United States District Court, D. Minnesota
East Coast Test Prep, LLC, d/b/a Achieve Test Prep, and Mark Olynyk, Plaintiffs,
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,
East Coast Test Prep LLC and Mark Olynyk, Counter-defendants.
AMENDED  REPORT AND
E. RAU, UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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,
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.
267 at 12) (citing Second Amended Complaint,
“SAC” ¶¶ 183-85). In addition to
defamation, ATP alleges several other claims against the
various defendants. See (TAC ¶¶ 380-604).
relates to this motion, ATP alleges defamation, trade libel,
and tortious interference with prospective economic advantage
against Russ. See (TAC ¶¶ 380-88,
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. See
(Third Mot. to Dismiss).
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].