East Coast Test Prep LLC et al v. Allnurses.com, Inc., et al

Filing 338

MEMORANDUM OPINION AND ORDER Affirming Magistrate Judge Decision 267 and OVERRULES APPEAL/OBJECTION OF MAGISTRATE JUDGE DECISION to District Judge 278 , 279 and 280 (Written Opinion). Signed by Chief Judge John R. Tunheim on May 22, 2017. (DML) (Entered: 05/22/2017) Modified text/links on 5/22/2017 (lmb).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 15-3705 (JRT/SER)

EAST COAST TEST PREP LLC and
MARK OLYNYK,
Plaintiffs,
v.

MEMORANDUM OPINION
AND ORDER

ALLNURSES.COM, INC., DAVID R. SMITS,
LISA DUKES, JENNIFER MOELLER,
UHURA RUSS, ABC COMPANIES, and
JOHN DOES,
Defendants.

Richard L. Ravin, HARTMAN & WINNICKI, P.C., 74 Passaic Street,
Ridgewood, NJ 07450; Robert A. Lengeling and Thomas M. Beito,
BEITO & LENGELING, PA, 310 Fourth Avenue South, Suite 1050,
Minneapolis, MN 55415; and Charles S. Kramer and Paul A. Grote,
RIEZMAN BERGER, P.C., 7700 Bonhomme Avenue, Seventh Floor,
St. Louis, MO 63105, for plaintiffs.
Justin Taylor Quinn and Keith John Miller, ROBINSON MILLER LLC,
One Newark Center, 19th Floor, Newark, NJ 07102, and James J. Kretsch,
Jr. and John D. Reddall, KRETSCH LAW OFFICE, PLLC, 17850
Kenwood Trail, Suite 219, Lakeville, MN
55044, for defendants
Allnurses.com, Inc. and David R. Smits.

Plaintiffs East Coast Test Prep LLC, which does business as “Achieve Test Prep,”
and Mark Olynyk (referred to collectively as “ATP”) bring this defamation action against
Defendants Allnurses.com, Inc. and David R. Smits (collectively “Allnurses”), as well as
several John Doe Defendants – users who posted comments on Allnurses’ website under
pseudonymous usernames. ATP sought to compel discovery regarding the identities of

31

the remaining anonymous Doe Defendants – JustBeachyNurse and monkeyhq – and to
supplement the record of that motion with new information about JustBeachyNurse’s
prior ties to Allnurses. ATP also moved for leave to amend its complaint to add new
factual allegations and claims. United States Magistrate Judge Janie S. Mayeron denied
ATP’s motion to compel and motion to supplement, but granted ATP’s motion for leave
to amend its complaint.
ATP now objects to the Magistrate Judge’s denial of its motion to compel and
motion to supplement, and Allnurses objects to the Magistrate Judge’s grant of ATP’s
motion for leave to amend the complaint. Because the Court finds no error in the
Magistrate Judge’s order, the Court will overrule both parties’ objections and affirm the
Magistrate Judge’s order.

BACKGROUND
In March 2016, the Court denied a prior motion to compel brought by ATP
seeking the identities of the Doe Defendants.

East Coast Test Prep LLC v.

Allnurses.com, Inc., 167 F. Supp. 3d 1018 (D. Minn. 2016). In that order, the Court
described a standard that ATP would have to meet for any future motion to compel: (1)
ATP would have to “make reasonable efforts to notify the speaker by, for example,
attempting notice via the same medium used by the speaker to send or post the at-issue
message”; (2) ATP would have to “produce prima facie support for all of the elements of
[its] case that are within [its] control”; (3) the Court would consider “whether [ATP]
ha[d] identified specific statements” and whether it had “an alternative means of

