xcentric. “Greater weight of evidence” means the
more persuasive force and effect of the entire evidence in the case. However, if greater
weight of the evidence does support the claim of Whitney Information Group on those
issues, then:
You must next determine whether clear and convincing evidence shows that at the
time the statement was made Mr. Magedson and Xcentric Ventures knew the statement
was false or had serious doubts as to its truth.
“Clear and convincing evidence” differs from the “greater weight of the evidence”
in that it is more compelling and persuasive. “Clear and convincing evidence” is
evidence that is precise, explicit, lacking in confusion, and of such weight that it produces
a firm belief or conviction, without hesitation, about the matter in issue.
If clear and convincing evidence does not show that Mr. Magedson and Xcentric
Ventures knew when the statement was made that it was false, or that they had serious
doubts then as to its truth, your verdict should be for Mr. Magedson and Xcentric
Ventures.
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However, if clear and convincing evidence does support Whitney Information
Network’s claim in this issue, and the greater weight of evidence supports Whitney
Information Network’s claim on the other issues on which I have instructed you then
your verdict should be for Whitney Information Network.

Source: Florida Standard Jury Instruction MI 4.1

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] Given
] Given as Modified
] Refused
] Withdrawn
] Withdrawn

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 2
(Defamatory Meaning–Opinion)
In the previous instruction, I indicated that to be defamatory, the statement must
be a false statement of fact. In other words, opinions can not be defamatory. When
considering whether or not a statement is one of fact or opinion, you should consider the
statement in its complete context and determine whether or not a reasonable reader would
believe the statement was one of fact or opinion.
If you find than any statement was an opinion of the author, rather than a
statement of fact, then that opinion can not be the basis for your verdict in favor of
Whitney Information Network.
Source: Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89
L.Ed.2d 783 (1986); Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 41 L.Ed.2d 789,
94 S.Ct. 2997 (1974)

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] Given
] Given as Modified
] Refused
] Withdrawn

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 3
(Defamation of a Corporate Plaintiff)
In this case, the Plaintiff is a corporation. Although corporations have reputations
and can be defamed, the law does not allow corporations to recover for the same kinds of
statements which might be defamatory as to a private individual.
In order for a corporate plaintiff to recover for defamation, the evidence must
show that in addition to all the other elements of a defamation claim, false statements
were made which related to the corporation’s business operations, financial condition, or
quality of goods or services.
Statements which insult or even defame individual employees of a company are
not actionable by the corporation itself unless those statements also accuse the company
of fraud, mismanagement, or financial instability.
Source: Cont’l Nut Co. v. Robert L. Berner Co., 354 F.2d 395, 397 (7th Cir. 1965); Byrd
v. Hustler Magazine, 433 So.2d 593, 595 (Fla. 4th DCA 1983)); David A. Elder,
Defamation: A Lawyer’s Guide § 1:1[A][2] at 10–11 (emphasis added) (citing
Adirondack Record v. Lawrence, 202 App.Div. 251, 195 N.Y.S. 627, 629–30 (1922);
Brayton v. Cleveland Special Police Co., 63 Ohio St. 83, 57 N.E. 1085, 1086 (1900);
Hapgoods v. Crawford, 125 App.Div. 856, 110 N.Y.S. 122, 123 (1908); Afftrex, Ltd. v.
General Electric Co., 161 App.Div.2d 855, 555 N.Y.S.2d 903, 905 (1990); Restatement
(Second) of Torts § 561, comment b (1977)).

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] Given
] Given as Modified
] Refused
] Withdrawn

