Marfione et al v. Kai U.S.A ., Ltd et alBRIEF in Opposition re Motion to Dismiss/Lack of JurisdictionW.D. Pa.June 23, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA _______________________________________ : : ANTHONY L MARFIONE AND : MICROTECH KNIVES, INC. : : Plaintiffs, : Jury Trial Demanded : v. : No. 1:17-cv-00070 : KAI U.S.A., LTD. AND KALE BEYER, : Electronically Filed : Defendants. : _______________________________________ : ______________________________________________________________________________ PLAINTIFF’S OPPOSITION TO KALE BEYER’S MOTION TO DISMISS ______________________________________________________________________________ DICKIE McCAMEY & CHILCOTE, P.C. By /s/Steven W. Zoffer Steven W. Zoffer, Esq. (PA I.D. #62497) szoffer@dmclaw.com Douglas M. Grimsley (PA I.D. # 92948) dgrimsley@dmclaw.com Michael P. Flynn, Esq. (PA I.D. #206150) mflynn@dmclaw.com Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 - telephone (412) 392-5367 - facsimile ATTORNEYS FOR PLAINTIFFS ANTHONY L. MARFIONE AND MICROTECH KNIVES, INC. Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 1 of 17 PRELIMINARY STATEMENT This lawsuit involves the predatory tactics of KAI U.S.A. LTD (“KAI”), through its Social Media Manager Kale Beyer (“Beyer”), to widely distribute defamatory, anti-competitive and disparaging statements made against its competitor, Microtech Knives (“Microtech”), through KAI’s expansive social media. The defamatory and disparaging statements at issue, which are contained in an internet article entitled “The Greatest Knife of All Time,” (hereinafter referred to as the “Article”) was originally authored by third party Anthony Sculimbrene and published on his website and social media page on January 20, 2017. A review of Sculimbrene’s social media/Instragram site reveals he has only 3,072 followers. On that same day, January 20, 2017, Beyer republished the article on his own Instagram account page, for which he has 3,640 followers. However, also on January 20, 2017, Beyer, through the social media/Instagram sites of KAI-branded knives, i.e., ZT Knives and Kershaw Knives, republished the same article. It is particularly important for the Court to recognize that ZT Knives’ Instagram site has a base following of over 77,000 individuals, while Kershaw Knives’ Instagram site has a base following of over 130,000 individuals. Thus, Beyer’s same-day republication of the defamatory article expanded the original publication from about 3,000 viewers to over 200,000 viewers.1 In connection with Beyer’s same-day republication and audience expansion of the subject Article, Beyer wrote “[t]his is the whole backstory behind the @ztknives #ZT0777 and the knockoff, “the Matrix” by @microtechknives and how the new @kershawknives struck a chord with its latest model, the #7007Natrix …” (Am. Compl., Exhibit F). In connection with Beyer’s same-day republication, and audience expansion of the Article by another 77,000 individuals 1 Plaintiffs agree with KAI that the Court should take judicial notice of KAI’s and Beyer’s social media website, and in additional would ask the Court to take judicial notice of Sculumbrine’s social media website, all of which illustrate the audience numbers/followers of the respective websites. KAI’s ZT Knives social media website is located at https://www.instagram.com/ztknives/?hl=en. KAI’s Kershaw Knives social media website is located at https://www.instagram.com/kershawknives/?hl=en. Sculumbrine’s social media website is located at https://www.instagram.com/everydaycommentary/?hl=en. Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 2 of 17 2 through the ZT Knives Instagram page, Beyer wrote “[t]his is definitely worth a read - this is the story behind the #ZT0777 & the new @kershawknives #7007Natrix. Read the whole article at: everyday commentary.com.” (Am. Compl., Exhibit G). In connection with Beyer’s same-day republication, and audience expansion of the Article by an additional 130,000 individuals through the Kershaw Knives Instagram page, Beyer wrote “[w]onder what the backstory to the new #7007 Natrix is? See why @everydaycommentary calls it “the greatest knife of all time!” #Repost @ ztknives.” (Am. Compl., Exhibit G). Beyer’s Motion to Dismiss is based on the assertion that this Court lacks personal jurisdiction over him. This argument fails, as discussed herein, because Beyer, in his capacity as Social Media Manager for KAI, has sufficient minimum contacts with Pennsylvania to establish specific personal jurisdiction over him. This is even more apparent when the court considers that KAI has not challenged that jurisdiction is proper over it in this