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.
Richard L. Ravin, HARTMAN & WINNICKI, P.C., and Paul A.
Grote, RIEZMAN BERGER, P.C. for plaintiffs.
D. Reddall and James J. Kretsch, Jr., KRETSCH LAW OFFICE,
PLLC, and Keith J. Miller and Justin T. Quinn, ROBINSON
MILLER LLC for defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
DISMISS AND RENEWED MOTION FOR JUDGMENT ON THE
R. TUNHEIM CHIEF JUDGE
sprawling case is about defamation: a test prep company has
sued a nursing discussion forum and five of its users for
their mildly disparaging remarks about the company's
offerings. Plaintiffs are East Coast Test Prep LLC, doing
business as Achieve Test Prep, and its president Mark Olynyk
(collectively, “ATP”). Defendants are
Allnurses.com and David Smits (administrator of the estate of
company founder Brian Short) (collectively,
“Allnurses”) and users Lisa Dukes and Uhura Russ.
claims that “Allnurses secretly schemed to have false
statements posted about ATP, using ATP's trademark,
thereby attracting potential ATP customers to the site, only
to be scared away from using ATP, and being driven to
ATP's competitors.” (Mem. Opp. Renewed Mot. J.
Pleadings (“Opp. J. Pleadings”) at 2, July 24,
2017, Docket No. 387.) ATP alleges few specific facts in
support of these allegations, and despite two years of trying
it has discovered virtually no evidence that they are true.
As such, its case quickly deflates into a routine defamation
action - one in which most of the statements at issue are not
defamatory, and in which the website enjoys immunity against
defamation claims related to third-party content.
motions are now before the Court. The first is a motion to
dismiss brought by one of the users, Lisa Dukes. (Dukes Mot.
to Dismiss, June 28, 2017, Docket No. 357.) The second is a
renewed motion for judgment on the pleadings brought by
Allnurses. (Renewed Mot. J. Pleadings, June 28, 2017, Docket
No. 363.) Because the majority of ATP's claims against
Dukes and Allnurses are not plausibly alleged and there is no
genuine dispute of material fact as to the others, the Court
will grant both motions, converting them to motions for
summary judgment as necessary.
East Coast Test Prep LLC is a New Jersey corporation doing
business as Achieve Test Prep. (Third Am. Compl.
(“Compl.”) at 1, Jan. 24, 2017, Docket No. 268.)
Plaintiff Mark Olynyk owns East Coast Test Prep and lives in
New Jersey. (Id. ¶¶ 2, 26.)
Allnuses.com, Inc., is a Minnesota corporation operating the
website http://www.allnurses.com, which describes itself as
“the collective voice of the nursing community.”
(Id. ¶¶ 3-4, 39.) Brian Short was the
founder, administrator, and president of Allnurses until his
death on September 10, 2015. (Id. ¶¶ 5-7.)
Defendant David R. Smits is the administrator of Brian
Short's estate. (Id. ¶ 7.)
Lisa Dukes was a “Senior Moderator” of the
Allnurses.com forums during the time period at issue and
remains an active user under the name Pixie.RN. (Id.
¶¶ 17, 112.) She has posted an average of 111 times
per month during her nearly ten years on the forum and
authored 32 articles on the Allnurses site. (Id.
operates discussion forums where registered users can post
comments and “Like” other users' comments.
(Compl. ¶¶ 42-45, 152.) The registration page
states that signing up “implies full acceptance with
our Terms of Service.” (Id. ¶ 88). The
site's terms of service (“TOS”) state, among
other things, that Allnurses will “promote the idea of
lively debate, ” but that users “are not allowed
to post libelous information, ” that “[n]o
potentially libelous information about specific schools,
instructors, or health care facilities/entities should be
posted in these forums, ” and that “[a]ny post
which is violative of any law . . . will be taken down
immediately.” (Id. ¶¶ 88, 98.)
issue is a discussion thread in the “Excelsior College
Online Nursing” forum, titled “Achieve Test
prep…. anyone?” (“the Thread”).
