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Blockowicz v. Williams

December 21, 2009

DAVID BLOCKOWICZ, MARY BLOCKOWICZ, AND LISA BLOCKOWICZ, PLAINTIFFS,
v.
JOSEPH DAVID WILLIAMS AND MICHELLE RAMEY, DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER

On June 30, 2009, plaintiffs David Blockowicz, Mary Blockowicz, and Lisa Blockowicz (collectively "Blockowiczs") brought this action against defendants Joseph David Williams and Michelle Ramey (collectively "Defendants") for defamation based on statements they posted on various websites.

After finding Defendants default, on October 6, 2009, the court entered a permanent injunction requiring them to, among other things, remove their defamatory postings from the websites. Having not been able to contact the Defendants, the Blockowiczs approached the third party providers of the websites to enlist their help in deleting the postings. All but one provider--ripoffreport.com--have complied. Consequently, the Blockowiczs filed a "Motion for Third Party Enforcement of Injunction" (Dkt. No. 20), seeking an order compelling Ed Magedson and Xcentric Ventures, LLC (collectively "Xcentric"), the operators of ripoffreport.com, to remove the defamatory postings from their website. Xcentric has refused to remove the postings from its site and disputes the court's authority under Federal Rule of Civil Procedure 65 to compel its compliance with the injunction. The court heard counsel's oral arguments on November 10, 2009. For the reasons explained below, the Blockowiczs' motion is denied.

BACKGROUND

On June 30, 2009, the Blockowiczs brought this action against Defendants for defamation based on statements about the Blockowiczs that they posted on various websites including ripoffreport.com, Facebook.com, MySpace.com, and complaintsboard.com.

The court found that Defendants were in default on October 6, 2009 and entered a permanent injunction (Dkt. No. 19) requiring them to, among other things, remove the defamatory postings from the websites. Additionally, the injunction recognized that the Blockowiczs' counsel "may directly contact third party hosts of their websites, who shall make reasonable efforts to ensure the false statements are removed." (Id. at 3.) Having not been able to secure Defendants' cooperation with the injunction, the Blockowiczs approached the third party hosts of the websites to enlist their help in deleting the postings. Ripoffreport.com, operated by Xcentric, is the only website which has refused to remove the postings. Consequently, the Blockowiczs filed a "Motion for Third Party Enforcement of Injunction" (Dkt. No. 20), seeking an order compelling Ed Magedson and Xcentric Ventures, LLC (collectively "Xcentric"), the operators of ripoffreport.com, to remove the defamatory postings from its website. Xcentric has refused to remove the postings and argues that court lacks authority under Federal Rule of Civil Procedure 65 to compel its compliance with the injunction.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 65(d)(2), "an injunction binds not only the parties to the injunction but also nonparties who act with the named party." S.E.C. v. Homa, 514 F.3d 661, 674 (7th Cir. 2008).

The Supreme Court has explained that Rule 65(d) is derived from the common law doctrine that a decree of injunction not only binds the parties defendant but also those identified with them in interest, in "privity" with them, represented by them or subject to their control. In essence . . . defendants may not nullify a decree by carrying out prohibited acts through aiders and abettors, although they were not parties to the original proceeding.

Regal Knitwear Co. v. Nat'l Labor Relations Bd., 324 U.S. 9, 14 (1945). In other words, "a court may find a nonparty in contempt if that person has 'actual knowledge' of the court order and 'either abets the party named in the order or is legally identified with him.'" Homa, 514 F.3d at 674 (quoting Stotler & Co. v. Able, 870 F.2d 1158, 1164 (7th Cir. 1989)).

The court, however, "may not grant an enforcement order or injunction so broad as to make punishable the conduct of persons who act independently and whose rights have not been adjudged according to law." Regal Knitwear, 324 U.S. at 13; see also United States v. Kirschenbaum, 156 F.3d 784, 794 (7th Cir. 1998)("[A] district court may not enjoin non-parties who are neither acting in concert with the enjoined party nor are in the capacity of agents, employees, officers, etc. of the enjoined party."); Microsystems Software, Inc. v. Scandinavia Online AB,226 F.3d 35, 43 (1st Cir. 2000) ("A nonparty who has acted independently of the enjoined defendant will not be bound by the injunction, and, if she has had no opportunity to contest its validity, cannot be found in contempt without a separate adjudication.").

ANALYSIS

The Communications Decency Act ("CDA"), 47 U.S.C. § 230, limits the ability of an aggrieved party to sue an internet website host for defamatory statements posted on its site by third-parties. See 47 U.S.C. § 230(c). Avoiding the CDA's limitations, the Blockowiczs instead sued the authors of the defamatory posts--the Defendants--and sought an injunction requiring that the defamatory postings be removed from the websites. Whether the court can enforce the permanent injunction against third party website providers, such as Xcentric, to compel them to remove defamatory material from their sites appears to be an issue of first impression. For the reasons explained below, the court finds that it should not exercise its authority under the facts in this case.

To enforce the injunction against a non-party under Federal Rule of Civil Procedure 65(d), that party must be acting in concert or legally identified (i.e. acting in the capacity of an agent, employee, officer, etc.) with the enjoined party. Homa, 514 F.3d at 674; Kirschenbaum, 156 F.3d at 794. In this case, the Blockowiczs argue that the on-line agreement Defendants entered into with Xcentric when they posted the defamatory statements on ripoffreport.com demonstrates that Xcentric is in "active concert ...


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