Lomax v. WikiMedia Foundation, Inc. et al
| Dennis G. Lomax and Pro Se Party Dennis G. Lomax |
| John Does 1-9 and WikiMedia Foundation, Inc. |
| 3:2019cv30025 |
| February 25, 2019 |
| US District Court for the District of Massachusetts |
| Mark G Mastroianni |
| Katherine A Robertson |
| Assault Libel & Slander |
| 28 U.S.C. § 1332 |
| Plaintiff |
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| Filing 35 Judge Mark G. Mastroianni: ORDER entered. Order of Dismissal. (Lindsay, Maurice) |
| Filing 34 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting #19 Motion to Dismiss for Failure to State a Claim. As an initial matter, and as Plaintiff concedes (Dkt. No. 28 at 4), Defendant Wikimedia Foundation, Inc., is the only properly named defendant in this action, because Plaintiff never sought and obtained leave from the court to add additional defendants. See Knight v. Metlife Inv'rs USA Ins. Co. Ins. Co., 2008 WL 4952037, at *1 (D.N.H. Nov. 14, 2008). Accordingly, although this action is dismissed with prejudice as to Defendant Wikimedia Foundation, Inc., it is dismissed without prejudice to Plaintiff's filing of a new action against the additional defendants Plaintiff sought to add in his amended complaint.On the merits, Plaintiff agrees to the dismissal of Counts 1 and 4, leaving only Count 2 (Defamation) and Count 3 (Civil Conspiracy). Plaintiff's defamation claim is based on Defendant's publication of the fact that it banned Plaintiff's username ("Abd") from editing or posting content on its websites. Defendant's published statement in this regard did not include the reason for this ban, in accordance with its Global Ban Policy, or any other information. (See Dkt. No. 28 at 10 ("Consistent with the Terms of Use, Abd has been banned by the Wikimedia Foundation from editing Wikimedia sites. Please address any questions to trustandsafety(at)wikimedia.org."); see also Dkt. No. 16 at 4 ("The Terms of Use ('TOU') provide that [Defendant] reserves 'the right to suspend or end the services at any time, with or without cause, and with or without notice.'").) Plaintiff admits that he was, in fact, banned, making Defendants statement true. (Dkt. No. 28 at 10.) Nevertheless, he asserts "the reasonable implications of the published ban... were clearly false," because "[t]he public will routinely consider a... ban as an indicator that a reputable organization has carefully investigated claims of harassment or other complaints and has concluded that a user is a serious risk." (Id. at 10-12.) The First Circuit (and this court) has rejected such an argument. See Noonan v. Staples, Inc., 556 F.3d 20, 27 (1st Cir. 2009) (rejecting argument that, under Massachusetts law, "an objectively true statement can give rise to a libel claim if reasonable readers might infer from it other, untrue characteristics of the plaintiff or conduct by him"); see also Doe v. Amherst Coll., 238 F. Supp. 3d 195, 227 (D. Mass. 2017) (holding that statement announcing student was found by college to have violated sexual misconduct policy after full hearing was "objectively true," under Massachusetts defamation law, because the announcement "accurately stated what had occurred"). Defamation, of course, generally requires a false statement, although Defendant acknowledges a "narrow exception" under Massachusetts law whereby a true statement may support a defamation claim if made with "actual malice," in the sense of "ill will" or "malevolent intent." Noonan, 556 F.3d at 26, 29. Nevertheless, as Defendant argues, Plaintiff's allegation that Defendant acted with actual malice in publishing the statement is conclusory and he has not alleged sufficient facts from which the court can plausibly infer actual malice; instead, he relies on mere speculation, which is insufficient. See Amherst Coll., 238 F. Supp. 3d at 27; see also Shay v. Walters, 702 F.3d 76, 82-83 (1st Cir. 2012).Lastly, as to the conspiracy claim, Plaintiff has not alleged facts from which the court can plausibly infer Defendant joined any underlying tort or knowingly provided substantial assistance or encouragement in the alleged scheme. See Taylor v. Am. Chemistry Council, 576 F.3d 15, 35 (1st Cir. 2009). Accordingly, Plaintiff's amended complaint is hereby dismissed and the Clerk is directed to close this case. (Lindsay, Maurice) |
