Re: 3/21/05 - [UCSY] REPLY by Turner Broadcasting, Cable News Network, Wolf Blitzer to response to [27-1] motion for attorney fees, [27-2] motion for sanctions (gz)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
05-20047-CIV-JORDAN/BROWN
UNIVERSAL COMMUNICATION
SYSTEMS, INC. & MICHAEL J. ZWEBNER,
Plaintiffs,
V.
TURNER BROADCASTING SYSTEM, INC., CABLE NEWS NETWORK, INC., WOLF BLITZER, JOHN DOE #1, & JOHN DOE #2,
Defendants.
MEDIA DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES AND SANCTIONS
Defendants Turner Broadcasting System, Inc., Cable News Network LP, LLLP and Wolf Blitzer (collectively, “Media Defendants”), by and through the undersigned counsel, serve this their Reply in Support of their Motion for Attorneys’ Fees and Sanctions and state:
Based upon the First Amended Complaint [1], the Media Defendants filed in this Court a Motion for Attorneys’ Fees and Sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927. At that time, Plaintiffs’ frivolous and vexatious conduct already was apparent in the record. Plaintiffs’ Amended Complaint purports to state a defamation claim against the Media Defendants based upon statements admittedly not made by the Media Defendants that were published on a website admittedly owned by or otherwise affiliated with the Media Defendants. Such facts do not give rise to a defamation claim and no reasonable, good faith argument can be made to stretch the law of defamation to reach statements not published by the Media Defendants.
Recognizing that publication is entirely lacking in this case, Plaintiffs, without citation to a single legal authority, attempt to argue that the Media Defendants owe them — and indeed the public — a duty to police the use of Defendant Blitzer’s name, and that failure to adhere to that duty somehow gives rise to a defamation claim.[2] But the law of defamation has nothing to do with who owes a duty to whom. Defamation is about the publication of false statements of fact. The Media Defendants indisputably did not publish any false statements of fact about the Plaintiffs. There simply is no reasonable basis in the law of defamation — which quintessentially requires publication with fault — to present a good faith defamation claim against the Media Defendants. And even if the Media Defendants owed some duty in defamation to the Plaintiffs police the use of Defendant Blitzer’s name — which they do not — it is impossible for the Media Defendants to have violated such a duty when Plaintiffs filed this lawsuit less than 24 hours after notifying the Media Defendants of such use.
In reality, Plaintiffs’ defamation claim against the Media Defendants has nothing to do with actually pursuing this claim against them and everything to do with Plaintiffs’ abuse of the judicial system at the Media Defendants’ and this Court’s expense to obtain discovery against third party Lycos, Inc. (“Lycos”) in an unrelated matter. Plaintiffs’ ulterior purpose in bringing and maintaining this action is apparent when Plaintiffs’ conduct in this litigation is compared to the progress of its Lycos litigation.
[1] Plaintiffs served their First Amended Complaint before the Media Defendants had a chance to serve their Motion for Attorneys’ Fees and Sanctions with respect to the original complaint, though that complaint was entirely frivolous as well.
[2] Notably absent from Plaintiffs’ Response is case law demonstrating that failure to enforce “private” intellectual property rights gives rise to liability in defamation — or any other theory — to individuals damaged by the right holder’s failure to enforce its intellectual property rights. This is for good reason. The sole consequence of an intellectual property owner’s failure to police and enforce its intellectual property rights is the potential loss of the rights associated with the property. “[Al trademark owner’s failure to exercise control [does not] subject[ I the owner to affirmative liability in tort....” See, e.g., Mini Maid Servs. Co. v. Maid Brigade Sys., Inc., 967 F.2d 1516, 1520 (11th Cir. 1992) (quoting Burkert v. Petrol Plus, Inc., 579 A.2d 26, 32 (Conn. 1990)); Kealoha v. E.I. Du Pont de Nemours & Co., Inc., 82 F.3d 894, 902-903 (9th Cir. 1996) (“no case has ever held a trademark owner liable in tort for damages resulting from a defective product simply because the trademark owner did not properly police his trademark”). Accordingly, Plaintiffs’ theory that the Media Defendants are liable to them for failing to enforce alleged intellectual property rights in Defendant Blitzer’s name fails no matter what theory under which Plaintiffs seek to recover. Indeed, such a theory has absolutely no reasonable basis in fact or law.
Chronology of Relevant Events
July 2, 2004 - First known lawsuit filed in Florida. Plaintiffs file an action against Lycos (“Lycos I”) based upon statements posted on Lycos’s Raging Bull website. Case No. 04-216 18-CIV-MARTINEZJKlein (S.D. Fla.)
November 3, 2004 - Plaintiffs serve discovery in Lycos I, seeking the identity of anonymous posters on Lycos’s Raging Bull website.
