Re: 3/29/05 - [UCSY] Third Party Intervenor Lycos, Inc's Motion to Intervene with Supporting Memorandum of Law
Note: OCR'd; not responsible for typos
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN
AND FOR MIAMI-DADE COUNTY
GENERAL JURISDICTION
CASE NO: O4-27383-CA-01
UNIVERSAL COMMUNICATION SYSTEMS, INC., and AIRWATER CORP.,
Plaintiffs,
V.
PEDRO DEMBOVICH and ROBERTO
VILLASENOR, a.k.a worm_06, scri_852,
worm_06A, no_insiders, quondo1, 65175R,
Blacksheep9110, ovejanegra0, Blacksheedip,
Doggonebad911 pinkherring, ovanegra0,
Busholini, silvesterca, and wolfbitsser0,
Defendants.
THIRD-PARTY INTERVENOR LYCOS, INC.’S
MOTION TO INTERVENE WITH SUPPORTING MEMORANDUM OF LAW
Lycos, Inc. (“Lycos”), hereby respectfully moves this Court to allow Lycos to intervene in this matter so that it may present its objections to the Final Judgment of Injunction issued on March 7, 2005. For the reasons set forth at length in Lycos’ Motion to Dissolve or Amend the Final Judgment of Injunction, filed today with this Motion to Intervene, Lycos respectfully submits that the Final Judgment of Injunction is invalid and unconstitutional as a matter of law. Thus, Lycos is taking the affirmative act of intervening in order to avoid any contempt proceeding that may flow from the Final Judgment of Injunction. Accordingly, as presented more fully in the below Memorandum of Law, Lycos requests that this Court issue an order granting Lycos’ Motion to Intervene.
I
RELEVANT HISTORY[1]
Lycos is a Massachusetts company that, among other things, operates Internet message bonds on which individuals may post statements, comments, and other information about companies and their officers and directors. See Affidavit Of Jaime Carney In Support Of Lycos, Inc.’s Motion To Dissolve Or Amend The Final Judgment Of Injunction ¶¶1-3 (“Carney Affidavit”)[2]. These Internet message boards are accessible to the public, and act as a kind of electronic town square or park, wherein free speech flourishes. One of the many Internet websites that Lycos supports is .www.ragingbull.com. (See Carney Affidavit ¶ 3). The Raging Bull website includes a collection of message boards that, among other things, allows investors and other members of the public to obtain and disseminate information about publicly traded corporations. (See Carney Affidavit ¶ 3). There are over one million registered users of the Raging Bull website. (See Carney Affidavit ¶ 4). A topic of conversation on Lycos’ Raging Bull message board is Plaintiff Universal Communications Systems, Inc. (See Carney Affidavit ¶ 3)
The Plaintiffs, Universal Communications Systems, Inc., and Airwater Corp., filed the Complaint in this case on December 28, 2004, seeking $100 million in damages and injunctive relief against two Defendants, Pedro Dembovich and Roberto Vilasenor. The Defendants did not answer the Complaint. After a hearing, an Order of Default was entered on February 14, 2005, and after a second hearing, a Final Judgment of Injunction was entered on March 7, 2005. That injunction provides, among other things, that:
Anyone, or any entity, with notice of this judgment which republishes any past internet posting made by Defendants or any of Defendant[s’] alias[es] (or any other alias of Defendants known to said persons or entities) which identifies Plaintiffs or Michael Zwebner and/or which aids and/or assists either Defendant in violation of this order is also in violation and could be held in criminal and/or civil contempt.
Final Judgment of injunction at 2-3 (dated March 7, 2005) (emphasis added).
Subsequently, by letter dated March 11, 2005, the Plaintiffs’ attorney, Robert H. Cooper, Esq., sent a copy of the Final Judgment of Injunction to Lycos, Inc., seeking to put Lycos on notice of the injunction and thereby make Lycos subject to the terms of the injunction. See Carney Affidavit ¶ 5 and Exhibit A thereto. Presumably, the Plaintiffs intend to institute a contempt proceeding against Lycos for violating the injunction. Lycos files this Motion to Intervene so that it may obtain relief from the Final Judgment of Injunction.
