E. Coast Test Prep LLC v. Allnurses.com, Inc., CIVIL NO. 15–3705 (JRT/JSM)

• Decision Date: 24 January 2017
• Docket Number: CIVIL NO. 15–3705 (JRT/JSM)
• Citation: 309 F.Supp.3d 644
• Parties: EAST COAST TEST PREP LLC, d/b/a Achieve Test Prep, and Mark Olynyk, Plaintiffs, v. ALLNURSES.COM, INC.; David R. Smits, as Administrator for the Estate of Brian Short; ABC Companies 1–10; and John Does 1–10, Defendants.
• Court: U.S. District Court — District of Minnesota

309 F.Supp.3d 644

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

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

CIVIL NO. 15–3705 (JRT/JSM)

United States District Court, D. Minnesota.

Signed January 24, 2017

Charles S. Kramer, Pro Hac Vice, Paul A. Grote Pro Hac Vice, Riezman Berger, P.C., St. Louis, MO, Richard L. Ravin, Pro Hac Vice, Hartman & Winnicki, P.C., Ridgewood, NJ, Robert A. Lengeling, Thomas M. Beito, Beito & Lengeling, PA, Minneapolis, MN, for Plaintiffs.

Uhura Russ, Philadelphia, PA, pro se.

ORDER

JANIE S. MAYERON, United States District Court

The above matter came before the undersigned on the following motions: Plaintiffs' motion to Compel Discovery of the Identities of John Doe Defendants [Docket No. 167]; Plaintiffs' Motion for Leave to File a Third Amended Complaint [Docket No. 230]; LadyFree28's Motion for a Protective Order [Docket No. 189]; and Plaintiffs' Motion to Supplement the Record [Docket No. 251]. Richard L. Ravin, Esq. and Paul A. Grote, Esq. appeared on plaintiffs' behalf. John D. Reddall, Esq., Justin Taylor Quinn, Esq. and Keith John Miller, Esq. appeared on defendants' behalf. John Doe LadyFree28 is self-represented and did not appear at hearing.¹ John Doe duskyjewel is self-represented and did not appear at the hearing. The Court, being duly advised in the premises, upon all of the files, records and proceedings herein, and for the reasons described in the Memorandum below now makes and enters the following Order.

IT IS HEREBY ORDERED :

1. Plaintiffs' Motion to Compel Discovery of the Identities of John Does [Docket No. 167] is DENIED in part as MOOT and DENIED in part on the merits.

2. ATP's request that it be allowed to conduct further discovery pertaining to the identities of the John Does based on information obtained from ATP's current and future discovery requests without requiring further orders of the Court is DENIED.

3. LadyFree28's Motion for Protective Order [Docket No. 189] is DENIED .

4. Plaintiffs' Motion for Leave to Serve a Third Amended Complaint [Docket No. 230] is GRANTED. Plaintiff shall immediately serve and file its Third Amended Complaint consistent with this Order. Defendants shall respond in the time described by the Federal Rules of Civil Procedure.

5. Plaintiffs' Motion to Supplement the Record [Docket No. 251] is DENIED.

MEMORANDUM

I. MOTION TO COMPEL DISCOVERY OF IDENTITIES OF JOHN DOE DEFENDANTS [Docket No. 167]

A. Introduction

Plaintiffs East Coast Test Prep, LLC, d/b/a Achieve Test Prep and Mark Olynyk (collectively, "ATP") have been seeking since the inception of this suit to learn the identity of five individual defendants who go by the user names of JustBeachyNurse, monkeyhq, LadyFree28, duskyjewel and Pixie.RN (collectively, "John Does") and who ATP claims posted defamatory comments on a website maintained by defendant Allnurses.com, Inc. ("Allnurses"). Recently, ATP has learned the identity of three of the five John Does (LadyFree28, duskyjewel and Pixie.RN), but still does not know the identity of the remaining two posters (JustBeachyNurse and monkeyhq). Allnurses knows the identity of JustBeachyNurse, but does not know the identity of monkeyhq. See Declaration of Richard Ravin filed on December 21, 2016, Ex. A–1 (Defendants' Amended First Set of Answers to Plaintiffs' First Set of Interrogatories) at pp. 3–4 (Answer to Interrogatory No. 1(ii) ) [Docket No. 254–1]. ATP believes that Allnurses possesses the Internet Protocol ("IP") addresses for each session when a John Doe posted comments on the Allnurses' website. Additionally, Allnurses has stated that it has information on one or more of its database files containing personal identifying information for each John Doe. Id., pp. 5–6 (Answer to Interrogatory No. 1(iii) ). ATP now seeks an order from this Court requiring Allnurses to reveal the identifying information, including the IP addresses, it possesses for JustBeachyNurse and monkeyhq. ATP intends to use this information to identify the third-party Internet Service Providers ("ISPs") and the Online Service Providers ("OSPs") used by these John Does when they made their postings.² Armed with that information, ATP will then serve subpoenas on these ISPs and OSPs to learn the identities of JustBeachyNurse and monkeyhq.