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obtaining the information”; and (4) the Court would then weigh ATP’s interest in
obtaining the information against the possible chilling effect that requiring the disclosure
of the information might have on the free exercise of the speaker’s First Amendment
rights. Id. at 1024-25.
In light of the first prong of that standard, the parties and the Magistrate Judge
worked to establish a notification procedure that would allow the Doe Defendants to
respond to the motion to compel if they chose, while still protecting their identities. (See
Order on Procedure for Addressing First. Amendment Disc. Issues at 1-4, May 19, 2016,
Docket No. 144 (directing the parties to “attempt to agree on ‘Content and Modality of
Notice’”).) Following agreement on some aspects of the notice, the Magistrate Judge
issued an order resolving remaining disputes and establishing the notice that would be
placed on Allnurses’ website. (Mem. Op. & Order, Aug. 22, 2016, Docket No. 153.)
The Magistrate Judge subsequently amended its order based on agreement by the parties.
(Am. Order, Aug. 31, 2016, Docket No. 156.) The notice provided a mechanism by
which the Doe Defendants could remain anonymous to ATP, while still providing their
contact information to the Court. 1 (Id., Ex. B.) Neither party objected to this order

1

The notice stated

Any John Doe Defendant objecting to ATP’s Motion to Compel Discovery must
file with the Clerk of Court for the District of Minnesota a written response to the
motion and serve a copy on all counsel of record . . . .
....
(Footnote continued on next page.)
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within the time frame provided for by local rule. See D. Minn. LR 72.2(a)(1). ATP filed
a new motion to compel on September 12, 2016, seeking identifying information
regarding the Doe Defendants. (Pls.’ Mot. to Compel Disc., Sept. 12, 2016, Docket
No. 172.)
LadyFree28 and duskyjewel responded to the notice on Allnurses’ website by
filing redacted objections with the Court and sending unredacted versions to the
Magistrate Judge. 2 (Obj. to Mot. to Compel, Sept. 29, 2016, Docket No. 180; Redacted
Mot. for Protective Order, Oct. 4, 2016, Docket No. 189.) After those filings, ATP used
the information provided in LadyFree28’s and duskyjewel’s public filings, “in
combination with the information provided by the John Doe Defendants themselves,
____________________________________
(Footnote continued.)

If you are not represented by a lawyer, you must include with your written
response, your name, address and phone number. However, if you do not want to
reveal your identity (name, address and phone number) to the parties, you may do
this by (a) filing with the Clerk of Court and serving on counsel of record for the
parties a written response that redacts (hides or removes) your name, address and
phone number, and (b) by sending an unredacted version of the same written
response to Magistrate Judge Mayeron . . . .
....
Magistrate Judge Mayeron will not disclose your name, address and phone
number to ATP, Allnurses or counsel of record for these parties. The Court will
only use this information to communicate to you about the motion, including the
outcome of the motion.
(Am. Order, Ex. B at 4-5.)
2

As described by the Magistrate Judge, LadyFree28 accidentally filed unredacted
versions of her objections and other documents on the docket. (Order at 17 n.7, Jan. 24, 2017,
Docket No. 267.) Upon discovering the error, the Magistrate Judge quickly sealed these
documents and directed counsel not to use that information or divulge it to anyone. (Id.)

