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East Coast Test Prep LLC v. Allnurses.Com, Inc.

United States District Court, D. Minnesota

May 22, 2017

EAST COAST TEST PREP LLC and MARK OLYNYK, Plaintiffs,
v.
ALLNURSES.COM, INC., DAVID R. SMITS, LISA DUKES, JENNIFER MOELLER, UHURA RUSS, ABC COMPANIES, and JOHN DOES, Defendants.

          Richard L. Ravin, HARTMAN & WINNICKI, P.C., Robert A. Lengeling and Thomas M. Beito, BEITO & LENGELING, PA, and Charles S. Kramer and Paul A. Grote, RIEZMAN BERGER, P.C., for plaintiffs.

          Justin Taylor Quinn and Keith John Miller, ROBINSON MILLER LLC, and James J. Kretsch, Jr. and John D. Reddall, KRETSCH LAW OFFICE, PLLC, for defendants Allnurses.com, Inc. and David R. Smits.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM Chief Judge United States District Court

         Plaintiffs East Coast Test Prep LLC, which does business as “Achieve Test Prep, ” and Mark Olynyk (referred to collectively as “ATP”) bring this defamation action against Defendants Allnurses.com, Inc. and David R. Smits (collectively “Allnurses”), as well as several John Doe Defendants - users who posted comments on Allnurses' website under pseudonymous usernames. ATP sought to compel discovery regarding the identities of the remaining anonymous Doe Defendants - JustBeachyNurse and monkeyhq - and to supplement the record of that motion with new information about JustBeachyNurse's prior ties to Allnurses. ATP also moved for leave to amend its complaint to add new factual allegations and claims. United States Magistrate Judge Janie S. Mayeron denied ATP's motion to compel and motion to supplement, but granted ATP's motion for leave to amend its complaint.

         ATP now objects to the Magistrate Judge's denial of its motion to compel and motion to supplement, and Allnurses objects to the Magistrate Judge's grant of ATP's motion for leave to amend the complaint. Because the Court finds no error in the Magistrate Judge's order, the Court will overrule both parties' objections and affirm the Magistrate Judge's order.

         BACKGROUND

         In March 2016, the Court denied a prior motion to compel brought by ATP seeking the identities of the Doe Defendants. East Coast Test Prep LLC v. Allnurses.com, Inc., 167 F.Supp.3d 1018 (D. Minn. 2016). In that order, the Court described a standard that ATP would have to meet for any future motion to compel: (1) ATP would have to “make reasonable efforts to notify the speaker by, for example, attempting notice via the same medium used by the speaker to send or post the at-issue message”; (2) ATP would have to “produce prima facie support for all of the elements of [its] case that are within [its] control”; (3) the Court would consider “whether [ATP] ha[d] identified specific statements” and whether it had “an alternative means of obtaining the information”; and (4) the Court would then weigh ATP's interest in obtaining the information against the possible chilling effect that requiring the disclosure of the information might have on the free exercise of the speaker's First Amendment rights. Id. at 1024-25.

         In light of the first prong of that standard, the parties and the Magistrate Judge worked to establish a notification procedure that would allow the Doe Defendants to respond to the motion to compel if they chose, while still protecting their identities. (See Order on Procedure for Addressing First. Amendment Disc. Issues at 1-4, May 19, 2016, Docket No. 144 (directing the parties to “attempt to agree on ‘Content and Modality of Notice'”).) Following agreement on some aspects of the notice, the Magistrate Judge issued an order resolving remaining disputes and establishing the notice that would be placed on Allnurses' website. (Mem. Op. & Order, Aug. 22, 2016, Docket No. 153.) The Magistrate Judge subsequently amended its order based on agreement by the parties. (Am. Order, Aug. 31, 2016, Docket No. 156.) The notice provided a mechanism by which the Doe Defendants could remain anonymous to ATP, while still providing their contact information to the Court.[1] (Id., Ex. B.) Neither party objected to this order within the time frame provided for by local rule. See D. Minn. LR 72.2(a)(1). ATP filed a new motion to compel on September 12, 2016, seeking identifying information regarding the Doe Defendants. (Pls.' Mot. to Compel Disc., Sept. 12, 2016, Docket No. 172.)