Court. Beyer’s actions as an employee of KAI are sufficient to establish personal jurisdiction over him. Additionally, Beyer also raises identical Rule 12(b)(6) arguments to those raised by KAI regarding republication, failure to plead actual malice, and immunity under Section 230 of the Communications Decency Act (“CDA”). These arguments all fail because Beyer’s actions constitute republication under Pennsylvania law, the Amended Complaint adequately pleads actual malice, and Beyer’s actions make him a content creator, making Section 230 inapplicable to his actions. STANDARD OF REVIEW When a defendant moves to dismiss a claim under Rule 12(b)(2), the plaintiff must establish “with reasonable particularity sufficient contacts between the defendant and the forum state.” Mellon Bank (East) PSFS, National Association v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992) (citation omitted). A “plaintiff is entitled to have its allegations taken as true and all Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 3 of 17 3 factual disputes drawn in its favor.” Miller Yacht Sales, 384 F.3d at 97 (citing Pinker, 292 F.3d at 368). “When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations in the Amended Complaint as true and draw all reasonable inferences in the Plaintiffs favor.” Ghrist v. CBS Broad, Inc., 40 F. Supp. 3d 623, 626 (W.D. Pa. 2014). In order to survive a motion to dismiss, the plaintiff’s complaint “must allege ‘enough facts to state a claim for relief that is plausible on its face.’” Ghrist, 40 F. Supp. 3d at 627; quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The Court cannot dismiss a complaint “merely because it appears unlikely or improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits…instead, [the] Court must ask whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the necessary elements.” Hill v. Cosby, 2016 U.S. Dist. LEXIS 7300 at *4 (W.D. Pa. 2016) (quoting Twombly, 550 U.S. at 563 n.8, 556). A complaint will survive a motion to dismiss if it alleges “adequate facts to establish ‘how, when, and where.’” Id. ARGUMENT A. Plaintiff Has Alleged Sufficient Facts to Support a Prima Facie Case of Specific Personal Jurisdiction over Defendant Beyer. Plaintiff has established through its Amended Complaint that specific personal jurisdiction exists over Defendant Beyer in this Court. Rule 4(k) of the Federal Rules of Civil Procedure authorizes federal district courts to assert personal jurisdiction over nonresidents of the state in which the court sits to the extent authorized by the law of that state. Fed. R. Civ. P. 4(k)(1)(A); Marten v. Godwin, 499 F.3d 290, 296 (3d. Cir. 2007). Pennsylvania law, in turn, provides for jurisdiction coextensive with that allowed by the Due Process Clause of the United States Constitution. 42 Pa. Cons. Stat. Ann. § 5322(b). Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 4 of 17 4 Under the Due Process Clause, district courts may properly exercise personal jurisdiction over defendants who have “certain minimum contacts . . . such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation omitted). A parallel inquiry is whether the defendants' contacts with the forum state are such that the defendants “should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). These principles of due process give rise to two recognized categories of personal jurisdiction: general jurisdiction and specific jurisdiction. Specific jurisdiction “exists when the claim arises from or relates to conduct purposely directed at the forum state.” Id. (citation omitted). The specific jurisdiction analysis “depends on the relationship between the claims and contacts,” and thus specific jurisdiction determinations must be made on a claim-by-claim basis. Id. (citation omitted); see also Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). In Calder v. Jones, 465 U.S. 783, 790 (1984), the United States Supreme Court stated that for purposes of federal due process an individual is not shielded from personal jurisdiction merely because that individual has acted in a fiduciary capacity on behalf of a corporation. The Third Circuit follows the general rule that officers of a corporation are personally responsible for the alleged tortious conduct of the corporation if they personally took part in the commission of the tort. Zubik v. Zubik, 384 F.2d 267, 275 (3d Cir. 1967). In Vespe Contracting Co. v. Anvan Corp., 433 F. Supp. 1226, 1233 n.11 (E.D. Pa. 1977), the court noted that officers of a defendant corporation could be subject to personal jurisdiction by the court “under the ‘alter ego’ theory for acts committed in their capacities as officers.” The