Batzel v. Smith

• Decision Date: 19 April 2005
• Docket Number: No. CV 00-9590 SVW (AJWx).,CV 00-9590 SVW (AJWx).
• Citation: 372 F.Supp.2d 546
• Parties: Ellen L. BATZEL, Plaintiff, v. Robert SMITH, et al., Defendants.
• Court: U.S. District Court — Central District of California

Page 546

372 F.Supp.2d 546

Ellen L. BATZEL, Plaintiff, v. Robert SMITH, et al., Defendants.

No. CV 00-9590 SVW (AJWx).

United States District Court, C.D. California.

April 19, 2005.

Ellen L. Batzel, Marina Del Rey, CA, pro se.

Howard S. Fredman, Howard S. Fredman Law Offices, Los Angeles, CA, M. Joey Lynch, M. Joey Lynch Law Offices, Beverly Hills, CA, for Plaintiff.

Robert Smith, Christiansburg, VA, pro se.

David D. Johnson, Eric D. Brown, Pamela S. Palmer, Steven T. Chinowsky, Latham & Watkins, Stephen J. Newman, Stroock, Stroock & Lavan, Robert P. Long, Kinkle, Rodiger & Spriggs, Los Angeles, CA, for Defendants.

AMENDED ORDER GRANTING DEFENDANT TON CREMERS' MOTION FOR SUMMARY JUDGMENT.

WILSON, District Judge.

I. INTRODUCTION

Defendant Ton Cremers has filed a Motion for Summary Judgment, alleging that Plaintiff's action in this Court is barred by the doctrine of res judicata as a result of the Western District of North Carolina's dismissal of Plaintiff's earlier-filed identical action for failure to prosecute. In addition, pursuant to this Court's order, Defendant Cremers has filed an Amended Special Motion to Strike, which responds to the Ninth Circuit's order vacating and remanding Defendant Cremers' anti-SLAPP motion to this Court. For the reasons discussed in this Order, Defendant Cremers' Motion for Summary Judgment is GRANTED. As such, the Court declines to reach the merits of Defendant Cremers' anti-SLAPP motion.

II. FACTUAL & PROCEDURAL BACKGROUND

A. Factual Background

MSN is an internet website that publishes newsletters concerning art and museum security issues. It is operated out of the Netherlands. Defendant Ton Cremers ("Defendant" or "Cremers") is the creator and sole operator of MSN. Cremers both receives submissions from others and composes his own content for the MSN newsletter. Individuals can subscribe to the newsletter via the MSN website. Cremers maintains a subscriber list to whom he e-mails newsletters and invitations to view the website.

Defendant Bob Smith ("Smith") painted Plaintiff Ellen Batzel's ("Plaintiff's") house in North Carolina. Plaintiff is an entertainment lawyer with art industry business and a number of Jewish clients in California. According to Plaintiff's complaint, Smith asked Plaintiff to take a script to her clients to review. When Plaintiff declined Smith's request, Smith allegedly became angry with Plaintiff.

Thereafter, Smith located the MSN website and sent an e-mail to Cremers. The e-mail indicated that he, Smith, had been working in the home of a lawyer who claimed to be the granddaughter of Heinrich Himler and who bragged about having an art collection stolen from Jewish families by the Nazis. Cremers published the e-mail and related updates on five occasions in September of 1999, allegedly without investigating the veracity of the information received from Smith. The tenor of subsequent publications of this information suggested that MSN itself had investigated the allegations.

Plaintiff learned of the publication of this information from an anonymous emailer on January 4, 2000. She contacted MSN and Defendant Mosler, Inc., MSN's corporate sponsor, and requested a retraction. None was published. Cremers did not advise people who inquired about the Batzel information that the allegations were false. As a result of the publication of Smith's story, Plaintiff alleges that she lost several prominent clients in California and also became the subject of an investigation by the North Carolina Bar.

B. Procedural Background

1. The North Carolina Action

On September 7, 2000, Plaintiff filed two identical actions against the four Defendants in this case — one in United States District Court for the Western District of North Carolina, and one in this Court. The action in the Western District of North Carolina was filed a few hours earlier than the action in this Court. In both cases, the sole basis for federal jurisdiction was diversity.

