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Seldon v. Magedson

United States District Court, D. Arizona

April 15, 2014

Philip Seldon, Plaintiff,
v.
Edward Magedson, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiff Philip Seldon has filed a motion to amend his first amended complaint. Doc. 45. Defendant Xcentric Ventures LLC ("Xcentric") has responded and no party has requested oral argument. The Court will deny the motion.

Xcentric has filed a motion for summary judgment. (Doc. 38) The motion is fully briefed and no party has requested oral argument. The Court will grant the motion.

I. Background.

Xcentric operates Ripoffreport.com, which is a website where third parties can post online complaints, reviews, reports of fraud, and similar material. Plaintiff's complaint names Edward Magedson, Xcentric, Ripoffreport.com, Cheyenne Crow, Irina Borisenko, and a number of John and Jane Does as defendants. Plaintiff alleges that Defendants Crow and Borisenko posted false and defamatory reports about him on Ripoffreport.com. Plaintiff also alleges that Xcentric employees intercept and review each post submitted by third parties to Ripoffreport.com and determine whether a post should be included on the website. Because Xcentric's employees sift through potential posts and determine which posts to publish on the website, Plaintiff alleges that Xcentric may be liable for defamatory statements posted by third parties.

Plaintiff also alleges that he entered into an agreement with Xcentric on August 24, 2011, wherein he agreed to trade domain names for advertising on Xcentric's website. The complaint alleges that Xcentric has refused to honor the agreement.

Plaintiff's complaint asserts seventeen counts alleging, among other things, breach of contract, defamation, and intentional infliction of emotional distress.

II. Motion to Amend the First Amended Complaint.

Plaintiff has filed a motion for leave to amend the first amended complaint. Doc. 45. Plaintiff asserts that he wishes to supplement his complaint with "newly obtained information." Id. at 1. In Plaintiff's first amended complaint, he alleged that the reports on Defendant's website were "protected by the Communications Decency Act." Doc. 11 at Doc. 46 at 1. Plaintiff asserts that he has learned that the website is actually not protected by the Communications Decency Act ("CDA"). Doc. 46 at 2. Plaintiff seeks leave to correct his previous reference to the CDA. For several reasons, the Court will deny the motion.

The deadline for filing amended pleadings expired in June of last year. Doc. 18. Deadlines established in case management orders may "be modified only for good cause[.]" Fed.R.Civ.P. 16(b)(4); see Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992) ("The scheduling order controls the subsequent course of the action' unless modified by the court.") (quoting Fed.R.Civ.P. 16(a)). Good cause exists when a deadline "cannot reasonably be met despite the diligence of the party seeking the amendment." Johnson, 975 F.2d at 609; see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

Plaintiff asserts that he did not learn that the website was not covered by the CDA until he had a conversation with a private investigator, but he does not explain why he was unable to discover the same information through reasonable diligence on his own. Indeed, Plaintiff does not address the reasonable diligence requirement of the good cause inquiry. The Court concludes that the amendment deadline could have been met through reasonable diligence. The Court therefore will deny Plaintiff's cross-motion for leave to amend.

The Court also concludes that Plaintiff's proposed amendment would not add any meaningful allegations to his complaint. Plaintiff's amended complaint already asserts a defamation claim against Defendants. Removing a reference to the CDA will not alter this claim, nor will the Court rely on Plaintiff's allegation of law regarding the CDA in deciding this case.

Finally, as with his previous unsuccessful effort to amend his complaint (Doc. 27), Plaintiff has again failed to file a redlined version as required by Local Rule 15.1(a). Doc. 27 at 2-3.

III. Motion for Summary Judgment.

A. Legal Standard.

A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, ...


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