Huon v. Breaking Media et al

Filing 175

MEMORANDUM by Gawker Media, LLC (Feige, David) (Docket Text Modified by Clerk's Office on 1/7/2013) (np, ).

MEMORANDUM IN SUPPORT OF DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S FOURTH
AMENDED COMPLAINT

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... i
INTRODUCTION .........................................................................................................................1
THE PARTIES...............................................................................................................................2
STATEMENT OF FACTS ............................................................................................................3
ARGUMENT .................................................................................................................................4
I. IT IS PLAINTIFF’S BURDEN TO PLEAD A VALID CLAIM ..........................4
II. PLAINTIFF’S FALSE LIGHT AND DEFAMATION CLAIMS ARE
INSUFFICIENT AS A MATTER OF LAW .........................................................5
A. The Post Provides a Fair Report of Judicial Proceedings ............................6
B. The Remaining Statements at Issue are Protected Opinion .........................7
C. The Allegedly Defamatory Statements Caused No Actionable Harm to
Plaintiff’s Reputation ..................................................................................8
D. Plaintiff is Suing Over Information He Wishes Were Included in the
Post Rather Than What was Actually There. ..............................................9
III. PLAINTIFF HAS NOT SUFFICIENTLY ALLEGED INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS ...................................................10
IV. PLAINTIFF FAILS TO STATE A CLAIM FOR CONSPIRACY ..................11
V. “CYBERSTALKING” IS NOT A CIVIL CAUSE OF ACTION ......................13
VI. SECTION 230 OF THE COMMUNICATIONS DECENCY ACT BARS
ANY CLAIMS AGAINST DEFENDANTS FOR READERS’
COMMENTS .....................................................................................................13
VII. PLAINTIFF’S CLAIMS AGAINST NICK DENTON AND GABY
DARBYSHIRE MUST BE DISMISSED.........................................................15
CONCLUSION ............................................................................................................................16
CERTIFICATE OF SERVICE ....................................................................................................18
EXHIBITS A – E .........................................................................................................................19

TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) ...................................................................................4, 5, 12, 13
Barrett v. Rosenthal,
40 Cal. 4th 33, 62 (Cal. 2006) ..........................................................................................15
Batzel v. Smith,
333 F.3d 1018, 1032 (2003).............................................................................................15
Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007) .................................................................................5, 10, 12, 13
Ben Ezra, Weinstein, and Co., Inc. v. Am. Online Inc.,
206 F.3d 980, 986 (10th Cir. 2000) ..................................................................................15
Carafano v. Metrosplash.com Inc.,
339 F.3d 1119, 1123-25 (9th Cir. 2003) ..........................................................................15
Chi. Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc.,
519 F.3d 666, 671 (7th Cir. 2008) ...................................................................................14
Dimeo v. Max,
248 Fed. App’x. 280, 282 (3rd Cir. 2007) .......................................................................14
Donato v. Moldow,
374 N.J. Super. 475, 487-88 (App. Div. 2005) ................................................................15
Fritz v. Johnson,
807 N.E.2d 461, 470 (Ill. 2004) .......................................................................................11
Gist v. Macon County Sheriff’s Dep’t,
284 Ill. App. 3d 367, 371, 671 N.E.2d 1154, 1157 (Ill. App. Ct. 4th Dist. 1996) .............9
Green v. Chicago Tribune Co.,
286 Ill. App. 3d 1, 11 (Ill. App. Ct. 1st Dist. 1996) .........................................................10
Haynes v. Alfred A. Knopf, Inc.,
8 F.3d 1222, 1228 (7th Cir. 1993) ...............................................................................9, 11
Henson v. CSC Credit Servs.,
29 F.3d 280, 284 (7th Cir. 1994) .......................................................................................8
i

Herron v. King Broadcasting Co.,
776 P.2d 98, 102 (Wash. 1989)..........................................................................................9
Horowitz v. Baker,
168 Ill. App. 3d 603 (Ill. App. Ct. 3d Dist. 1988)..............................................................7
Hurst v. Capital Cities Media, Inc.,
323 Ill. App. 3d 812, 823 (Ill. App. Ct. 5th Dist. 2001) ..................................................12
Naeem v. McKesson Drug Co.,
444 F.3d 593, 605 (7th Cir. 2006) ...................................................................................10
O’Donnell v. Field Enters., Inc.,
145 Ill. App. 3d 1032, 1036 (Ill. App. Ct. 1st Dist. 1986) .............................................6, 7
Parker v. House O’Lite Corp.,
324 Ill. App. 3d 1014, 1020 (Ill. App. Ct. 1st Dist. 2001) .................................................5
Pension Benefit Guar. Corp. v. White Consolidated Indus.,
998 F.2d 1192, 1196-1197 (3rd Cir.1993); 5B Charles A. Wright & Arthur R. Miller,
Fed. Practice & Procedure § 1357 (3d ed. current through Sept. 2012) ......................................8
Ray v. City of Chicago,
629 F.3d 660, 665 (7th Cir. 2011) .....................................................................................7
Reuter v. MasterCard Int’l, Inc.,
397 Ill. App. 3d 915, 928 (Ill. App. Ct. 5th Dist. 2010) ............................................11, 12
Salamone v. Hollinger Int’l, Inc.,
347 Ill. App. 3d 837 .........................................................................................................11
Shiamili v. Real Estate Group of New York, Inc.,
892 N.Y.S.2d 52, 54 (N.Y. App. Div. 2009) ...................................................................14
Solaia Tech., LLC v. Specialty Publ. Co.,
221 Ill. 2d 558, 585 (Ill. 2006) ...........................................................................................6
Thermodyne Food Serv. Prods. V. McDonald’s Corp.,
940 F.Supp. 1300, 1310 (N.D. Ill. 1996) .........................................................................12
United States v. Hope,
906 F.2d 254, 260 (7th Cir. 1990) .....................................................................................7
United States v. Wood,
925 F.2d 1580, 1582 (7th Cir.1991) .................................................................................8
ii

