Esys Latin America, Inc. v. Automattic, Inc.

Filing 28

ANSWER and Affirmative Defenses to Complaint, First COUNTERCLAIM against Esys Latin America, Inc., Esys Technologies Pte. Ltd. by Automattic, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(O'Donnell, Garry)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 10-23291-CIV-COOKE/BANDSTRA
ESYS LATIN AMERICA, INC.,and
ESYS TECHNOLOGIES PTE. LTD.
Plaintiffs,
vs.
AUTOMATTIC, INC.
Defendant.

DEFENDANT’S ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFF’S COMPLAINT, AND COUNTERCLAIM
Defendant, Automattic, Inc. (“Automattic”), hereby submits this Answer and Affirmative
Defenses to Plaintiff’s Complaint, and Counterclaim, and states and alleges as follows:
ANSWER
1.

Denies for want of knowledge or information sufficient to form a belief as to the

truth or accuracy of the allegations set forth in paragraph 1 of the Complaint.
2.

Denies for want of knowledge or information sufficient to form a belief as to the

truth or accuracy of the allegations set forth in paragraph 2 of the Complaint.
3.

Admits that it maintains offices in San Francisco California, and a registered

agent in Delaware, but denies each and every other allegation set forth in paragraph 3.
4.

Admits that this Court has subject matter jurisdiction over this dispute, but denies

each and every other allegation set forth in paragraph 4 of the Complaint.
5.

Denies each and every allegation set forth in paragraph 5 of the Complaint.

6.

Denies each and every allegation set forth in paragraph 6 of the Complaint.

7.

Denies for want of knowledge or information sufficient to form a belief as to the

truth or accuracy of the allegations set forth in paragraph 7 of the Complaint.
8.

Admits that Automattic owns “WordPress.com” which provides an interactive

computer service and blogging platform, but denies each and every other allegation set forth in
paragraph 8 of the Complaint.
9.

Denies each and every allegation set forth in paragraph 9 of the Complaint.

10.

States that WordPress.com provides an interactive computer service for third

party users to create their own blogs which are hosted on the site, and denies each and every
allegation set forth in paragraph 10 of the Complaint.
11.

States that WordPress.com provides an interactive computer service for third

party users to create their own blogs which are hosted on the site, and denies each and every
allegation set forth in paragraph 11 of the Complaint.
12.

States that WordPress.com provides an interactive computer service for third

party users to create their own blogs which are hosted on the site, and denies each and every
allegation set forth in paragraph 12 of the Complaint.
13.

Denies that Automattic has any involvement in either the third party user’s work

creating the blogs or their content, and denies each and every allegation set forth in paragraph 13
of the Complaint.
14.

Denies that Automattic has any involvement in either the user’s work creating the

blogs or their content, including the blogs referenced in the Complaint, and denies each and
every allegation set forth in paragraph 14 of the Complaint.

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15.

Denies that Automattic has any involvement in either the third party user’s work

creating the blogs or their content, and denies each and every allegation set forth in paragraph 15
of the Complaint.
16.

States that a complaint procedure is described at WordPress.com/complaints, but

there is no record of receiving any communication via the complaint procedure with respect to
the blogs referenced in the Complaint; and denies each and every allegation set forth in
paragraph 16 of the Complaint.
17.

States that all policies and procedures are accurately described at WordPress.com,

and denies each and every other allegation set forth in paragraph 17 of the Complaint.
18.

Denies that Automattic has any involvement in either the third party user’s work

in creating the blogs or their content, and denies each and every other allegation set forth in
paragraph 18 of the Complaint.
19.

Denies for want of knowledge or information sufficient to form a belief as to the

truth or accuracy of each and every allegation set forth in paragraph 19 of the Complaint.
20.

Admits that certain editorial functions may be implemented at Automattic’s sole

discretion, and denies each and every other allegation set forth in paragraph 20 of the Complaint.
21.

Denies each and every allegation set forth in paragraph 21 of the Complaint.

22.

Denies each and every allegation set forth in paragraph 22 of the Complaint.

23.

Denies each and every allegation set forth in paragraph 23 of the Complaint.

24.

Denies each and every allegation set forth in paragraph 24 of the Complaint.

25.

Repeats the responses to paragraphs 1 through 24, above, as if fully restated in

responding to the allegations incorporated in paragraph 25 of the Complaint.
26.

