Goldsmith, Esq. v. Cooper et al

Filing 22

RESPONSE to 11 MOTION for Preliminary Injunction; filed by Defendant Facebook, Inc. re . (Attachments: # 1 Exhibit A-B)(Sutton, Theresa) Modified text on 12/6/2010 (SRK).

Goldsmith, Esq. v. Cooper et al

Doc. 22 Att. 1

Exhibit A

Dockets.Justia.com

ANNED ON 911612009

SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRAA. J

Am
Justice

PART 59
Index No.:

DENISE E. FINKEL,

102578109

Plaintiff,

Motion Date:

06/02/09
01

-v,

Motion Seq. No.: Motion Cal. No.:

FACEBOOK, INC. , MICHAEL DAUBER, JEFFREY SCHWARTZ, MELINDA DANOWITZ, LEAH HERZ, RICHARD DAUBER, AMY SCHWARTZ, ELLIOT SCHWARTZ, MARTIN DANOWITZ, BAR1 DANOWITZ, *ALAN H E R Z and ELLEN H E R Z , Defendants.

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The following papers, numbered 1 to 5 were read on thls motion to dismiss.
'?MBERED

Notice of MotionlOrder to Show Cause -Affidavits - E & F

Answering Affidavits - Exhibits Replying Affidavits - Exhibits

Cross-Motion:

CIYes

NO

.

'62009

Upon the foregoing papers,

--@id
The court shall grant defendant Facebook's motion to dismiss
this defamation action against i t because Facebook is immune from liability u n d e r the Communications Decency Act of 1996 as an interactive computer service. According to the movant, Facebook i s a " s o c i a l networking'' internet website that i s open to the public. The website allows

members to communicate with each other via "group pages" and to
s e t up and post content to profiles and groups.

Check One: Check if appropriate:

FINAL DISPOSITION DO NOT POST

NON-FINAL DISPOSITION

0 REFERENCE

Plaintiff in opposition to the motion states that she was a member of the Facebook website while attending high s c h o o l in January 2007. Four of the defendants in this suit, Michael

Dauber, Jeffrey Schwartz, Melinda Danowitz and Leah Herz, were classmates of plaintiff and a l s o members of the Facebook website. The complaint alleges that the f o u r classmates-defendants created a group on the website and posted defamatory statements w i t h negative sexual and medical connotations. Facebook seeks dismissal based upon the Communications Decency Act of 1996 (47 USC 230 et seq) that provides immunity to interactive computer services from civil liability for defamatory content. Section 230 provides that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of a n y information provided by another information content provider," id. 5230 (c) (1), and that "no cause of action may be brought and no liability may be imposed under any State or l o c a l law id. that is inconsistent with this section, §230 (e) (3). Section 230(c) thus immunizes internet and other, service providers from defamation non-intellectual property, state law claims arising from third-party content. Gucci A m . , Inc. v jaL1 & ASSOCS., 135 F Supp 2d 409, 417 (SD .NY 2001) (citing legislative history of the C D A ) ; see alsO Ze ran v Am. Online, Inc., 129 F 36 327, 330 (4th Cir 1997) (holding that '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 of alter content-are barred`. by the C D A ) ; Barrett v Rosenthal, 40 C a l 4th 33, 51 C a l Rptr 3d 55, 146 P 3d 510, 518 n 9 (2006) (collecting cases) * "

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Murawski v Pataki, 514 F Supp 2d 577, 591 (SD NY 2007). Plaintiff's opposition t o the motiQn does n o t dispute that Facebook qualifies as an interactive compi t e r service under 47
USC 230 (f) (2) but plaintiff argues that because it is alleged

'that Facebook's Terms of Use grant the movant an ownership interest in the alleged defamatory content, the immunity granted by 47 USC 230 (c) is unavailable. meritless. "By its p l a i n language, §230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, §230 precludes courts from entertaining claims t h a t would place a computer service provider in a publisher's role. 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, . . Congress made a policy choice, however,
n o t to deter harmful o n l i n e speech through the separate route of

Plaintiff's argument is

imposing tort liability on companies that serve a s intermediaries for other parties' potentially injurious messages." Zeran v

America Online, Inc., 129 F 3d 327, 330 ( 4 t t ' Cir 1997). "Ownership" of content plays no role in the Act's statutory scheme.

The only issue is whether the party sought to be held

liable is an "interactive computer service" and if that hurdle is
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surmounted the immunity granted by 42 USC 230 (c) (1) is triggered if the content was provided by another p a r t y . "Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some s o r t of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-pblice the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not

even attempted."
1998).

Blumenthal v Drudqe, 992 F Supp 44, 5 2 (D DC

The allegations in the complaint establish that Facebook is

entitled ta the liability shield conferred by the Communications Decency Act and therefore the court shall dismiss this a c t i o n against the movant as there is no claim Facebook had any hand in creating the content. The court shall deny movant's application

f o r sanctions as the plaintiff`s argument as to liability based

upon the ownership of defamatory content c o u r t is not c o n t r a r y to any prior precedent n o r does the movant cite any precedent that renders such an argument frivolous. Accordingly, it is
ORDERED that the motion of FACEBOOK, INC., s e e k i n g to

dismiss the complaint against it is GRANTED; and it is further

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ORDERED that the Clerk is directed to enter judgment

DISMISSING the action against FACEBOOK, INC., and upon service of

I
I

t h i s Order with notice of entry upon all parties and the Clerk of
t h e County and the Clerk of t h e Trial Support Office (Room 158,

60 Centre Street), the C l e r k s are directed to amend their records by amending the caption in this action to r e f l e c t the dismissal
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against FACEBOOK, INC., by removing said defendant from the

amended caption; and it is further
ORDERED t h a t the remaining parties shall appear at a
I

preliminary conference on October 6, 2009, at 9 : 3 0 A . M ,

in Part

I

5 9 , Room 1254, 111 Centre Street, New Y o r k , New Y o r k 10013.

