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

United States District Court, D. Minnesota

November 27, 2017

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, Uhura Russ, Counter-claimant,
v.
East Coast Test Prep LLC and Mark Olynyk, Counter-defendants.

          REPORT AND RECOMMENDATION

          STEVEN E. RAU, UNITED STATES MAGISTRATE JUDGE

         The above-captioned case comes before the undersigned on Uhura Russ's (“Russ”) Renewed Motion for Dismissal of Claim (“Third Mot. to Dismiss”) [Doc 369]. This matter was referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1) and District of Minnesota Local Rule 72.1. [Doc. No. 371]. For the reasons stated below, the Court recommends denying Russ's Third Motion to Dismiss without prejudice.

         I. BACKGROUND

         A. Factual Background

         This case is factually dense and was previously described in detail in both this Court's previous Report and Recommendation and an order from the Honorable Janie S. Mayeron. (R&R Dated May 19, 2017, “May R&R”) [Doc No. 336]; (Order Dated June 7, 2017 adopting the May R&R) [Doc. No. 344]; see also (Order Dated Jan. 24, 2017, “Order 267”) [Doc. No. 267 at 2- 20]. For this reason, only those facts pertinent to the instant motion are described here.

         Plaintiff East Coast Test Prep, LLC, d/b/a Achieve Test Prep (“ATP”) provides test preparation services for individuals who intend to enter various career fields, including nursing. (Third Am. Compl., “TAC”) [Doc. No. 268 at ¶ 25]. Defendant Allnurses.com, Inc. (“Allnurses”) runs a website that 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.” (Id. ¶ 39) (internal quotation marks omitted). Members may post comments or questions and receive responses from other members on “a range of topics in the field of nursing, including but not limited to education and required coursework/exams for licensure.” (Id. ¶ 42).

         On February 12, 2013, a member posed a thread entitled “Achieve Test Prep . . .anyone?” that contained “an extended discussion about the advantages and disadvantages of using ATP's test prep services in conjunction with” a registered nurse program at Excelsior College. (Id. ¶¶ 125-26). ATP alleges that several statements in the thread are false and defamatory. See (id. ¶¶ 132-41, 147-51, 185-208).

ATP alleged that all of the false statements about ATP by the John Does [anonymous posters] were made with negligence as to their falsity, with reckless disregard as to whether the statements were true or false, or with knowledge as to their falsity; the statements were made willfully or maliciously; the statements were made in bad faith; and as a result, ATP's business was harmed.

         (Order 267 at 12) (citing Second Amended Complaint, “SAC” ¶¶ 183-85).[1] In addition to defamation, ATP alleges several other claims against the various defendants. See (TAC ¶¶ 380-604).

         As it relates to this motion, ATP alleges defamation, trade libel, and tortious interference with prospective economic advantage against Russ.[2] See (TAC ¶¶ 380-88, 403-08, 565-78).

         B. Procedural Background

         For the purposes of the pending motion, the following procedural history is relevant. On January 27, 2017, Plaintiffs filed the TAC, which is now the operative pleading. See (TAC). Russ now moves to dismiss the TAC.[3] See (Third Mot. to Dismiss).

         The Court heard oral argument on August 22, 2017, and the matter is now ripe for adjudication. See (Minute Entry Dated Aug. 22, 2017) [Doc. No. 407].

         II. ...


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