Denies each and every allegation set forth in Paragraph 26 of the Complaint.

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27.

Denies each and every allegation set forth in paragraph 27 of the Complaint.

28.

Denies each and every allegation set forth in paragraph 28 of the Complaint.

29.

Repeats the responses to paragraphs 1 through 28, above, as if fully restated in

responding to the allegations incorporated in paragraph 29 of the Complaint.
30.

Denies for want of knowledge or information sufficient to form a belief as to the

truth or accuracy of the allegations of each and every allegation set forth in paragraph 30 of the
Complaint.
31.

Denies each and every allegation set forth in paragraph 31 of the Complaint.

32.

Denies each and every allegation set forth in paragraph 32 of the Complaint.

33.

Repeats the responses to paragraphs 1 through 32, above, as if fully restated in

responding to the allegations incorporated in paragraph 33 of the Complaint.
34.

Denies each and every allegation set forth in paragraph 34 of the Complaint.

35.

Repeats the responses to paragraphs 1 through 34, above, as if fully restated in

responding to the allegations incorporated in paragraph 35 of the Complaint.
36.

Denies each and every allegation set forth in paragraph 36 of the Complaint.

37.

Denies each and every allegation in the Complaint not admitted, denied, or

otherwise fully addressed above.
AFFIRMATIVE DEFENSES
First Affirmative Defense
Since Automattic is a provider of an interactive computer service and has no involvement
in either the third party user’s work creating the blogs or their content, including the blogs
referenced in the Complaint, this Court lacks personal jurisdiction over Automattic with respect
to claims asserted against it in this action.

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Second Affirmative Defense
Venue is improper in the United States District Court for the Southern District of Florida
for the claims asserted with the Complaint.
Third Affirmative Defense
Automattic provides an interactive computer service.

Thus, under §230 of the

Communication Decency Act of 1996, 47 U.S.C. §230, Automattic has a statutory immunity
defense to each of the claims asserted in the Complaint.
Fourth Affirmative Defense
The Complaint fails to state a claim upon which relief may be granted because there is a
complete failure to allege sufficient facts to support a legally cognizable claim that is plausible
on its face. Instead, the Complaint merely offers labels and conclusions with a formal recitation
of the elements of a cause of action, but fails to show that Plaintiffs are entitled to any relief.
Prayer For Relief
WHEREFORE, Defendant, Automattic, Inc., demands judgment that the Complaint be
dismissed, with prejudice, and that Plaintiffs go hence without day; that costs and attorneys’ fees
be taxed against Plaintiffs; and for such other and further relief as may be just and appropriate
under the circumstances.
COUNTERCLAIM
Jurisdiction And Venue
1.

This Court has subject matter jurisdiction over this Counterclaim pursuant to

28.U.S.C. §1332, as there is complete diversity of citizenship between the parties and the amount
controversy exceeds the sum of $75,000.00, exclusive of interest and cost, and pursuant to 28
U.S.C. §1367 as the claims in the Counterclaim are so related to the claims in Plaintiff’s

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Complaint that they form part of the same case or controversy under Article III of the United
States Constitution.
2.

Venue is proper under 28 U.S.C. §1391(a)(1) in (3) in the United States District

Court for the Southern District of Florida.
The Parties
1.

Automattic, Inc. (“Automattic”) is a corporation formed under the laws of the

State of Delaware, and maintains its principal place of business in San Francisco, California.
2.

Automattic owns “WordPress.com” which provides an interactive computer

service and is one of the most popular blogging platforms.
3.

eSys Latin America, Inc. (“eSys Latin”) is registered as a Florida for profit

corporation with its principal address in Miami-Dade County, Florida.
4.

eSys Technologies, Pte. Ltd. (“eSys Technologies”) claims to be a private limited

liability company, organized under and subject to the laws of Singapore, which conducts
business in Florida through an affiliate, eSys Latin.
Nature Of Dispute
5.

In this lawsuit, eSys Latin America, Inc. and eSys Technologies claim that:
(a)

On or about April 4, 2009, they brought an action against

WordPress.com and several of its representatives in the court of civil judge (SR.
DVN) Chandigarth, India, to enjoin the publication of defamatory materials which
were published prior to the defamatory statements identified in this action;
(b)

On April 23, 2009, the Civil Court entered a temporary restraining

order against the individuals named in the suite form “further publishing the

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defamatory material,” and a copy of the putative order is attached as Exhibit “1”
to this Counterclaim; and
(c)

WordPress.com is in contempt of the order by choosing “to ignore

the Court Proceedings.”
6.