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elsewhere, using their Allnurses usernames,” to discover LadyFree28’s and duskyjewel’s
identities; ATP also learned the identity of a Doe Defendant who did not file objections –
Pixie.RN. (Letter Resp. in Opp’n to Req. for Recons. at 1, Nov. 25, 2016, Docket
No. 242 (emphasis omitted); see also Suppl. Decl. of Richard L. Ravin ¶¶ 11, 14-15,
Nov. 7, 2016, Docket No. 225.)
On November 10, 2016, ATP moved to amend its complaint to add the true names
of LadyFree28, duskyjewel, and Pixie.RN and additional factual allegations related to
Allnurses’ conduct during litigation. (Pls.’ Mot. for Leave to File Third Am. Compl.,
Nov. 10, 2016, Docket No. 230.)
Upon learning of ATP’s discovery, Allnurses filed a letter seeking permission to
file a motion for reconsideration of the order that established the notice to be posted on
Allnurses’ website. (Letter to Req. Permission to File Mot. to Reconsider, Nov. 23,
2016, Docket No. 237.) Allnurses argued that ATP “used information provided to [it] by
both court personnel and the Does to determine the identity of multiple Does prior to
resolving the weighty First Amendment issues.” (Id. at 1.)
The Magistrate Judge denied Allnurses’ request on November 29, 2016. (Letter
Den. Permission to File Mot. to Reconsider, Nov. 29, 2016, Docket No. 244.) In that
letter, the Magistrate Judge rejected Allnurses’ argument that the legal notice presented
the Doe Defendants with an unfair choice to either (1) respond to the notice and risk
revealing their identities or (2) forgo the opportunity to respond and remain anonymous.
The Magistrate Judge explained:

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The fact that LadyFree28 and duskyjewel chose to share information in
their substantive responses that assisted plaintiffs’ efforts to discover their
identities is not a product of the process set out in the Order for allowing
them to mask their identities. In short, the Court created a procedure that
would allow the anonymous John Does to oppose plaintiffs’ motion without
having their identities revealed; it did not create a process in which it could
guarantee that a John Doe’s identity would not ultimately be discovered
based on the substance of their objections or through other means.
(Id. at 5.)
On December 21, 2016, ATP moved to supplement the record of its motion to
compel. (Pls.’ Mot. to Suppl. R., Dec. 21, 2016, Docket No. 251.) ATP had recently
learned from Allnurses’ response to interrogatories that JustBeachyNurse was a
moderator on Allnurses’ website until August 2013, and ATP asked the court to consider
this information while deciding its motion to compel.
On January 24, 2017, the Magistrate Judge issued an order resolving ATP’s
motions. (See Order, Jan. 24, 2017, Docket No. 267.) The Magistrate Judge denied
ATP’s Motion to Compel. The Magistrate Judge denied the motion in part as moot
because ATP had already learned the identities of three Doe Defendants – LadyFree28,
duskyjewel, and Pixie.RN. The Magistrate Judge then denied ATP’s motion as to the
remaining Doe Defendants – JustBeachyNurse and monkeyhq – finding that ATP failed
to meet the second and fourth prongs of the standard the Court described in its prior
order. The Magistrate Judge also denied ATP’s motion to supplement the record. The
Magistrate Judge found the new information irrelevant to the motion-to-compel analysis.
Finally, the Magistrate Judge granted ATP’s motion for leave to file an amended

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complaint, finding it was timely under the scheduling order and that adding the new
claims would not be futile.
ATP now objects to the Magistrate Judge’s denial of its motion to compel as to
JustBeachyNurse and monkeyhq and the Magistrate Judge’s denial of its motion to
supplement the record. Allnurses objects to the Magistrate Judge’s grant of ATP’s
motion for leave to amend the complaint.

ANALYSIS
I.

STANDARD OF REVIEW
“The standard of review applicable to an appeal of a Magistrate Judge’s order on

nondispositive pretrial matters is extremely deferential.”

Roble v. Celestica Corp.,

627 F. Supp. 2d 1008, 1014 (D. Minn. 2007). The Court will reverse such an order only
if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.
72(a); D. Minn. LR 72.2(a)(3). “A finding is clearly erroneous when ‘although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.’” Lisdahl v. Mayo Found., 633
F.3d 712, 717 (8th Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985)). “A decision is ‘contrary to law’ when it ‘fails to apply or misapplies
relevant statutes, case law or rules of procedure.’” Knutson v. Blue Cross & Blue Shield
of Minn., 254 F.R.D. 553, 556 (D. Minn. 2008) (citation omitted).

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II.