Venture Assocs. Corp. v. Zenith Data Sys. Corp.,
987 F.2d 429, 431 (7th Cir. 1993) ....................................................................................7
STATUTES
Fed. R. Civ. Pro. 12(b)(6) ..............................................................................................................1
720 ILCS 5/12-7.5(b) ...................................................................................................................13
Fed. R. Civ Pro. Rule 11 ..............................................................................................................13
47 U.S.C. § 230(c)(1) ...................................................................................................................14
47 U.S.C. § 230(e)(3) ...................................................................................................................14
Section 230, Communications Decency Act ...............................................................................14
805 ILCS 180/10-10(a) ................................................................................................................16
OTHER
5B Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 1357
(3d ed. current through Sept. 2012) ..............................................................................5, 8

iii

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MEANITH HUON,
Plaintiff,
-againstGAWKER MEDIA LLC, et at.
Defendants

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CIVIL ACTION NO.:
1:11-CV-3054 (JJT)

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S FOURTH AMENDED COMPLAINT

NOW COME THE DEFENDANTS, Gawker Media a/k/a Gawker.com,
Jezebel.com, Nick Denton, Irin Carmon, and Gaby Darbyshire (collectively, “Gawker,”
or “Defendants”), by their attorneys, David Feige and Oren Giskan of Giskan Solotaroff
Anderson & Stewart LLP, and move this court to dismiss plaintiff’s complaint pursuant
to Fed. R. Civ. Pro. 12(b)(6).
PRELIMINARY STATEMENT
In his fourth amended complaint, Meanith Huon (“Plaintiff”) seeks to bring an
action against the Defendants for a kitchen sink of tortious conduct including intentional
infliction of emotional distress, defamation per quod, defamation per se, false light,
invasion of privacy, cyberstalking, cyberbullying, tortious interference, and civil
conspiracy. All of plaintiff’s claims arise out of an eleven sentence item posted on a
website (Jezebel.com) which reported on a separate defamation suit Plaintiff filed against
co-defendant AbovetheLaw.com. In the initial suit (now consolidated with the instant

matter) Plaintiff sued AbovetheLaw.com for reporting on a rape Plantiff had been
charged with. 1 To date Mr. Huon has filed suit against more than 500 government, media
and “John Doe” defendants seeking damanges exceeding a quarter of a billion dollars.
To put this in perspective, Mr. Huon believes himself entitled to greater compensation
than has been paid collectively to every American inmate ever exonerated after being
wrongly convicted of a crime.
THE PARTIES
PLAINTIFF Meanith Huon is an Illinois attorney, serial plaintiff 2, and former
criminal defendant who has filed multiple lawsuits against news organizations that have
reported on the criminal allegations filed against him. According to a criminal complaint
filed against him, in July 2008, Plaintiff was arrested after he forced a woman to have
oral sex with him, fondled her vaginal area and her breasts and refused to let her out of
the car while driving in Madison County. (Exhibit A) The woman was allegedly lured
over the Internet by the possibility of a job, telling authorities that she talked to Huon by
telephone and got the impression that the job was promoting alcohol sales in area taverns.
She and Huon met in downtown St. Louis, and he offered to drive her to a local saloon to
check out how the business was going. Instead of going to the tavern, Mr. Huon allegedly
sexually abused and assaulted her. According to the account of Capt. Brad Wells of the
Madison County Sheriff’s Department, the woman eventually jumped out of the car and
contacted police. (Exhibit B).
1

The rape charges reported on by the ATL defendants concern the incident in Madison County not the
criminal charges brought against Plaintiff in Chicago.
2

Plaintiff’s history of using defamation lawsuits precedes the instant matter, having already had a
defamation case dismissed. In that case Mr. Huon claimed partners at his law firm defamed him when they
decided to fire him after his associate review. After years of litgation, the circuit court’s dismissal of
Plaintiff’s claims was upheld by the Illinois Appellate Divison on March 25th 2011.