[1] A more complete recitation of the factual history of this and related matters is provided in Third-Party Intervenor Lycos, Inc.’s Memorandum Of Law In Support Of Its Motion To Dissolve Or Amend The Final Judgment Of Injunction, and the Affidavit Of Jaime Carney In Support Of Lycos, Inc.’s Motion To Dissolve Or Amend The Final Judgment Of Injunction, both filed today.
[2] A fax copy of the Carney Affidavit is being filed with this motion. The original affidavit will be filed with the Court as soon as possible.
II.
LEGAL STANDARD
Intervention is controlled by Florida Rule of Civil Procedure 1.230, which provides:
Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion.
Union Cent Life Ins Co v. Carlisle, 593 So.2d 505 (Fla. 1992), in turn, sets out the process for determining whether intervention is appropriate under Rule 1.230:
First, the trial court must determine that the interest asserted is appropriate to support intervention. [Second, o]nce the trial court determines that the requisite interest exists, it must exercise its sound discretion to determine whether to permit intervention.
Union Cent Life Ins Co v. Carlisle, 593 So.2d at 507 (citation omitted).
Turning to the first part of the process, the test to determine what interest entitles a party to intervene is set forth in Morgareidge v. Howey. 78 So. 14, 15 (Fla. 1918):
[T]he interest which will entitle a person to intervene. . . must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. In other words, the interest must be that created by a claim to the demand in suit or some part thereof, or a claim to, or lien upon, the property or some part thereof, which is the subject of litigation.
As for the second part of the process, “In deciding this question the court should consider a number of factors, including the derivation of the interest, any pertinent contractual language, the size of the interest, the potential for conflicts or new issues, and any other relevant circumstance.” Union Cent Life Ins Co, 593 So.2d at 507-08.
Case law establishes that “intervention should be liberally allowed.” See National Wildlife Federation Inc. v. Glisson, 531 So.2d 996, 998 (Fla. App. Ct. 1st Dist. 1988) (citing Miracle House Corp. v. Hajg, 96 So.2d 417 (Fla. 1957)). The standard of review of an order granting intervention is abuse of discretion. See e.g. Hausmann ex rel Doe v. LM. 806 So.2d 511, 513 (Fla App. Ct. 4th Dist. 2001) (citing State Dept of Legal Affairs v. Rains 654 So.2d 1254,1255 (Fla App. Ct. 2d Dist 1995)).
III
ARGUMENT
A. Lycos’ Interest In This Matter Supports Its intervention
Lycos, by virtue of being subject to the Final Judgment of injunction, has an interest in this matter that makes intervention appropriate. Union Cent Life Ins.Co, 593 So.2d at 507. As Morgareidge, 78 So. at 15, explains, “the interest which will entitle a person to intervene... must be in the matter in litigation, and of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and. effect of the judgment”
Here, it is clear that the Plaintiffs believe Lycos falls under the reach of the Final Judgment of Injunction because it applies, on its face, to “[a]nyone, or any entity, with notice of this judgment . . . .“ Final Judgment of Injunction at 2. Plaintiffs have sent a letter to Lycos purporting to put it on notice and bind Lycos by the injunction. Therefore, if Lycos fails to comply with the injunction. Lycos is at risk of being “held in criminal and/or civil contempt.” Id at 3. Thus, because Lycos operates an Internet message board where the public is free to discuss Plaintiff Universal Communications Systems Inc., Lycos is at risk of violating the injunction. Lycos, as a result, “will . . . lose by the direct legal operation and effect of the judgment” 78 So. at 15. Accordingly, Lycos has precisely the type of interest that makes intervention appropriate.
B. This Court Should Exercise Its Sound Discretion To Permit Lycos to Intervene
There is no good reason to deny intervention, and every reason to allow it. First, the injunction entered in this matter came as the result of a default judgment, and therefore, the Court was not provided with the benefits of opposing argument through the workings of the adversary system. Allowing intervention will permit Lycos to present its arguments as to why the Final Judgment of Injunction is invalid and unconstitutional as a matter of law.