Plaintiff served Defendants Mosler, Inc. and Smith in the action in this Court. Defendant Mosler, Inc. filed its answer and cross-claim in this Court on October 3, 2000, and Defendant Smith filed his answer in this Court on October 30, 2000. Subsequently, on November 14, 2000, Plaintiff voluntarily dismissed Defendants Mosler, Inc. and Smith from the action in the Western District of North Carolina. On December 22, 2000, Plaintiff served Defendants Cremers and the Netherlands Museums Association with only the complaint in the action before this Court in the Netherlands pursuant to the requirements of the Hague Convention.

On January 29, 2001, the Clerk for the North Carolina District Court sent Plaintiff a notice stating that Plaintiff had not served Cremers or the Netherlands Museums Association, and advising Plaintiff of the consequences of non-service under Rule 4(m). In response to this order, on February 21, 2001, Plaintiff submitted a declaration in the North Carolina court, in which she stated that service had recently been effected in the identical California action, stated that Defendants Cremers and the Netherlands Museum Association would shortly be required to challenge or submit to the jurisdiction of the California court, and requested that the North Carolina court refrain from dismissing the action for sixty days. As such, on February 23, 2001, the North Carolina court issued an order requiring Plaintiff to effect service on Cremers within sixty days or show why service had not been completed. The order stated that if Plaintiff failed to comply, the North Carolina case would be dismissed for failure to prosecute.

Plaintiff never served Defendants Cremers and the Netherlands Museums Association in the North Carolina action, and on April 27, 2001, the North Carolina court issued an order dismissing Plaintiff's case for failure to prosecute. Defendant Cremers and his counsel were not made aware of the North Carolina action until early 2004.

2. The Instant Action

On March 21, 2001, this Court granted summary judgment in favor of Defendant Mosler, and on June 5, 2001, the Court denied Plaintiff's motion for reconsideration of that ruling. On August 6, 2001, the Court entered judgment in favor of Defendant Mosler pursuant to Federal Rule of Civil Procedure 54(b). Further, on April 19, 2001, default was entered as to Defendant Netherlands Museums Association.

On March 26, 2001, Defendant Cremers filed a motion in this Court to dismiss for lack of personal jurisdiction or on forum non-conveniens grounds, and a special motion to strike all claims. This Court heard oral argument on Defendant Cremers' motions on April 23, 2001. On June 5, 2001, this Court issued an order denying Defendant Cremers' motion to dismiss for lack of personal jurisdiction or on forum non-conveniens grounds. On July 27, 2001, the Court issued an order denying Cremers' anti-SLAPP motion to strike Plaintiff's claims, on the ground that Plaintiff was not a "provider or user of an interactive computer service," as required for preemption by the Telecommunications Act.

Defendant Cremers appealed this Court's rulings regarding personal jurisdiction and his anti-SLAPP motion to the United States Court of Appeals for the Ninth Circuit. In an order dated June 24, 2003, the Ninth Circuit dismissed Defendant Cremers' appeal of the Court's ruling regarding personal jurisdiction as untimely. Batzel v. Smith, 333 F.3d 1018, 1023 (9th Cir.2003). In the same order, the Ninth Circuit vacated and remanded the portion of this Court's ruling in which this Court denied Defendant Cremers' anti-SLAPP motion. Id. at 1036. The Ninth Circuit held that, for purposes of the Telecommunications Act, Defendant Cremers was a "provider or user of an interactive computer service," and Defendant Smith was an "information content provider," so § 230(c)(1) of the Telecommunications Act could apply to immunize Defendant Cremers from liability. Id. at 1030-31. The Ninth Circuit went on to hold that

a service provider or user is immune from liability under § 230(c)(1) when a third person or entity that created or developed the information in question furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other "interactive computer service."

Id. at 1034. As such, the Ninth Circuit remanded the matter to this Court "for further proceedings to develop the facts under this newly announced standard and to evaluate what Cremers should have reasonably concluded at the time he received Smith's email." Id. at 1035.

On September 29, 2004, Defendant Cremers filed his Amended Special Motion to Strike, pursuant to the Court's order. Further, on November 29, 2004, Defendant Cremers filed a Motion for Summary Judgment, alleging that Plaintiff's suit before this Court is barred by the doctrine of res judicata as a result of the North Carolina court's dismissal of Plaintiff's identical case for failure to prosecute.

III. DISCUSSION

A. Summary Judgment Standard

Rule 56(c) requires summary judgment for the moving party when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir.1997). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." SEC v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir.1982).

The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). That burden may be met by "`showing' — that is, pointing out to the district court — that there...