ATP’S OBJECTIONS
ATP objects to the Magistrate Judge’s denial of its motion to compel production

of the identities of JustBeachyNurse and monkeyhq. Under the framework described by
the Court in its prior order, in determining whether to grant a motion to compel
unmasking anonymous speakers, the Court considers: (1) whether the party seeking to
identify an anonymous speaker has “ma[d]e reasonable efforts to notify the speaker”;
(2) whether “the plaintiff . . . [has] produce[d] prima facie support for all of the elements
of his or her case that are within his or her control”; (3) whether the party identified
specific statements and whether the party could gain the information through alternative
means; and (4) how the interest of the party seeking the information weighs against the
possible chilling effect of allowing the disclosure on the exercise of the relevant free
speech right. East Coast Test Prep, 167 F. Supp. 3d at 1024-25.

A.

Prima Facie Case

The Magistrate Judge found that ATP failed to satisfy the second prong of this test
because ATP did not establish a prima facie case of defamation as to JustBeachyNurse or
monkeyhq. In support of those claims, ATP relies on JustBeachyNurse’s comment that
“ATP and similar services will be redundant as of July 1, 2014 when all challenge exam
candidates will be mandated to take the Excelsior online exam prep classes prior to
becoming eligible to sit the challenge exams,” and on monkeyhq’s comment, “[a]s
Beachy said, Test Prep companies for Excelsior Exams will be obsolete by July 1, 2015;
so unless you plan to finish EVERYTHING by that time, it is a total waste of your

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investment.” (Order at 36 (footnote omitted); see also Pls.’ Mot. to Compel Obj. at 9,
Feb. 7, 2017, Docket No. 279.)
After considering those posts in the context of the entire message board thread, the
Magistrate Judge found that JustBeachyNurse’s and monkeyhq’s statements could not
support a prima facie case of defamation because they were “pure opinion.” (Order at
50-53.) The Magistrate Judge noted that the statements – whether or not a service is
redundant or obsolete – reflected the state of mind of the speaker and were not verifiable.
(Id. at 51-52); see also Riverside Church v. City of St. Michael, 205 F. Supp. 3d 1014,
1044 (D. Minn. 2016) (“[I]f it is plain that the speaker is expressing a subjective view, an
interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of
objectively verifiable facts, the statement is not actionable.” (quoting Schlieman v.
Gannett Minn. Broad., Inc., 637 N.W.2d 297, 308 (Minn. Ct. App. 2001))); Mangan v.
Corp. Synergies Grp., Inc., 834 F. Supp. 2d 199, 205 (D.N.J. 2011) (stating that
“[s]tatements of pure opinion” do not qualify as defamatory statements “because such
statements only ‘reflect a state of mind,’ and therefore generally ‘cannot be proved true
or false’” (quoting Lynch v. N.J. Educ. Ass’n, 735 A.2d 1129, 1137 (N.J. 1999))).
ATP contends that the Magistrate Judge “overlook[ed] the ‘mixed opinion’
authority” that ATP cited in its briefs. (Pls.’ Mot. to Compel Obj. at 11.) To the
contrary, the Magistrate Judge considered ATP’s argument, (Order at 22, 48-51), and
rejected it, finding that JustBeachyNurse’s redundancy statement and monkeyhq’s
obsolescence statement were statements of pure opinion, rather than mixed opinion, (id.
at 51-52).
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The Court finds that the Magistrate Judge’s analysis is not contrary to law. There
is no “wholesale defamation exemption for anything that might be labeled ‘opinion.’”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990). “[S]tatements couched as
opinions may be unprotected if they imply a defamatory factual assertion,” when viewed
in context. Hunter v. Hartman, 545 N.W.2d 699, 706 (Minn. Ct. App. 1996). To be
actionable as defamatory an opinion must be “based on facts about the plaintiff or [the
plaintiff’s] conduct that have neither been stated by the defendant nor assumed to exist by
the parties to the communication.” Kotlikoff v. Cmty. News, 444 A.2d 1086, 1089 (N.J.
1982); see also Lynch, 735 A.2d at 1137. But see Milkovich, 497 U.S. at 18-19 (“Even if
the speaker states the facts upon which he bases his opinion, if those facts are either
incorrect or incomplete, or if his assessment of them is erroneous, the statement may still
imply a false assertion of fact.”). Here, JustBeachyNurse stated the factual basis for her
opinion and monkeyhq referred to that factual basis – that is, changes to Excelsior Exams
testing programs in July 1, 2015. 3

