Dyer v. Dirty World Summary Judgment Motion Reply

Case 2:11-cv-00074-SRB Document 19 Filed 05/16/11 Page 1 of 15
1 David S. Gingras, #021097

Gingras Law Office, PLLC
2 3941 E. Chandler Blvd., #106-243
Phoenix, AZ 85048
3 Tel.: (480) 668-3623
Fax: (480) 248-3196
4 David@GingrasLaw.com
5 Attorney for Defendant Dirty World, LLC
6
7 UNITED STATES DISTRICT COURT
8 DISTRICT OF ARIZONA
9 DANIELLE DYER,
10 Case No: 2:11-CV-00074-SRB
Plaintiff,
11 REPLY IN SUPPORT OF
vs. DEFENDANT’S MOTION FOR
12
SUMMARY JUDGMENT
13 DIRTY WORLD, LLC,
14 Defendant.
3941 E. CHANDLER BLVD., #106-243
GINGRAS LAW OFFICE, PLLC
15
PHOENIX, AZ 85048
16 Defendant DIRTY WORLD, LLC (“Defendant” or “Dirty World” or “DW”)

17 respectfully submits the following Reply in support of its Motion for Summary Judgment.
18 I. PREFATORY COMMENTS
19 This Court’s experience with Arizona’s SB 1070 notwithstanding, few laws in
20 recent memory have created as much controversy, criticism, and outright confusion as the
21 Communications Decency Act. The CDA has been deemed “bad policy,” Noah v. AOL
22 Time Warner, Inc., 261 F.Supp.2d 532, 539 n.5 (E.D.Va. 2003), and some courts have
23 warned that the broad immunity afforded by the CDA can have “disturbing implications.”
24 Barrett v. Rosenthal, 40 Cal.4th 33, 63, 146 P.3d 510, 529 (Cal. 2006).
25 Despite these concerns, no court in any CDA decision has ever done what Plaintiff
26 seeks here—imposing tort liability on a website operator for merely publishing speech
27 created by an unrelated third party. It is apparent that Plaintiff fails to appreciate the
28 sound logic and reasoning for the CDA, so a short discussion of this issue is appropriate.
REPLY ISO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

CASE NO.: 2:11-CV-00074-SRB
1 Plaintiff argues, and Defendant fully agrees, that “[t]he CDA was not meant to
2 create a lawless no-man’s land on the Internet.” Plaintiff’s Opposition at 10 (quoting Fair
3 Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1164 (9th Cir. 2008)). The
4 obvious implication is that if the Court were to accept Defendant’s position and find
5 Defendant entitled to immunity under the CDA, this would somehow leave Plaintiff
6 without any remedy, stranding her in the “lawless no-man’s land on the Internet”.
7 Despite some superficial appeal, this emotional plea is simply without merit.
8 First, from a factual standpoint, if this Court finds that Defendant is immune under
9 the CDA, Plaintiff would NOT be left without a remedy. Rather, as many courts have
10 previously held, because the CDA never applies to an author’s own words, Plaintiff
11 always has the option of pursing her claims against the author; “Parties complaining that
12 they were harmed by a Web site’s publication of user-generated content have recourse;
13 they may sue the third-party user who generated the content, but not the interactive
14 computer service that enabled them to publish the content online.” Doe v. MySpace, Inc.,
528 F.3d 413, 419 (5th Cir. 2008) (emphasis added).