court went on to note that “[w]here the corporate veil has been used as a shield against liability resulting from fraud, the corporate veil Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 5 of 17 5 would be pierced and the individuals would be held personally responsible. Id. (citing Zubik, 384 F.2d at 273). Similarly, in Bragg v. Linden Research, Inc., 487 F. Supp. 2d 593, 603 (E.D. Pa. 2007), the court held that representations made by a corporate officer on behalf of his corporation “still count as contacts in the analysis of whether the Court may exercise personal jurisdiction over him.” Where tortious acts were committed directly by an officer or employee purporting to act within the scope of their authority as corporate agents, personal jurisdiction will lie if at least one act took place in the relevant forum which is substantially related to the claim. A district court analyzing specific jurisdiction over a particular claim conducts a three- part inquiry. Marten, 499 F.3d 296 (citing O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007)). First, the court asks whether the defendant “purposefully directed his activities at the forum.” Id. (internal citation omitted). Second, the court determines whether the plaintiff's claim “arise[s] out of or relate[s] to at least one of those specific activities.” Id. (internal citation omitted). Third, “courts may consider additional factors to ensure that the assertion of jurisdiction otherwise comport[s] with fair play and substantial justice.” Id. (internal citation omitted). This “traditional” test of specific jurisdiction, and specifically its “purposeful direction” prong, is closely linked to a defendant's minimum contacts with a forum and whether these contacts are sufficient to make the exercise of jurisdiction consistent with due process. See Id. at 297; see also Imo Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998). In addition to this basic test for personal jurisdiction, the Supreme Court set forth a second analysis which is applicable to defamation actions in Calder, 465 U.S. 783. The Third Circuit set forth a three-pronged test based on Calder for exercise of personal jurisdiction in defamation cases: (1) The defendant committed an intentional tort; Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 6 of 17 6 (2) The plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of that tort; [and] (3) The defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity. Marten, 499 F.3d at 297 (quoting Imo Indus., Inc., 155 F.3d at 265-66). A defendant’ conduct is considered to be “expressly aimed” at the forum when “the defendant knew that the plaintiff would suffer the brunt of the harm caused by the tortious conduct in the forum, and [when the plaintiff can] point to specific activity indicating that the defendant expressly aimed its tortious conduct at the forum.” Imo Indus., Inc., 155 F.3d at 266. In this case, Beyer’s individual actions, while acting as social media manager for KAI, establish personal jurisdiction over him in this Court. While Beyer’s actions taken as an employee of KAI gives rise to personal jurisdiction over Beyer individually, KAI has also not challenged this Court’s jurisdiction over it. Though jurisdiction is appropriate over Beyer as an employee of KAI, he is also subject to personal jurisdiction under the Calder test. It is undisputed that the first element, that Beyer committed an intentional tort, is met. Second, Microtech felt the brunt of the harm of Beyer’s defamatory conduct in Pennsylvania. Microtech employs 18 individuals, a significant part of its workforce, in Bradford, Pennsylvania. Microtech’s manufacturing facility is located at Chestnut Street Extension, Bradford, Pennsylvania 16701. (Am. Comp. at ¶ 1). Discovery will also reveal the extent of Microtech’s Pennsylvania customer base, by way of developing Plaintiff’s damages in this case. Therefore, by necessity, the brunt of the harm to Microtech has been, and continues to be, felt in Pennsylvania, making Pennsylvania the focal point of the harm. Third, by directing his article at Microtech, a company he was of course familiar with as a direct competitor of KAI, Beyer expressly and purposefully directed his conduct towards Pennsylvania. Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 7 of 17 7 In connection with Beyer’s same-day republication and audience expansion of the subject Article, Beyer wrote “[t]his is the whole backstory behind the @ztknives #ZT0777 and the knockoff, “the Matrix” by @microtechknives and how the new @kershawknives struck a chord with its latest model, the #7007Natrix …” (Am. Compl., Exhibit F). In connection with KAI’s same-day republication, through Beyer’s actions, and audience expansion of the Article by another 77,000 individuals through the ZT Knives Instagram page, Beyer wrote “[t]his is definitely worth a read - this is the story behind the #ZT0777 & the new @kershawknives #7007Natrix. Read the whole article at: everyday commentary.com.” (Am. Compl., Exhibit G). In connection with KAI’s same-day republication, through Beyer’s actions, and audience expansion of the Article by an additional 130,000 individuals through the Kershaw Knives Instagram page, Beyer wrote “[w]onder what the backstory to the new #7007 Natrix is? See why @everydaycommentary calls it “the greatest knife of all time!” #Repost @ ztknives.” (Am. Compl., Exhibit G). Plaintiffs have felt the brunt of the harm of Beyer’s conduct in Pennsylvania and under the Calder test, this Court may properly exercise personal jurisdiction over the Defendant and should permit the Plaintiff’s chosen forum, this Honorable Court. B. Plaintiffs Have Properly Stated Claims Against Beyer Based On his Active Role in Republication. Plaintiffs’ defamation and commercial disparagement claims against Beyer are based on the same-day republication of the defamatory Article at issue by Beyer on Beyer’s Instagram site, as well as KAI’s same-day republication by Beyer of the Article on both the ZT Knives and Kershaw Knives Instagram site. The cases relied upon by Beyer for the proposition that republication of hyperlinks does not constitute a publication of the materials referred to for purposes of defamation and commercial disparagement are inapposite. For example, Clark v. Viacom Int’l Inc., 617 Fed. Appx 495 (6 th Cir. 2015) (which forms the basis for the quotations Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 8 of 17 8 provided for Bittman v. Fox, 2016 U.S. Dist. LEXIS 63948 (N.D. Ill. May 16, 2016) and Doctor's Data, Inc. v. Barrett, 170 F. Supp. 3d 1087 (N.D. Ill. 2016) that are relied upon by Beyer) involved an analysis on whether the applicable statute of limitations bars a republication- based defamation claim, which is not an issue in this case. More importantly, though, is the Clark court’s analysis of the critical consideration for republication-based defamation claims, which in the traditional print context is “not whether the substance of the statement has changed. Instead, the key factor is whether the speaker ‘intended to and does reach a new [audience].” Clark, 617 Fed. Appx. at 504-05. In examining of republication the Clark court further held that “the test of whether a statement has been republished is if the speaker has affirmatively reiterated it in an attempt to reach a new audience that the statement’s prior dissemination did not encompass.” Clark, 617 Fed. Appx. at 504-05. In applying the “new audience” test to the online arena, the Clark court analyzed the two different categories that online republication may fall into, each of which bears a different outcome as to whether a claim for republication exists. Statements “which were initially posted to a prominent, publicly accessible news website” render a straightforward analysis, as follows: [s]tatements that are posted to a forum that is prominently accessible to the online public have a presumptively global audience, and subsequent alterations of format-such as shifting the statement between URLs or moving it from one portion of a webpage or server to another-are not likely to have a measurable effect on the statements' ability to be accessed by a new band of viewers. Because the initial posting has already been directed at most of the universe of probable interlocutors, there is not likely to be any need for a digital equivalent of a rebroadcast or a second print run. See Restatement (Second) of Torts § 577A, cmt. d. Id. at 506. “Thus, run-of-the-mill hyperlinks, website updates, or interface redesigns typically demonstrate neither the intent nor the ability to garner a wider audience than the initial Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 9 of 17 9 iteration of the online statement could reach.” Id., referencing In re Philadelphia Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012). This is not the case here, however. Moreover, the same Court noted that: Difficult questions arise with respect to online statements that were initially published only to limited audiences-perhaps behind a paywall, or available only to social media users privileged to access the posting, or available only through a fee-or privilege- based application or other content delivery system-and then later disseminated to a wider group of third parties or the