Douglas L. Kimzey (Pro Se) HONORABLE RICHARD A.

JONES
P.O. Box 50250
Bellevue WA 98015
425-881-7777
WedgeCo123@msn.com


UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE






Kimzey (Pro Se), an Individual,
Plaintiff,
v.
Yelp Inc., a Delaware corporation
Defendant.
| Case No.: 2:13-CV-01734-RAJ
|
|
| PLAINTIFF KIMZEYS
| MEMORANDUM OF POINTS AND
| AUTHORITIES IN OPPOSITION TO
| DEFENDANTS SPECIAL MOTION
| TO STIKE AND DISMISS
| PURSUANT TO RCW 4.24.525, and
| Rule 12(b)(6).
|
|
| WRITTEN ARGUMENT REQUESTED
|
| NOTE ON MOTION CALENDAR:
| January 10, 2014.


Plaintiff Douglas L. Kimzey Pro Se, (Plaintiff or Kimzey), doing business as DBA
"Redmond Locksmith" also known as AKA "Redmond Mobile Locksmith", respectfully
submits this memorandum in opposition to Defendants motion to Strike and Dismiss and
upon information and belief and investigation alleges as follows:





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Table of Contents

I. INTRODUCTION Page 5

1. Defendant misconstrues complaint ...1.

2. Kimzey v. Yelp Inc. concerns promotion on Google.com 2.

3. False Statement Yelps Document 10 Filed 1/13/13 page 8 of 29,indexing..3.
4. Yelp S-1, Google does not take Yelp content ...4.

5. Google tags in Yelps content 5.
6. Yelp eludes complaint ...6.
7. CDA, 47 U.S.C. 230 does not apply, for Google Promotions ....7.

8. 50% of Yelps traffic comes from Google, Yelps competition 8.

9. Elements supporting WA Consumer Protection Act .8.
10. RICO Act 18 U.S.C. 1964(c) violations 9,10.
II. FURTHER STATEMENT OF FACTS .5.
11. Venue is proper ..13.
12. Yelp breached fiduciary duty to Plaintiff ...14.
13. Yelp establishes connection between itself and Plaintiff ...15.
14. Contact link in promotion does not constitute interactivity ...16.
15. Technicians Postal Inspectors Affidavit .18.
16. RICO Act 18 U.S.C. 1964(c), competitors ads & crime 19.
17. McMillan v. Yelp, mafia tactics .20.





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Table of Contents

III. MEMORANDUM OF LAW

18. Standing article III, Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)22.

19. Plaintiff plainly has Standing .23.

20. Plaintiff has suffered Injury in Fact, RCW 19.86.020, FTC 15, 45 ...24,25.
21. RCW 4.24.525 or Rule 12(b)(1)(6) does not apply Googles directory ...26.
22. That Injury will be redressed by favorable decision ..28.

23. Yelps motion for Anti-SLAPP is strategic and vexatious 29.
24. Failure to state a claim will not be cause for dismissal , CROCKARD VS.
PUBLISHERS (1956) Fr Serv 29, 19 F.R.D. 511, DCED Pa 19 (1958) .30.
25. Kimzey v. Yelp Substantial justice BURT VS. CITY OF NEW YORK 156 F.2D
791 (2D CIR. 1946) ...31.
26. Grounds for Federal Jurisdiction, DCCDJ (1950), 11 F.R.D. 153 ...32.
IV. Conclusion 33. 34. 35.
Table of Authorities

The1996 Communications Decency Act Title 5,
47 U.S.C. 230(c), (47 U.S.C. 230) 6.7.9.
RICO Act 18 U.S.C. 1964(c) .... .. 9.19.
Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)) ..22.
JOHN EDWARD CROCKARD VS. PUBLISHERS, SATURDAY EVENING POST MAGAZINE
OF PHILADELPHIA, PA (1956) Fr Serv 29, 19 F.R.D. 511, DCED Pa 19 (1958) .... 30.
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Table of Authorities continued


STEIN VS. BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPER
HANGERS OF AMERICA, DCCDJ (1950), 11 F.R.D. 153 .32.


Statutes
28 U.S.C. 1332 .13.
15 U.S.C. 45 and 52, and The Federal Trade Commission Act 16 CFR
255(b), 255.5; FTC ACT .... 25.
RCW 4.24.525 or Rule 12(b)(1)(6)..26.
Strategic Law Suit Against Public Participation .29.