December 20, 2004 - Plaintiffs move the Lycos I Court to compel responses to discovery served November 3, 2004.
December 28, 2004 - Second lawsuit filed. Plaintiff Universal Communications Systems, Inc. files an action in state court against Roberto Villasenor, Pedro Dembovich and “wolfblitzzer0” based, in part, upon statements posted on public internet websites. Case No. 04-27383 CA 09 (11th Jud. Cir. Fla.)
January 4, 2005 - Defendants in Lycos I file their memorandum in opposition to Plaintiffs Motion to Compel discovery served November 3, 2004. In opposition, the Lycos I defendants assert 47 U.S.C. § 230, which provides for immunity of internet message board providers from liability based upon statements made by anonymous third parties on an internet message board.
January 6, 2005 - Plaintiffs’ counsel sends letter to in- house counsel at CNN, asking CNN to exert “political and business pressures” on Lycos to coerce Lycos into denying access to Lycos’s Raging Bull website “by individuals whom [Lycos knows] are abusive and misuse [Lycos’s] website. Plaintiffs’ counsel gives CNN a deadline of 3:00 pm on Friday, January 7, 2005, to exert this control over Lycos and threatens litigation if Plaintiffs’ demands are not met. [D.E. 1 at Ex. 2.].
January 7, 2005 - Third lawsuit filed. At 11:08 am, Plaintiffs file this action against the Media Defendants based upon statements published on Lycos website to which Media Defendants admittedly have no connection. [D. E. 1].
January 19, 2005 - Lycos I is temporarily stayed, including discovery.
January 19, 2005 - Fourth lawsuit filed. Plaintiffs file a second action against Lycos (“Lycos II”) based upon statements on Lycos’s Raging Bull website. Case No. 05-20149-CIV-MORENO/Garber (S.D. Fla.).
January 19, 2005 - Plaintiffs file their Emergency Motion in this action, seeking to propound a deposition upon written questions and records custodian subpoena to third party Lycos. [D.E. 51.]
January 20, 2005 - Magistrate Brown denies the Plaintiffs’ Emergency Motion, specifically noting that claims are “strikingly similar” to Lycos I. [D.E.6].
January 20, 2005 - Fifth lawsuit filed. Plaintiffs file Zwebner v. Coughlin, et al., a defamation action against one named individual and 25 “John Doe” defendants. The complaint is based upon postings on Lycos’s Raging Bull website. Case No. 05-20168-CIV-COOKE (S.D. Fla.)
January 21, 2005 - Plaintiffs file their First Amended Complaint in this action. Plaintiffs add “wolfblittzer0” and “royal_octavio” as John Doe defendants. Plaintiffs allege that the John Doe defendants’ true identity is Roberto Villasenor. [D.E. 8].
February 2, 2005 - Plaintiffs file their First Amended Complaint in Lycos II. Plaintiffs add several “John Doe” defendants. Plaintiffs allege that the John Doe defendants’ true identity is Roberto Villasenor
February 28, 2005 - Lycos I is transferred to the U.S. District Court for the District of Massachusetts. The Omnibus Order issued in connection with the transfer also denies Plaintiffs’ Motion to Compel filed December 20, 2004.
March 8, 2005 - Lycos II is transferred to Judge Martinez.
This history of Plaintiffs’ litigation against Lycos reveals Plaintiffs’ true purpose in bringing and maintaining this action: circumvention of unsuccessful attempts to obtain the discovery sought here in the context of its other pending litigation against Lycos. Such ulterior purposes — when carried out at the expense of the Media Defendants — are sanctionable. Pelletier v. Zweifel, 921 F.2d 1465, 15 15-16 (11th Cir. 1991) (Rule 11 sanctions imposed against plaintiff and counsel in extorting a settlement from third party that could not be obtained from true party in interest); Murphy v. Housing Auth. & Urban Redevelopment, 158 F. Supp. 2d 438, 446 (D. N.J. 2001) (sanctions are appropriate under 28 U.S.C. § 1927 when party intentionally advances baseless contention for an ulterior purpose, such as harassment).
Essentially, this lawsuit was motivated by Lycos’s refusal to provide discovery into the identity of anonymous posters on its Raging Bull website in Lycos I. Within two days after Lycos’s assertion of immunity in connection with the discovery sought in Lycos I, Plaintiffs’ counsel wrote to Defendant CNN. In that letter, Plaintiffs’ counsel sought to coerce CNN to exert unspecified “business and political pressures” on third party Lycos. Plaintiffs’ counsel expressly threatened litigation if Plaintiffs’ demands were not met. Plaintiffs gave Defendant CNN until 3:00 pm the next day to comply with their demands.
True to these threats and without waiting for the 24-hour deadline to expire (and in violation of Florida Statute Section 770.01 [3]), at 11:08 am the next morning, Plaintiffs filed this action against the Media Defendants. The Media Defendants were the only defendants named in the original Complaint.
