Henry v. Google, Inc. et al

Filing 4

MOTION to Dismiss Complaint by AOL (Attachments: # 1 Exhibit A)(Slover, Roland)

Henry v. Google, Inc. et al

Doc. 4

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI HATTIESBURG DIVISION JOHNNY I. HENRY VS. GOOGLE, INC. AND AOL DEFENDANT'S MOTION TO DISMISS COMES NOW Defendant, AOL LLC ("AOL"), and pursuant to Rules 12(b)(1), (4), (5), (6) and 10(b) of the Federal Rules of Civil Procedure, moves this Court for a dismissal with prejudice of all claims against it in this action and in support thereof states as follows: 1. Exhibit "A." 2. In his Complaint, Plaintiff claims that AOL is legally responsible, as the provider of Plaintiff filed his Complaint on May 20, 2009, a copy of which is attached hereto as PLAINTIFF CIVIL ACTION NO. 2:09CV-00099-KS-MTP DEFENDANTS

an internet search engine, for purportedly defamatory statements or content that exists on third party internet websites. Plaintiff alleges that the internet sites at issue contain "defamatory, slanderous and libelous statements" concerning him. 3. Plaintiff's complaint fails to state a claim for which relief can be granted because all

of the Plaintiff's claims against AOL are barred by the Communications Decency Act, 47 U.S.C § 230 ("CDA"). Section 230 of the CDA prohibits lawsuits that seek to treat an interactive computer service provider as the "publisher or speaker" of any information provided by another information content provider or in this case by the third party internet sites referenced by the Plaintiff in his Complaint. See 47 U.S.C. § 230 (c)(1). 4. AOL has been held to be a an "interactive computer service" as defined by Section

230 and therefore entitled to its protections including immunity from lawsuits such as that filed by

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the Plaintiff seeking to hold AOL liable for content provided by third party internet sites. See e.g. Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) cert denied, 524 U.S. 937 (1998); Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003); Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000); Noah v. AOL Time Warner Inc., 261 F. Supp.2d 532, 537 (E.D. Va. 2003). 5. Plaintiff's Complaint fails to state a claim upon which relief can be granted because

Plaintiff has failed to state his claim in numbered paragraphs as required by Federal Rule of Civil Procedure 10(b). The Complaint should therefore be dismissed. 6. In the alternative, Plaintiff 's Complaint is defective and should be dismissed

because this Court lacks jurisdiction. Plaintiff has attempted to invoke this Court's diversity jurisdiction pursuant to 28 U.S.C. § 1332 but has failed to plead the required jurisdictional amount in controversy. Because there is no basis for the Court to exercise its diversity jurisdiction the Complaint should be dismissed. 7. In addition, process and service of process are insufficient. Plaintiff erroneously

identified Defendant as "A.O.L." in his Complaint instead of Defendant's proper name, AOL LLC Defendant is also misnamed in the summons issued by the Plaintiff. Accordingly, process and service of process are insufficient and the Complaint should be dismissed. WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests that this Honorable Court dismiss Plaintiff's Complaint against Defendant AOL LLC with prejudice. Respectfully Submitted, S/Roland M. Slover ROLAND M. SLOVER, MSB NO. 6846 PHILLIP S. SYKES, MSB NO. 10126 ATTORNEYS FOR AOL LLC 2

OF COUNSEL: FORMAN PERRY WATKINS KRUTZ & TARDY LLP City Center Building, Ste. 100 200 South Lamar Street P. O. Box 22608 Jackson, Mississippi 39225-2608 Telephone: [phone] Facsimile: [phone]

CERTIFICATE OF SERVICE I do hereby certify that I have mailed, via registered United States mail, return receipt requested, a true and correct copy of the above and foregoing Defendant's Motion to Dismiss to the Plaintiff at the following address: Johnny I. Henry P. O. Box 328 Soso, MS 39480 This the 18th day of June, 2009. S/Roland M. Slover Roland M. Slover

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