Moreover, the Magistrate Judge noted that this

underlying factual assertion is not about ATP and that fact did not cast ATP in a negative
light. (Order at 52.) It is only JustBeachyNurse’s and monkeyhq’s opinion – applying
that fact to suggest that ATP’s services will no longer be useful – that implicates ATP.

3

While JustBeachyNurse initially referred to changes that would occur on July 1, 2014,
the Magistrate Judge and the parties agree that reading the post in context this was an error, and
JustBeachyNurse meant – and a reasonable reader would understand that she meant – to refer to
changes in July 2015. (See Order at 36 n.16; Pls.’ Mot. to Compel Obj. at 9 n.3; Defs.’ Resp. to
Pls.’ Mot. to Compel Obj. at 10, Feb. 21, 2017, Docket No. 303.)

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ATP also argues that the Magistrate Judge “ignore[d] the context of
[JustBeachyNurse’s and monkeyhq’s] statements,” (Pls.’ Mot. to Compel Obj. at 11),
when, in fact, the Magistrate Judge included fifteen pages of context, (Order at 31-46),
including the specific posting that ATP argues the Magistrate Judge ignored, (id. at 39).
The fact that monkeyhq stated she was providing facts and not a personal opinion is not
on its own determinative. Moreover, ATP ignores another portion of the thread that the
Magistrate Judge highlighted, in which Plaintiff Olynyk himself disputed that
monkeyhq’s statements were statements of fact. (See id. at 52.)
Viewing the thread as a whole,
the posters . . . were engaged in a robust give-and-take discourse regarding
the pros and cons of a variety of options for schooling to become a nurse,
the advisability and value of taking test prep courses to obtain degrees, and
what Excelsior College in particular would and would not require to obtain
a degree from it.
(Id. at 53.) In this context, a reasonable reader would not find that JustBeachyNurse’s
and monkeyhq’s comments – including their redundancy and obsolescence opinions as
well as the purported factual basis for those opinions – implied any “underlying objective
facts that [were] false.” Ward v. Zelikovsky, 643 A.2d 972, 979 (N.J. 1994). Thus, the
Magistrate Judge did not err in finding that ATP failed to establish a prima facie claim of
defamation as to JustBeachyNurse and monkeyhq.

B.

Balancing Factor

ATP also challenges the Magistrate Judge’s alternative holding under the fourth
prong that ATP’s interests do not outweigh the possible chilling effect on First

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Amendment rights. ATP contends that JustBeachyNurse’s and monkeyhq’s statements
were not opinions and that the Magistrate Judge overstated the potential chilling effect.
The Court does not find ATP’s objections persuasive.

JustBeachyNurse and

monkeyhq engaged in “the sharing of opinions and personal experiences for the benefit
of others in the online community.” (Order at 54.) As discussed above, the Court agrees
that JustBeachyNurse’s and monkeyhq’s statements were opinions.

In light of that

conclusion, “[t]o permit discovery of [JustBeachyNurse’s and monkeyhq’s] identities
would unacceptably chill this type of speech and cause others in the online community to
withhold their opinions for fear of litigation.” (Id.)

Moreover, ATP “failed to make a

concrete showing that [JustBeachyNurse’s and monkeyhq’s] opinions . . . cast it in a
negative light or . . . lowered its reputation in the estimation of Allnurses’ readers,” and
thus, the Magistrate Judge properly found the fourth prong weighed in favor of denying
ATP’s motion. (Id. at 54-55 & n.18.)

C.