PHOENIX, ARIZONA 85048
15
16 Second, from a legal perspective and with all due respect, Plaintiff’s suggestion
17 that Defendant is advocating a “lawless no-man’s land on the Internet” reveals a
18 fundamental lack of understanding of the issues. Because these issues are admittedly
19 somewhat subtle if not wholly counterintuitive, an analogy might be helpful.
20 To begin, imagine the Internet is like a large public swimming pool. For a variety
21 of reasons, some swimmers may encounter trouble and require assistance from a
22 lifeguard. Further imagine a person who cannot swim was deliberately pushed into the
23 pool by a third party, either as a joke or perhaps even maliciously. In this hypothetical,
24 Defendant’s website www.TheDirty.com is the pool, Plaintiff was pushed into the pool by
25 her ex-boyfriend, Tommy Duecker, and Defendant is the lifeguard.
26 Before the CDA was enacted in 1996, if it made any effort to help swimmers in
27 distress, Defendant would be exposed to complete, unlimited liability for any harm
28 suffered by any user of the pool. Indeed, Defendant could be sued even if a third party
2
1 pushed someone into the pool without Defendant’s knowledge or involvement. On the
2 other hand, if Defendant never made any effort to monitor the pool and never made any
3 effort to assist swimmers in distress, it would face no liability at all.
4 The perverse incentive created by this scenario is obvious—pool owners would
5 never provide lifeguards and would never attempt to help swimmers under any
6 circumstances. In this situation, swimmers would be left to fend entirely for themselves.
7 Without question, countless more deaths and injuries would result.
8 Thankfully, this is not the law. Instead, Congress has taken a different approach.
9 It wisely enacted the CDA to provide website operators like Defendant with a powerful
10 incentive to take an active role in allowing, reviewing, editing, and, when necessary,
11 removing third party content without fear that doing so will lead to crippling civil
12 liability; “In some sort of tacit quid pro quo arrangement with the service provider
13 community, Congress has conferred immunity from tort liability as an incentive to
14 Internet service providers to self-police the Internet for obscenity and other offensive
15 material, even where the self-policing is unsuccessful or not even attempted.” Blumenthal
16 v. Drudge, 992 F.Supp. 44, 52 (D.D.C. 1998).
17 To complete the analogy, again imagine two swimming pools. The first pool has
18 no lifeguard on duty and is entirely unmonitored. No rules exist against any form of
19 misconduct, and swimmers in distress have no one to call for help. Deaths, near-
20 drownings and swimmer-on-swimmer assaults are a daily occurrence. The pool is
21 literally a “lawless no-man’s land”. This is the pool Plaintiff’s logic would create.
22 The second pool is manned by a lifeguard named “Nik”. Although popular with
23 many of the younger swimmers who find him hilarious, others feel Nik is rude, crass, and
24 obnoxious. He occasionally makes harsh and insulting remarks about the appearance of
25 swimmers. He blows wolf-whistles at passing females. However, when help is needed
26 Nik springs into action. He constantly monitors activity in the pool to ensure at least
27 some offensive conduct is prevented and curtailed. Nik also frequently rescues swimmers
28 in distress and, when appropriate, he even ejects unruly patrons from the premises.
3
1 Between these two examples, which pool is safer? Congress clearly believed (and
2 rightly so) that the second pool was a better choice, even if it means that swimmers must
3 tolerate uncouth lifeguards such as Nik. The rule Plaintiff would have this Court adopt—
4 that any “encouragement” whatsoever or any other non-material participation by a
5 website host in responding to tortious third party material—would have a severe chilling
6 effect on exactly the type of conduct Congress expressly intended to encourage. This
7 position is not only unsupported by any previous CDA case, it is, in fact, directly contrary
8 to the plain language of the statute and to previous decisions by this court and the Ninth
9 Circuit. As such, summary judgment should be granted in favor of Defendant.
10 II. ARGUMENT
11 a. Whether Words Are Actionable Is A Threshold Question Of Law
12 For the Court To Resolve By Viewing The Speech In Context
13 On pages 4–10 of her opposition, Plaintiff engages in a lengthy series of

