11/18/05 - [UCSY] UCSY v Lycos: Plaintiffs' Motion for Leave to File Reply Memorandum in Support of Motion for Leave to File Amended Complaint; Reply Memorandum in Support of Motion for Leave to File Amended Complaint
PLAINTIFFS’ MOTION FOR LEAVE TO FILE REPLY MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE AMENDED COMPLAINT [DE 81]
&
REPLY
(Attached as Exhibit “1” to Motion For Leave)
The Plaintiffs, Universal Communication Systems, me, (herein also “UCSY”) and Michael J. Zwebner, (herein also “ZWEBNER”), by an through the undersigned counsel, herein move for an Order granting them leave to file a Reply to the Terra Networks, S.A, (TERRA) Opposition [DE 82], and to the Lycos Opposition [DE 85] to Plaintiffs’ Motion For Leave To File Amended Complaint [DE 81]. The UCSY proposed Reply is annexed hereto as Exhibit “1”.
A. Compliance With Local Rule 7.1 — Preliminary to the filing of the instant Motion, on November 9, 2005, the undersigned contacted counsel for the Defendant, Terra Networks, S.A., Thomas G. Reardon, Esq., to advise him of the. Plaintiffs intent to file for leave to file a Reply to the Terra Networks Opposition to Plaintiffs Motion To Amend. Mr. Reardon indicated that his clietit would opposed the Plaintiffs’ Motion For Leave To File Reply.
Similarly, on November 15, 2005, local counsel for Plaintiffs, Matthew Zayotti, Esq., contacted counsel for the Defendant, Lycos, Inc., Rachael Zoob-Hill, to advise her of the Plaintiffs’ intent to file for leave to file a Reply to the Lycos Opposition to Plaintiffs Motion To Amend. Ms. Zoob-Hill indicated that her client would oppose the Plaintiffs’ Motion For Leave To File Reply.
B. A Reply Is Necessary & Appropriate To Assist The Court — Each of the Oppositions filed by the Defendants have. mischaracterized both the history of the litigation between the parties [DE 85 FN(l)], and the substance of the proposed Amended Complaint [DE 82 @ 6-7; DE 85 @ 8-9].
In each Opposition filed by the Defendants, they contend that the proposed Amended Complaint is grounded upon the same factual and legal basis of the Complaint before the Court on October 11, 2005, which was dismissed for the failure to adequately state a claim for relief under Rule l2(b)(6). This contention is patently false.
Accordingly, each of these Oppositions have alleged that the proposed amendment to the complaint are “futile”. The “futility” based objections, set forth in each Opposition, are to treated under the same standard applicable to a Rule 12(b)(6) Motion To Dismiss. Accordingly, a Reply to such Oppositions is necessary to distinguish the prior filed complaint from that which has been proposed. The Plaintiffs, thus, request that their proposed Reply entered by the Court, and treated as an opposition to a Motion To Dismiss under the Rules of this Court.
Whereas good cause having been shown to exist, it is, respectfully, requested that the attached Reply memorandum be entered in support of the Plaintiffs’ Motion For Leave To File Amended Complaint.
Faro & Associates
44 W. Flagler Street, Suite 1100
Miami, FL 33130
Phone (305) 424-1112
Fax (305)424-1114
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
(Boston Division)
UNIVERSAL COMMUNICATION
SYSTEMS, NC. (A Nevada Corporation),
MICHAEL J. ZWEBNER (individually) &
Others Similarly Situated
Plaintiffs
vs.
LYCOS INC. dba THE LYCOS
NETWORK, et al.
Defendants
CIVIL ACTION
CASE NO. 05-11172-REK
_______________________________________________________________
REPLY MEMORANDUM IN SUPPORT OF MOTION
FOR LEAVE TO FILE AMENDED COMPLAINT [DE 81]
The Plaintiffs, Universal Communication Systems, Inc, (herein also “UCSY”) and Michael J. Zwebner, (herein also “ZWEBNER”), by and through the undersigned counsel, herein file a Reply to the Terra Networks, S.A, (TERRA) Opposition [DE 821, and to the Lycos Opposition [DE 85]; and, in further support to Plaintiffs’ Motion For Leave To File Amended Complaint [DE 81].
