Review Website Should Get 47 USC 230 Dismissal But Judge Keeps Case Open in “Abundance of Caution”–Frontier Van Lines v. MoverReviews.com
By Eric Goldman
Frontier Van Line Moving & Storage, Inc. v. Valley Solutions, Inc., 2011 WL 2110825 (W.D. Pa. May 24, 2011)
MoverReviews.com is a review website for moving companies. Frontier Van Lines alleges that a MoverReviews user, Schmidt, made 2 defamatory posts and that MoverReviews “published, authored, created, or acted in concert with Schmidt in authoring, creating, and posting and in failing to remove the alleged defamatory statements.”
Pled this way, it should be an easy 47 USC 230 dismissal. Calling MoverReviews the “publisher” seals the deal; and the rest of the verbs are the kind of bald-faced factually unsupported assertions that a plaintiff proffers to get around the obvious 47 USC 230 problem. To bolster this plead-around, Frontier Van Lines makes the typical move of invoking the Roommates.com decision.
The court does a few savvy things in response. First, the court recognizes that MoverReviews is more like the “free text” area in Roommates.com, which the Roommates.com case said qualified for 47 USC 230, because Frontier Van Lines didn’t allege that MoverReviews “shaped” the allegedly defamatory reviews. Second, because of Frontier Van Lines’ unsupported conclusory allegations, the court says that “Frontier has failed to ‘nudge’ its claims ‘across the line from conceivable to plausible.’” (citing Iqbal).
Yet, like some other courts faced with an obvious 47 USC 230 immunity recently (see, e.g., Smith v. TRUSTe, Kruska v. Perverted Justice Foundation and Robins v. Spokeo), the court just couldn’t bring itself to grant a 12(b)(6) motion to dismiss. Instead, the court says:
out of an abundance of caution, the Court will provide Frontier an opportunity to develop the record with respect to this issue; and therefore, will deny the motion to dismiss without prejudice for Valley Solutions to file a prompt motion for summary judgment after the exchange of the Rule 26(a)(1) disclosures, and limited discovery
If the court thinks Frontier Van Lines could replead a plausible claim, it should have dismissed the complaint with a leave to amend. That’s what I think Iqbal requires. Instead, the court put the financial burden on the defendant to engage in discovery and file a summary judgment motion. Even if the discovery is “limited,” MoverReviews shouldn’t have to bear that costs if Frontier Van Line can’t make the threshold showing. If the court was going to impose these costs on the defendant, I think it should have said that Frontier Van Lines has a choice: it can tuck its tail between its legs and go away now at no cost, or it can pay for the costs that MoverReviews incurs to fulfill these obligations if MoverReviews wins its summary judgment motion (which seems highly likely).
Notice that this case probably comes out very differently in California under its generous anti-SLAPP protections. So long as the reviews addressed, even tangentially, a matter of public interest, then a CA court almost certainly would have granted MoverReviews’ anti-SLAPP motion and made Frontier Van Lines pay MoverReviews’ attorneys’ fees. So even though this case is mostly a strong defense-side win, it’s also a great case study of why we need federal anti-SLAPP legislation.