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Subsequent to his arrest on the sexual assault charges, Plaintiff was arrested again,
this time for using the internet to harass and cyberstalk the alleged victim in the first case.
(Exhibit C). In this second case he was accused of contacting his alleged victim via the
Internet and communicating indirectly with her in such a way as to cause her emotional
distress, as well as maintaining an Internet Web page or Web site to harass the victim or
an immediate family member.
After Plaintiff was acquitted of the 2008 sexual assault charges, he began a
campaign of lawsuits, suing, to date, over 500 government, media and “john doe”
defendants who had in some way reported on or been involved in his case. These suits
now include the instant Gawker Defendants whose allegedly tortious conduct seems to
stem from reporting on these lawsuits and linking to an article plaintiff found offensive.
Subsequent to filing the raft of suits, including the instant suit, Plaintiff, was arrested
again, this time charged with posing as “Nick Kew” a casting agent for the William
Morris, and thereafter committing four counts of battery involving the fondling of the
breasts and vaginal area of a different complainant. (Exhibit D).
DEFENDANT Gawker Media a/k/a Gawker.com operates news and information
websites which report on a wide variety of topics including media and politics. Among
the websites operated by Defendant Gawker Media are defendant Gawker.com and
defendant Jezebel.com. Defendant Nick Denton, is the founder of Gawker Media, and
Defendant Gaby Darbyshire is the Chief Operating Officer of Gawker Media. Defendant
Irin Carmon is a reporter for Jezebel.com.
STATEMENT OF FACTS

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On or about May 6, 2010, the website abovethelaw.com published a story
concerning rape charges then pending against Plaintiff. Plaintiff subsequently filed suit
against abovethelaw.com for fifty million dollars ($50,000,000.00) for what plaintiff
believed were tortious inaccuracies in the abovethelaw.com article. Upon plaintiff’s
acquittal of the rape charges against him, plaintiff also sued Madison County, Illinois,
and numerous other defendants for a combined one hundred and thirty million dollars
($130,000,000.00) for a number of torts related to his arrest. On or about May 11, 2011,
defendant Jezebel.com published a brief eleven sentence item concerning Plaintiff’s
lawsuit against Abovethelaw.com, which included a hyperlink to the abovethelaw.com
article. Plaintiff then sued the instant Defendants.
Plaintiff now seeks One Hundred Million Dollars ($100,000,000.00) injunctive
relief, the transfer of Defendants’ domain names, as well as an injunction preventing any
future party from relying on Defendants’ article as a source, and costs.
ARGUMENT
In his complaint, plaintiff lists many things that bother him, and dozens of facts he
wishes someone would report on. What he fails to do, however is actually state a cause
of action against the Gawker Defendants for what was published. Nothing in the eleven
sentence item posted on Jezebel.com is actionable under any of the legal theories plaintiff
advances. For this reason, his complaint should be dismissed.
I.

IT IS PLAINTIFF’S BURDEN TO PLEAD A VALID CLAIM
A motion to dismiss should be granted where, as here, Plaintiff pleads no facts

that allow a court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff’s factual

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allegations must demonstrate the existence of claims that are plausible on their face, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and she must show “more than a
sheer possibility that [defendants have] acted unlawfully.” Iqbal, 556 U.S. at 678.
While Plaintiff’s at this stage are often accorded some deference, Professors Wright and
Miller have explained that:
[o]ver the years, one significant exception to the general rule that the
complaint will be construed liberally on a Rule 12(b)(6) motion has been
employed by a number of federal courts. When the claim alleged is a
traditionally disfavored “cause of action,” such as malicious prosecution,
libel, or slander, the courts have tended to construe the complaint by a
somewhat stricter standard and have been more inclined to grant a Rule
12(b)(6) motion to dismiss.
5B Charles A. Wright & Arthur R. Miller, Fed. Practice & Procedure § 1357 (3d ed.
current through Sept. 2012).
Here, plaintiff’s claims against Gawker should all be dismissed because it is
apparent from the face of his Fourth Amended Complaint that he has not, and cannot,
state a claim upon which any relief can be granted.
II.

PLAINTIFF’S FALSE LIGHT AND DEFAMATION CLAIMS ARE
INSUFFICIENT AS A MATTER OF LAW
None of Plaintiff’s allegations concerning the post supports a claim for

defamation or false light since the statements that Plaintiff identifies would not “tend[ ] to
cause such harm to [Plaintiff’s] reputation . . . that it lowers [Plaintiff] in the eyes of the
community or deters third persons from associating with him.” Parker v. House O’Lite
Corp., 324 Ill. App. 3d 1014, 1020 (Ill. App. Ct. 1st Dist. 2001). Indeed, every sentence
is immunized as a fair report, innocous because it can be innocently construed, or is
simply non-actionable opinion. Though Gawker will address Plaintiff’s allegations here,