Other Authorities
Levitt v. Yelp Inc., Northern District of CA ...28.
McMillion v. Yelp Inc. San Diego CA
















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I. Introduction

1. Defendants motion to dismiss, misconstrues Plaintiffs challenge to their
unlawful conduct.
2. Kimzey v. Yelp Inc. complaint filed 23 Sept. 2013, concerns Libelous per se
commercial speech that are statements of fact that can be proven wrong, about Plaintiffs
business, that Yelp caused to appear on the Google.com (Google) website business
directory page, stating in image: one star of five possible stars, meaning the worst
and which corroborates a false libelous per se statement on its face, stating in words:
Redmond Mobile Locksmith THIS IS BY FAR THE WORST EXPERIENCE
I HAVE EVER ENCOUNTERED. Publication beginning September of 2011.
And said, is a commercial promotion created by Yelp to drive traffic to the Yelp website.
And appeared continuously for one year on the same page as Plaintiffs business listing,
And can still be found by clicking on the current false one star promotion.
3. Yelp attorneys make a false statement of material fact, that Google takes the
Yelp content in question by Indexing. Ref: Yelps Document 10 Filed 1/13/13 page 8
of 29 the promotion is actually a search engine indexed version of the Review.
(Wikipedia: Indexing and web scraping are similar to take content without permission.)
4. Yelps S-1 registration filed with the Securities and Exchange Commission
(SEC) Filed Nov 17, 2011 page 19. last paragraph and first line of page 20. states that
Google no longer incorporates Yelps content through website scraping, robots or other
means.


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5. The libelous content in question that appears on Google, was created and
developed by Yelp for commercial promotional purpose and is caused to appear on
Google, by Yelp by inserting Google Tags into the Source Code which causes it to
appear on Google next to the Plaintiffs paid advertising and business name.
6. Defendant Yelp continues to ignore Kimzey v. Yelp Inc. complaint by eluding to
their website where they state a claim for protection under the The1996 Communications
Decency Act Title 5 Chapter 47 U.S.C. 230(c), (47 U.S.C. 230).
7. Kimzey v. Yelp Inc. complaint concerns libelous per se commercial speech
that Yelp has caused to appear on Google, on a Google business directory and is not a
public forum, does not involve public participation or petition, is not interactive.
The1996 Communications Decency Act Title 5 Chapter 47 U.S.C. 230(c), (47 U.S.C.
230) is completely inapplicable.
8. Plaintiff Kimzey acquires more than 50% of the traffic to his website by
submitting commercial promotions to the Google business directory. Yelps also acquires
more than 50% of the traffic to their website from commercial promotions submitted
to Google. Ref: S-1 registration SEC, Nov 17, 2011, page 15, last paragraph, line
1., Google in particular is the most significant source of traffic to our website
accounting for more than half of the visits to our website from Internet searches during
the nine months ended September 30, 2011.. Arguably the most popular business
directory. Thus setting forth further element under the WA consumer protection act
that Yelps Libelous statements have the capacity to deceive a substantial portion of
the public.
9. Yelp has a choice: 1. To create a truthful positive promotion about the plaintiffs



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business which would be an image of five stars and submit that to Google, which the
consumer may or may not read, and would cause the plaintiffs business to proliferate, and
then ask the plaintiff for money, in which he would be under no obligation to pay Yelp.
Or 2., Yelp has the option to make a false shocking Libelous per se statement about the
Plaintiffs business and attract all possible readers attention to the Yelp website in which
case Yelps business would proliferate. Then ask the Plaintiff for money, whereby if the
Plaintiff does not pay Yelp he will lose all of his business and reputation from the
Google directory, until which time Plaintiff does agrees to pay Yelp money, with the
obvious expectation Yelp will remove the Libelous content and replace it with positive
content. Presenting the question: Why would anyone pay $300.00 monthly to a company
that is harming them? Yelps has chosen business model 2., using the protection it has
under the 47 U.S.C. 230 as a defense. Which is civil extortion as described in
RICO Act 18 U.S.C. 1964(c).

10. After the Plaintiff protested the false statements that Yelp published about his
business, he received phone calls from Yelp asking him to pay $300.00 per month
for advertising, and sign a contractual agreement with Yelp.
II. Further Statement of Facts

11. Defendant Yelp is a Delaware corporation with its principal place of business in
San Francisco, California. Yelp owns and operates Yelp.com, a nationwide Internet
business directory and business reliability, rating and review service. Its revenue comes
from sales of Internet advertising.
12. The defendants actions are causing injury in King County, Washington USA.