14 grammatical gymnastics attempting to convince the Court that Mr. Richie’s single
15 sentence comment was, taken in isolation, an actionable representation of fact rather than
16 a protected expression of opinion. At the conclusion of this effort and having assumed
17 that the statement was fact and not opinion, Plaintiff argues that a factual dispute exists
18 which precludes summary judgment because, “Even if Defendant did claim Richie’s
19 statement were true, a genuine issue exists because Plaintiff denies it.” Opp. at 9:17–18.
20 Before addressing the other issues in her brief, it is important to note that the
21 determination of whether offensive speech is actionable is a threshold question of law for
22 the Court, not an issue of fact for a jury. See Knievel v. ESPN, 393 F.3d 1068, 1073–74
23 (9th Cir. 2005); Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1193 (9th Cir. 1989).
24 In addition, “When evaluating the threshold question of whether a statement is reasonably
25 capable of sustaining a defamatory meaning, [courts] must interpret that statement ‘from
26 the standpoint of the average reader, judging the statement not in isolation, but within the
27 context in which it is made.’” Knievel, 393 F.3d at 1074 (emphasis added) (quoting
28 Norse v. Henry Holt & Co., 991 F.2d 563, 567 (9th Cir. 1993)).
4
1 Here, throughout her extensive fact vs. opinion analysis Plaintiff repeatedly cites
2 the non-controversial rule that “statements of mixed opinion are actionable if they imply
3 they are based on facts which justify the opinion, but are unknown to those reading or
4 hearing it.” Opp. at 5:1–2 (quoting Arias-Zeballos v. Tan, 2006 WL 3075528 (S.D.N.Y.
5 2006)). Immediately thereafter, Plaintiff urges this Court to determine whether Mr.
6 Richie’s statements imply undisclosed facts by viewing his words in isolation rather than
7 in context, thus allowing the Court to adopt Plaintiff’s interpretation of what additional
8 defamatory facts Mr. Richie’s opinion might be implying. Indeed, Plaintiff expressly
9 invites the Court to make precisely that fundamental error: “the Court should consider
10 Richie’s words in isolation and determine if they are hyperbolic or metaphoric.” Opp. at
11 5:21–22 (emphasis added).
12 This Court should decline Plaintiff’s invitation and should, instead, analyze Mr.
13 Richie’s statement not in isolation but rather in context and with an understanding of the
14 “totality of the circumstances in which it was made.” Knievel, 393 F.3d at 1074–75
(quoting Underwager v. Channel 9 Australia, 69 F.3d 361, 366 (9th Cir. 1995)). Applying
15
16 that correct standard here, Plaintiff’s position is not merely unsupportable, it is directly
17 inconsistent with the undisputed facts of this case.
18 b. Defendant’s Statements Were Expressions Of Opinion, Not Fact
19 Defendant agrees that pursuant to the Supreme Court’s decision in Milkovich and
20 its progeny, an expression of opinion might be actionable where the speaker’s words
21 imply the existence other non-disclosed facts which are themselves defamatory.
22 However, this rule simply has no application in cases such as this where an opinion is
23 plainly based on other facts which are disclosed.
24 As explained in Defendant’s original motion, the facts here are undisputed—a third
25 party (presumably Plaintiff’s ex-boyfriend Mr. Duecker) posted text on
26 www.TheDirty.com which accused Plaintiff of cheating on him (a point Plaintiff does not
27 directly deny), resulting in the author contracting an extremely common venereal disease;
28 gonorrhea. In response to that statement, Mr. Richie expressed an opinion as to Plaintiff’s
5
1 physical appearance1 followed by a statement that “if a girl is willing to take two guys on
2 then I suggest you use a rubber.”
3 Viewed in context, these facts cannot support Plaintiff’s argument that Mr.
4 Richie’s words “imply Richie has knowledge that Plaintiff had sex with the posted and his
5 friend, and that Plaintiff might be carrying a venereal disease.” Opp. at 5:28–6:2. Rather,
6 Mr. Richie’s opinion about the wisdom of condom use was NOT based on any
7 undisclosed/implied facts, they were based on a disclosed source—the material posted by
8 Mr. Duecker. These facts permit only one conclusion—Mr. Richie’s statement
9 constitutes a non-actionable expression of opinion.
10 A similar result was reached in Global Telemedia Int’l, Inc. v. Doe, 132 F.Supp.2d
11 1261 (C.D.Cal. 2001) which, like this case, arose from allegedly unlawful Internet posts.
12 One such post stated that the plaintiff “was busted for misrepresentation and
13 overstatement of the facts: Let the truth be told...” and the post included a link to a
14 government website which contained additional information about the plaintiff’s legal
15 troubles. Global Telemedia, 132 F.Supp.2d at 1268. Based on this statement the plaintiff
16 sued the author for, inter alia, defamation, but the District Court found the post was non-
17 actionable opinion:
18
Here, [defendant’s] statement about [plaintiff] is clearly based on a public
19 document which he provides for the readers. Thus, any reader may look at
the same document and determine what they think of the information. By
20 supplying the underlying document which supports his views, [defendant]
21 has set forth an opinion, not fact.
22
23 Id. (emphasis added). As support for this conclusion, the District Court in Global
24 Telemedia relied on Nicosia v. De Rooy, 72 F.Supp.2d 1093 (N.D.Cal.1999) which further
25 elaborated and explained the relevant First Amendment standards for evaluating whether
26 a statement is actionable fact or non-actionable opinion.
27 1
Plaintiff appears to concede that the first part of Mr. Richie’s statement—“it looks like she just
has a baby”—is a non-actionable expression of opinion. As such, this Reply brief will not
28 address that point further.
6
1 As a starting point, the Nicosia court agreed that speech must be considered in
2 context and in light of the “totality of the circumstances” in which the speech occurred.
3 When performing that analysis, the court observed:
4
Of particular importance is the principal that “when an author outlines the
5 facts available to him, thus making it clear that the challenged statements
represent his own interpretation of those facts and leaving the reader free to
6 draw his own conclusions, those statements are generally protected by the
7 First Amendment.”
8 Nicosia, 72 F.Supp.2d at 1102 (emphasis added) (quoting Partington v. Bugliosi, 56 F.3d

