Re: 1/7/05 - [UCSY] Notice of Violation of Court Order... with Request for Sanctions
[Note: The following was computer OCR'd from paper. Not responsible for typos!]
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
(Miami Division)
UNIVERSAL COMMUNICATION SYSTEMS, INC. (a Nevada Corporation),
MICHAEL J. ZWEBNER (individually),
and Others Similarly Situated,
Plaintiffs,
V.
LYCOS, INC. and TERRA LYCOS, INC., d/b/a THE LYCOS NETWORK,
Defendants.
________________________________________________________________/
NOTICE OF VIOLATION OF COURT ORDER AND MOTION FOR TRANSFER OF RELATED ACTION PURSUANT TO LOCAL RULE 3.9(C) WITH REQUEST FOR SANCTIONS
Defendant Lycos, Inc., by and through its undersigned attorneys, hereby notifies this Court that the Plaintiffs Universal Communications Systems, Inc. and Michael J. Zwebner (the “Plaintiffs”) have violated this Court’s Stay Order of January 19, 2005 (the “Stay Order”) by initiating and pursuing virtually identical litigation against Lycos in another case in this District. As explained below, Lycos respectfully requests that the related matter be transferred to this Court, and stricken as a violation of the Court’s prior Order. At a minimum, the related matter should be consolidated with this earlier-filed action and the Stay Order should be extended to include that matter. Finally, Lycos requests that this Court issue an Order imposing sanctions on the Plaintiffs for their conduct in violation of the Stay Order.
BACKGROUND
This case is one of a myriad of lawsuits’ initiated by the Plaintiffs regarding postings on Internet-based message boards. Here, the Plaintiffs have asserted civil claims against Defendants Lycos, Inc., and Terra Lycos, [2] seeking a wide variety of injunctive relief and damages of $100 million. Like the claims asserted in many of these other lawsuits, Plaintiffs’ claims in this case are based upon supposedly defamatory postings made by third parties on “Raging Bull,” an Internet message board maintained by Lycos. generally Complaint ¶T 28- 31, 42-44, 51-53.
Defendants have filed a Motion to Dismiss the Complaint (the “Motion to Dismiss”), which asserts their statutory immunity to suit under 47 U.S.C. § 230 (“Section 230”). S Defendants’ Motion to Dismiss the Complaint [DE #12]. Defendants have also filed a Motion to Dismiss, or in the Alternative to Transfer this action to the District of Massachusetts (the “Motion to Transfer”), on the grounds that such a transfer is required by the forum-selection clause in the Subscriber Agreement that is attached as Exhibit 1 to the Complaint. S Defendants’ Motion to Dismiss, or in the Alternative, Transfer for Improper Venue [DE #15].
The Plaintiffs’ litigation tactics in this case have involved a flurry of motions and cross- motions. Among other things, on December 13, 2005, Plaintiffs in this action filed a Motion See, Zwebner v. Lycos. Inc. et al., No. 05-20149-CIV-MORENO (S.D. Ha.); Universal Communications Systems. Inc. v. Turner Broadcasting System. Inc., No. 05-CV-20047 (S.D. Ha.); Zwebner v. Coughlin, No. 05- 20168-CIV-COOKE (S.D. Fla.); Zwebner v. John Does — Alias “Tobias”. et al., No. 03-CV-22328-MORENO (S.D. Ha.); AirWater Corp. and Universal Communications Systems. Inc. v. Elec. & Gas Technology. Inc., No. 03-CV- 22196-SEITZ (S.D. Ha.); see also, Zwebner v. Villasenor, No. 00-02239 (Mass. Super. Ct.); Zwebner v. John Does Anonymous Found.. Inc., No. 00-CV-01322 (D. Or.); Zwebner v. Dumont, Civil Action No. 98-00682 (D.N.H.).
[2] Terra Lycos is in fact not a separately-incorporated entity. f. Complaint ¶11 11-12. Accordingly, Terra Lycos is not a proper party defendant in this case as it lacks the capacity to be sued under Fed. R. Civ. P. 17(b). Section 230 insulates providers of Internet-based message boards like Lycos from civil liability where that liability is based upon content provided by third parties. generally Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss the Complaint [DE #13] at 6-10. seeking leave to file an Amended Complaint. S DE # 64. That Motion attached as an exhibit a proposed First Amended Complaint. Id. On December 27, 2004, Defendants filed an Opposition to that Motion. DE #67.
