E. Coast Test Prep LLC v. Allnurses.com, Inc.

• Decision Date: 29 January 2018
• Docket Number: Civil No. 15–3705 (JRT/SER)
• Citation: 307 F.Supp.3d 952
• Parties: EAST COAST TEST PREP LLC d/b/a Achieve Test Prep and Mark Olynyk, Plaintiffs, v. ALLNURSES.COM, INC., ABC Companies 1–10, John Does 1–10, David R. Smits, as Administrator of the Estate of Brian Short, Lisa Dukes, and Uhura Russ, Defendants.
• Court: U.S. District Court — District of Minnesota

307 F.Supp.3d 952

EAST COAST TEST PREP LLC d/b/a Achieve Test Prep and Mark Olynyk, Plaintiffs,

v.ALLNURSES.COM, INC., ABC Companies 1–10, John Does 1–10, David R. Smits, as Administrator of the Estate of Brian Short, Lisa Dukes, and Uhura Russ, Defendants.

Civil No. 15–3705 (JRT/SER)

United States District Court, D. Minnesota.

Signed January 29, 2018

Richard L. Ravin, HARTMAN & WINNICKI, P.C., 74 Passaic Street, Ridgewood, NJ 07450, and Paul A. Grote, RIEZMAN BERGER, P.C., 7700 Bonhomme Avenue, Seventh Floor, Saint Louis, MO 63105, for plaintiffs.

John D. Reddall and James J. Kretsch, Jr., KRETSCH LAW OFFICE, PLLC, 17850 Kenwood Trail, Second Floor, Lakeville, MN 55044, and Keith J. Miller and Justin T. Quinn, ROBINSON MILLER LLC, One Newark Center, Nineteenth Floor, Newark, NJ 07102, for defendants.

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS AND RENEWED MOTION FOR JUDGMENT ON THE PLEADINGS

JOHN R. TUNHEIM, Chief Judge

This sprawling case is about defamation: a test prep company has sued a nursing discussion forum and five of its users for their mildly disparaging remarks about the company's offerings. Plaintiffs are East Coast Test Prep LLC, doing business as Achieve Test Prep, and its president Mark Olynyk (collectively, "ATP"). Defendants are Allnurses.com and David Smits (administrator of the estate of company founder Brian Short) (collectively, "Allnurses") and users Lisa Dukes and Uhura Russ.

ATP claims that "Allnurses secretly schemed to have false statements posted about ATP, using ATP's trademark, thereby attracting potential ATP customers to the site, only to be scared away from using ATP, and being driven to ATP's competitors." (Mem. Opp. Renewed Mot. J. Pleadings ("Opp. J. Pleadings") at 2, July 24, 2017, Docket No. 387.) ATP alleges few specific facts in support of these allegations, and despite two years of trying it has discovered virtually no evidence that they are true. As such, its case quickly deflates into a routine defamation action—one in which most of the statements at issue are not defamatory, and in which the website enjoys immunity against defamation claims related to third-party content.

Two motions are now before the Court. The first is a motion to dismiss brought by one of the users, Lisa Dukes. (Dukes Mot. to Dismiss, June 28, 2017, Docket No. 357.) The second is a renewed motion for judgment on the pleadings brought by Allnurses. (Renewed Mot. J. Pleadings, June 28, 2017, Docket No. 363.) Because the majority of ATP's claims against Dukes and Allnurses are not plausibly alleged and there is no genuine dispute of material fact as to the others, the Court will grant both motions, converting them to motions for summary judgment as necessary.

BACKGROUND

I. THE PARTIES

Plaintiff East Coast Test Prep LLC is a New Jersey corporation doing business as Achieve Test Prep. (Third Am. Compl. ("Compl.") at 1, Jan. 24, 2017, Docket No. 268.) Plaintiff Mark Olynyk owns East Coast Test Prep and lives in New Jersey. (Id. ¶¶ 2, 26.)

Defendant Allnurses.com, Inc., is a Minnesota corporation operating the website http://www.allnurses.com, which describes itself as "the collective voice of the nursing community." (Id. ¶¶ 3–4, 39.) Brian Short was the founder, administrator, and president of Allnurses until his death on September 10, 2015. (Id. ¶¶ 5–7.) Defendant David R. Smits is the administrator of Brian Short's estate. (Id. ¶ 7.)

Defendant Lisa Dukes was a "Senior Moderator" of the Allnurses.com forums during the time period at issue and remains an active user under the name Pixie.RN. (Id. ¶¶ 17, 112.) She has posted an average of 111 times per month during her nearly ten years on the forum and authored 32 articles on the Allnurses site. (Id. ¶¶ 157–60).

II. FACTUAL BACKGROUND

Allnurses operates discussion forums where registered users can post comments and "Like" other users' comments. (Compl. ¶¶ 42–45, 152.) The registration page states that signing up "implies full acceptance with our Terms of Service." (Id. ¶ 88). The site's terms of service ("TOS") state, among other things, that Allnurses will "promote the idea of lively debate," but that users "are not allowed to post libelous information," that "[n]o potentially libelous information about specific schools, instructors, or health care facilities/entities should be posted in these forums," and that "[a]ny post which is violative of any law ... will be taken down immediately." (Id. ¶¶ 88, 98.)