9 1147, 1156–57 (9th Cir. 1995)). Applying that rule to the facts of that case, the Nicosia
10 court found that even an apparently factual statement alleging the plaintiff “killed”
11 another person was a protected, non-actionable expression of opinion because the
12 underlying facts were disclosed. See Nicosia, 72 F.Supp.2d at 1102. In conclusion, the
13 court explained the rule as follows: “Accusations of criminal activity, like other
14 statements, are not actionable if the underlying facts are disclosed.” Id. at 1103 (citing In
15 re Yagman, 796 F.2d 1165, 1174 (9th Cir. 1986); Dunn v. Gannett New York Newspapers,
16 833 F.2d 446, 453-54 (3rd Cir. 1987)).
17 Here, Mr. Richie’s opinion that “if a girl is willing to take two guys on then I
18 suggest you use a rubber” was plainly based only on one thing—Mr. Duecker’s
19 statements about Plaintiff. Viewed in that context, no reasonable viewer would possibly
20 believe that Mr. Richie was independently confirming the accuracy of Mr. Duecker’s
21 statements. Under these circumstances, Mr. Richie’s statements were purely his opinion
22 and regardless of their offensive nature, they are entitled to First Amendment protection.2
23
2
On page 9 of her brief, Plaintiff expresses confusion over Defendant’s reference to the District
24 Court’s decision in Stanley v. General Media Comm., Inc., 149 F.Supp.2d 701 (W.D.Ark. 2001).
As explained in Defendant’s original motion, the Stanley case involved facts very similar to those
25 here—wherein a magazine’s unauthorized publication of comments and photos of the underage
26 plaintiffs was held non-actionable under a false light theory because, “The plain text
accompanying the photo can only logically be understood as describing the events in the photo.”
27 This case was cited as support for the principle that Mr. Richie’s comment about Plaintiff’s
physical appearance (i.e. that “she looks like she just had a baby”) was non-actionable. However,
28 because Plaintiff appears to concede that point, no further discussion of Stanley is necessary.
7
1 c. Defendant Is Entitled To CDA Immunity