(Id. ¶¶ 63-64.) The Thread, which contains
an extended discussion about the merits of ATP's services
for Excelsior College students, was created in February 2013;
by March 2015 it had 33, 875 views and 88 comments, and by
October 2016 it had 81, 964 views. (Id. ¶¶
Comments by users Pixie.RN,
JustBeachyNurse, monkeyhq, duskyjewel, and LadyFree28 are the
primary subject of this case. These comments fall into three
categories: first, that Excelsior College “warns”
students about third-party test prep companies; second, that
third-party test prep services, including ATP's, are or
will be “redundant” or “obsolete”;
and third, that ATP was or is under federal investigation.
alleges that all five users were compensated by Allnurses for
their participation on the forum. (Id. ¶¶
59, 254-55.) It alleges that Dukes, as Senior Moderator
Pixie.RN, was “in charge” of the Thread.
(Id. ¶¶ 114-15.) The only specific fact it
alleges as to the other four users is their high posting
frequency. (See Id. ¶¶ 237-46, 251-53).
ATP does point to a TOS provision stating that:
[Allnurses] may, from time to time, request that you and
others submit articles or other Content . . . as part of
contests or other requests that provide payment to you or
give you the chance to be paid, give you recognition or allow
you to receive other benefits of publicity.
(Compl. ¶ 99, Ex. A at 47, Docket No. 268-2.) But the
remainder of the provision is focused on ensuring that
Allnurses, not the user, retains rights in such content.
(Id.) Finally, ATP alleges that duskyjewel and
monkeyhq were “insiders” that had a
“special relationship” with Allnurses. (Compl.
¶¶ 249-50.) It offers no specific facts in support
of this allegation other than that two users quit posting
after ATP sent Allnurses a demand letter describing their
posts as defamatory. (Id. ¶¶ 245-48.)
Thread was started on February 12, 2013, by a user soliciting
opinions about ATP. (Compl. ¶ 65, Ex. G at 1.)
JustBeachyNurse was the first to reply, comparing ATP
favorably to competitors but warning of its high cost.
(Id. at 2.)
same day the Thread was posted, Dukes (as Pixie.RN) posted:
“EC warns students about third-party
publishers and test prep companies -- they are not affiliated
with EC, nor does EC endorse their use
(Compl. ¶ 183 (emphasis added).) She did not reference
ATP by name. (Id.)
Internet Archive capture of the linked page (“the
Advisory page”) from January 16, 2013 - less than a
month before the “warns” post - shows that it was
titled “About Test Preparation Services, ” that
it was accessed via a link on the sidebar titled “Exam
Preparation Advisory, ” and that it stated:
There are test-preparation companies that will offer to help
you study for our examinations. Some may imply a relationship
with Excelsior College and/or make claims that their products
and services are all that you need to prepare for our
Excelsior College is not affiliated with any test
preparation firm and does not endorse the products or
services of these companies. No test preparation vendor is
authorized to provide admissions counselling or academic
advising services, or to collect any payments, on behalf
of Excelsior College. Excelsior College does
not send authorized representatives to a student's
Depending upon your individual learning style and needs, you
may consider using the services and products of a test
preparation vendor to help you prepare for an Excelsior
College Examination. Some students have found such materials
beneficial while others have not. The decision to purchase
the services and products of any of these vendors is entirely
up to you.
Excelsior College does not review the materials
provided by test preparation companies for content or
compatibility with Excelsior College Examinations.
(Decl. of John Reddall Supp. Dukes's Mot. to Dismiss
(“Reddall Decl.”) ¶ 2, Ex. A at 1, June 28,
2017, Docket No. 360 (emphasis in original).)
“Redundant” and “Obsolete”
one response to the “warns” post, the Thread went
quiet. It was five months until the next post, and more than
two months until the next post after that. (Compl. ¶ 65,
Ex. G at 4-5.) The latter was favorable to ATP, sparking a
week-long discussion about the merits and costs of test prep
companies. (Id. at 4-7.) After another lull,
conversation resumed in a similar vein the following
February. (Id. at 8-12.)
the February exchange, there were no posts in the Thread
until August 22, 2014, when user hardworkingrn2 revived it to
extoll the virtues of ATP:
ATP's classes provide the structure and visual learning
that so many people need to be successful. The classes are
taught by RN's whose personal knowledge and experience
can be a great support system during this journey. I find
that the best investment is always whatever is going to help
you be most successful in reaching your goals.