Motion to Supplement

ATP objects to the Magistrate Judge’s denial of its motion to supplement the
record, in which ATP sought to add information that JustBeachyNurse was previously a
moderator for Allnurses’ website.

The Magistrate Judge found that this additional

information was irrelevant to the analysis of ATP’s motion to compel because
JustBeachyNurse was not a moderator at the time of the allegedly defamatory posting and
JustBeachyNurse’s prior relationship with Allnurses did not affect the Magistrate Judge’s
analysis that ATP failed to state a prima facie case of defamation regarding

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JustBeachyNurse. (Order at 58-59.) Granting a motion to supplement the record is
proper where the additional information is relevant and not previously available. See
Ortiz-Alvarado v. Gomez, No. 14-209, 2014 WL 3952434, at *3 (D. Minn. Aug. 13,
2014).
ATP argues that the new information regarding JustBeachyNurse’s relationship
with Allnurses is relevant to the motion to compel because if JustBeachyNurse was
acting on Allnurses’ behalf it could affect the Court’s analysis on the motion to compel.
ATP argues that JustBeachyNurse could have been acting as Allnurses’ agent or engaged
in commercial speech, which may garner less protection than an anonymous member of
the public. ATP overplays its hand. While the new information demonstrates that a
relationship between JustBeachyNurse and Allnurses existed at some point, the Court has
no reason to doubt Allnurses’ statement that JustBeachyNurse’s allegedly defamatory
comment came more than a year after that relationship ended; therefore, there is no
reason to think that JustBeachyNurse had some diminished First Amendment interest in
speaking anonymously at the time of the relevant posting.

Accordingly, the new

information does not alter the analysis, and the Magistrate Judge properly denied ATP’s
motion.
Because the Court finds that the Magistrate Judge did not err in denying ATP’s
motion to supplement and motion to compel, the Court will overrule ATP’s objections
with regard to both motions.

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III.

ALLNURSES’ OBJECTIONS
ATP moved for leave to file an amended complaint, naming the unmasked Doe

Defendants and adding several factual allegations regarding Allnurses’ recent conduct.
The Magistrate Judge granted ATP’s motion, finding that it was filed within the
scheduling order’s timeline and that it was not futile. (Order at 65.) Allnurses objects to
the Magistrate Judge’s conclusion, arguing that the motion for leave to amend should
have been denied as futile and contrary to the Communications Decency Act (“CDA”)
and that the Magistrate Judge erred in allowing the addition of the unmasked Does
without applying the same standard that was applied to the anonymous Does.

A.

Addition of “Open Letter” Allegations

Allnurses first objects to the Magistrate Judge’s conclusion regarding ATP’s
request to add a defamation claim based on an “open letter” regarding this case that
Allnurses posted to its website. ATP alleges that the open letter was defamatory in
stating that the current litigation was “meritless” and because it stated that ATP was
seeking “any personally identifying information in [Allnurses’] possession.” (Decl. of
Richard L. Ravin, Ex. H, Nov. 11, 2016, Docket No. 233.)

The Magistrate Judge

considered both statements in the open letter together and rejected Allnurses’ argument
that these additional claims were futile, finding it improper to “conclude as a matter of
law that the statements [were] not actionable, (e.g., because they are statements of pure
opinion).” (Order at 63, 65.)