MEMORANDUM IN SUPPORT OF REPLY
I. PROPOSED AMENDED COMPLAINT
A. Factual Allegations Of Proposed Amended Complaint — The proposed amendments to the complaint positively allege facts which, if proven, establish that all of Defendants are “content providers”, within context and contemplation of Title 47 USC, Sections 223 & 230 (CDA), or, alternatively, that Lycos and Terra Networks are liable for inducing the continued abuse and harassment of the Plaintiffs by the John Doe Defendants, in violation of State and Federal law. Accordingly, the proposed Amended Complaint attempts to cure whatever perceived deficiencies may have existed in the complaint before the Court at the October II, 2005, hearing. As this Court fully appreciates, the allegations of the proposed Amended Complaint are based upon information which has been independently developed, without any benefit of discovery. Moreover, such allegations are based, in material part, upon facts which have come to light subsequent to January 2005, the date on which the prior complaint was filed. Accordingly, it was not possible to include such information in the prior filed complaint, which was before this Court on October 11, 2005.
The allegations of the proposed Amended Complaint, include allegations, [DE 81, Exhibit 1 , Paragraphs 38 to 43], which, when taken collectively, compel the conclusion, that the Defendants Lycos and Terra Networks, contribute to the development of the content of the information appearing in the postings on the Raging Bull web site. As more fully set forth below, the construct and operation of the Lycos Network is anything but “content neutral”.
In brief, the proposed Amended Complaint is based upon Lycos and Terra Networks conduct, which is calculated to both enhance the credibility of the postings on the message boards of the Raging Bull web site, and encourage subscriber misconduct, [DE 81, Exhibit 1 , Paragraphs 3 8-43],
- by facilitating the repeated posting of the same misinformation under different aliases, thereby attributing the same misleading information to different sources so as to increase its credibility, [DE 81, Exhibit “I” @ Paragraph, (43)(a)];
- by linking of the message boards on the Raging Bull web site to financial sites on the Lycos Network so as to elevate the status of such misinformation, thereby cloak such information with an objectivity comparable to these other linked sites (e.g. QUOTE.COM), [DE 81, Exhibit “1” @ Paragraph (43)(b)]; and,
- by its policies and business practices which have the effect of encouraging its more offensive subscribers to continue to harass and abuse the Plaintiffs, notwithstanding the entry of an injunction against such subscribers, [DE 81, Exhibit “1” @ Paragraph (43)(c)-(e)].
Such construct and operation of the Lycos Network contributes, in a material way, to the development of the content of information posted on the Raging Bull web site. Moreover, the business practices of the Lycos, encourages the misuse of the Raging Bull web site, and, thereby, subjects Lycos to liability as an “induce?’ of such misconduct, notwithstanding the potential availability of statutory immunity. Accordingly, Plaintiffs’ proposed Amended Complaint seeks to hold all of the Defendants liable as “content providers”. No immunity is accorded to an interactive computer service, which participates in the creation, or in the development, of information in postings appearing on its service, Ben Ezra Weinstein & Company, Inc. v. America Online (AOL), Inc., 206 R3d 980, 985 FN4 (10th Cir. 2000)
B. The Construct Of The Lycos Network Is Not “Content Neutral” - The Lycos Network, specifically, the web pages accessible on the Lycos Network, are based upon sophisticated software routines that are proprietary[1] to Lycos and to Terra Networks. It is undisputed that the content of expression of a computer generated screen, such as a web pages accessible on the Lycos Network, (including the Raging Bull web site), is inclusive of not only the factual information which is explicitly communicated, but also how such information is presented or accessed, See Lotus Development Corp. v Paperback Software International, 740 F.Supp. 37, 58 (D. Mass. 1990) —holding that elements of expression, even if embodied in useful articles..., if capable of identification and recognition independently of the functional ideas that make up the useful article, are not subsumed by, or merged into, the useful article — the so-called “non-literal” form of expression.