(Id. at 12.) A moderator edited the post to remove a
link that violated the TOS. (Id.)
next post was by JustBeachyNurse, who wrote: “ATP and
similar services will be redundant as of
July 1, 2014 [sic] when all challenge exam candidates will be
mandated to take the Excelsior online exam prep classes prior
to becoming eligible to sit the challenge exams.”
(Compl. ¶¶ 134, 139 (emphasis added).) User
monkeyhq “Liked” this comment and referenced it
in a follow-up, writing that “Test Prep companies for
Excelsior Exams will be obsolete by July 1,
2015 . . . it is a total waste of your investment.”
(Id. ¶¶ 132, 135-36 (emphasis in
as Pixie.RN, “Liked” monkeyhq's comment.
(Id. ¶ 132.) ATP alleges that a
“Like” by Senior Moderator Pixie.RN “is
tantamount to an endorsement or certification . . . on behalf
of Allnurses (which holds itself out as fair and impartial),
that what is stated in the post is factually correct.”
(Id. ¶ 167.) As such, ATP alleges,
“Liking” monkeyhq's post “in effect
ratified, restated and republished the statements”
therein, and the action “would be interpreted by a
reasonable person with ordinary intelligence as Pixie.RN and
Allnurses endorsing, approving, and vouching for the
truthfulness of the statements contained in the post.”
(Id. ¶¶ 169, 174.) ATP concedes that
“only one word was posted” but alleges that it
represents “her unqualified agreement and
approval” of the monkeyhqpost. (Id. ¶
173.) It even alleges that the “Like” also
represents “implied endorsement and approval” of
the JustBeachyNurse post referenced in the monkeyhq post.
(Id. ¶¶ 175-76.)
next post was made on September 4, 2014, by user GRN77, who
stated that “Test prep will no longer be available for
Nursing classes but will continue to still be available for
all Gen eds.” (Compl. ¶ 65, Ex. G at 13.) GRN77
was an ATP employee. (Compl. ¶ 95.) Other posts show
that ATP was ending enrollment in nursing classes for new
students in response to a change in Excelsior College policy.
(Compl. ¶ 65, Ex. G at 14-18.) ATP levies no allegations
as to those statements.
September 11, one week after GRN77's post,
reached out to Allnurses to inquire as to whether she could
participate in the Thread. (Compl. ¶ 265.) An
administrator replied the next day, informing her that
participation was “perfectly acceptable . . . as long
as it stays within Terms of Service.” (Id.
¶ 266.) ATP president and owner Mark Olynyk had also
registered an Allnurses account, using the username
learning-is-good. (Id. ¶ 28). His first post in
the Thread was on September 11, and it sparked a two-day
debate that comprises more than half of the Thread's
discussion. (Compl. ¶ 65, Ex. G at 19-40.)
of that back-and-forth debate, LadyFree28 responded to a
series of posts about a competing test prep company that was
under federal investigation, quoting a post by
learning-is-good and responding:
But the discussion is about THIS particular test-prep program
that IS being investigated by the federal government and is
under a current lawsuit; there are too many forums that have
stated the Achieve “deceived” them with their
practices, that is the MAIN focus of this discussion, NOT
“other test prep companies.”
(Compl. ¶ 187.) The next post was by duskyjewel, quoting
a post by learning-is-good and responding: “Sounds like
you should be scared. TCN Achieve equals more than one
[company under federal investigation].” (Id.
¶ 198.) No defendants dispute that the statements about
ATP being under federal investigation were incorrect.
September 16, the Thread was closed to new comments. (Compl.
¶ 270.) An administrator told learning-is-good in a
private message that it had been closed because “There
was a lot of misleading information and instead of trying to
clarify, it was just a circular discussion. The thread had
multiple reports by members including reports of personal
confrontation.” (Id. ¶ 274.) Another ATP
employee (under the username onesmallchange) attempted to
post comments about ATP on another thread, which were
deleted, and the user was eventually banned. (Id.
alleges “upon information and belief” but without
factual support that users were paid to post by Allnurses,
its management, and/or the ABC Company defendants - impliedly
Allnurses advertisers, including Excelsior. (Id.
ATP alleges that an “Open Letter” Allnurses
published to its website on September 12, 2016, is
defamatory. (Id. ¶¶ 351, 391.) The Open
Letter called this action “meritless litigation”
and stated that ATP “has demanded that Allnurses turn
over any personally identifying information in its possession
regarding the users named in the Complaint.”
