Hopkins v. John Doe #1 et al
Filing
15
ORDER DENYING Plaintiffs Motion to Amend 8 , and Defendant Topixs Motion to Dismiss 4 is GRANTED. As well, Plaintiffs Motion to Remand 9 is GRANTED. The Clerk is directed to remand the remainder of this action to the Superior Court of Dawson County. Signed by Judge Richard W. Story on 11/28/2011. (vld)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
DAVID HOPKINS,
Plaintiff,
v.
JOHN DOE #1, et al.,
Defendants.
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CIVIL ACTION NO.
2:11-CV-100-RWS
ORDER
This case comes before the Court on Defendant Topix, LLC’s Motion to
Dismiss [4], Plaintiff’s Motion to Amend His Complaint [8], and Plaintiff’s
Motion to Remand to State Court [9]. After a review of the record, the Court
enters the following order.
On March 22, 2011, Plaintiff David Hopkins, pro se,1 filed suit against
John Does #1-26 and Topix in state court, asserting various state-law claims
1
Because Plaintiff is acting pro se, his “pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). “This leniency,
however, does not require or allow courts to rewrite an otherwise deficient pleading in
order to sustain an action.” Thomas v. Pentagon Fed. Credit Union, 2010 WL 3273056,
at *2 (11th Cir. August 19, 2010).
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predicated upon defamatory statements that the John Does made about the
Plaintiff on Defendant Topix’s discussion-forum website.2 See Cmpl., Dkt. No.
[1-1]. On April 27, 2011, Defendant Topix then removed the action citing
diversity, as Topix is a citizen of California, Delaware, Illinois, and Virginia
while the Plaintiff is a Georgia resident. Dkt. No. [1] at 8. As well, Topix
moved to dismiss Plaintiff’s claims because they are preempted by the
Communications Decency Act of 1996 (“CDA”). Dkt. No. [4]. Following that
motion, Plaintiff moved to amend his complaint to remove any defamation
claim against Topix which, in his opinion, would remedy the CDA’s
preemption. Dkt. No. [8]. He also moved to remand the action to state court
asserting that many of the John Does will be Georgia residents. Dkt. No. [9].
The Court will consider each motion in turn.
A. Plaintiff’s Motion to Amend and Defendant’s Motion to Dismiss
Plaintiff first moves to amend his complaint to remove his defamation
count against Defendant Topix and to change the requested punitive damages
demand from 15 million to 1.5 million. Topix does not oppose this amendment
2
Plaintiff originally brought claims of defamation, gross negligence, tortious
interference with business relations, fraudulent misrepresentation, “unfair sanctions,” and
“retaliatory actions” against the Defendants. Cmpl., Dkt. No. [1-1].
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but argues that, contrary to Plaintiff’s position, this amendment would be futile
as all of Plaintiff’s remaining state-law claims are still barred by the CDA.
Rule 15 directs the Court to "freely give leave when justice so requires."
FED. R. CIV. P. 15(a)(2). Despite that instruction, leave to amend is "by no
means automatic." Layfield v. Bill Heard Chevrolet Co., 607 F.2d 1097, 1099
(5th Cir. 1979). The trial court has "extensive discretion" in deciding whether to
grant leave to amend. Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th
Cir. 1999). A trial court may choose not to allow a party to amend "when the
amendment would prejudice the defendant, follows undue delays or is futile."
Id. A claim is futile if it cannot withstand a motion to dismiss. Fla. Power &
Light Co. v. Allis Chalmers Corp., 85 F.3d 1514, 1520 (11th Cir. 1996); see
Burger King Corp . v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999) (futility is
another way of saying "inadequacy as a matter of law").
The Court agrees that Plaintiff’s amendment is futile. All of Plaintiff’s
state-law claims are based upon Topix’s failure to police third-party conduct on
its website. Section 230 of the CDA 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. §
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230(c)(1). That section also states that “[n]o cause of action may be brought
and no liability may be imposed under any State or local law that is inconsistent
with this section.” 47 U.S.C. § 230(e)(3). “Thus, lawsuits seeking to hold a
service provider liable for its exercise of a publisher's traditional editorial
functions–such as deciding whether to publish, withdraw, postpone or alter
content–are barred” by the CDA. Zeran v. Am. Online, Inc., 129 F.3d 327, 330
(4th Cir. 1997). Ultimately, “Congress made a policy choice . . . not to deter
harmful online speech through the separate route of imposing tort liability on
companies that serve as intermediaries for other parties' potentially injurious
messages.” Id. at 330-31.
First, Plaintiff has plead that Topix operates an “Interactive Computer
Service.” Cmpl., Dkt. No. [1-1] at ¶ 4. Second, all of Plaintiff’s claims are
predicated upon the John Does’ defamatory postings on Topix’s website and
Topix’s decisions regarding how and when it responded to them. It does not
matter that Plaintiff has attempted to skirt this preemption by alleging that
Topix fraudulently violated its own policies by not policing its content in a
timely fashion. The Third Circuit rejected this argument in Green v. America
Online, Inc., 318 F.3d 465, 471-72 (3rd Cir. 2003).
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In Green, the plaintiff argued that AOL waived its § 203 immunity by
promising that it would protect the plaintiff from other subscribers in its
membership contract. 318 F.3d at 471. However, the Circuit found that, while
agreeing to do so, the agreement also expressly disclaimed liability for thirdparty content and any related delays in removing such postings. Id. at 471.
Here, like Green, Topix has expressly disclaimed liability “for any content that
is provided or posted by you or others” and has stated that it is “not responsible
for any failure or delay in removing any content.” Ex. 2, Cmpl., Dkt. No. [1-2]
at 1. At bottom, Plaintiff seeks to hold Topix liable for simply publishing the
defamatory conduct and the consequences which flow from that decision.
Therefore, Plaintiff’s Motion to Amend [8] is DENIED as futile.
For the foregoing reasons, Defendant Topix’s Motion to Dismiss [4] is
also GRANTED. All of Plaintiff’s state-law claims are preempted by the
CDA’s immunity, and Plaintiff has therefore failed to state a claim. See Burger
King Corp . v. Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999) (futility is another
way of saying "inadequacy as a matter of law").
B. Motion to Remand
Plaintiff next moves to remand this action to state court. Topix removed
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this action but, following this order, will no longer be a party to this lawsuit.
Because it appears based upon the Plaintiff’s allegations that many of the John
Does may be Georgia residents who will defeat diversity, the Court will
GRANT Plaintiff’s motion [9] and remand the action against the fictitious
defendants to state court.
C. Conclusion
Based upon the foregoing, Plaintiff’s Motion to Amend [8] is DENIED,
and Defendant Topix’s Motion to Dismiss [4] is GRANTED. As well,
Plaintiff’s Motion to Remand [9] is GRANTED. The Clerk is directed to
remand the remainder of this action to the Superior Court of Dawson County.
SO ORDERED this 28th day of November, 2011.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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