Second, the application of the Final Judgment of Injunction to a provider of an interactive computer service, such as Lycos, is in direct conflict with the policies of the United States government. In particular, the United States Congress has made findings that the Internet and interactive computer services offer “a forum for true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” 47 U.S.C. § 230(a)(3). Accordingly, it is “the policy of the United States... to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation. “ 47 U.S.C. § 230(b)(2) (emphasis added). The substantive provisions of the federal Communications Decency Act, 47 U.S.C. §230, have implemented this policy. Allowing Lycos to intervene will allow the Court to consider and comply with these important federal policies and law that encourage and protect the growth of the Internet.
Third, if Lycos is allowed to intervene, the intervention will be “in subordination to, and in recognition of, the propriety of the main proceeding,” Fla. R Civ. P. 1.230, since the intervention will be limited to challenging the legality, scope, and content of the Final Judgment of Injunction.
Finally, allowing Lycos’ Motion to Intervene is an appropriate and sound decision, as it will enable Lycos to present its arguments in an orderly fashion, in the context of an original litigation concerning the merits of the injunction, and not in the context of a costly and extraordinary hearing concerning contempt. It will therefore also advance judicial economy.
Balanced against these compelling reasons to allow Lycos to intervene, any opposition to intervention is without merit. By sending Lycos a copy of the Final Judgment of injunction Plaintiffs have made clear that they seek to bind Lycos by the outcome of this lawsuit. There can thus be no argument by Plaintiffs that Lycos should be barred from being a party to this case.
IV
CONCLUSION
WHEREFORE, for the foregoing reasons, Lycos respectfully requests that this Court issue an order:
1) granting Lycos’ Motion to Intervene and
2) granting any other relief this Court deems just and mete.
Dated: March 29, 2005
Respectfully submitted,
BLACK SREBNICK KORNSPAN & STUMPF, PA.
Attorneys for Lycos, Inc.
201 S. Biscayne Boulevard, Suite 1300
Miami, Florida 33131
Tel: (305) 371-6421
Fax: (305) 371-6322
By____
Larry Stumpf, Esq
Florida Bar No.: 280526
Aaron Anthon, Esq.
Florida Bar No.: 0609341
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
Of Counsel
=====
EXHIBIT A
ROBERT H. COOPER PA
ATTORNEY AT LAW
2999 NE 191 Street Suite 704
Aventura, FL 33180
Robert@rcooperpa.com
305-792-4343
Fax: 305-792-0200
March 11, 2005
Certified Mail Return Receipt
Lycos, Inc.
100 5th Ave.
Waltham, MA 02451
Re Universal Communications Systems, Inc. and Airwater Corp.
Dear Sirs/Madams,
This firm represents Universal communications Systems, Inc. and Airwater Corp.
ENCLOSED IS A CERTIFIED COPY OF THE FINAL JUDGMENT OF INJUNCTION ISSUED BY THE 11TH JUDICIAL CIRCUIT OF FLORIDA IN CASE NO. 04-27383-CA-01. YOU ARE OFFICIALLY ON NOTICE OF THE INJUNCTION WHICH PROHIBITS ANYONE FROM AIDING AND ABETTING DEFENDANTS TO VIOLATED THIS INJUNCTION BY REPUBLISHING CERTAIN STATEMENTS POSTED ON THE INTERNET BY DEFENDANTS.
By way of explanation, over the past few years, the two individuals identified as defendants in the attached judgment, have used the internet to defame and cause unfair business competition to Universal Communications Systems, Inc. (ticker UCSY) and Airwater Corp. its subsidiaries and its principal Michael Zwebner.
Universal Communications Systems, Inc. (ticker UCSY) and Airwater Corp. sued to prohibit and future statements being made by these defendants regarding UCSY, Airwater and/or any of the defendants. See the attached judgment for the exact requirements.
You are notice that if your company assists either defendant in making public statements on any website controlled you, whether they be republication of past statements, posting of future statements — either through any of the identified alias’ or through any newly created alias’, your company may be subject to liability for aiding and abetting Defendants in violating this injunction.
My client appreciates your prompt attention to this Matter.
Please feel free to call me if you have any questions. Thank You.
Sincerely,
Robert Cooper |