[1] The Lycos and Term Network copyright notices are prominently claimed on each and every screen that appears when it services are accessed. These copyrights covers not only the software generated computer screens and menus, how such information is accessed and displayed and the non-literal expressive content of the web pages which are generated on this Network.
As more fully set forth herein, the non-literal expressive content of the Lycos Network, (eg. user interface associated with registration process), contributes to the development of the content of the postings appearing on the message boards of the Raging Bull web site. Moreover, such non-literal expressive content, when combined with the Lycos operation of its Network, and its business practices, sends an unmistakable message to its subscribers — namely, that the recited user restrictions in the Lycos Subscriber Agreement (Prohibited Conduct) represent illusory controls since the registration process is ineffective to restrict access to the Network.
C. Construct Of Lycos Network Is “Content Enhancing” - In the instant case, the construct of the Lycos Network, which includes the user interface of the web pages associated with the subscriber registration process, permits the registration of an individual under multiple aliases, and thereby the repeated posting of the same information by the same subscriber under a different screen name. This user interface, thus, permits a subscriber, with multiple aliases, to attribute the same misinformation to multiple sources (aliases), and thereby increase the credibility of such misinformation.
The foregoing flaws/permissiveness in the construct of the user interface for the subscriber registration process is known to Lycos and Terra Networks, and is also known to its subscribers, particularly, the subscribers such the John Doe Defendants named herein. It is undisputed that a number of the Lycos subscribers, including the John Doe Defendants, have and continue to avail themselves of this user interface, to register under multiple aliases, and repeatedly post the same information under different aliases.
The user interface associated with the Lycos subscriber registration process is, thus, anything by “content neutral” because it solicits unverified personal information from a potential subscriber, and thereby invites the individual subscriber to furnish bogus personal information, and thereby cloak his identity under multiple aliases[2]. . The Lycos knowledge, and forbearance in the abuse of the subscriber registration process, along with the non-literal expressive aspects of the user interface associated with Lycos registration process, sends an unmistakable message, to its abusive subscribers, such as the John Doe Defendants named herein. That message is that (a) abuse of the registration process, by submission of bogus personal information, is permissible, and (b) Lycos lacks the ability to restrict access to its Network, since it cannot ascertaining the true identity of its subscribers. Accordingly, Lycos encourages abuse of its Network.
[2] The adoption of multiple aliases is a known and recognized technique by posters, which is used by them both to repeatedly post the same misinformation; and to frustrate attribution of the same misinformation to a single individual or common source.
D. Lycos Promotes Subscriber Wrongdoing — The Lycos Network linkage of the Raging Bull (UCSY) message board to other financial sites of factual objective information (QUOTE.COM), has the effect of promoting the Raging Bull (UCSY) message board, and the stock manipulator messages that appear on such boards, to both existing stockholders and potential investors. Such linkage of the Raging Bull (UCSY) message board to other sites, increases the stock manipulator audience, and consequently the market influence of such misinformation. This promotion of the stock manipulator wrongdoing is actionable, John Doe et at. GTE Corp. et at., 347 F.3d 655, 659 (7th Cir. 2003). In its analysis of the potential liability of an internet service provider, the GTE Court specifically held that liability can attach to conduct •of an internet service provider where it provides “culpable assistance” to a wrongdoer, or engages in action, e. g. by directing network traffic to the offensive site, which has the effect of “promot(ing) the wrongful venture’s success”, Id. 659. Under the facts of this case, LYCOS is guilty of providing “culpable assistance” to the abusive posters, as a result of its construct of its Network and, has actively engaged in the “promotion” of the “UCSY” message board on the Raging Bull hosted site, through its linkage of the UCSY message board to other hosted sites on the Lycos Network. Such “culpable assistance” is not in dispute!