Twelve days after filing this action and before the Media Defendants had even responded to the Complaint, Plaintiffs suffered a setback in their attempts to get discovery from Lycos when The Honorable Jose E. Martinez of this Court temporarily stayed Lycos I, including discovery. On the same day that Judge Martinez stayed the action, Plaintiffs took several actions to circumvent the stay.
First, Plaintiffs filed a second action against Lycos (Lycos II), which like this action and like Lycos I, is based upon statements posted on Lycos’s Raging Bull website.[4] Second, Plaintiffs filed an emergency motion in this action, seeking to obtain the discovery from Lycos that it could not obtain in Lycos I as a result of the stay. [D.E. 51. Magistrate Judge Brown denied the emergency motion the next day. [D.E. 61].
[3] Plaintiffs’ Opposition to this Motion for Attorneys’ Fees and Sanctions, like its opposition to the Media Defendants’ Motion to Dismiss, entirely misconstrues Section 770.01, Florida Statutes. The terms “media defendants” and “non-media defendants” are meant to “separate third parties who are not engaged in the dissemination of news and information through the news and broadcast media from those who are so engaged.” Mancini v. Personalized Air Cond. & Heating, Inc., 702 So. 2d 1376, 1380 (Fla. 4th DCA 1997). The distinction between media defendants and non-media defendants is not upon the medium used to make the allegedly defamatory statements at issue in the lawsuit but upon the identity of the defendant named therein. The Media Defendants undeniably are engaged in the dissemination of news and information through the news and broadcast media. Plaintiffs’ argument that Section 770.01 does not apply because the Media Defendants were not the “speaker or publisher” of the statements at issue in this lawsuit merely underscores the fact that Plaintiffs have absolutely no basis in law or fact for bringing a defamation claim against the Media Defendants.
[4] That action has since been transferred to Judge Martinez. A Motion to Transfer the case to the United States District Court for the District of Massachusetts is pending.
On the same day Magistrate Judge Brown thwarted Plaintiffs’ attempt to obtain Lycos discovery despite the stay in the Judge Martinez action, Plaintiffs filed a defamation action against James Coughlin and twenty-five “John Doe” defendants (“Coughlin”). That action, too, is based upon postings on Lycos’ Raging Bull website. And the day after that, Plaintiffs filed their First Amended Complaint in this action, for the first time naming John Doe defendants in this action as well. [D.E. 81]. By definition, however, the John Doe defendants added to this action are defendants in Coughlin. Further, “wolfblitzzerO” is a defendant in an action in Miami-Dade County Circuit Court, which was filed before this action and before Coughlin.
This is a clear case of Judge-shopping. Plaintiffs want to know the identity of anonymous posters on Lycos’s Raging Bull website. They sued Lycos concerning the postings. Lycos has asserted immunity under 47 U.S.C. § 230. Judge Martinez initially stayed the action, including discovery, and then transferred the action to Massachusetts federal court. In the wake of the stay, Plaintiffs sought the same discovery in this action that they were prohibited from obtaining in Lycos I and took other steps to circumvent this Court’s stay in Lycos I.
Plaintiffs should not be able to use these proceedings to circumvent their Lycos proceeding and obtain discovery that is more properly sought through the Lycos action. This Court simply should not condone such practices, especially at the expense of the Media Defendants, who indisputably have no connection whatsoever to the internet postings about which Plaintiffs complain and indisputably did not publish the statements that serve as the basis for Plaintiffs’ defamation claims against the Media Defendants. Plaintiffs’ claims against the media defendants are vexatious, harassing, improper, and in bad faith, and lack any reasonable basis in fact or law. Plaintiffs’ conduct in bringing and maintaining this action should be sanctioned.
Respectfully submitted,
HOLLAND & KNIGHT, LLP
Attorneys for the Media Defendants
/s Deanna K. Shullman
701 Brickell Avenue, Suite 3000
Miami, FL 33131
Tel: (305) 374-8500
Fax: (305) 789-7799
Adolfo E. Jiménez
Fla. Bar No. 869295
adolfo.jimenez@hklaw.com
and
One East Broward Boulevard, Suite 1300
Ft. Lauderdale, FL 33301
Tel: (954) 525-1000
Fax: (954) 463-2030
Deanna K. Shullman
Fla. Bar No. 0514462
deanna.shullman@hklaw.com
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 21st day of March, 2005, a true and correct copy of the foregoing was furnished by U.S. mail to John H. Faro, Esq., Attorney for Plaintiffs, Faro & Associates, 44 West Flagler Street, Suite 1100, Miami, Florida 33130-1808.
/s Deanna K. Shuilman
Adolfo E. Jiménez
Deanna K. Shullman
OCR'd from: pacer.flsd.uscourts.gov |