         LadyFree28 and duskyjewel responded to the notice on Allnurses' website by filing redacted objections with the Court and sending unredacted versions to the Magistrate Judge.[2] (Obj. to Mot. to Compel, Sept. 29, 2016, Docket No. 180; Redacted Mot. for Protective Order, Oct. 4, 2016, Docket No. 189.) After those filings, ATP used the information provided in LadyFree28's and duskyjewel's public filings, “in combination with the information provided by the John Doe Defendants themselves, elsewhere, using their Allnurses usernames, ” to discover LadyFree28's and duskyjewel's identities; ATP also learned the identity of a Doe Defendant who did not file objections - Pixie.RN. (Letter Resp. in Opp'n to Req. for Recons. at 1, Nov. 25, 2016, Docket No. 242 (emphasis omitted); see also Suppl. Decl. of Richard L. Ravin ¶¶ 11, 14-15, Nov. 7, 2016, Docket No. 225.)

         On November 10, 2016, ATP moved to amend its complaint to add the true names of LadyFree28, duskyjewel, and Pixie.RN and additional factual allegations related to Allnurses' conduct during litigation. (Pls.' Mot. for Leave to File Third Am. Compl., Nov. 10, 2016, Docket No. 230.)

         Upon learning of ATP's discovery, Allnurses filed a letter seeking permission to file a motion for reconsideration of the order that established the notice to be posted on Allnurses' website. (Letter to Req. Permission to File Mot. to Reconsider, Nov. 23, 2016, Docket No. 237.) Allnurses argued that ATP “used information provided to [it] by both court personnel and the Does to determine the identity of multiple Does prior to resolving the weighty First Amendment issues.” (Id. at 1.)

         The Magistrate Judge denied Allnurses' request on November 29, 2016. (Letter Den. Permission to File Mot. to Reconsider, Nov. 29, 2016, Docket No. 244.) In that letter, the Magistrate Judge rejected Allnurses' argument that the legal notice presented the Doe Defendants with an unfair choice to either (1) respond to the notice and risk revealing their identities or (2) forgo the opportunity to respond and remain anonymous. The Magistrate Judge explained:

The fact that LadyFree28 and duskyjewel chose to share information in their substantive responses that assisted plaintiffs' efforts to discover their identities is not a product of the process set out in the Order for allowing them to mask their identities. In short, the Court created a procedure that would allow the anonymous John Does to oppose plaintiffs' motion without having their identities revealed; it did not create a process in which it could guarantee that a John Doe's identity would not ultimately be discovered based on the substance of their objections or through other means.

(Id. at 5.)

         On December 21, 2016, ATP moved to supplement the record of its motion to compel. (Pls.' Mot. to Suppl. R., Dec. 21, 2016, Docket No. 251.) ATP had recently learned from Allnurses' response to interrogatories that JustBeachyNurse was a moderator on Allnurses' website until August 2013, and ATP asked the court to consider this information while deciding its motion to compel.

         On January 24, 2017, the Magistrate Judge issued an order resolving ATP's motions. (See Order, Jan. 24, 2017, Docket No. 267.) The Magistrate Judge denied ATP's Motion to Compel. The Magistrate Judge denied the motion in part as moot because ATP had already learned the identities of three Doe Defendants - LadyFree28, duskyjewel, and Pixie.RN. The Magistrate Judge then denied ATP's motion as to the remaining Doe Defendants - JustBeachyNurse and monkeyhq - finding that ATP failed to meet the second and fourth prongs of the standard the Court described in its prior order. The Magistrate Judge also denied ATP's motion to supplement the record. The Magistrate Judge found the new information irrelevant to the motion-to-compel analysis. Finally, the Magistrate Judge granted ATP's motion for leave to file an amended complaint, finding it was timely under the scheduling order and that adding the new claims would not be futile.

         ATP now objects to the Magistrate Judge's denial of its motion to compel as to JustBeachyNurse and monkeyhq and the Magistrate Judge's denial of its motion to supplement the record. Allnurses objects to the Magistrate Judge's grant of ATP's motion for leave to amend the complaint.

         ANALYSIS

         I. STANDARD OF REVIEW

         “The standard of review applicable to an appeal of a Magistrate Judge's order on nondispositive pretrial matters is extremely deferential.” Roble v. Celestica Corp., 627 F.Supp.2d 1008, 1014 (D. Minn. 2007). The Court will reverse such an order only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.2(a)(3). “A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Lisdahl v. Mayo Found., 633 F.3d 712, 717 (8th Cir. 2011) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)). “A decision is ‘contrary to law' ...


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