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 4
(Communications Decency Act Immunity/Publisher/Speaker)
You will recall that I instructed you that one of the determinations you will need to
make is “whether Mr. Magedson and Xcentric made the statement concerning Whitney
Information Network as Whitney Information Network contends.”
In making that determination, you must apply a legal test set forth by federal
statute. The federal law states that the provider or user of an interactive website cannot
be regarded as the publisher or speaker of any statement posted on the website by another
person unless the evidence shows that the Defendant actually created the statement, in
whole or in part.
If you find that Xcentric Ventures and Edward Magedson are users or providers of
an interactive computer service and that the statement originated with a third party user of
the website, then you should find that Mr. Magedson and Xcentric Ventures did not make
the statement. On the other hand, if you find that Mr. Magedson and Xcentric Ventures
authored the statement, then you should find that Mr. Magedson and Xcentric made the
statement.
Source: Whitney Information Network, Inc. v. Verio, Inc., 2006 WL 66724, *2, 79
U.S.P.Q.2d 1606 (M.D.Fla. 2006) (recognizing “the CDA “creates a federal immunity to
any cause of action that would make service providers liable for information originating
with a third-party user of the service.”) (quoting Zeran v. America Online, Inc., 129 F.3d
327, 330 (4th Cir. 1997); 47 U.S.C. § 230(c)(1); Blumenthal v. Drudge, 992 F.Supp. 44,
51 (D.D.C. 1998); Ben Ezra, Weinstein, and Co., Inc. v. America Online, Inc., 206 F.3d
980, 986 (10th Cir. 2000); Morrison v. America Online, Inc., 153 F.Supp.2d 930, 933–934
(N.D.Ind. 2001); PatentWizard, Inc. v. Kinko’s, Inc. 163 F.Supp.2d 1069, 1071 (D.S.D.
2001); Green v. America Online, 318 F.3d 465, 470-471 (3rd Cir. 2003); Carafano v.
Metrosplash.com, Inc., 339 F.3d 1119, 1123-1124 (9th Cir. 2003); Doe One v. Oliver, 755
A.2d 1000, 1003-1004 (Conn.Super.Ct. 2000); Doe v. America Online, Inc., 783 So.2d
1010, 1013-1017 (Fla. 2001); Schneider v. Amazon.com, Inc., 31 P.3d 37, 40-42
(Wn.App. 2001); Barrett v. Fonorow 799 N.E.2d 916, 923-925 (Ill.App.Ct. 2003);
Donato v. Moldow 865 A.2d 711, 720-727 (N.J. Super.Ct.App.Div. 2005); Austin v.
CrystalTech Web Hosting, 125 P.3d 389, 392-394 (Ariz.App. 2005)).

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] Given
] Given as Modified
] Refused
] Withdrawn

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 5
(Communications Decency Act/Publisher/Speaker)

Evidence shows that Mr. Magedson and Xcentric engaged in minor editing of
content or making decisions whether to publish, withdraw, postpone, or alter content, is
not sufficient to treat them as the publisher or speaker of any statements about Whitney
Information Network unless the evidence shows that the statements were actually written
by Defendants and not by another person.
Source: Green v. America Online, 318 F.3d 465, 470 (3rd Cir. 2003).

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] Given
] Given as Modified
] Refused
] Withdrawn

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 6
(Defamation: Causation and Damages)
If you find for Mr. Magedson and Xcentric Ventures, you will not consider the
matter of damages. But if you find for Whitney Information Network, you should award
Whitney Information Network an amount of money that the greater weight of evidence
shows will fairly and adequately compensate Whitney Information Network for such
damage as the greater weight of evidence shows was caused by the statement complained
of. A statement is a cause of damage if it directly and in natural continuance sequence
produces or contributes substantially to producing such damage. If you find for Whitney
Information Network you shall consider the following elements of damage:
Any injury to reputation experienced in the past or to be experienced in the future.
There is no exact standard for fixing the compensation to be awarded on account of such
elements of damage. Any award should be fair and just in light of the evidence.
If you find for Whitney Information Network but find that no damage has been
proved, you may award nominal damages. Nominal damages are damages of an
inconsequential amount which are awarded to vindicate a right where a wrong is
established, but no damage is proved.
Source: Florida Standard Jury Instruction MI 4.4

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] Given
] Given as Modified
] Refused
] Withdrawn