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a simple chart (attached hereto as Exhibit E), goes through every statement in the post,
indicating which of these many defenses applies.
A. The Post Provides a Fair Report of Judicial Proceedings
The information in the Post that Plaintiff claims is defamatory and casts him in a
false light is immunized from liability by the First Amendment as a fair and accurate
report of his arrest, trial and his lawsuit against instant co-defendants. Indeed, as the
chart attached hereto as Defendants’ Exhibit E will clearly demonstrate, every single
sentence, and every single allegation in Defendants' Post is immunized under this rule.
The Accurate reports of court proceedings are privileged against liability by the First
Amendment, even if the information stated in those proceedings is otherwise false or
defamatory. O’Donnell v. Field Enters., Inc., 145 Ill. App. 3d 1032, 1036 (Ill. App. Ct.
1st Dist. 1986). “The fair report privilege . . . promotes our system of self-governance by
serving the public’s interest in official proceedings, including judicial proceedings.”
Solaia Tech., LLC v. Specialty Publ. Co., 221 Ill. 2d 558, 585 (Ill. 2006). “If the news
media cannot report what it sees and hears at governmental and public proceedings
merely because it believes or knows that the information is false, then self-censorship by
the news media would result.” O’Donnell, 145 Ill. App. 3d at 1036. Thus, “the fair report
privilege overcomes allegations of either common law or actual malice.” Solaia, 221 Ill.
2d at 587. A report need not be a “complete report of the proceedings” to be privileged
“so long as it is a fair abridgment” or “substantially correct account” of the proceedings.
Id. at 589 (quoting Restatement (Second) of Torts § 611, cmt. f, at 300 (1977));
O’Donnell, 145 Ill. App. 3d at 1036.

6

To evaluate the fair report privilege, the Court may take judicial notice of the
transcript of the first day of Plaintiff’s trial, which is attached to co-defendants
Abovethelaw.com’s motion and are incorporated by reference here. The court may also
take judicial notice of Plaintiff’s initial complaint and subsequent proceedings in the
instant matter, as well as the certified copies of Plaintiff’s arrests, attached hereto. See
Ray v. City of Chicago, 629 F.3d 660, 665 (7th Cir. 2011) (“[D]istrict courts may take
judicial notice of certain documents—including records of administrative actions—when
deciding motions to dismiss.”); Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir.1993) (“Documents that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim.”); United States v. Hope, 906 F.2d 254, 260 (7th
Cir. 1990) (taking judicial notice of state court hearing transcript). The Jezebel item is a
fair and accurate summary of statements in those documents, as Exhibit E demonstrates.
B. The Remaining Statements at Issue are Protected Opinion
As Exhibit E makes clear, every other statement at issue in the Jezebel item is either nonactionable, or protected opinion. Only statements of fact, not opinion, are actionable as
defamation or false light; “[t]here is no such thing as a false idea or opinion.” O’Donnell,
145 Ill. App. 3d at 1039-40 (affirming dismissal of defamation claim based on editorial
concerning criminal investigations and arrests because “it is clear that the ideas and
opinions in the item do not imply undisclosed defamatory facts as their bases” and “[t]o
the extent that the editorial makes disclosed factual statements, the statements are
privileged” under the fair report privilege.); see, e.g., Horowitz v. Baker, 168 Ill. App. 3d
603 (Ill. App. Ct. 3d Dist. 1988) (affirming dismissal of a defamation claim, holding that

7

statements in a newspaper article describing a previously-reported transaction as a “cozy
little deal” and a “rip off” were “rhetorical hyperbole” and “an average reader would not
regard the statements as factual reporting”). All of the statements that Plaintiff claims are
defamatory fall into this category – and thus are protected.
C. The Allegedly Defamatory Statements Caused No Actionable Harm to
Plaintiff’s Reputation
Plaintiff has stated no claim for defamation as a matter of law for the still further
reason that, under the “incremental harm” doctrine, an allegedly false statement that
causes only incremental damage to reputation is insufficient to state a claim for
defamation. This court may take judicial notice of matters of public record without
converting a 12(b)(6) motion into a motion for summary judgment. Henson v. CSC
Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994); United States v. Wood, 925 F.2d 1580,
1582 (7th Cir.1991). ("On a motion to dismiss, we may take judicial notice of matters of
public record outside the pleadings.") (citations omitted) Pension Benefit Guar. Corp. v.
White Consolidated Indus., 998 F.2d 1192, 1196-1197 (3rd Cir.1993); 5B Charles A.
Wright & Arthur R. Miller, Fed. Practice & Procedure § 1357 (3d ed. current through
Sept. 2012). ("In determining whether to grant a Rule 12(b)(6) motion, the court
primarily considers the allegations in the complaint, although matters of public record ...
also may be taken into account." Thus, in evaluating whether anything contained in the
Gawker Defendants’ brief item was capable of causing any further damage to Plaintiff’s
reputation, the court can take judicial notice of the fact that prior to the publication of
Defendants’ article, Plaintiff had been criminally charged with four counts of criminal
sexual abuse, one count of unlawful restraint, one count of harassment of a witness, and
one count of cyberstalking. The allegations were widely reported in Madison County and