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13. Venue is proper in the United States District Court of Western Washington
pursuant to 28 U.S.C. 1332 because Plaintiff resides in and has suffered injuries as a
result of Defendants acts in this district, many of the acts a giving rise to this action
occurred in this district, and Defendants (1) are authorized to conduct business in this
district and have intentionally availed themselves of the laws and markets of this district
through the promotion, marketing, and sale of advertising in this district; and (2) are
subject to personal jurisdiction in this district.
14. Defendant Yelp breached their fiduciary duty to the Plaintiff by violating the
laws, which govern Yelp Inc. in Washington State, King County, at which time Yelp
caused unprivileged publications to a third party Google.com (Google), which were
false statements of fact and were libelous per se in words and image, about the Plaintiffs
business. And further caused injury to the Plaintiff in his occupation and his reputation.
And did so with knowledge of its falsity and did so for commercial gain.
15. Plaintiff has established a connection between himself and Defendant Yelp, as
Yelp defames the Plaintiffs business name, unique phone number and website address for
commercial gain, by unprivileged publications to third party Google, on the Internet, on
the Google.com business directory, which is referenced by the public.
16. As with all commercial promotions there is contact information provided
in the promotion that leads the consumer to the business that is promoting itself.
As with any Internet promotion, that contact is a hyperlink, when clicked on by the



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consumer they are taken to the respective business owners website for more detailed
Information. That contact does not constitute public forum or public petition, or
interactive ability.
17. False statements made by Yelp about Redmond Locksmith that began appearing
September 2011 on Google, had appeared in publication prior to September 2011 and
were made about another company calling itself Redmond mobile 425-318-4257.
Plaintiffs business Redmond Locksmith does not use Technicians as described in the
promotion, does not use the pricing as asserted. The Yelp promotion on Google is false
and in no way describes Plaintiffs business practice. Redmond Locksmith has no
customer complaints, public or otherwise, after many years in business, and Yelps
negative promotion greatly effects consumers decisions.
18. The use of the term Technicians in the locksmith industry is exclusive to a
nationwide locksmith scheme described in detail in affidavit of John Jackman, US Postal
Inspector / agent, in order to avoid locksmith license laws in many states that require
special license they claim to be Technicians. Agent John Jacksmans Affidavit:
http://www.scribd.com/doc/22161763/Affidavit-for-Complaint-of-Eli-Barhanun
19. Yelp sale of advertisements on the negative promotion of the Plaintiffs business
violated the RICO Act 18 U.S.C. 1964(c) by selling ads to competitors who are
participating in the nationwide scheme that Yelp accuses the Plaintiff. The Yelp promotion
that appears on Google, once clicked on takes the viewer to a five star advertisement for


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Loyal Locksmith combined with the worst rating for Plaintiffs business. Further
investigation shows Loyal Locksmith appearing in numerous locations across the USA
Including, Seattle, Colorado, Ohio, Minnesota, and Loyal website states the use of
Technicians. Plaintiff believes Loyal locksmith to associated with the nationwide scheme,
by reason of investigation and evidence.
20. Yelp attorneys state that racketeering has not occurred, yet Levitt v. Yelp

has numerous businesses stating the same allegations as Plaintiff Kimzey. In McMillan v.
Yelp Inc., the Judge states that Yelp is the modern-day version of the mafia. The Federal
Trade Commission (FTC), has more than, hundreds of complaints stating the same
allegations of mafia and defamation and extortion, against Yelp. Which shows a
pattern of racketeering activity. Yelp has reason to know the statement about the Plaintiff
is Libelous Per Se, Yelp has been notified by phone, e-mail, and certified mail sent to their
legal department. Yelp then stopped the Plaintiff from interactive access to Yelp.com.
21. Yelps statements are actionable as they convey statements of fact and not
statements made by a third party information content provider. Yelps image of one star
is used to corroborate a false statement of fact. And it is not material to this case how
Yelp has come to develop the one star image, which appears on Google.
III. Memorandum of Law
22. To have standing under Article III of the Constitution, a plaintiff must
demonstrate three familiar requirements: (1) injury-in-fact; (2) a causal connection
between the asserted injury-in-fact and the challenged action of the defendant; and (3)

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that the injury will be redressed by a favorable decision.
Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)).