general public. If the delivery of the online statement is intentionally changed in a manner that enables it to be consumed by a wider audience than before, then it has potentially been republished. Id. The allegations contained in the Amended Complaint make it clear that the republication by Beyer of the Article fall squarely within the latter category of online republications, which represent viable claims for defamation by republication based on the intent and ability to garner a wider audience than with the original publication. Only about 3,000 individuals were “followers” of Sculimbrene who would receive notice of the Article upon its original publication. However, the republication by Beyer expanded the audience of the Article from these 3,000 individuals to an audience of over 200,000 individuals. Moreover, the Amended Complaint alleges that Beyer, “expected and intended to achieve a greater distribution and awareness of [the Article] …” (Am. Compl. ¶ 84). Plaintiffs have pled that Beyer intended to and did in fact expand the audience for the Article, from 3,000 individuals to over 200,000 individuals. Accordingly, Plaintiffs have stated a sufficient basis for their claim for republication-based defamation and disparagement under Clark and its progeny. See also, Pearce v. Manhattan Ensemble Theater, Inc., 2009 U.S. Dist. LEXIS 132904, 2009 WL 3152127, at *8 (S.D.N.Y. Sept. 30, 2009)(“Republication occurs when a subsequent publication: (1) is intended for and reaches a new audience, or (2) materially Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 10 of 17 10 changes or modifies the original.”); Comolli v. Huntington Learning Centers, Inc., 117 F. Supp. 3d 343, 349 (S.D.N.Y. 2015) (the republication exception is applied “‘where the subsequent publication is intended to and actually reaches a new audience.’”). Again, Defendants do not contend that article and the related statements are not defamatory. Beyer’s reliance on In re Philadelphia Newspapers and Slozer v. Slattery, 134 A.3d 497 (Pa. Super. 2015) are likewise inapposite. These cases analyze republication in the context of the statute of limitations and the single publication rule (which is not at issue in this case), and do not analyze whether the republication intended to and did reach a larger audience (which is directly at issue). Moreover, the full quote from Slozer to which Defendant alludes to in his motion to dismiss states as follows: We agree with the reasoning of the Third Circuit and conclude it accurately reflects Pennsylvania law regarding the doctrines of single publication and republication in defamation actions as they apply to internet communications. We further conclude the trial court correctly applied those principles to the facts of the instant case. Holzhafer, by providing a link to the challenged posting, without reiterating the content of that posting did not initiate a republication. Her motivations and her designation of the link with a "like" as alleged by Appellants, is not equivalent to a reiteration of the defamatory content as to constitute republication. 134 A.3d 497. In the instant case, and as evident from the exhibits to the Amended Complaint, Beyer did much more than provide a link to the Article with a “like.” In connection with Beyer’s same- day republication and audience expansion of the Article, Beyer wrote “[t]his is the whole backstory behind the @ztknives #ZT0777 and the knockoff, “the Matrix” by @microtechknives and how the new @kershawknives struck a chord with its latest model, the #7007Natrix …” (Am. Compl., Exhibit F) In connection with Beyer’s same-day republication and audience expansion of the Article by 77,000 individuals through the ZT Knives Instagram page, Beyer Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 11 of 17 11 wrote “[t]his is definitely worth a read - this is the story behind the #ZT0777 & the new @kershawknives #7007Natrix. Read the whole article at: everyday commentary.com.” (Am. Compl., Exhibit G) In connection with Beyer’s same-day republication and audience expansion of the Article by 130,000 individuals through the Kershaw Knives Instagram page, Beyer wrote “[w]onder what the backstory to the new #7007 Natrix is? See why @everydaycommentary calls it “the greatest knife of all time!” #Repost @ ztknives.”) (Am. Compl., Exhibit G) Beyer’s commentary in connection with the republication unequivocally “reiterates the content” of the Article. Beyer’s republication of the Article also adds additional commentary and substantive information regarding Beyer’s expression to the newly expanded audience that all claims in the Article are indeed