2 On pages 10–12 of her brief, Plaintiff engages in a short discussion of the
3 Communications Decency Act in which she present a cursory analysis of the law followed
4 by a handful of arguments against its application here. Defendant will respond directly to
5 each of Plaintiff’s points.
6 However, before doing so, it is worth nothing that Plaintiff’s brief includes no
7 discussion whatsoever of the previous decisions from this Court and from the Ninth
8 Circuit and elsewhere which are directly contrary to her position. For instance, in both
9 Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D.Ariz. 2008) and
10 Best Western Int’l, Inc. v. Furber, 2008 WL 4182827 (D.Ariz. 2008), other judges from
11 this district considered and rejected arguments virtually identical to those presented by
12 Plaintiff here. Similarly, as explained on pages 13–15 of Defendant’s original motion,
13 cases from other states such as Hung Tan Phan v. Lang Van Pham, 182 Cal.App.4th 323,
14 105 Cal.Reptr.3d 791 (4th Dist. Ct. App. 2010) have expressly agreed that CDA immunity
15 is NOT affected by a defendant adding his own non-actionable content to third party
16 material.
17 Strangely, rather than explaining why these decisions were incorrect or why they
18 do not apply here, Plaintiff’s brief fails to offer any discussion of them at all. The Court
19 should construe this omission as a substantial red flag which strongly suggests that
20 Plaintiff knows her position is legally unsustainable. In any event, Defendant offers the
21 following direct responses to Plaintiff’s points:
22 • FTC v. Accusearch
23 Without discussing the facts or explaining how narrow the decision actually was,
24 Plaintiff cites a Tenth Circuit decision—FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir.
25 2009) as support for her generalized argument that “Defendant would still lose [CDA]
26 immunity if it “in some way specifically encouraged development of what is offensive
27 about the content.” Opp. at 11:9–10. This argument is not a correct statement of the law
28 and, in any event, it conflicts with previous Arizona decisions which have rejected exactly
8
1 the same argument. See Global Royalties, 544 F.Supp.2d at 933 (finding website operator
2 entitled to CDA immunity and explaining, “It is obvious that a website entitled Ripoff
3 Report encourages the publication of defamatory content. However, there is no authority
4 for the proposition that this makes the website operator responsible, in whole or in part,
5 for the ‘creation or development’ of every post on the site.”); Best Western Int’l, Inc. v.
6 Furber, 2008 WL 4182827, *10 (D.Ariz. 2008) (noting “[plaintiff] claims that the
7 homepage [of defendant’s site] impliedly suggests that visitors should make statements
8 defaming BWI. The Court does not agree. But even if this were true, it is insufficient to
9 strip [defendant] of CDA immunity.”) (emphasis added) (citing Roommates, 521 F.3d at
10 1173–74). In addition, even if Plaintiff correctly interpreted the Tenth Circuit’s decision
11 in Accusearch, the Ninth Circuit has already expressly refused to adopt such a rule; “close
12 cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of
13 section 230 by forcing websites to face death by ten thousand duck-bites, fighting off
14 claims that they promoted or encouraged—or at least tacitly assented to—the illegality of
15 third parties.” Roommates, 521 F.3d at 1174.