| Filing 33 REPLY to Response to #19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by WikiMedia Foundation, Inc.. (Morrison, Christopher) |
| Filing 32 Judge Mark G. Mastroianni: ELECTRONIC ORDER entered granting #30 Motion for Leave to File Reply Memorandum of Law. ALLOWED. |
| Filing 31 Opposition re #30 MOTION for Leave to File Reply Memorandum of Law filed by Dennis G. Lomax. (Lomax, Dennis) |
| Filing 30 MOTION for Leave to File Reply Memorandum of Law by WikiMedia Foundation, Inc.. (Attachments: #1 Exhibit Proposed Reply)(Morrison, Christopher) |
| Filing 29 Motions Taken Under Advisement: #19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. (Bartlett, Timothy) |
| Filing 28 Opposition re #19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Dennis G. Lomax. (Lomax, Dennis) |
| Filing 27 Copy re #26 Order on Motion to Dismiss for Failure to State a Claim, mailed to Dennis G. Lomax on 7/26/19. (Lindsay, Maurice) |
| Filing 26 Judge Mark G. Mastroianni: ORDER entered as follows: For the reasons stated, The court hereby DENIES AS MOOT Defendants original motion to dismiss (Dkt. No. #8 ). In addition, the court hereby ORDERS Plaintiff to respond to Defendants motion to dismiss his amended complaint (Dkt. No. #19 ) by August 9, 2019. Should Plaintiff fail to file a response to the motion by August 9, 2019, his complaint will be dismissed due to failure to prosecute and failure to obey this order. See e.g., Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 45 (1st Cir. 2002) ([D]isobedience to court orders, in and of itself, constitutes extreme misconduct (and, thus, warrants dismissal)[.]); Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st Cir. 1998) ([A] litigant who ignores a case-management deadline does so at his peril.). It is So Ordered. See the attached order for complete details. (Lindsay, Maurice) |
| Filing 25 ELECTRONIC NOTICE of Case Re-Assignment. Judge Mark G. Mastroianni assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Katherine A. Robertson. (Finn, Mary) |
| Filing 24 Refusal to Consent to Proceed Before a US Magistrate Judge. No document attached to this entry pursuant to General Order 10-1 concerning procedure and counsel in such cases. (Figueroa, Tamara) Modified on 7/24/2019 (Figueroa, Tamara). |
| Filing 23 Copy re #22 Order mailed to Dennis G. Lomax on 7/11/2019. (Rivera, Melissa) |
| Filing 22 Magistrate Judge Katherine A. Robertson: ORDER entered. The Court requests that the parties confer and notify the Court in writing, on or before the close of business on July 25, 2019 , whether or not the parties consent to the reassignment of this case for all proceedings, including the entry of final judgment, to Magistrate Judge Katherine A. Robertson pursuant to 28 U.S.C. 636(c) and Fed. R. Civ. P. 73. See attached order for complete details. (Attachments: #1 Instructions, #2 Consent/Declination Form.) (Rivera, Melissa) |
| Filing 21 DECLARATION re #19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by WikiMedia Foundation, Inc.. (Attachments: #1 Exhibit Wikimedia Terms of Use, #2 Exhibit WMF Global Ban Policy, #3 Exhibit Website Excerpt, #4 Exhibit Bauer v. Glatzer Order, #5 Exhibit Twitter v. Sup. Ct. Order)(Morrison, Christopher) |
| Filing 20 MEMORANDUM in Support re #19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by WikiMedia Foundation, Inc.. (Morrison, Christopher) |