E. Lycos Policies/Business Practices “Encourage” Subscriber Abuse — The proposed Amended Complaint alleges that Lycos involvement with its subscribers extends well beyond both the parameters of its Subscriber Agreement, and the environment of its Network. This involvement includes both intervention in legal proceedings to prevent the application of an injunction against such subscribers, and, in the provision of legal assistance to its subscribers to resist enforcement of an injunction. The proposed Amended Complaint is specific with respect to each of these elements, [DE 81, Exhibit “1”, Paragraph 43(d) & (e)].
In the instant case, the Lycos Network is known to be abused by certain of its subscribers, notably the John Doe Defendants named herein. Not only does Lycos acknowledge the potential for such abuse in its Subscriber Agreement at Paragraph 6, “Prohibited Conduct”, but when litigation is initiated against one of its subscribers, Lycos resists disclosure of the subscriber’s identity, even though the subscriber has waived such disclosure, Lycos Subscriber Agreement, annexed hereto as Exhibit “1”. More recently in litigation against Lycos Subscribers pending in state court in Florida, Lycos has intervened in an action against two of its subscribers, ostensibly to protect some undefined Lycos interest[3]. The thrust of the Lycos intervention has been to frustrate enforcement of an injunction entered against two of its subscribers; and, to provide legal assistance to such subscribers to evade the enforcement of the injunction entered against them, Lycos counsel drafting of “Discovery Order” for subscriber Roberto Villasenor in Universal Communications Systems, Inc. v. Dembovich et al, Case No. 04- 273 83-CAM 1 (Fla. DC, 11th Judicial Circuit), Lycos Counsel assistance to subscribers annexed hereto as Exhibit “2”. The foregoing obstructive policies/practices, in conjunction with the Lycos laissez faire operation of the Lycos Network, encourage its subscribers to continue to harass and abuse the Plaintiffs, in defiance of a State Court injunction. The proposed Amended Complaint explicitly alleges that such policies/practices, relative to participation in subscriber resistance to third party claims, contributes to the development of the content of the information on the USCY message board of the Raging Bull web site, [DE 81, Exhibit “1” @ Paragraphs (43)(d) & (e)].
[3] See Third Party Intervenor Lycos, Inc.’s Motion To Intervene With Supporting Memorandum Of Law, in Universal Communications Systems, Inc. v. Deinbovich et al case No. 04-27383-CA-Of (Fin., 1 11 Judicial Circuit), [DE 76, Opp To Lycos Motion To Dismiss, Exhibit ““1 and Third Party Intervenor Lycos, Inc.’s Memorandum Of Law in Support Of Its Motion To Dissolve Or Amend Final Judgment Of Injunction, in Universal Communications Systems, Inc. v. Dembovich et at, Case No. 04-27383-CA-Of (Fin., 11 Judicial Circuit), [DE 76, Opp To Lycos Motion To Dismiss, Exhibit “2”]
Under analogous circumstance, similar encouragement of wrongdoing, notwithstanding the existence of comparable statutory immunity, (17 USC 52 1(a)), has subjected the entity providing encouragement to its software subscribers, to liability for the tortioius conduct of its subscribers, See Metro-Goldwyn-Mayer (MGM) Studios, Inc. v. Grokster, 125 S.Ct. 2764 (2005). In the Grokster case, a Software supplier provided support to its software subscribers, to assist them in the unauthorized copying of copyrighted works. In interpreting the software developer’s (Grokster) liability for copyright infringement, the Supreme Court reversed the Circuit Court decIsion, notwithstanding the statutory immunity under the copyright law, based upon the software provider furnishing assistance to its subscribers (copyright infringers), which was tantamount to inducing infringement of MUM copyright. Under the analysis in Grokster, a software distributor’s liability for its subscriber’s misconduct could arise even if there were substantial legitimate uses for the same software. The foregoing principles, and the analysis set forth by the Supreme Court in Grokster, are equally applicable to the facts of this case.