16 The facts of Accusearch further demonstrate why that case has no application here.
17 In Accusearch, the FTC brought a civil enforcement action against the operator of a
18 website who knowingly trafficked in illegally obtained telephone records. Although the
19 website operator argued that it was entitled to immunity under the CDA (because the
20 underlying phone records were created by third parties at the website’s request), the Tenth
21 Circuit rejected that argument based on evidence showing that the site operator itself was
22 directly and materially involved in generating the unlawful information:
23
Accusearch solicited requests for confidential information protected by law,
24 paid researchers to find it, knew that the researchers were likely to use
improper methods, and charged customers who wished the information to
25 be disclosed. Accusearch’s actions were not “neutral” with respect to
26 generating offensive content; on the contrary, its actions were intended to
generate such content. Accusearch is not entitled to immunity under the
27 CDA.
28 Accusearch, 570 F.3d at 1201.
9
1 The facts of this matter bear no resemblance to Accusearch. Defendant did not
2 ask Mr. Duecker to make defamatory posts about Plaintiff, nor did Defendant pay Mr.
3 Duecker for creating that content. Indeed, as explained in Defendant’s Separate
4 Statement of Facts, prior to the commencement of this action, Defendant did not know
5 Mr. Duecker or Plaintiff and, in fact, Defendant has never had any contact of any kind
6 with Mr. Duecker or Plaintiff other than when Plaintiff asked Defendant to remove Mr.
7 Ducker’s post, which it did. These facts could not be any less similar to Accusearch.
8 Here, unlike in Accusearch, Defendant merely provided a forum where third
9 parties (including Mr. Duecker) are free to post any material they wish about any topic
10 they wish. As a matter of law, this sort of neutral, passive involvement in content creation
11 is precisely the type of conduct immunized by the CDA.
12 • Hy Cite Corp. v. Badbusinessbureau.com
13 Plaintiff cites Hy Cite Corp. v. Badbusinessbureau.com, LLC, 418 F.Supp.2d 1142
14 (D.Ariz. 2005) as support for her position that the CDA does not apply here. However,
15 the Hy Cite case involved the denial of a Rule 12(b)(6) Motion to Dismiss, not a Rule 56
16 Motion for Summary Judgment. In that context, the court concluded that the CDA did not
17 bar plaintiff’s claims because the Complaint alleged that the defendant itself created
18 defamatory material. See Hy Cite, 418 F.Supp.2d at 1148–49.
19 Here, Plaintiff does not accuse Defendant of creating any content other than the
20 single sentence, “No, it looks like she just had a baby, and if a girl is willing to take 2
21 guys on then I suggest you use a rubber.” Because Plaintiff does not accuse Defendant of
22 creating the material posted by Mr. Duecker, this case is simply not comparable to Hy
23 Cite.
24 • Jones v. Dirty World Entertainment Recordings
25 Apparently asking this Court to delegate its duties to other jurisdictions, Plaintiff
26 cites a ruling from Kentucky in Jones v. Dirty World Entertainment Recordings, LLC,
27 2011 WL 221836 (E.D.Ky. 2011), a matter which also involved www.TheDirty.com. As
28 with Hy Cite, the cited ruling is not a merits-based summary judgment decision, but rather
10
1 an order denying a Motion to Dismiss based almost entirely on personal jurisdiction. In