At issue is a discussion thread in the "Excelsior College Online Nursing" forum, titled "Achieve Test prep.... anyone?" ("the Thread"). (Id. ¶¶ 63–64.) The Thread, which contains an extended discussion about the merits of ATP's services for Excelsior College students, was created in February 2013; by March 2015 it had 33,875 views and 88 comments, and by October 2016 it had 81,964 views. (Id. ¶¶ 125–29.)

Comments¹ by users Pixie.RN, JustBeachyNurse, monkeyhq, duskyjewel, and LadyFree28 are the primary subject of this case. These comments fall into three categories: first, that Excelsior College "warns" students about third-party test prep companies; second, that third-party test prep services, including ATP's, are or will be "redundant" or "obsolete"; and third, that ATP was or is under federal investigation.

ATP alleges that all five users were compensated by Allnurses for their participation on the forum. (Id. ¶¶ 59, 254–55.) It alleges that Dukes, as Senior Moderator Pixie.RN, was "in charge" of the Thread. (Id. ¶¶ 114–15.) The only specific fact it alleges as to the other four users is their high posting frequency. (See id. ¶¶ 237–46, 251–53). ATP does point to a TOS provision stating that:

[Allnurses] may, from time to time, request that you and others submit articles or other Content for publication ... as part of contests or other requests that provide payment to you or give you the chance to be paid, give you recognition or allow you to receive other benefits of publicity.

(Compl. ¶ 99, Ex. A at 47, Docket No. 268–2.) But the remainder of the provision is focused on ensuring that Allnurses, not the user, retains rights in such content. (Id. ) Finally, ATP alleges that duskyjewel and monkeyhq were "insiders" that had a "special relationship" with Allnurses. (Compl. ¶¶ 249–50.) It offers no specific facts in support of this allegation other than that two users quit posting after ATP sent Allnurses a demand letter describing their posts as defamatory. (Id. ¶¶ 245–48.)

A. "Warns"

The Thread was started on February 12, 2013, by a user soliciting opinions about ATP. (Compl. ¶ 65, Ex. G at 1.) JustBeachyNurse was the first to reply, comparing ATP favorably to competitors but warning of its high cost. (Id. at 2.)

On the same day the Thread was posted, Dukes (as Pixie.RN) posted: "EC warns students about third-party publishers and test prep companies—they are not affiliated with EC, nor does EC endorse their use (http://www.excelsior.edu/about-test-...ationservices)." (Compl. ¶ 183 (emphasis added).) She did not reference ATP by name. (Id. )

An Internet Archive capture of the linked page ("the Advisory page") from January 16, 2013—less than a month before the "warns" post—shows that it was titled "About Test Preparation Services," that it was accessed via a link on the sidebar titled "Exam Preparation Advisory," and that it stated:

There are test-preparation companies that will offer to help you study for our examinations. Some may imply a relationship with Excelsior College and/or make claims that their products and services are all that you need to prepare for our examinations.

Excelsior College is not affiliated with any test preparation firm and does not endorse the products or services of these companies. No test preparation vendor is authorized to provide admissions counselling or academic advising services, or to collect any payments, on behalf of Excelsior College. Excelsior College does not send authorized representatives to a student's home.

Depending upon your individual learning style and needs, you may consider using the services and products of a test preparation vendor to help you prepare for an Excelsior College Examination. Some students have found such materials beneficial while others have not. The decision to purchase the services and products of any of these vendors is entirely up to you.

Excelsior College does not review the materials provided by test preparation companies for content or compatibility with Excelsior College Examinations.

(Decl. of John Reddall Supp. Dukes's Mot. to Dismiss ("Reddall Decl.") ¶ 2, Ex. A at 1, June 28, 2017, Docket No. 360 (emphasis in original).)²

B. "Redundant" and "Obsolete"

After one response to the "warns" post, the Thread went quiet. It was five months until the next post, and more than two months until the next post after that. (Compl. ¶ 65, Ex. G at 4–5.) The latter was favorable to ATP, sparking a week-long discussion about the merits and costs of test prep companies. (Id. at 4–7.) After another lull, conversation resumed in a similar vein the following February. (Id. at 8–12.)

After the February exchange, there were no posts in the Thread until August 22, 2014, when user hardworkingrn2 revived it to extoll the virtues of ATP:

ATP's classes provide the structure and visual learning that so many people need to be successful. The classes are taught by RN's whose personal knowledge and experience can be a great support system during this journey. I find that the best investment is always whatever is going to help you be most successful in reaching your goals.

(Id. at 12.) A moderator edited the post to remove a link that violated the TOS. (Id. )

The next post was by JustBeachyNurse, who wrote: "ATP and similar services will be redundant as of July 1, 2014 [sic] when all challenge exam candidates will be mandated to take the Excelsior online exam prep classes prior to becoming eligible to sit the challenge exams." (Compl. ¶¶ 134, 139 (emphasis added).) User monkeyhq "Liked" this comment and referenced it in a...