T h i s i s t h e decision and order of t h e c o u r t .

.

Dated:

Sept embe 1T 15, 2009

ENTER:

)A,A,
P
-1

fi
r

p'"

\*4
&-

#/

DEBRA A. JAMES
J.S.C.

J. S. C.

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Exhibit B

Sutton, Theresa A.
From: Sent: T o: Cc: Subject: Mr. GoldsmithIf you persist in pressing your meritless claims against Facebook, in light of clear, undisputed precedent, Facebook will seek sanctions, including its attorneys' fees and costs. Please read the cases I sent to you and then read Rule 11 and the obligations it places on attorneys. Facebook will not settle this case by paying you, as you do not have claims against it. Theresa -----Original Message----From: Jonathan B. Goldsmith [mailto:[e-mail]] Sent: Friday, October 15, 2010 5:07 PM To: Sutton, Theresa A. Subject: Re: Goldsmith v. Cooper Thanks. Is your firm facebook's Nevada counsel? I would need to fully read these cases to form an opinion of the relation if any to the case at hand, and I will do so. However, I am not inclined to stipulate to any type of dismissal solely on the basis of non-binding case law. I would at the very least want to argue the issue of dismissal, if Facebook brought it, in front of the Nevada state court. If I received an unfavorable ruling I could appeal directly to the Nevada Supreme Court. On the other hand, I am open to discuss settlement possibilities. I would stipulate to dismiss with prejudice for a settlement of $25,000.00, which could be kept confidential and without facebook admitting any liability. Please let me know if this offer is acceptable. If not, I will likely file an offer of judgment, which in Nevada, if you don't know, allows me to obtain attorney's fees by statute if not accepted and I receive a more favorable ruling at trial. Jonathan B. Goldsmith, Esq. Rosenfeld & Rinato 9029 South Pecos Road, #2800 Henderson, Nevada 89074 702.386.8637 (phone) 702.385.3025 (fax) [e-mail] On Oct 15, 2010, at 4:48 PM, "Sutton, Theresa A." <[e-mail]> wrote: > Mr. Goldsmith> > > > I am writing to follow up on our phone conversation this afternoon in which I asked that you dismiss Facebook from the Goldsmith v. Cooper matter, currently pending in the Clark County District Court. As I also mentioned, the Communications Decency Act, 47 U.S.C. § 230, immunizes Facebook from liability for the types of activity alleged in the Goldsmith complaint. I have attached several decisions related to the CDA immunity. I also have attached a decision from a New York Supreme Court, in which the Court specifically found that Facebook is a provider of interactive computer services and, thus, immune from
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Sutton, Theresa A. Monday, October 18, 2010 2:00 PM 'Jonathan B. Goldsmith' Dalton, Amy RE: Goldsmith v. Cooper

liability pursuant to the CDA under circumstances analgous to those asserted here. > > > > While I understand that you disagree with the outcome in these cases, courts have treated Section 230(c)(1) immunity as "quite robust, adopting a relatively expansive definition of 'interactive computer service' and a relatively restrictive definition of 'information content provider.'" Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). Facebook is confident the Clark County District Court will follow wellestablished precedent and encourages you to dismiss Facebook from this case, as there is no basis for asserting claims against it. > > > > I look forward to resolving this expeditiously. > > > > Theresa > > > ___________________________________ > O >ORRICK > > Theresa A. Sutton > Orrick, Herrington & Sutcliffe LLP > Silicon Valley Office > 1000 Marsh Road, Menlo Park, CA 94025 > 650.614.7307 (Voice) > 650.614.7401 (Fax) > [e-mail] > www.orrick.com > > > > =========================================================== > > IRS Circular 230 disclosure: > To ensure compliance with requirements imposed by the IRS, we inform > you that any tax advice contained in this communication, unless > expressly stated otherwise, was not intended or written to be used, > and cannot be used, for the purpose of (i) avoiding tax-related > penalties under the Internal Revenue Code or (ii) promoting, marketing > or recommending to another party any tax-related matter(s) addressed > herein. > > > > =========================================================== > > NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE > INTENDED RECIPIENT OF THE TRANSMISSION, AND MAY BE A > COMMUNICATION PRIVILEGED BY LAW. IF YOU RECEIVED THIS E> MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, > DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY > PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY > RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR > SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION. > > For more information about Orrick, please visit > http://www.orrick.com/ > =========================================================== > <Zeran v. AOL.pdf> > <Batzel v. Smith.pdf> > <Blumenthal v. Drudge.pdf> > <Carafano v. Metrosplash.pdf>
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> <Finkel Order.pdf>

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