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Allnurses disputes ATP’s characterization of the facts with regard to the
“personally identifying information” statement supporting ATP’s open letter claim.
(Defs.’ Objs. at 5-6, Feb. 7, 2017, Docket No. 278.) However, the Magistrate Judge
properly found that the Court applies the motion-to-dismiss standard to determine
whether amendment would be futile. (Order at 64-65 (citing Zutz v. Nelson, 601 F.3d
842, 850 (8th Cir. 2010)).) The Court looks to the facts as pleaded and determines if the
plaintiff failed to state a claim that would survive a Rule 12(b)(6) motion. Applying that
standard, the Court finds no error in the Magistrate Judge’s conclusion. While ATP’s
claims based on the personally identifying information statement may fail on other
grounds at a later date, the Court will overrule Allnurses’ objections because the factual
dispute Allnurses raises does not alter the Court’s proper analysis of ATP’s motion for
leave to amend.
Allnurses also challenges the addition of the “meritless” litigation statements,
arguing that those statements are not actionable because they are protected opinion
statements. Allnurses cites significant – but not binding – authority from other courts
that have found similar statements were not actionable. (Defs.’ Mem. in Opp’n to Mot.
to Amend at 11, Nov. 17, 2016, Docket No. 235 (“[A] statement condemning an
opponent’s legal claims as ‘baseless’ is mere opinion and is not defamatory.” (quoting
Alzheimer’s Found. of Am., Inc. v. Alzheimer’s Disease & Related Disorders Ass’n, Inc.,
796 F. Supp. 2d 458, 471 (S.D.N.Y. 2011))).) ATP responds that the statement is
actionable because it will be verifiable, presumably at some future point once the
litigation has ended. See Janklow v. Newsweek, Inc., 788 F.2d 1300, 1302 (8th Cir. 1986)
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(stating that verifiability is a factor in determining whether a statement is actionable).
However, verifiability is not the only factor in that analysis, and ATP provides no
caselaw allowing a defamation claim based on a statement as to the quality of a legal
case.
The Magistrate Judge did not specifically discuss this argument, finding only that
ATP’s claim based on the open letter met the pleading standard. Allnurses may have a
strong argument that ATP could not assert a defamation claim based on the “meritless”
comment alone, invoking the caselaw described above. Nevertheless, even if ATP could
not base a defamation claim on the “meritless” statement alone, the factual allegations are
relevant to other claims, and thus, the Magistrate Judge did not err in allowing the
amendment.

B.

Communications Decency Act

Second, Allnurses argues that the Magistrate Judge erred in allowing amendments
prohibited by the CDA. In Allnurses’ brief before the Magistrate Judge, it argued that the
proposed amendments were futile for the reasons stated in its prior brief in support of its
motion to dismiss. (Defs.’ Mem. in Opp’n to Mot. to Amend at 12.) Allnurses did not
substantively describe any of those arguments before the Magistrate Judge, (id.), and
does not do so now, (Defs.’ Objs. at 8). The Magistrate Judge did not err in declining to
delve into Allnurses’ nonspecific argument made only by reference to prior briefing.
Allnurses did not point to any particular amendments or describe how they were barred
by the CDA. The Court is not required to search through prior briefing and make

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arguments on Allnurses’ behalf. See, e.g., Pelfresne v. Vill. of Williams Bay, 917 F.2d
1017, 1023 (7th Cir. 1990) (“A litigant who fails to press a point by supporting it with
pertinent authority, or by showing why it is sound despite a lack of supporting authority
or in the face of contrary authority, forfeits the point. We will not do his research for
him.” (citation omitted)). To the extent Allnurses has viable CDA defenses to ATP’s
claims, it can raise them at a proper time; but it has not done so here. Accordingly, the
Magistrate Judge did not err in rejecting Allnurses’ argument based on the CDA.

C.

Addition of Unmasked Does

Finally, Allnurses argues that the Magistrate Judge erred in allowing ATP to add
the unmasked Does in the Third Amended Complaint without conducting the analysis for
compelled disclosure of their identities that the Court applies to still-anonymous Does, as
discussed above. The Magistrate Judge noted that “the Court ha[d] already determined
that the process employed to notify the John Does of the motion to compel was sufficient
to protect their anonymity.” (Order at 29.) The Magistrate Judge then found that the
standard Allnurses requested only applies to anonymous speakers and therefore it did not
apply to Pixie.RN, LadyFree28, and duskyjewel, who were no longer anonymous. (Id. at
30.)
Allnurses objects to the Magistrate Judge’s conclusions, arguing that the Court
should apply the same standard to the non-anonymous Does as it did to the anonymous
Does in order to remedy what it argued was a flawed notification process. Allnurses is
correct that, in proper circumstances, the Court could prevent a party from using