1. The Plaintiff Plainly has Standing.

23. Plaintiffs standing to bring this action is unassailable. He clearly has been
injured and will continue to be injured until which time Defendants unlawful statements
about his business are removed from Google, where Plaintiff Kimzey acquires more than
50% of new customers, exactly the way Yelp acquires 50% of its new customers, by
promotions and advertisements on Google.com.

2. Plaintiff Kimzey has suffered an injury-in-fact.
24. It is well established that Libel Per Se constitutes an injury-in-fact for
purposes of standing. Unfair Business Practice, Unfair Competition RCW 19.86.020
prohibits unlawful or fraudulent business practice that is considered to be, Unfair
Business Practice and Unfair Competition in business, constitutes an injury-in-fact for
purposes of standing.
25. 15 U.S.C. 45 and 52, and The Federal Trade Commission Act 16 CFR 255(b),
255.5; also known as the Federal Trade Commission Act provides that Unfair methods
of competition in or affecting commerce, and unfair or deceptive acts or practices in or
affecting commerce, are hereby declared unlawful.
26. The Google.com - locksmith business directory page, does not fall into a special


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category, under RCW 4.24.525 or Rule 12(b)(1)(6).

27. The Yelp.com website, may or may not, be an open public forum, as the
content is censured, manipulated, and not accessible to all. Whether or not Yelp is a
public forum is not in question here.


3. That injury will be redressed by a favorable decision
28. A favorable decision for Plaintiff Kimzey would result in his business and
reputation being restored and a favorable decision would favorably effect hundreds of
other businesses nationwide that are now forced to change their business name and
phone number, to counter the injurious effects of false statements made by Yelp on
Googles business directory. And would favorably effect, the publics ability to read the
truth on Google, as Yelps content is not the truth, so say the Plaintiff and business
owners nationwide, Ref: Levitt v. Yelp Inc. and FTC complaints.

29. Yelps motion for Anti-SLAPP is strategic and vexatious and designed to
intimidate, and force time constraints which adversely effect Plaintiff Kimzey (Pro Se)
reference to case law response and cause the same to be less compelling and which may
further prevent the case from being tried on its Merits, and respectfully should be
dismissed in favor of Plaintiff Kimzey. Kimzey v. Yelp Inc., in no way resembles a
Strategic Lawsuit Against Public Participation (SLAPP) lawsuit. It does not involve
public participation or petition, the Plaintiff has suffered injury in fact, to his occupation


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and reputation, and at the same time Yelp is, and continues to be unduly enriched by their
actions, which involves commercial speech.
30. A complaint will not be dismissed for failure to state a claim, even though

inartistically drawn and lacking in allegations of essential facts, it cannot be said that
under no circumstances will the party be able to recover. JOHN EDWARD
CROCKARD VS. PUBLISHERS, SATURDAY EVENING POST MAGAZINE OF
PHILADELPHIA, PA (1956) Fr Serv 29, 19 F.R.D. 511, DCED Pa 19 (1958).
31. And in view of rule 8{f} of the rules of civil procedure, 28 U.S.C., Kimzey v.
Yelp Inc. provides for substantial justice, BURT VS. CITY OF NEW YORK 156 F.2D
791 (2D CIR. 1946) Accordingly, the complaint will not be dismissed for insufficiency.
32. Kimzey v. Yelp Inc. also maintains grounds upon which federal jurisdiction
depends STEIN VS. BROTHERHOOD OF PAINTERS, DECORATORS, AND
PAPER HANGERS OF AMERICA, DCCDJ (1950), 11 F.R.D. 153
IV. CONCLUSION

33. For the foregoing reasons and the entire record herein the Plaintiff
respectfully requests Yelps motion for dismissal and Anti-SLAPP be denied.
34. Plaintiff brings this action on behalf of himself and all others similarly situated
and the public (non sponsors).
35. Yelps actions have no countervailing benefit to the public or consumers when,
weighed against the harm caused by such practices.




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Dated January 5, 2014. Respectfully submitted.














Certificate of Service
I certify that on 5 January 2014, I filed the
foregoing Memorandum of Opposition to
to strike and dismiss using the Courts CM/ECF
system which will send notification of such
filing to Defendant, who is registered with the
Courts CM/ECF system.
s/ Douglas L. Kimzey

DOUGLAS L. KIMZEY (Pro Se)

P.O. BOX 50250
BELLEVUE WA 98015
WEDGECO123@MSN.COM
425-881-7777

Dated 5 January 2014. s/ Douglas L. Kimzey
Douglas L. Kimzey (Pro Se)


















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