Re: 4/25/05 - [UCSY] UCSY vs. Lycos: Defendant Lycos, Inc.'s Motion to Dismiss or Transfer and for an Immediate Stay
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
(Miami Division)
CASE NO. 05-20917-CIV-LENARD/Klein
UNIVERSAL COMMUNICATION
SYSTEMS. INC. (a Nevada Corporation), &
MICHAEL J. ZWEBNER (individually),
Petitioners,
v.
LYCOS. INC. dba THE LYCOS
NETWORK
Respondents.
___________________________________________________________________________/
DEFENDANT LYCOS, INC.’S
MOTION TO DISMISS OR TRANSFER AND FOR AN IMMEDIATE STAY
Pursuant to Fed. R. Civ. P. 12(b)(3), 12(b)(6). and 26(c), as well as 28 U.S.C. § 1404 and 1406, Defendant Lycos, Inc. (“Lycos”), hereby respectfully moves this Court to: (1) dismiss this case or (2) alternatively, transfer this case to the United States District Court for the District of Massachusetts and in any event, (3) immediately issue an Order staying this matter until this Court has time to decide the merits of this Motion to Dismiss or Transfer.[1]
This case, styled as a Petition for a Pure Bill of Discovery, is the latest of a series of cases in what appears to be a long-running conflict between, on one side, the Plaintiffs, and on the other, a group of individuals, apparently including someone by the name of Roberto Villasenor, who make allegedly disparaging statements about the Plaintiffs. The Plaintiffs have filed at least ten other lawsuits attempting to prevent Mr. Villasenor and others from discussing him and his companies.[2] Several of these lawsuits are currently pending.[3] Importantly from Lycos’ standpoint, two of these lawsuits name Lycos as a defendant. and seek to hold Lycos liable for the statements of third parties. such as Mr. Villasenor. that are published on Lycos’ Internet message boards.[4] In those two lawsuits, because the federal Communications Decency Act. 47 U.S.C. § 230, provides Lycos absolute immunity from discovery and liability for publishing statements of third parties, the Plaintiffs have met with little success to date.
[1] Lycos also joins in the Plaintiffs’ Request for Transfer Pursuant to L.R. 3.9(C), filed on April 4, 2005, but not yet assigned a docket number, which requests the transfer of this action from Judge Lenard to Judge Martinez in the Southern District of Florida, because it is related to earlier filed actions, Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 04-21618-CIV-MARTINEZ/Bandstra (S.D. Fla.), and Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 05-20149-CIV-MART[NEZ/Klein (S.D. Fla.). This action is clearly related and should be sent to Judge Martinez so that a single judge familiar with the underlying facts can handle all of these interrelated matters.
[2] Lycos is aware of: Universal Communications Systems, Inc. v. Lycos, Inc., 05-20916-CIV-COOKE/Brown (S.D. Fla.); Zwebner v. Coughlin, Case No. 05-20169-CIV-COOKE (S.D. Fla.); Universal Communications Systems, Inc. v. Lycos, inc., Case No. 05-20149-CIV- MARTINEZ/Klein (S.D. Fla.); Universal Communications Systems, Inc. v. Turner Broadcasting System, Inc., Case No. 05-20047-CIV- JORDAN/Brown (S.D. Fla.); Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 04-21618-CIV-MARTINEZ/Banstra (S.D. Fla.), transferred to the District of Massachusetts, and renumbered 05-CV-10435-REK (D. Mass.); Zwebner v. John Does - Alias “Tobias”, Case No. 03-22328-CIV-MORENO (S.D. Fla.); Talk Visual Corp. v. Roberto Gonzalez Villasenor, Jr., Civil No. 000901274 (3d Dist. Ct. Utah); Zwebner v. Villasenor, No. 00-02239 (Mass. Super. Ct.); Zwebner v. John Does Anonymous Found., Inc., No. 00-CV-0 1322 (D. Or.); Zwebner v. Dumont, Civil Action No. 98-00682 (D.Ni-1.).
[3] They include: Zwebner v. Coughlin, Case No. 05-20169-dy-COOKE (S.D. Fla.); Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 05-20149-CIV- MARTINEZ/Klein (S.D. Fla.); Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 04-21618-CIV-MARTINEZ/Bandstra (S.D. Fla.), transferred to the District of Massachusetts, and renumbered 05-CV-10435-REK (D. Mass.).
[4] They are: Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 05-20149-CIV-MARTINEZ/Klein (S.D. Fla.), and Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 04-21618-CIV-MARTINEZ/Bandstra (S.D. Fla.), transferred to the District of Massachusetts, and renumbered 05-CIV-10435- REK (D. Mass.).
Furthermore, on April 12, 2005, a nearly identical case to this one, again styled as a Petition for a Pure Bill of Discovery, was dismissed sua sponte by Judge Cooke of the Southern District of Florida. See Universal Communications Systems, Inc. v. Lycos, Inc., 05-20916-CIV-COOKE/Brown (S.D. Fla. (Order Denying Plaintiffs’ Petition for a Pure Bill of Discovery and Closing the Above-Captioned Matter, dated April 12, 2005 [DE 3]) (attached hereto as Tab 1). This case, like that one, is utterly without merit, and attempts to obtain through another means what the Plaintiffs could not obtain directly.