8

on the internet. In addition, the court can take judicial notice of the fact that Plaintiff was
subsequently arrested and criminally charged with posing as “Nick Kew” a casting agent
for the William Morris agency, and thereafter committing four counts of battery for
fondling the breasts and vaginal region of a woman he met over the internet.
The doctrine of incremental harm is “logically driven, as ‘falsehoods which do no
incremental damage to the plaintiff’s reputation do not injure the only interest that the
law of defamation protects.’” Gist v. Macon County Sheriff’s Dep’t, 284 Ill. App. 3d 367,
371, 671 N.E.2d 1154, 1157 (Ill. App. Ct. 4th Dist. 1996) (quoting Haynes v. Alfred A.
Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993). “Falsehoods that do not harm the
plaintiff’s reputation more than a full recital of the true facts about him would do are . . .
not actionable.” Haynes, 8 F.3d at 1228. A publication “that contains a false statement is
actionable only when ‘significantly greater opprobrium’ results from the report
containing the falsehood than would result from the report without the falsehood.” Id.
(quoting Herron v. King Broadcasting Co., 776 P.2d 98, 102 (Wash. 1989). As a matter
of law, even based solely on what the court may consider in a 12(b)(6) motion, there was
nothing in Defendants’ brief item that could have brought greater opprobrium upon
plaintiff, than his situation and status had already assumed.
D. Plaintiff is Suing Over Information He Wishes Were Included in the Post
Rather Than What was Actually There
Plaintiff has also sued over a number of items, whose absence from Gawker’s
eleven sentence item, in Plaintiff’s mind constitutes defamation. See FASC. ¶ 148(a)-(p)
(e.g. Plaintiff insists the post should have included a statement that the alleged victim
“sustained minor injuries from walking or running in a cornfield.”). While these items

9

are addressed in the chart attached, it is worth mentioning that there is nothing in the law
that supports Plaintiff’s theory of recovery concerning omitted items.
III.

PLAINTIFF HAS NOT SUFFICIENTLY ALLEGED INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS
To state a claim for intentional infliction of emotional distress, Plaintiff must show

that first, Defendants’ conduct was extreme and outrageous, going beyond all possible
bounds of decency; second, that Defendants intended to inflict severe emotional distress
or knew that there was a high probability that their conduct would inflict severe
emotional distress; and third, that Defendants’ conduct did cause severe emotional
distress. Naeem v. McKesson Drug Co., 444 F.3d 593, 605 (7th Cir. 2006); Green v.
Chicago Tribune Co., 286 Ill. App. 3d 1, 11 (Ill. App. Ct. 1st Dist. 1996).
Here, too, Plaintiff’s claim must fail. First, Plaintiff alleges no facts or
circumstances to suggest that Defendants’ behavior is extreme or outrageous; instead,
Defendant states mere conclusions that fail to meet the required pleading standard. See.
Twombly, 550 U.S. at 555. Moreover, nothing in Defendants’ behavior was extreme or
outrageous, going beyond all possible bounds of human decency. Writing and posting an
eleven sentence item about Plaintiff’s lawsuit is well within the realm of Defendants’ job
as journalists and publishers, and is nowhere near the level of extreme and outrageous
behavior required to state a claim for intentional infliction of emotional distress. Second,
Plaintiff again fails to allege non-speculative facts to show that Defendants intended to or
knew that there was a high probability that their conduct would inflict severe emotional
distress. Third, Plaintiff makes no showing anywhere in his complaint that he has
suffered any actual damages. Plaintiff asserts that he has suffered damages “including a
decline in prospective business, loss of job or economic opportunities, loss of clients and

10

business deals. (FASC ¶164) and that the article has “negatively affected Plaintiff’s
personal relationships and have caused him to experience shame, severe emotional
distress, loss of social status, esteem, and impairment of normal social functioning.” Id.
But in place of specifics, Plaintiff then concedes that “Plaintiff’s damages including both
economic and personal injury damages are unknown at this time and have not yet been
fully realized” (Id. at ¶165). Assertions such as those here that do not rise above the
level of speculation are not sufficient to state a claim for which relief can be granted.
Twombly 550 U.S. at 555; see also Salamone v. Hollinger Int’l, Inc., 347 Ill. App. 3d 837
(finding as insufficient assertions that members of the Plaintiff’s community ceased
associating with him, repeat customers ceased patronizing his grocery store, and that he
suffered jokes and ridicule from his community, sleeplessness, depression, and weight
loss). A failure to prove special damages is, in itself, fatal to a defamation claim. See
Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1226 (7th Cir. 1993). 3
IV.