(Id. ¶¶ 354, 357.) ATP alleges that the
letter did not “fully, fairly and accurately”
describe the case, argues that its litigation is not
meritless, and insists that it sought only particular, not
“any, ” identifying information. (Id.
¶¶ 356, 359, 363-66.)
filed this action in New Jersey state court in November 2014,
alleging defamation, false light, and tortious interference
with prospective economic relations under New Jersey state
law, and soon thereafter added libel, breach of contract,
consumer fraud, and trademark claims. (Notice of Removal
¶¶ 1-4, May 7, 2015, Docket No. 1.) Allnurses
removed the case to the United States District Court for the
District of New Jersey based on the Lanham Act trademark
claim, and filed a motion to dismiss for lack of personal
jurisdiction. (Id. at 1; Allnurses' Mot. to
Dismiss at 1-2, June 4, 2015, Docket No. 18.) The New Jersey
District Court agreed that it lacked jurisdiction, but
transferred the case instead of dismissing it. (Order at 4,
6-9, Aug. 28, 2015, Docket No. 41.)
commenced discovery upon arrival in Minnesota. (Mot. to
Compel, Oct. 23, 2015, Docket No. 56.) Soon thereafter,
Allnurses filed a second motion to dismiss, this time
asserting that ATP failed to state a claim. (Allnurses'
2d Mot. to Dismiss at 2, Jan. 25, 2016, Docket No. 98.)
Because that motion to dismiss was Allnurses' second, and
successive Rule 12(b) motions to dismiss are not permitted
except to raise a subject matter jurisdiction defense, the
Court denied it. E. Coast Test Prep LLC v. Allnurses.com,
Inc. (Sept. 2016 Order), No. 15-3705, 2016 WL
5109137, at *4 (D. Minn. Sept. 19, 2016). Noting that strict
adherence to the rule “may appear to be nothing more
than annoyance” but was nonetheless mandatory, the
Court welcomed Allnurses to file a Rule 12(c) motion for
judgment on the pleadings when the pleadings closed.
Id. at *2, *4. With discovery well underway and the
matter robustly briefed, the Court anticipated that “no
additional briefing [would be] necessary.” Id.
next month, Allnurses filed its Answer and Motion for
Judgment on the Pleadings. (Ans., Oct. 3, 2016, Docket No.
185; Mot. J. Pleadings, Oct. 4, 2016, Docket No. 186.) The
motion was denied because ATP had not yet served the Doe
Defendants, nor had they filed answers; as such, the
pleadings (though running concurrently with discovery) were
not closed. E. Coast Test Prep LLC v. Allnurses.com,
Inc. (Dec. 2016 Order), No. 15-3705, 2016 WL
7383309 (D. Minn. Dec. 20, 2016). On January 24, ATP filed
the Third Amended Complaint. (Compl.) ATP also filed a series
of motions to compel discovery related to the John Doe users,
and litigation over those motions ran into 2017.
(See Mot. to Compel, Sept. 8, 2016, Docket No. 167;
Mot. to Compel, Sept. 12, 2016, Docket No. 172; Mot. to
Compel, Feb. 16, 2017, Docket No. 295.)
2017, the Magistrate Judge determined that a renewed motion
for judgment on the pleadings was timely because no other
defendants would be identified or served. (Order Setting
Deadlines at 2, July 7, 2017, Docket No. 347.) Jennifer
Moeller (duskyjewel), Lisa Dukes (Pixie.RN), and Uhura Russ
(LadyFree28) filed motions to dismiss, and Allnurses filed a
renewed motion for judgment on the pleadings. (Moeller Mot.
to Dismiss, June 26, 2017, Docket No. 350; Dukes Mot. to
Dismiss, June 28, 2017, Docket No. 357; Russ Mot. to Dismiss,
July 2, 2017, Docket No. 369; Renewed Mot. J. Pleadings, June
28, 2017, Docket No. 363.) The Court granted Moeller's
motion, finding that it lacks personal jurisdiction over her.
(Order, Sept. 15, 2017, Docket No. 414.) The Magistrate Judge
issued, and the Court adopted, a Report and ...