true. See, Larue v. Brown, 235 Ariz. 440, 333 P.3d 767, 773 (Ariz. Ct. App. 2014) (holding that there was republication when the author of an online article responded to reader comments by re-urging the truth of the article and posting additional substantive information). There is no statute of limitations analysis at issue here and Beyer’s reliance on these arguments here is misplaced. The issue in this case is whether Plaintiffs have stated a republication claim based on the Defendant’s intent to, and achievement of, audience expansion, as pled in the Amended Complaint (intent to expand) and ascertainable from judicial notice (expansion of 3,000 to 200,000 individuals). C. Plaintiffs Have Properly Pled Malice. Beyer moves for dismissal of Count 7 of the Amended Complaint on the basis that the Amended Complaint purportedly does not plead facts to support the conclusion that Beyer acted with actual malice. However, the plain text of Count 7 renders meritless this particular argument. Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 12 of 17 12 A valid commercial disparagement claim involves a publisher who “either knows that the statement is false or acts in reckless disregard of its truth or falsity.” Pro Golf Mfg. v. Tribune Review Newspaper Co., 809 A.2d 243, 246 (Pa. 2002). Further, “[t]he Third Circuit has defined malice as ‘ill will in the sense of spite . . . or its use for an extraneous improper purpose.’” Bartow v. Thomas, 2014 U.S. Dist. LEXIS 89943, at *11 (W.D. Pa. July 2, 2014) (citing Lippay v. Christos, 996 F.2d 1490, 1502 (3d Cir. 1993)). Plaintiffs pled that (i) Beyer made the statements at issue with the intent and expectation of causing financial loss to Microtech, to his and KAI’s benefit, and (ii) Beyer made such statements with knowledge of their falsity and/or with reckless or intentional disregard of their falsity. (Am. Comp., at ¶¶ 126-27) Beyer characterizes the averments in the Amended Complaint as a conclusory recitation of the legal of the legal standard for actual malice and thus insufficient to survive a Rule 12(b)(6) motion to dismiss. The Defendant errs by considering those two averments in a vacuum and ignoring the remainder of the Amended Complaint, which - at a minimum - at least “suggests that [Beyer was] in possession of knowledge that would place a reasonable publisher on notice that [the statements at issue] were false or that they acted with reckless disregard for whether they were true or false.” Reese v. Pook & Pook, LLC, 158 F. Supp. 3d 271, 290 (E.D. Pa. 2016). The Amended Complaint shows Beyer not only republished the Article, but that he vouched for its truthfulness, despite the fact that he knew the information was false. (Am. Comp. at ¶¶ 57-72; Ex. F, G). The Amended Complaint includes facts that, if proven, would establish that KAI published statements it knew or should have known were false for the intended purpose of harming Plaintiffs and KAI’s Motion to Dismiss should be denied. D. Beyer Is Not Entitled To Immunity Under 47 U.S.C. § 230 Because Beyer Is A Content Provider That (i) Is Responsible, In Whole Or In Part, For Creating Or Developing The Article, And (ii) Created Content Himself. Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 13 of 17 13 In an attempt to ignore the fact that Beyer is responsible for amplifying the audience of the Article from 3,000 users to over 200,000 users, Beyer attempts to hide behind the immunity afforded by under Section 509 of the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1). Beyer, however, is not merely a user of an interactive computer service under the CDA, Beyer is properly regarded as an information content provider of an interactive computer service, to which immunity under the CDA does not apply in this circumstances. Based on the facts alleged in this matter, Section 230 does not apply because Beyer did not merely republish a link to the Article - he added content to the Article in republishing them on his websites by confirming the truth about the very nature of the Article. It is well settled that website operators “are providers of interactive computer services.” Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); see Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). There is no dispute that Beyer operates the social media websites located at https://www.instagram.com/ztknives and https://www.instagram.com/kershawknives and is therefore a “provider” of interactive computer systems. As explained in Hare v. Richie, which summarizes and explains a number of cases addressing the CDA: In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn't edit or delete. Thus, "Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others." As the Fourth Circuit explained in its touchstone decision in Zeran v. America Online, Inc., supra, 129 F.3d at 330: "§ 230 precludes courts from entertaining claims that would place a computer Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 14 of 17 14 service provider in a publisher's role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred." It is "immaterial whether this decision comes in the form of deciding what to publish in the first place or what to remove among the published material." Moreover, "an editor's minor changes to the spelling, grammar, and length of third-party content do not strip him of section 230 immunity." 2012 U.S. Dist. LEXIS 122893, * 44-46 (D. Md. Aug. 29, 2012) (most internal citations omitted) (emphasis added). In Ascend Health Corp., the court determined that a website operator was not immune if she “significantly altered” the content she re-posted. The defendant argued “she ‘simply . . . re- post[ed] content provided by a third party.’” Id. at *23 (internal citations omitted). The court stated that: if she in fact only allowed others' content to be posted or re-posted on the blog, even with minor editorial changes on her part, she would be entitled to immunity. However, what plaintiffs allege Wells did goes beyond that conduct. Plaintiffs allege that Wells herself created some of the defamatory statements on her blog. Furthermore, as to the defamatory statements based on information provided by others, it is not evident the extent to which Wells may have made more than mere editorial changes to that information, and the court agrees with plaintiffs that discovery should bear this out. Section 230 immunity does not cover content which Wells created herself or other content, although originating with a third party, which Wells significantly altered. Id. at *23-24. In republishing the Article, and as discussed above, Beyer was not merely reposting a link. Beyer went above and beyond merely sharing a link, as it stated that with regard to its republication of the Article: “[t]his is the whole backstory behind the @ztknives #ZT0777 and the knockoff, “the Matrix” by @microtechknives”; [t]his is definitely worth a read - this is the story behind the #ZT0777 & the new @kershawknives #7007Natrix”; and “[w]onder what the Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 15 of 17 15 backstory to the new #7007 Natrix is? See why @everydaycommentary calls it “the greatest knife of all time!” Supra. Beyer thereby added a statement that the article was true and adopted Sculimbrene’s words as his own. Beyer’s comments made in connection with republishing the Article are beyond the minor editorial changes discussed in Hare that warrant immunity under §230. Instead, Beyer’s commentary to the vastly expanded audience of the original publication of the Article confirm that Beyer is enhancing, verifying and vouching to the audience for the alleged truth of the defamatory statements. CONCLUSION For the foregoing reasons, this Honorable Court should overrule Defendant’s Motion to dismiss and exercise personal jurisdiction over Defendant Beyer. Dated: June 23rd, 2017 Respectfully submitted, DICKIE McCAMEY & CHILCOTE, P.C. By /s/Steven W. Zoffer Steven W. Zoffer, Esq. (PA I.D. #62497) szoffer@dmclaw.com Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 - telephone (412) 392-5367 - facsimile ATTORNEYS FOR PLAINTIFFS ANTHONY L. MARFIONE AND MICROTECH KNIVES, INC. Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 16 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA _______________________________________ : ANTHONY L MARFIONE AND : MICROTECH KNIVES, INC. : : Plaintiffs, : Jury Trial Demanded v. : No. 1:17-cv-00070 : KAI U.S.A., LTD. AND KALE BEYER, : Electronically Filed : Defendants. : _______________________________________ : CERTIFICATE OF SERVICE I, Steven W. Zoffer, Esquire, hereby certify that a true and correct copy of the foregoing Plaintiffs’ Opposition to Kale Beyer’s Motion to Dismiss was electronically filed with the Court and served upon counsel of record via ECF this 23rd day of June, 2017. Respectfully submitted, DICKIE, McCAMEY & CHILCOTE, P.C. By /s/Steven W. Zoffer Steven W. Zoffer, Esq. (PA I.D. #62497) szoffer@dmclaw.com Douglas M. Grimsley (PA I.D. # 92948) dgrimsley@dmclaw.com Michael P. Flynn, Esq. (PA I.D. #206150) mflynn@dmclaw.com Two PPG Place, Suite 400 Pittsburgh, PA 15222-5402 (412) 281-7272 - telephone (412) 392-5367 - facsimile ATTORNEYS FOR PLAINTIFFS ANTHONY L. MARFIONE AND MICROTECH KNIVES, INC 5814777.1 Case 1:17-cv-00070-BR Document 31 Filed 06/23/17 Page 17 of 17