PLAINTIFF FAILS TO STATE A CLAIM FOR CONSPIRACY
To state a claim for civil conspiracy, Plaintiff must prove: (1) an agreement

between a combination of two or more persons to accomplish by concerted action either
an unlawful purpose or a lawful purpose by unlawful means, (2) in the furtherance of
which one of the conspirators committed an overt tortious or unlawful act. Fritz v.
Johnson, 807 N.E.2d 461, 470 (Ill. 2004); Reuter v. MasterCard Int’l, Inc., 397 Ill. App.
3d 915, 928 (Ill. App. Ct. 5th Dist. 2010). Moreover, Plaintiff must allege an injury
caused by Defendants. Reuter v. MasterCard Int’l, Inc., 397 Ill. App. 3d 915, 927 (Ill.

3

It is worth noting that any damage to Plaintiff’s reputation alleged caused by an eleven sentence item
which reported on a lawsuit Plaintiff filed against Abovethelaw.com must be considered in the context of
Plaintiff’s extent reputation in the wake of his publicized arrest in connection with allegations of rape,
witness tampering, and cyberstalking.

11

App. Ct. 2010). Finally, “a conspiracy claim alleging a tort as the underlying wrongful
act is duplicative where the underlying tort has been pled,” Thermodyne Food Serv.
Prods. V. McDonald’s Corp., 940 F.Supp. 1300, 1310 (N.D. Ill. 1996), because allowing
a separate claim for civil conspiracy would lead to double damages. Id. First, Plaintiff
has not made any showing of fact suggesting that any Gawker Defendant has made any
agreement with any other defendant listed. See Twombly, 550 U.S. at 555. In Reuter v.
MasterCard Int’l, Inc., 397 Ill. App. 3d 915, 928 (Ill. App. Ct. 5th Dist. 2010), the court
held that while the plaintiff alleged sufficient facts to demonstrate knowledge of illegal
acts, the plaintiff failed to allege sufficient facts to demonstrate an agreement. Here,
Plaintiff falls far short of alleging sufficient facts to demonstrate that any Gawker
Defendant had any knowledge of any illegal facts, much less that there was any
agreement whatsoever.
Second, even if a Gawker defendant had made an agreement with any other
defendant, the second factor must fail because Plaintiff fails to allege sufficiently that any
of the defendants committed any overt tortious or unlawful act, in furtherance of an
alleged conspiracy beyond their own publications. As the court observed in Hurst v.
Capital Cities Media, Inc., 323 Ill. App. 3d 812, 823 (Ill. App. Ct. 5th Dist. 2001)
“Conspiracy is not a separate and distinct tort in Illinois. . . . There is no cause of action
unless an overt, tortious, or unlawful act is done that, in absence of the conspiracy, would
give rise to a claim for relief.” In addition, the allegations of this count are so vague as to
fail to state a claim under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009). “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’

12

Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555, 557).
V.

“CYBERSTALKING” IS NOT A CIVIL CAUSE OF ACTION
Plaintiff’s complaint confuses something most law students understand by the time

they receive their first year course schedules—civil and criminal laws are different. The
fact that there is a criminal statute on the books does not, in itself create a civil private
right of action nor does it imply that a claim will sound in tort. While it is
understandable that Plaintiff is familiar with the “cyberstalking” statute (he has, after all
been criminally charged with violating it), invoking it here is unavailing. Either Plaintiff
is actually confused as to his power to prosecute on behalf of the State of Illinois—a
curious state of affairs given Plaintiff’s law degree and history--or these counts are
merely a continuation of the legal harassment typical of the rest of Plaintiff’s pleading.
According to the Illinois statute he himself cites, cyberstalking is solely criminal, and
there is no associated civil right of action. 720 ILCS 5/12-7.5(b) (“Cyberstalking is a
Class 4 felony; a second or subsequent conviction is a Class 3 felony.”). There is no
good faith in such a pleading, and this count runs so far afield as to qualify as fully
frivolous under Fed. R. Civ Pro. Rule 11.
VI. SECTION 230 OF THE COMMUNICATIONS DECENCY ACT BARS ANY
CLAIMS AGAINST DEFENDANTS FOR READERS’ COMMENTS
It appears that in this--his Fourth Amended and Supplemental Complaint (FASC),
Plaintiff has dropped the 400 John Doe defendants, he had previously filed against,
preferring to try to hold the Gawker Defendants liable for comments posted by others.
As shown in Defendants’ Exhibit E, most of Plaintiff’s allegations against the Gawker

