Michael K.

Jeanes, Clerk of Court *** Electronically Filed *** 03/09/2010 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2009-002301 03/08/2010

HONORABLE JOSEPH B. HEILMAN

CLERK OF THE COURT T. Tankersley Deputy

STATEWIDE MODULAR HOMES v.

MADELEINE C WANSLEE

DAVID S GINGRAS

RULING MINUTE ENTRY

This Court has read and considered Petitioners Motion to Compel Xcentric Ventures, LLC to Comply with Subpoena Duces Tecum; Non Party Xcentric Ventures, LLCs Response to Motion to Compel and the simultaneously filed briefs filed by both parties arguing certain questions posed by the Court. At issue is the Courts attempt to balance the anonymous speakers First Amendment Rights, against Petitioners alleged damages relating to what it alleges are slanderous statements posted on non-partys web site by the anonymous speakers. The Court finds that the case of Mobilisa v. Doe, 217 Ariz. 103, 170 P.3d 712 (App. 2007) controls the decision in this case. Petitioner complains of three separate statements posted on nonparty, Xcentric Ventures website. The full text of these statements are set forth in the Plaintiffs leadings and will not be repeated here. It suffices to say for purposes of this minute entry that Nicoles statement (Report # 263834) was published on July 28, 2007. Charlies post was obviously in response to Nicoles post, and was published on August 9, 2007. 1 Finally, a Rosie posted a comment
1

Charlies posting clearly challenges the negative implications of Nicholes posting, it is debatable whether this posting is actionable. Form V000A Docket Code 019 Page 1

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2009-002301 03/08/2010

(Report # 366915) on August 26, 2008. The petitioner filed its Petition to Perpetuate Testimony As a Pre-Suit Discovery Device on or about January 23, 2009. August 26, 2008 In Mobilisa, supra, the Court of Appeals, Div. 1, set forth a 3 part test for determining the Petitioners right to seek the identity of anonymous speakers from a nonparty internet web site. First, the moving party must notify the anonymous party of its efforts to identify the speaker by posting a notice via the same web site used by the anonymous party. [Both parties agree that this has been accomplished]. Second, the moving party must show that it could survive a motion for summary judgment filed by the anonymous party on all of the elements not dependent upon knowing the identity of the anonymous speaker. Finally, the Court should balance the strength of the requesting parties case against the need for disclosure of the anonymous posters identity. Id. at Ariz. 110 111. In the case at bar, the Court finds that the strength of the Petitioners case is such that, in all likelihood, it would not survive a motion to dismiss based on the applicable statute of limitations. As Nonparty, Xcentric, notes, both Arizona and New Jersey have a one year statute of limitations with respect to actions on defamation. A.R.S. 12-541; Lim v. Superior Court, 126 Ariz. 481, 616 P2d. 941(App. 1980); Churchill v State, 378 N.J.Super. 471, 876 A.2d 411 (N.J.App. 2005), and under the holdings in both of these cases, the statute begins to run from the date of publication. Lim also makes it clear that the statute of limitations is not tolled for lack of knowledge regarding the true identity of the alleged tortfeasor. Lim, at Ariz. 483, P2d. 943. Thus, Petitioners action must fail as to the both Nicholes and Charlies statements. However, Petitioner argues that its cause of action survives the applicable statute of limitations with respect to the first two statements by virtue of the Restatement (Second) of Torts 577 (A) (1), regarding republication of a defamatory statement which provides that each republication of such a statement is actionable in and of itself. Thus, argues Petitioner, Rosie's statement, being (according to Petitioner) a republication of Nicole's first statement, causes a retriggering of the period of limitations. Firth v. State, 98 N. Y. 2d 365, 371 (2002). Nonparty, Xcentric, counters and the Court finds that, the Communications Decency Act, 47 U.S.C. 230(c)(1), provides: "no ... user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The court concludes that it is therefore impossible for the Petitioner to "bootstrap" the first two statements into a viable cause of action by virtue of Rosie's incorporation of any of their contents after the statute of limitations had run on the first two statements. See Barrett v. Rosenthal, 40 Cal. 4th 33, 62-63, 146 P.3d 510, 529 (2006). Finally, in considering Petitioner's original pleading entitled: Petition to Perpetuate Testimony As a Pre-Suit Discovery Device (Verified), and The Nonparty, Xcentric Ventures' Docket Code 019
Form V000A

Page 2

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2009-002301 03/08/2010

Objection to Petition to Perpetuate Testimony As a Pre-Suit Discovery Device, the only statement left for consideration, that being Rosie's statement of August 26, 2008. In this regard the court accepts the reasoning and arguments set forth in Xcentric's Response To Motion to Compel. The statements committed to Rosie in the actual posting are simply not actionable at all2, or have not been shown by any evidence proffered by Petitioner to be false. 3 As a result, it would be impossible for Petitioner to meet the second requirement of the Mobilisa criteria. The court concludes that the petitioner could not survive a motion for summary judgment on this issue, and as a result: IT IS ORDERED denying Petitioners Motion to Compel Xcentric Venture's LLC To Comply With Subpoena Duces Tecum, and in view of the findings set forth herein, IT IS FURTHER ORDERED, denying Petitioner's Petition to Perpetuate Testimony As a Pre-Suit Discovery Device (Verified).

2 3

e.g. "whether the [Atty. Gen. of New Jersey] is investigating Statewide remains to be determined." e.g. "Numerous Complaints of been brought against Statewide concerning Its business practices, however the complaints are not accessible due to nondisclosure agreements". Form V000A Docket Code 019 Page 3