Allnurses has objected to revealing any identifying information in its possession, including IP addresses, which could ultimately lead to the discovery of the identity of the John Doe posters, claiming that each such poster has a right under the First Amendment to speak anonymously and Allnurses should not be required to divulge this protected information in contravention of their rights. Two posters, LadyFree28 and duskyjewel, have also objected to ATP's efforts to obtain identity information from Allnurses. Today, this Court decides that ATP has not met its burden to obtain the identifying information regarding JustBeachyNurse and monkeyhq in the possession of Allnurses. Further, the Court concludes that ATP's motion to compel this identifying information from Allnurses as to LadyFree28, duskyjewel and Pixie.RN is moot as ATP already knows their identity.

B. Factual Background

The facts upon which ATP relied to support its motion to compel and that are relevant to the instant motions are set forth in the Second Amended Complaint ("SAC") and the declarations submitted on behalf of ATP by Richard Ravin, counsel for ATP, Mark Olynyk, plaintiff and owner of ATP, and James Roberts, Ph.D., an expert retained by ATP to opine on damages suffered by ATP as consequence of the alleged defamatory statements made by the John Does. See Docket Nos. 97, 159–161. These facts are as follows.

ATP provides test preparation services for individuals seeking entry into various careers, including nursing. SAC, ¶ 19; Declaration of Mark Olynyk ("Olynyk Decl."), ¶ 5 [Docket No. 159]. Allnurses is a Minnesota corporation founded by Brian Short.³ SAC, ¶¶ 3, 5 (collectively, "Allnurses"). ATP is not a college and does not issue degrees or give college credit. Id., ¶ 27; Olynyk Decl., ¶ 8. Instead, ATP's services are designed to prepare nursing students for standardized exams that enable them to get full credit for college courses without taking the courses, a process known as credit-by-examination. SAC, ¶ 28. The standardized exams are given by an independent college or an independent testing center, and enable the student to earn credit towards a nursing degree such as a Bachelor of Science in Nursing or Associates of Science in Nursing from such college. Id., ¶¶ 27, 29; Olynyk Decl., ¶ 9. This credit-by-examination method allows a student to "test-out" of certain required courses for a particular college to satisfy the credit requirements of the schools, and thus, save the student time and money by not having to pay for and take the required courses at the college. SAC, ¶ 63.

Excelsior College is one of the colleges for which ATP provides test preparation classes, as well as many other accredited colleges throughout the country. SAC, ¶ 62. Generally, students seeking a degree from colleges such as Excelsior College choose to either (i) enroll in a college, register for courses and attend classes for those courses with the goal of passing those courses and earning credit towards their degrees, or (ii) enroll in a test preparation program such as ATP and then challenge and pass the college equivalency exam. Id., ¶ 71. By enrolling in a college and taking courses, the students pay tuition, the amount of which is often determined by the number of course credits being taken by the student. Id., ¶ 72.

Excelsior College offers its students the option to earn credit-by-exam, and it also offers test preparation programs. SAC, ¶ 65 (citing SAC, Ex. A, pp. 37–40 (Screen Shot Set 10) ). ATP also provides test preparation programs for these test-out exams. Id., ¶ 70. By enrolling in a test preparation program such as that offered by ATP, students can save time and money because the test preparation programs usually cost less, and require less time, than enrolling in a course and completing all the course work that goes along with a regular college course. Id., ¶ 73. Excelsior College is a competitor of ATP because each competes for education dollars to be spent by students in pursuit of degrees. Id., ¶ 74.

Excelsior College announced on its website at URL http://www.excelsior.edu/nursing-theory-examination-changes that beginning in July 2015, it would offer registrations for its test-out exam preparation for its nursing degrees to start in Fall 2015. SAC, ¶ 75 (citing SAC, Ex. A, pp. 37–40 (Screen Shot Set 10) ).

Allnurses runs a website at "allnurses.com" which describes itself as "the collective voice of the nursing community, supporting the profession by providing a place where nurses can network, share and learn from their peers." (http://allnurses.com/aboutus-info.html, accessed on March 2, 2015). SAC, ¶¶ 4, 31; Olynyk Decl., ¶ 10. This website provides a platform for its members to post comments or questions and receive feedback and responses from members on a range of topics in the field of nursing, including but not limited to education and required coursework or exams for licensure. SAC, ¶ 34; Olynyk Decl., ¶ 14.

To post a comment or participate in the online discussion on the Allnurses' website, a user must register with Allnurses, but Allnurses' Terms of Service ("TOS") do not require registrants to use their real or legal names or to reveal their true identities when they register to use the website. SAC, ¶¶ 35, 78, 81; Olynyk Decl., ¶ 15. Rather, to register as a member on Allnurses, a user must create a unique username and provide a password, an e-mail address and check a box that states "I'm not a robot". SAC, ¶ 77 (citing SAC, Ex. A, pp. 43–44 (Screen Shot Set 12) ). The TOS also includes the following provisions governing the operation...