In this action, ESys Latin and eSys Technologies also allege that a letter dated

August 10, 2009, was sent by counsel for eSys Technologies to WordPress. com, stating that
“the punitive Injunction Order earlier passed by the Court continues and in the event any
objectionable text regarding our client is published at your end, the same shall amount to
contempt of Court orders, punishable with imprisonment.” A copy of the putative August 10,
2009, letter is attached as Exhibit “2” to this Counterclaim.
7.

In this action, Esys Latin and eSys Technologies further claim that

WordPress.com has ignored the August 10, 2009, letter and the order by subsequently publishing
other allegedly defamatory statements.
8.

Automattic was never properly served with papers for any legal proceedings

commenced in India, and was not provided with notice or any meaningful opportunity to defend
itself.
9.

Automattic owns WordPress.com, which is the provider of an interactive

computer service and blogging platform, and is not the information content provider with respect
to the blogs which are the subject of the Complaint.
10.

Automattic has no involvement with the content of the blogs posted on

WordPress.com’s blogging platform, as all content is created solely by third party users.

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COUNT I
(Declaratory Relief)
11.

Automattic repeats, with the same force and effect, as if fully restated, the

allegations set forth in Paragraphs 1 through 10, inclusive, of the Counterclaim.
12.

This is an action by Automattic against eSys Latin and eSys Technologies for

declaratory relief, pursuant to 28 U.S.C. §201(a), involving a dispute within the jurisdiction of
the Court.
13.

There is a substantial controversy between the parties having adverse legal

interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
14.

This is a case of actual controversy within the jurisdiction of this Court, which

currently exists between Automattic and eSys Latin and eSys Technologies, with respect to the
validity and enforceability of the putative foreign decree attached as Exhibit “1” to this
Counterclaim.
15.

Specifically, Automattic seeks a declaration whether the foreign decree is void, ab

initio, because: (i) Automattic was denied fundamental due process and the opportunity to be
heard and defend, (ii) enforcement of the foreign decree would offend the public policy
expressed in §230 of the Communication Decency Act 1996; and (iii) recognizing the foreign
decree would be inimical to the interests of the United States because Congress intended §230 of
the Communication Decency Act of 1996 to displace and supersede the laws of other states.
16.

A declaration of the rights of the parties with respect to the validity and

enforceability of the foreign decree will serve the interests of justice.

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Prayer For Relief
WHEREFORE, Defendant, Automattic, Inc., requests this Court to declare that the
punitive order is unenforceable and void, ab initio, and to render such other and further relief as
may be just and appropriate.
Reservation Of Rights
Defendant, Automattic, Inc., hereby reserves the right, upon completion of investigation
and discovery, to assert such additional defenses or brings such claims as may be just and proper
under the circumstances and as may be permitted by the Court.
Respectfully submitted this 15th day of February, 2011.

BUCKINGHAM, DOOLITTLE & BURROUGHS,
LLP
By:

s/Garry W, O’Donnell
GARRY W. O’DONNELL, Esquire
Florida Bar No: 0478148
5355 Town Center Road
Suite 900
Boca Raton, Florida 33486
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Defendant, Automattic, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on February 15, 2011, I electronically filed the foregoing document
with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record or pro se parties identified on the attached Service List in
the manner specified, either via transmission of Notice 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/Garry W. O’Donnell
GARRY W. O’DONNELL, Esquire
Florida Bar No: 0478148
5355 Town Center Road, Suite 900
Boca Raton, Florida 33486
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Defendant, Automattic, Inc.

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SERVICE LIST
ESYS LATIN AMERICA, INC., and ESYS TECHNOLOGIES PTE. LTD., Plaintiffs,
v. AUTOMATTIC, INC., Defendant
Case No. 10-23291-CIV*Cooke/Bandstra
United States District Court
Southern District of Florida

Bennett G. Feldman, Esquire
Email: [e-mail]
2655 LeJeune Road, Suite 514
Coral Gables, FL 33134
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiffs
Notification of electronic filing generated by CM/ECF
«BOCA:255228_v2/73684-0001»

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