13

defendants concern information or statements contained in comments, or posts other than
the actual Jezebel.com item. (See FASC ¶ 122 A-L)
Section 230 of the Communications Decency Act states 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. § 230(c)(1).
A website is an interactive computer service when it enables computer access by multiple
users to a computer server. See, e.g., Dimeo v. Max, 248 Fed. App’x. 280, 282 (3rd Cir.
2007). In other words, “an online information system must not be treated as the publisher
or speaker of any information provided by someone else.” Chi. Lawyers' Comm. for Civ.
Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008) (internal
quotation marks omitted). This law preempts any state law to the contrary: “No 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).
Plaintiff’s own complaint establishes that Defendants provide an interactive
computer service, such that readers may post commentary in the “comments” section of
each article. (FASC ¶ 48). Plaintiff’s defamation claim treats Defendants as the
publishers of the posts at issue (FASC ¶ 122) while acknowledging that they were
provided by other content providers, namely, the readers who wrote the posts. (FASC ¶
122). His own pleadings thus establish the applicability of Section 230. See Shiamili v.
Real Estate Group of New York, Inc., 892 N.Y.S.2d 52, 54 (N.Y. App. Div. 2009), aff’d
2011 N.Y. LEXIS 1452 (N.Y. June 14, 2011). Moreover, the core of Plaintiff’s
complaints against the Gawker defendants concerns statements that were not even
contained in the Jezebel.com post, but rather in the Abovethelaw.com post which was

14

linked to. In such a case, the Gawker defendants are clearly entitled to CDA immunity.
As many courts have observed, The CDA is worded broadly enough to protect not only
ISPs, but also individuals who operate websites and web forums to which other
individuals can freely post content. Donato v. Moldow, 374 N.J. Super. 475, 487-88
(App. Div. 2005) (citing cases). Plaintiffs’ allegations in this case—are essentially that
the Gawker Defendants republished a defamatory web posting. As multiple courts have
accepted, there is no relevant distinction between a user who knowingly allows content to
be posted to a website he or she controls and a user who takes affirmative steps to
republish another person’s content; CDA immunity applies to both. See Barrett v.
Rosenthal, 40 Cal. 4th 33, 62 (Cal. 2006); Carafano v. Metrosplash.com Inc., 339 F.3d
1119, 1123-25 (9th Cir. Cal. 2003); Ben Ezra, Weinstein, and Co., Inc. v. Am. Online
Inc., 206 F.3d 980, 986 (10th Cir. N.M. 2000). As the Ninth Circuit aptly noted in Batzel
v. Smith, 333 F.3d 1018, 1032 (2003), “The scope of immunity cannot turn on whether
the publisher approaches the selection process as one of inclusion or removal, as the
difference is one of method or degree, not substance.” Similarly, it does not matter how
Defendants republished the alleged defamatory statements—whether by email, website
post, or some other method. The point is that the Gawker Defendants—acted as republishers of another person’s information, and as such they are protected by the CDA.
Consequently, Section 230 stands as an absolute bar to every one of Plaintiff’s claims
based on reader’s comments.
VII.

PLAINTIFF’S CLAIMS AGAINST NICK DENTON AND GABY
DARBYSHIRE MUST BE DISMISSED
Without pleading any facts to support his claims, plaintiff has named two officers

of Gawker Media, Nick Denton and Gaby Darbyshire, as defendants. Under Illinois law,

15

however, “[T]he debts, obligations, and liabilities of a limited liability company, whether
arising in contract, tort, or otherwise, are solely the debts, obligations, and liabilities of
the company. A member or manager is not personally liable for a debt, obligation, or
liability of the company solely by reason of being or acting as a member or manager.”
805 ILCS 180/10-10(a).
As Gawker Media is a limited liability company, this statute clearly applies to
Denton and Darbyshire. Absent any specific allegations (which are not present in
Plaintiff’s complaint), the alleged torts of the company cannot be magically grafted onto
its managers. Therefore, all claims against defendants Denton and Darbyshire personally
should be dismissed.
CONCLUSION
For all the forgoing reasons defendants hereby pray that the court dismiss each
and every count of the plaintiff’s case, and award costs and fees, enter an Order barring
Plaintiff from filing additional lawsuits without leave of the Court, and other such relief
as the court should deem appropriate.

16

Dated: New York, New York
January 7, 2013

Respectfully Submitted,
GAWKER MEDIA LLC, GAWKER
SALES, GAWKER
ENTERTAINMENT, GAWKER
TECHNOLOGY, NICK DENTON,
IRIS CARMON, GABY
DARBYSHIRE
By: ____/S/ David Feige_________
One of their attorneys
David Feige
GISKAN SOLOTAROFF ANDERSON
& STEWART LLP
11 Broadway, Suite 2150
New York, NY 10004
T: 212.847-8315
F: 646.520.3235
[e-mail]

Cc:
Oren S. Giskan
GISKAN SOLOTAROFF ANDERSON
& STEWART LLP
11 Broadway, Suite 2150
New York, NY 10004
T: 212.847-8315
F: 646.520.3235
[e-mail]

17

CERTIFICATE OF SERVICE

Under penalties of law, I attest the following documents or items have been or are being
electronically served on all counsel of record for all parties on 1/7/13