F. The Proposed Amended Complaint Is Not “Futile” - The Communication Decency Act (47 USC §230) does not provide “content providers” with immunity from liability for claims for harassment and abusive postings appearing upon the internet. The distinction between merely publishing information provided by a third-party, as an interactive computer service, and actually creating or developing any of the information posted as an information content provider is critical. See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1067. That distinction determines whether the CDA provides immunity to a provider or user of an interactive computer service. See 47 U.S.C. § 230(e)(l).
As is evident from the foregoing, the construct (user interface) of the Lycos Network is not “content neutral”, but rather includes non-literal expressive aspects, which contribute .in a material way to the development of the content of the postings appearing upon the UCSY message board of the Lycos Network.
Moreover, the construct and operation of the Lycos Network, in conjunction with the business practices adopted by Lycos, relative to obstruction of enforcement of third party rights against its subscribers, encourages such subscribers to continue to engage in conduct which is acknowledge to be both offensive and illegal, thereby inducing the continued violation of third party rights — even to the extent of violating a restraining order against such subscribers..
Accordingly, the facts alleged in the proposed Amended Complaint, if proven, establish that Lycos either contributes to the development of the content of information on the internet or• alternatively, is inducing the continued offensive and illegal conduct by its subscribers in violation of third party tights.
II. PLAINTIFFS’ REPLY TO TI-IF DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTOIN TO AMEND
A. Background - The October 11, 2005, hearing before this Court, was the first instance in which the Plaintiffs have received judicial scrutiny of their complaint against Lycos and Terra Networks. The arguments advanced at this hearing, in support of the complaint before the Court, were unavailing because of the failure to adequately articulate a legal rational for imposing liability against Lycos and Terra Networks. The proposed Amended Complaint has removed this deficiency, and has more precisely delineated the specific conduct which support this legal theory of liability.
B. Amendment Of Complaint Is Within The Sound Discretion Of Court - On October 11, 2005, this Court ruled that the Plaintiffs’ complaint failed to state a cause of action under Rule I 2(b)(6). The Electronic Clerk’s Notes, pertaining to the District Court’s decision, invited the filing of additional pleadings “requesting further remedies”. On October 13, 2005, pursuant to the apparent invitation by the Court, as set forth above, the Plaintiffs’ filed a Motion For Leave To Amend Complaint [DE 81]. A copy of the proposed Amended Complaint accompanied the filing of the Plaintiffs’ Motion. It is noted that the hearing on October 11, 2005, was the first instant[4] that judicial review and scrutiny of the pleadings in this matter had taken place; and, the proposed Amended Complaint sought to remove the objections noted by the Court, at the October 11, 2005, hearing.
[4] There have been only two (2) lawsuits filed by the Plaintiffs against the Defendants seeking affirmative relief from the postings appearing on the Raging Bull web site. The first lawsuit was filed in July 2004, and thereafter transferred, to this District Court on motion by Lycos. This first lawsuit (Universal Communication Systems, et al v. Lycos, Inc. et al (Case No. 04-21618-Martinez, S.D.Fin.), was assigned Case No. 10435-R.13K. This first lawsuit was voluntarily dismissed by Plaintiffs. The second lawsuit, was flied in January 2005, only after the District Court refused to entertain a Motion To Amend. This second lawsuit was assigned Case No. 11172-REX. All of the other lawsuits noted in the Lycos Motion fOE 85] were filed for tactical reasons, specifically, to secure discovery from Lycos (“pure bills of discovery” or third party discovery). In each instance, these tactical lawsuits were either discontinued, upon the transfer of the prior case from Florida to Massachusetts; or, in the case involving Turner Broadcasting, this matter is on appeal. There is no final order awarding Ruin 11 sanctions to anyone.
