582 F. App'x 801
11th Cir.2014Background
- Dowbenko, pro se, sued Google, four Google executives, and anonymous bloggers for defamation, false light, copyright, and RICO.
- He alleged a copyright photo of himself and a defamatory article appeared on Encyclopedia of American Loons hosted at a blog.
- Google allegedly manipulated search results so the article appeared immediately below Dowbenko’s website in Google searches.
- The article was authored by anonymous bloggers; anonymous bloggers were not properly served.
- The district court dismissed the claims, including by default for those not responded to, and affirmed § 230 CDA preemption for defamation claims.
- On appeal, court reviews de novo; false light not recognized in Florida; copyright requires registration; RICO pleading deficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 230 preempt Dowbenko’s defamation claims? | Dowbenko argues preemption does not apply to his defamation claims. | Google/execs contend CDA § 230 preempts state defamation claims. | § 230 preempts defamation claims. |
| Was the copyright claim properly pled given the registration requirement? | Dowbenko asserts registration not required to plead. | Defendants argue lack of registration defeats the claim under § 411(a). | Copyright claim properly dismissed for lack of registration. |
| Does Dowbenko plead a valid RICO claim with the necessary particularity? | Dowbenko alleges a pattern of fraudulent activity by defendants. | Defendants contend lack of RICO predicate acts and Rule 9(b) specificity. | RICO claim fails for lack of predicate acts and specificity. |
Key Cases Cited
- Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001) (CDA immunity on state actions; preemption of conflicting state laws)
- Giordano v. Romeo, 76 So.3d 1100 (Fla. 3d DCA 2011) (website operator immune from posting third-party content under CDA)
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (service provider not liable for publisher's content under CDA)
- Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (registration is a precondition to filing copyright claim)
- Am. Dental Ass'n. v. Cigna Corp., 605 F.3d 1283 (11th Cir. 2010) (RICO pleading requires particularity)
- Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364 (11th Cir. 1997) (RICO allegations require specificity of misrepresentations)
- Haines v. Kerner, 404 U.S. 519 (U.S. 1972) (pro se pleadings are held to less stringent standards)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleadings must state plausible claims, not mere conclusions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (plausibility standard for surviving Rule 12(b)(6) motion)