On January 19, 2005, this Court issued an Order staying this action in its entirety pending this Court’s resolution of Defendants’ Motion to Transfer. See DE #78 (the “Stay Order”).
Thereafter, on January 26, 2005, seven days after the Court issued its Stay Order in this case, Plaintiffs served Lycos with an entirely p Complaint bearing a case number, 05- 20149-Cl V-MORENO (the “Moreno Action.”) The Complaint submitted in the Moreno Action, however, was virtually identical to the proposed Amended Complaint submitted by the Plaintiffs in this case. $ Complaint in Case No. 05-20149-CIV-MORENO (attached hereto as Exhibit A).
Most importantly, on February 2, 2005—fourteen days after this Court issued its Stay Order—the Plaintiffs continued their efforts to circumvent that Stay Order by filing an Amended Complaint in the Moreno Action. S Amended Complaint (attached hereto as Exhibit B). While that Amended Complaint attempts to add new parties and claims to the Moreno Action, it remains based upon the very same subject matter and allegations that that are at issue in this case. See Exhibits A and B.
ARGUMENT
By filing both a virtually identical Complaint and the subsequent Amended Complaint in the Moreno Action, the Plaintiffs in this case are clearly attempting to achieve through that other case what this Court has expressly barred in this case. Such conduct necessarily violates the spirit and intent of this Court’s January 19th Stay Order. Indeed, if Lycos is required to respond to the Amended Complaint in that other virtually identical action, this Court’s Stay Order will be rendered largely meaningless.
Rule 3.9(C) of the Rules of this Court state that “[w]henever an action or proceeding is filed in the Court which involves subject matter which is a material part of the subject matter of another action or proceeding then pending before this Court . . . the Judges involved shall determine whether the newly filed action or proceeding shall be transferred to the Judge to whom the earlier filed action or proceeding is assigned.” Local Rule 3.9(C). Here, there can be no dispute that the “subject matter” of the Moreno Action is the same as the “subject matter” of this earlier-filed action. Accordingly, a transfer of the Moreno Action to this Court pursuant to L.ocal Rule 3.9(C) is entirely appropriate. More importantly, such a transfer is necessary to prevent the Plaintiffs from circumventing the Court’s January 19th Stay Order and to protect Lycos from bearing the unfair burden of litigating identical issues before two judges in this same Court.
CONCLUSION
For the foregoing reasons, pursuant to Local Rule 3.9(C), Defendant Lycos respectfully requests that this Court issue an Order transferring Case No. 05-20149-CIV-MORENO to this Court and consolidating that lawsuit with this earlier-filed action. Lycos further requests that, once this proposed transfer is completed, this Court issue an Order striking both the new Complaint and the Amended Complaint filed in the Moreno Action as violations of its January 19th Stay Order. Alternatively, Defendants request that, once a Rule 3.9(C) transfer is completed, this Court extend the previously-issued Stay Order to include the claims asserted in the Moreno Action.
Finally, Plaintiffs’ above-described conduct in violation of the Stay Order has caused Defendant Lycos to expend substantial time and effort and to incur costs in defending against Plaintiffs’ multiple and wasteful litigation tactics. Accordingly, Lycos respectfully requests that this Court issue an Order sanctioning the Plaintiffs for this conduct in the form it deems just, including (but not limited to) ordering the Plaintiffs to pay Lycos its attorneys’ fees and costs incurred in connection with the preparation of this submission. Indeed, such a sanction is necessary in order to deter future efforts by the Plaintiffs to circumvent this Court’s Orders.
Dated: February 9, 2005
Respectfully submitted,
BLACK,, SREBNICK, KORNSPAN & STUMPF, P.A.
Attorneys for Lycos, Inc. and Terra Lycos
201 S. Biscayne Boulevard, Suite 1300
Miami, Florida 33131
Tel: (305) 371-6421
Fax: (305) 371
By
Larry A. Stumpf,
Aaron Anthon, Esq.
David A. Bunis, Esq.
Daniel J. Cloherty, Esq.
Nicholas J. Walsh, Esq.
DWYER & COLLORA, LLP
600 Atlantic Avenue
Boston, MA 02210
Tel: (617) 371-1000
Fax: (617) 371-1037 |