| Filing 19 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by WikiMedia Foundation, Inc..(Morrison, Christopher) |
| Filing 18 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting #17 Motion for leave to electronically file Pro Se. The court grants permission on the condition that the plaintiff satisfies all applicable training and other requirements for pro se litigants as stated in the CM/ECF Administrative Procedures, Page 5. The plaintiff is directed to complete the registration form accessible at https://public.mad.uscourts.gov/ecfreg.html (Rivera, Melissa) |
| Filing 17 MOTION for Leave to file electronically Pro Se by Dennis G. Lomax. (Rivera, Christina) |
| Filing 16 AMENDED COMPLAINT against WikiMedia Foundation, Inc., et. al., filed by Dennis G. Lomax. (Rivera, Christina) |
| Filing 15 Copy re 13 Order on Motion for Extension of Time, 14 Set/Reset Deadlines mailed to Dennis G. Lomax, 40 Fort Street, Apt. 1, Northampton, MA 01060 on June 11, 2019. (Finn, Mary) |
| Filing 14 Set/Reset Deadlines: Plaintiff's Amended Complaint due by 6/17/2019. (Finn, Mary) |
| Filing 13 Magistrate Judge Katherine A. Robertson: ELECTRONIC ORDER entered granting the Parties' Joint #12 Motion for Extension of Time to 6/17/2019 for the Plaintiff to file an Amended Complaint. (Finn, Mary) |
| Filing 12 MOTION for Extension of Time to June 17, 2019 to Plaintiff to file amended complaint by WikiMedia Foundation, Inc..(Morrison, Christopher) |
| Filing 11 CORPORATE DISCLOSURE STATEMENT by WikiMedia Foundation, Inc.. (Doughty, Erik) |
| Filing 10 DECLARATION re #8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , #9 Memorandum in Support of Motion by WikiMedia Foundation, Inc.. (Attachments: #1 Exhibit Wikimedia Terms of Use, #2 Exhibit Bauer v. Glatzer Order, #3 Exhibit Twitter v. Sup. Ct. Order)(Morrison, Christopher) |
| Filing 9 MEMORANDUM in Support re #8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by WikiMedia Foundation, Inc.. (Morrison, Christopher) |
| Filing 8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by WikiMedia Foundation, Inc..(Morrison, Christopher) |
| Filing 7 Mail Returned as Undeliverable. Mail sent to Dennis Lomax. (Figueroa, Tamara) |
| Filing 6 Copy re #3 Notice of Case Assignment to a Magistrate Judge,,, #4 General Order 09-1, #5 Summons Issued, mailed to Dennis G. Lomax on 2/27/19. (Lindsay, Maurice) |
| Filing 5 Summons Issued as to WikiMedia Foundation, Inc.. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Lindsay, Maurice) |
Filing 4
General Order 09-1, dated January 6, 2009 regarding the E-Government Act and Personal Identifiers entered. (Lindsay, Maurice)
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| Filing 3 NOTICE of Case Assignment. Magistrate Judge Katherine A. Robertson assigned to case. Plaintiff's counsel, or defendant's counsel if this case was initiated by the filing of a Notice of Removal, are directed to the Notice and Procedures regarding Consent to Proceed before the Magistrate Judge which can be downloaded #here. These documents will be mailed to counsel not receiving notice electronically. Pursuant to General Order 09-3, until the Court receives for filing either a consent to the Magistrate Judge's jurisdiction or the reassignment of the case to a District Judge, the initial assignment of a civil case to the Magistrate Judge is a referral to the Magistrate Judge under 28 USC 636(b) for all pretrial non-dispositive matters and Report and Recommendations, but not for the Rule 16(b) scheduling conference. (Lindsay, Maurice) (Lindsay, Maurice). |
| Filing 2 Filing fee/payment: $400.00, receipt number SPR003987 for #1 Complaint (Lindsay, Maurice) |
| Filing 1 COMPLAINT against WikiMedia Foundation, Inc., filed by Dennis G. Lomax. (Attachments: #1 Cover & Category Sheets)(Lindsay, Maurice) |
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