Dated: New York, New York
January 7, 2013

Respectfully Submitted,

By: ____/S/ David Feige_________
David Feige

David Feige
Oren S. Giskan
GISKAN SOLOTAROFF ANDERSON
& STEWART LLP
11 Broadway, Suite 2150
New York, NY 10004
T: 212.847-8315
F: 646.520.3235
[e-mail]

18

EXHIBIT A

EXHIBIT B

Chicago lawyer accused of harassing woman
By SANFORD J. SCHMIDT
2009-07-23 22:07:48

EDWARDSVILLE — A Chicago lawyer arrested and charged last year
with criminal sexual assault, sexual abuse and unlawful restraint now
faces charges of harassing his alleged victim and cyber stalking.
Meanith Huon, 39, was charged this week in Madison County Circuit
Court with harassment of a witness and cyber stalking.
He is accused of contacting his alleged victim of last year via the
Internet and communicating indirectly with her in such a way as to cause
her emotional distress.
He also is accused of maintaining an Internet Web page or Web site to
harass the victim or an immediate family member.
After being arrested last year for allegedly forcing the victim to perform
sexual acts while driving on Interstate 55 in Madison County, he posted
$10,000 cash bond and went back to Chicago.
Authorities say Huon began posting comments directed at the alleged
victim, telling her he loves her and claiming that God wants them to be
together.
The postings include a wide variety of professions of love, along with religious references. As recently as July
17, he posted: "I haven’t kissed anyone since you kissed me. I miss you. There’s nothing I can do about it. I
follow God’s Commandments. I walk the line because I love you."
He also posted "10 reasons why I’d make a good husband for you." The No. 1 reason was listed as "God
brought us together." The suspect also allegedly posted the words: "We’d have great kids. My brains. Your
looks."
Huon was arrested in early July 2008 after he allegedly forced a woman to have oral sex with him, fondled her
vaginal area and her breasts and refused to let her out of the car while driving on I-55 into Madison County.
The woman allegedly was lured over the Internet by the possibility of a job.
She told authorities she talked to Huon by telephone and got the impression that the job was promoting
alcohol sales in area taverns. She met Huon in downtown St. Louis, and he offered to drive her to a local
saloon to check out how the business was going.
However, they did not go to the tavern, and Huon instead allegedly sexually abused and assaulted her, Capt.
Brad Wells of the Madison County Sheriff’s Department said last year. The woman eventually jumped out of
the car and contacted police.
Police found evidence on the most recent case by obtaining a search warrant for the company that operates
the Web site used by Huon. Once the evidence was obtained, Huon again was arrested July 19, this time at
his home in Chicago, where he was being held Thursday in lieu of $75,000 bail.
Huon still is awaiting trial on the original Madison County charges, authorities said.

EXHIBIT C

EXHIBIT D

EXHIBIT E

Where applicable, the chart cites to pages of the transcript of Plaintiff's trial that demonstrate the
applicability of the fair report privilege.

Source

Opinion

Fair
 Report Section
 230 Non-­‐Defamatory/Innocent
 Construction

Eleven Sentence Item on Jezebel.com (sentence by sentence)
A Chicago man who was acquitted on a sexual assault charge is suing the legal blog Above The Law for
implying that he's a serial rapist.

Instant
 Lawsuit

If Meanith Huon gets his way, blogger sloppiness may cost ATL $50 million.

Instant
 Lawsuit

X

X

X

X

Huon, a lawyer, was initially charged with two counts of sexual assault, two counts of sexual abuse, and
one count of unlawful restraint.

Exhibit
 A

X

X

A woman had jumped out of his car, ran through a cornfield barefoot, and knocked on a random person's
door saying he had forced her into sexual activity.

Trans.
 169-­‐171,
 177,
 184

X

X

Trans.
 195-­‐227

X

X

Trans.
 150-­‐157***

X

X

Northern
 District
 of
 Illinois,

Eastern
 Division:
 Case:
 1:11-­‐
cv-­‐0305

X

X

X

X

She later said she believed she was spending time with him for a job opportunity related to alcohol
promotions, until he allegedly yelled at her to perform oral sex.
Huon's version was that it was a consensual encounter, and partly on the strength of a bartender's
testimony that the woman had been drinking and asked where to go to have fun, the jury believed him.
Huon is also suing local law enforcement authorities in Madison County, Illinois for prosecutorial
misconduct.
His beef with Above The Law stems from a roundup post entitled "Rape Potpurri," in which blogger Elie
Mystal mistakenly believes that news accounts of the same incident are different incidents that should have
tipped the woman off that Huon was a serial offender.

Instant
 Lawsuit

X

"The content of the article were [sic] defamatory in that it incorrectly and recklessly portrayed Mr. Huon as
Forbes/
 Plaintiff's
 Complaint
a serial rapist by treating the same complaining witness as three different women," says the complaint,
according to Forbes.

X

X

"And this, people, is why God invented Google," wrote Mystal in the original post, linking to articles that
in fact described the same case.

X

X

The lesson learned: Google only takes you so far.

Above
 the
 Law
N/A

X

X