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information – such as an anonymous party’s identity – even once the party discovers that
information. See, e.g., Thomas M. Cooley Law Sch. v. Doe 1, 833 N.W.2d 331, 337
(Mich. Ct. App. 2013) (finding inadvertently disclosed identity could still be protected
“because [the] knowledge d[id] not prevent th[e] Court from granting relief that w[ould]
have a practical legal effect on the controversy”). For example, the Court could prevent
ATP from relying on the inadvertent disclosure of LadyFree28’s identity. There is no
indication, however, that ATP relied on any improper source in order to discover the
unmasked Does’ identities.
Indeed, there is no evidence supporting Allnurses’ argument that the Court’s
notification process was flawed; contrary to Allnurses’ present assertion, nothing
suggests that the process agreed upon by the parties and the Court would necessarily
result in ATP learning the Doe Defendants’ identities. The Magistrate Judge and the
parties took pains to provide the Doe Defendants notice and an opportunity to respond
anonymously to ATP’s request for their identities. Furthermore, Allnurses did not object
at the time to the Magistrate Judge’s order that established the notification procedure. In
fact, Allnurses did not raise its concern regarding the notice’s propriety until after the
notice was posted, duskyjewel and LadyFree28 responded, and Allnurses learned that
ATP had discovered duskyjewel’s, LadyFree28’s, and Pixie.RN’s identities.

The

Magistrate Judge rejected Allnurses’ request for reconsideration, finding the legal notice
gave the anonymous posters a way to oppose ATP’s motion without providing their
personal information, and that was all the process sought to do – it was not intended to
“guarantee that a John Doe’s identity would not ultimately be discovered based on the
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substance of their objections or through other means.” (Letter Den. Permission to file
Mot. to Reconsider at 5.)
The Court finds the Magistrate Judge’s reasoning persuasive. The standard
provided in the Court’s prior order applies when a party is “seeking discovery of . . .
information that might unmask [an] anonymous speaker.” East Coast Test Prep, 167 F.
Supp. 3d at 1024. By the plain terms of the order, the standard does not apply to a
motion seeking leave to add previously anonymous defendants to a complaint after the
plaintiff discovers their identities. The Court sees no reason to apply the standard to the
non-anonymous Does in this case. While ATP likely learned the identities of several Doe
Defendants in part based on their submissions to the Court, the disclosure was not
inherent in the procedure used by the Court, and the discovery was not based on
wrongdoing by ATP. ATP was free to try to identify the Doe Defendants independently,
and, on the record before the Court, there is no reason to prevent ATP from adding the
unmasked Doe Defendants. Accordingly, the Court will overrule Allnurses’ objections.

IV.

LETTERS REGARDING STATUS UPDATE
Pursuant to the Court’s prior order, the parties recently submitted letters discussing

the status of this case. In its letter, Allnurses requested that the Court allow filing of a
renewed motion for judgment on the pleadings. The Court will not establish a schedule
for such a motion at this time. Due to the recent developments in this case, the Court
directs the parties to reassess, in conjunction with the Magistrate Judge, the proper
progression of the case, including when substantive briefing on Allnurses’ CDA defenses

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will be appropriate – i.e., when the pleadings have closed or when it becomes clear that
the discovery of the additional defendants’ identities is impossible or will result in
significant delay. (See Mem. Op. & Order Den. J. on Pleadings at 3, Dec. 20, 2016,
Docket No. 250.)

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES ATP’s objections [Docket Nos. 279, 280] and Allnurses’
objections [Docket No. 278] and AFFIRMS the Magistrate Judge’s order [Docket No.
267].

DATED: May 22, 2017
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
Chief Judge
United States District Court

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