C. TERRA Opposition — The Terra Opposition assumes incorrectly, that (a) the October ii, 2005, decision made relative to the Motions To Dismiss, is an appealable final order and, thus, absent reconsideration of the determinations made on October 11th, either pursuant to Rule 59/60 Motion, the UCSY Motion To Amend is procedurally improper [DE 82 @ 2-3]; and, alternatively, (b) the proposed Amended Complaint is “futile” because it is also barred by the CDA (47 USC §230) for the same reasons asserted by Lyeos & Terra in their prior filed Motions To Dismiss, [DE 6—7]
D). USCY Reply To Terra Networks Opposition — At the outset it is noted that this Court did not enter a final judgment, as to any of mailers before it on October 11, 2005. The Electronic Clerks Notes for October 11, 2005, make it crystal clear that the court was inviting the additional filing of “papers requesting further remedies”. Plaintiffs have interpreted the Court’s comment as inviting the proposed Amended Complaint [DE 81]; and, such interpretation is consistent with the law of this Circuit, Acevedo-Villalorobos et al. v. Hernandez et al., 22 F.3d 384, (1st Cir. 1994) In Acevedo-Villalorobos, this Circuit adopted, as its standard of review, of the appealability of a decision granting a motion to dismiss, the law in 2nd& 8th Circuits, specifically, that the right to amend terminates upon the dismissal of the complaint, the dismissal of the complaint is set forth in a separate document, the plaintiffs understand that the judgment is final, and lastly, that the dismissal is consistent with the Supreme Court’s definition of “final decision, Id. 388 A “final decision” being defined one that ends the litigation on the merits, with nothing for the court to do but to execute the judgment, Id. @ 388
Clearly, an order articulating the basis of the Court’s legal conclusion, is mandated in order for effective appellate review. No such written order has ever been entered. Moreover, under the facts of this case, the dismissal of the complaint against Lycos and Terra Networks did not dispose of the action for two reasons, namely, the continued presence of other John Doe Defendants in case, and, the Plaintiffs’ contention that Lycos and Terra Networks were and continue to be indispensable parties to the Plaintiffs pursuit of its claims against these John Doe Defendants. Moreover, unlike the facts in Acevedo-Villalorobos, the Plaintiffs did not understand the Court’s decision on October 11, 2005, to end the litigation — there being no motions under Rule 59 or Rule 60, to modify or vacate any order of dismissal.
The proposed Amended Complaint is clearly distinguishable both in its factual basis and legal predicate from the Complaint before the Court on October 11, 2005. These distinctions have been noted above, and are once again more fully elaborated below in the discussion of the. Lycos Opposition [DE 851.
The decision by the Court, granting the Lycos Motion To Dismiss, left undisturbed the jurisdictional issues, raised by Terra Networks, since the Terra Networks Motion To Dismiss was simply rendered moot. More specifically, neither the counsel for the Plaintiffs, nor the counsel for Terra Networks, ever addressed any arguments relative to the Terra Networks challenge to the Court’s personal jurisdiction over Terra Networks, since counsel for both parties agreed the Court’s decision according Lycos statutory immunity, was also dispositive of the Terra Networks’ Motion- Accordingly, there was no judicial determination relative to the jurisdictional issues involving Terra Networks.
E. Lycos Opposition — The Lycos Opposition parrots the Terra Networks Opposition. In addition to the grounds set forth above, Lycos mischaracterizes the litigation in the Southern District of Florida as somehow representing multiple (and unsuccessful) efforts by Plaintiffs to amend their prior complaint against it.
F. USCY Reply To Terra Networks Opposition - As. noted in footnote (4) to this Reply, there have been only two (2) lawsuits filed against Lycos seeking substantive relief. Each of these case were transferred to this district, and first to be filed of these cases was voluntarily dismissed by the Plaintiffs’, at the Court’s suggestion relative to simplification of the issues. All other matters involving Lycos were tactical lawsuits (e.g Petitions For A Pure Bill Of Discovery, or the pursuit unrelated claims against unrelated parties, which were to be used to obtain third party discovery against Lycos). These collateral matters were necessary expedients to secure discovery against Lycos in the Southern District of Florida. When the two (2) lawsuits filed against Lycos seeking substantive relief were transferred from Florida to this District Court, the Plaintiffs discontinued its pursuit of these collateral matters.