2 passing, the Court mentioned the Communications Decency Act and then determined that
3 the CDA-based portion of Defendant’s Motion to Dismiss should be converted into a
4 Motion for Summary Judgment. In so ruling, the Kentucky court did not hold that
5 Defendant was not entitled to CDA immunity; it simply deferred that decision to another
6 day. This ruling simply has no application here.
7 In short, despite its exceptional brevity, Plaintiff’s opposing brief does not offer
8 any serious argument against Defendant’s immunity under the CDA. As such and
9 keeping in mind the Ninth Circuit’s admonition that “section 230 must be interpreted to
10 protect websites not merely from ultimate liability, but from having to fight costly and
11 protracted legal battles[]”, Roommates, 521 F.3d at 1175, summary judgment should be
12 granted in favor of Defendant based on the CDA.
13 d. Plaintiff Is Not Entitled To Rule 56(f) Relief
14 On pages 14–15 of her brief, Plaintiff appears to request relief under Fed. R. Civ.
P. 56(f)3, seeking time to take additional discovery. In a non-CDA context, this type of
15
16 request may be entitled to some degree of deference and, in most other non-CDA cases,
17 undersigned counsel would be happy to accommodate such a request.
18 Here, however, the Court should deny Plaintiff’s request for five separate reasons.
19 First, Plaintiff has failed to comply with the plain requirements of the Rule; “A party
20 requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific
21 facts that further discovery would reveal, and explain why those facts would preclude
22 summary judgment.” Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100
23 (9th Cir. 2006) (emphasis added); U.S. Cellular Inv. Co. v. GTE Mobilnet, Inc., 281 F.3d
24 929, 939 (9th Cir. 2002) (explaining a Rule 56(f) applicant is entitled to relief only if he
25 or she shows that the discovery would uncover specific facts which would preclude
26 summary judgment). Here, Plaintiff has provided no affidavit in support of her request.
27 Standing alone, this is a sufficient basis to deny her request.
28 3
Plaintiff’s opposition brief actually cites Rule 56(d) rather than 56(f).
11
1 Second and more importantly, Plaintiff has not demonstrated that summary
2 judgment would be precluded any of the discovery she seeks. For example, on page 14 of
3 her brief, Plaintiff offers the following discussion of the discovery she would seek if Rule
4 56(f) relief was granted:
5
Defendant claims its site is “content neutral” because it does not ask users to
6 post anything about a particular individual, nor suggests what the author
should say.” However, Defendant does direct its patrons to “submit dirt,” as
7 evidenced by Plaintiff’s Exhibit 3. According to F.T.C. v. Accusearch Inc.,
8 supra, Defendant will lose its CDA immunity if found to be “encouraging”
the development of offensive content. Thus, by only publishing “dirt” and
9 turning away non-scandalous postings, Defendant could be seen as directly
10 encouraging the submission of defamatory material. Plaintiff will need to
conduct discovery to determine the extent to which Defendant solicits and
11 posts only “dirt” on its website.
12
13 Opp. at 14:8–21 (emphasis added). These arguments, while creative, are patently
14 insufficient to require a Rule 56(f) continuance because as other judges from this district
15 have previously held in Global Royalties and Best Western, a website’s general invitation
16 to post controversial material does not result in a loss of CDA immunity. In addition,
17 even if Plaintiff is correct, i.e., that Defendant publishes only “dirt” while “turning away
18 non-scandalous postings” (which is absolutely false), the Ninth Circuit has already
19 determined as a matter of law that a defendant’s editorial decision making of this sort is
20 per se immune under the CDA:
21
Such a distinction between deciding to publish only some of the material
22 submitted and deciding not to publish some of the material submitted is not
a viable one. The scope of the [CDA’s] immunity cannot turn on whether
23 the publisher approaches the selection process as one of inclusion or
24 removal, as the difference is one of method or degree, not substance.
25
26 Batzel v. Smith, 333 F.3d 1018, 1032 (9th Cir. 2003). Third, the Court should deny
27 Plaintiff’s 56(f) request because she purports to seek discovery which does not exist.
28 Specifically, on page 15 of her brief, Plaintiff suggests a need to obtain “copies of all
12
1 communications, written or oral, between Defendant and Mr. Duecker.” However, as