Finally, the Petition for a Pure Bill of Discovery seeks discovery in a case already pending in this district. See Universal Communications Systems, Inc. v. Lycos, Inc.. Case No. 05-20149-CIV-MARTINEZ/Klein (S.D. Fla.) (First Amended Complaint attached as Exhibit 1 to the Petition for a Pure Bill of Discovery) (this case was originally assigned to Judges Moreno and Garber, but has since been transferred pursuant to Local Rule 3.9(C) to Judges Martinez and Klein). It is through that case that discovery should be had (or not had), rather than through this additional frivolous lawsuit.
With the above in mind as context, Lycos respectfully asserts that this Motion should be granted for the following reasons:
1. This case is substantially similar to Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 04-21618-CIV-MARTINEZ/Bandstra (S.D. Fla.) and is based directly on a second, Universal Communications Systems, Inc. v. Lycos, Inc., Case No. 05-20149-dy- MARTINEZ/Klein (S.D. Fla.). It involves the same nucleus of operative facts as both of those two cases. In the first of those two cases, Judge Martinez first stayed discovery and then transferred the case to the District of Massachusetts. See Orders dated January 1 9. 2005 [DE 78] and February 28, 2005 [DE 87]. Case No. 04-21618-CIV-MARTINEZ/Klein (S.D. Fla.). Lycos has a motion pending in the second matter before Judge Martinez that asks for the same relief but has not yet been decided. See Defendant Lycos, Inc.’s Motion To Dismiss Or Transfer, And For An Immediate Stay [DE 31], Case No. 05-20149-CIV-MARTINEZ/Klein (S.D. Fla.).
2. As in the two cases before Judge Martinez, Lycos is statutorily immune to suit and discovery under the Communications Decency Act, 47 U.S.C. § 230 (“Section 230”), and therefore this case should be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). No amount of artful pleading on the part of the Plaintiffs can evade this immunity’. Filing a Petition for a Pure Bill of Discovery is precisely’ that: artful pleading designed to harass Lycos and to evade a discovery stay.
3. Additionally, because the Subscriber Agreement at the center of this case contains a valid and enforceable forum-selection clause requiring this action to be brought in Massachusetts, this case should also be dismissed for improper venue pursuant to Fed. R. Civ. P. 12(b)(3). The Petition for a Pure Bill of Discovery admits that it is based on the Subscriber Agreement. See Petition for a Pure Bill of Discovery ¶J 12, 14, and 16.
4. Alternatively, in accordance with 28 U.S.C. § 1404 and 1406, this Court should transfer this case to the United States District Court for the District of Massachusetts, where venue is proper. Indeed, transfer is particularly appropriate here because one of the two earlier lawsuits before Judge Martinez has already been sent to the District of Massachusetts, and transfer of the second is likely. It would be a waste of time and judicial resources to litigate two similar cases in two different federal districts, especially where, as here, the two cases arise from the same nucleus of operative facts.
5. In the interim, this Court should immediately issue an order staying this action pending the resolution of this Motion. See Fed. R. Civ. P. 26(c). As the Southern District of Florida and other federal courts have already recognized, the public policy considerations that support Section 230 immunity argue strongly in favor of a stay of discovery. Further, permitting discovery to proceed in this District prior to the resolution of the merits of this Motion is inconsistent with the public policy purpose described in this Motion, which is to ensure that this case proceeds in the venue selected by the parties to the Subscriber Agreement.
All of the foregoing arguments are explained in greater detail in Defendant Lycos, Inc.’s Memorandum Of Law In Support Of Its Motion To Dismiss Or Transfer And For An Immediate Stay [DE 32]. Case No. 05-20149-CIV-MARTINEZ/Klein (S.D. Fla.). filed in the underlying action for which this Petition for a Pure Bill of Discovery purports to seek discovery. It is attach hereto as Tab 2. Lycos expressly adopts all of those arguments as if made in full here, as they apply with equal force to this matter.
WHEREFORE, Lycos. Inc., respectfully requests this Court to: (1) dismiss this case; or (2) alternatively, transfer this case to the United States District Court for the District of Massachusetts; and in any event, (3) immediately issue an Order staying this matter until this Court has time to decide the merits of this Motion to Dismiss or Transfer.
Dated: April 25, 2005
Respectfully submitted,
BLACK, SREBNICK, KORNSPAN & STUMPF, P.A.
Attorneys for Lycos, Inc.
201 S. Biscayne Boulevard. Suite 1300
Miami, Florida 33131
Tel: (305) 371-6421
Fax: (305) 371-6322
By
Larry A. Stump Eq.
Florida Bar No.: 280526
Aaron Anthon, Esq.
Florida Bar No.: 0609341
DWYER & COLLORA, LLP
David A. Bunis, Esq.
Daniel J. Cloherty, Esq.
Nicholas J. Walsh, Esq.
600 Atlantic Avenue
Boston, MA 02210
Tel: (617) 371-1000
Fax: (617) 371-1037 |