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 7
(Defense – Incremental Harm)
One of the defenses raised in this case is that some or all of the negative statements about
Whitney Information Network have been published in other places beside Xcentric
Ventures’ website and by persons other than Edward Magedson and Xcentric Ventures.
If the evidence shows that negative statements about Whitney Information
Network have been published in other places and by persons other than the Mr.
Magedson and Xcentric Venturess, you may consider that fact when determining whether
or not Whitney Information Network has suffered any damages as a result of the
statements which it claims Mr. Magedson and Xcentric Venturess are responsible for.
If the weight of the evidence shows that Whitney Information Network’s
reputation has already been substantially harmed as a result of negative statements
published in other places and by persons other than the Mr. Magedson and Xcentric
Venturess, then you may find Whitney Information Network has not suffered any
additional damages as a result of the statements which it claims Mr. Magedson and
Xcentric Venturess are responsible for. In that case, you may find that Whitney
Information Network is not entitled to recover any damages in this case because its
reputation was already harmed by statements other than those at issue here.
Source: Rodney A. Smolla, Law of Defamation § 9:61 (2d ed 2007); Masson v. New
Yorker Magazine, Inc., 881 F.2d 1452, 16 Media L. Rep. (BNA) 2089, 2093–94 (9th Cir.
1989); Herbert v. Lando, 781 F.2d 298, (2nd Cir. 1986); Austin v. American Ass’n of
Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001); Desnick v. American Broadcasting
Cos., 44 F.3d 1345, 1350 (7th Cir. 1995); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222,
1228 (7th Cir. 1993).
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] Given
] Given as Modified
] Refused
] Withdrawn

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DEFENDANTS’ REQUESTED JURY INSTRUCTION NO. 8
(Defense – Libel Proof Plaintiff)
One of the defenses raised in this case is that Whitney Information Network’s
reputation was already so poor that none of the statements at issue in this case caused any
additional harm to Whitney Information Network even if those statements were not true.
This is known as the “libel-proof Plaintiff” rule.
You may apply this rule if the weight of the evidence shows that the Whitney
Information Network already had such a bad reputation that it cannot show further injury
to its reputation as a result of the statements at issue in this case.
In the absence of evidence to the contrary, the law presumes that every Whitney
Information Network has a reasonably good reputation which may be harmed by false
and defamatory statements.
It is Xcentric Ventures’ and Mr. Magedson’s burden to prove that the weight of
the evidence shows that Whitney Information Network’s reputation was already damaged
before the statements at issue in this case were made.

Source: 53 C.J.S. Libel and Slander; Injurious Falsehood § 15; Cardillo v. Doubleday &
Co., Inc., 518 F.2d 638 (2d Cir. 1975); Wynberg v. National Enquirer, Inc., 564 F. Supp.
924 (C.D. Cal. 1982); Ray v. Time, Inc., 452 F. Supp. 618 (W.D. Tenn. 1976), aff'd, 582
F.2d 1280 (6th Cir. 1978); Logan v. District of Columbia, 447 F. Supp. 1328 (D.D.C.
1978).

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] Given
] Given as Modified
] Refused
] Withdrawn

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DEFENDANTS’ PROPOSED JURY INSTRUCTION NO. 9
(Adverse Inference From Failure to Disclose or Present Evidence)
You are instructed that a party’s failure to identify, disclose, or introduce into
evidence a document or witness which is in that party’s control, reasonably available to
that party, and not reasonably available to the adverse party, may support an inference
that the evidence is unfavorable to the party who could have produced it and did not. If
you find that a party failed to identify, disclose, or introduce into evidence a document or
witness in its control, reasonably available to that party, and not reasonably available to
the adverse party, you may infer that that the evidence is unfavorable to the party who
could have produced it but did not do so.
Sources: Fed. R. Civ. P. 37(c); 2 J. Wigmore, Evidence, § 285 (1979); International
Union v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972) (for discussion with citation to
authority); Baxter v. Palmigiano, 425 U.S. 308, 318-20 (1976).

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] Given
] Given as Modified
] Refused
] Withdrawn

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DATED February 11, 2008
By: /s/ Maria Crimi Speth
Maria Crimi Speth
Arizona Bar No.: 012574
Jaburg & Wilk, P.C.
3200 N. Central Ave.
Suite 2000
Phoenix, AZ 85012
602-248-1000
Attorneys for Defendants
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.
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/ Maria Crimi Speth
Maria Crimi Speth

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