2 already explained in ¶¶ 20–21 of Defendant’s Separate Statement of Facts, before Mr.
3 Duecker’s post was submitted to the site in August 2010, Mr. Richie had “never met,
4 spoken to, or otherwise communicated with either Mr. Duecker or Ms. Dyer.”
5 Fourth, Plaintiff suggests additional discovery is needed with respect to a paid
6 program offered by Defendant’s website. This information is important, according to
7 Plaintiff, because: “If Mr. Duecker had such a membership, he may have had an even
8 greater incentive to submit defamatory postings about Plaintiff, which, in turn, would
9 undermine Defendant’s attempt to hide behind the CDA.” Opp. at 15:11–14. In this
10 argument, Plaintiff seems to ignore the fact that Rule 11(b) does not permit her to make
11 allegations first and investigate them later to see if any support for those allegations can
12 be found.
13 In any event, this point is a complete non-issue. While Defendant is mindful that
14 new material should generally not be introduced in a Reply brief, the fact remains that the
15 program Plaintiff is referring to (which does not in any way affect the manner in which
16 third parties submit material to the site) was not launched until December 2010—several
17 months after Mr. Duecker’s post was submitted in August 2010. Because this program
18 did not exist at the time Mr. Ducker’s post was submitted, the program is irrelevant to the
19 question of Defendant’s CDA immunity and cannot justify Rule 56(f) relief.
20 Fifth, and finally, Plaintiff claims that discovery is needed as to the “authenticity”
21 of certain text contained on the “Frequently Asked Questions” section of
22 www.TheDirty.com which states: “If Nik writes something himself and posts it, he is
23 responsible for the accuracy of his words.” Plaintiff claims this text “indicates Richie
24 accepts responsibility for the accuracy of his words,” Opp. at 15:17, and that the text “will
25 diminish Defendant’s claim that Richie was only expressing an ‘opinion’ about Plaintiff.”
26 Id. With all due respect, this argument is nonsensical. The text at issue (which IS
27 genuine) merely represents a general discussion of the CDA and an explanation of the
28 undisputed rule that where Mr. Richie creates material himself, the CDA does not apply.
13
1 Nothing in this section refers to the Plaintiff, and no reasonable reader would interpret this
2 discussion as meaning that Mr. Richie somehow guarantees the accuracy of every word
3 on the site, even where those words are his own.
4 Indeed, as should be obvious by now, Mr. Richie’s statement about Plaintiff’s
5 physical appearance was purely his opinion based on the photos submitted by the author,
6 and his statement about the wisdom of condom use was an opinion based on the
7 allegations made by Mr. Duecker. By definition, opinions are nothing more than an
8 individual’s expression of an idea, and “Under the First Amendment, there is no such
9 thing as a false idea. However pernicious an opinion may seem, we depend for its
10 correction not on the conscience of judges and juries, but on the competition of other
11 ideas.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 339–40 (1974).
12 Because Plaintiff has failed to satisfy the requirements of Rule 56(f), the Court
13 should deny her request.
14 III. CONCLUSION
15 If Plaintiff disagrees with the content of Mr. Richie’s opinions, her remedy is not
16 to invoke the awesome power of this Court to obtain a judicial declaration that Mr. Richie
17 is a bad person deserving of scorn. Rather, her remedy is to invoke an even more
18 powerful weapon—her own First Amendment rights. In doing so, Plaintiff can compete
19 with Mr. Richie in the “marketplace of ideas”, just as others have already done. See, e.g.,
20 www.NikRichieSucks.com.
21 For these reasons, Defendant’s Motion for Summary Judgment should be granted.
22 RESPECTFULLY SUBMITTED: May 16, 2011.
23
24
/S/ David S. Gingras
25 David S. Gingras
26 Attorneys for Defendant
Dirty World, LLC
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1 CERTIFICATE OF SERVICE
2
3 I hereby certify that on May 16, 2011 I electronically transmitted the attached document
4 to the Clerk’s Office using the CM/ECF System for filing, and for transmittal of a Notice
5 of Electronic Filing to the following CM/ECF registrants:
6
Mitchell B. Stoddard, Esq.
7
Consumer Law Advocates
8 11330 Olive Blvd., Suite 222
St. Louis, MO 63141
9 Attorney for Plaintiff
10
11 And a courtesy copy of the foregoing delivered to:
12 Honorable Susan R. Bolton
U.S. District Judge
13
14
/s/David S. Gingras
15
PHOENIX, AZ 85048
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CASE NO: 2:11-CV-00074-SRB

Dyer v. Dirty World Summary Judgment Motion Reply

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Dyer v. Dirty World Summary Judgment Motion Reply

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Case 2:11-cv-00074-SRB Document 19 Filed 05/16/11 Page 1 of 15

1 David S. Gingras, #021097

16 Defendant DIRTY WORLD, LLC (“Defendant” or “Dirty World” or “DW”)

REPLY ISO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

528 F.3d 413, 419 (5th Cir. 2008) (emphasis added).

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13 On pages 4–10 of her opposition, Plaintiff engages in a lengthy series of

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8 Nicosia, 72 F.Supp.2d at 1102 (emphasis added) (quoting Partington v. Bugliosi, 56 F.3d

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1 c. Defendant Is Entitled To CDA Immunity

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15 third parties.” Roommates, 521 F.3d at 1174.

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1 an order denying a Motion to Dismiss based almost entirely on personal jurisdiction. In

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1 communications, written or oral, between Defendant and Mr. Duecker.” However, as

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PHOENIX, ARIZONA 85048

REPLY ISO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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