G. Amendment Of The Complaint Is Not Futile
1. Lycos & Terra Networks Do Not qualify For §230 Immunity - The precedent relied upon by both Lycos and Terra Networks, in their respective Motions To Dismiss, are based upon the underlying principle that an internet service provider is simply a conduit for the conveyance/distribution of the postings of another, a role or function that is distinct from an individual regarded to be the source or author of such information, Green v. America Online (AOL), Inc. 318 F.3d 465 (3rd Cir. 2003); Ben Ezra Weinstein & Company, inc v. America Online (AOL), Inc., 206 F. 3d 980 (10th Cir. 2000). In the Ben Ezra Weinstein case, it was, however, conceded by AOL clear that. “...in an appropriate situation, an interactive computer service could act as an information content provider by participating in the creation or development of information, and thus not qualify for §230 immunity, Id. @ 985 FN4.
The factual allegations of the proposed Amended Complaint sets for an “appropriate situation”, [DE 81, Exhibit “I” @ Paragraphs 38-43], for concluding that Lycos and Terra Networks do “not qualify for §230 immunity”.
2. Prior Complaint Dismissed For Failure To Sufficiently Articulate A Legal Theory Against Lycos & Terra Networks - At the hearing, which granted the LYCOS Motion To Dismiss [DE 66], under Rule 12(b)(6), the Court ruled that the allegations of the Amended Complaint, specifically Paragraphs 35 and 36, were insufficiently plead to establish that either LYCOS or TERRA NETWORKS had rendered “culpable assistance” to the John Doe Defendants, in respect to their postings of information on the UCSY message board of the RA(HNG BULL web site. In reaching its decision, the Court indicated that the Plaintiffs could not argue that the factual allegation of Paragraph 35 & 36, support the legal conclusion that the “construct and operation” of the LYCOS NETWORK contributed to the development of the information on the UCSY message board of the RAGING BULL web site, because the Amended Complaint did not seek to hold either LYCOS or TERRA NETWORKS liable to Plaintiffs as a content provider. The proposed Amended Complaint has removed the latter deficiency in the pleadings.
H. Housekeeping Amendments — A number of housekeeping amendments have also been made to correct typographic errors; and, to demand a jury trial.
I. Good Cause To Permit Further Amendment - Notwithstanding that the Plaintiffs’ claims against the Defendants, in one form or another, have been pending for more than 15 months, the hearing before this Court on October 11, 2005, was the first opportunity in which judicial scrutiny and comment on the sufficiency of the pleading has been offered. Accordingly, the Plaintiffs have not, until October 11, 2005, been apprised of any deficiencies in their pleadings, and, therefore, have not had an opportunity to refine their allegations against the Defendants to comply with the guidance of the Court. Thus, the proposed amendments are the first instance in which the Plaintiffs have had to clarif5r, and more precisely refine, the basis of their complaints against the Defendants, consistent with Rule 12(b)(6). Accordingly, the Plaintiffs believe that there their proposed Amended Complaint comports with the pleading requirements of Rule 12(b)(6); and, that good cause has been shown to exist for granting the instant Motion For Leave To Amend. Accordingly, the Plaintiffs, respectfully, request that their Motion For Leave To Amend be granted.
J. Relation Back - Insofar as the claims asserted in the proposed Amended Complaint arise out of the same set of operative facts as the prior pleading, it is also respectfully requested that the date of filing of the proposed Amended Complaint related back to the date of the filing of the original pleadings in this matter.
Respectfully,
Faro & Associates (BBO #159260)
44 W. Flagler Street, Suite 1100
Miami, FL 33130
Phone (305) 424-1112
Fax (305)424-1114 |
