Case 1:10-cv-00897-RJL Document 34 Filed 07/28/10 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANIEL PARISI, et al., )

)
Plaintiffs, )
)
vs. )
) Civil Case No. 1:10-cv-00897 (RJL)
LAWRENCE W. SINCLAIR , )
)
BOOKS-A-MILLION, INC., et al., )
)
Defendants. )
)

DEFENDANT BOOKS-A-MILLION, INC.’S MOTION TO DISMISS

Defendant Books-A-Million, Inc., by and through its undersigned attorneys and pursuant

to FED. R. CIV. P. 12(b)(6), moves for dismissal of Plaintiffs’ claims against it for failure to state

a claim upon which relief can be granted. In support thereof, Books-A-Million tenders the

memorandum in support and attached Exhibit A filed contemporaneously herewith, which are

incorporated by this reference as if fully set forth herein. Books-A-Million further requests that

the Court take judicial notice of Exhibit A, a document from its own files in a related case,

Daniel Parisi, et al. v. Ingram Content Group, Inc., et al., 1:10-cv-00974 (RJL).

WHEREFORE, defendant Books-A-Million, Inc. respectfully requests that the Court

enter its order dismissing the claims against it, awarding Books-A-Million, Inc. its costs and

granting such other and further relief as the Court deems necessary and just under the

circumstances.

Dated: July 28, 2010

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 Case 1:10-cv-00897-RJL Document 34 Filed 07/28/10 Page 2 of 2

HUSCH BLACKWELL SANDERS LLP

By: /s/ Steven J. Weber

Steven J. Weber # 412165
750 17th Street N.W., Suite 1000
Washington, D.C. 20006
Telephone: (202) 378-2300
Facsimile: (202) 378-2319
E-mail: steven.weber@huschblackwell.com

Ralph W. Kalish, Jr. (pro hac vice)

R. Prescott Sifton, Jr. (pro hac vice)
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Telephone: (314) 480-1500
Facsimile: (314) 480-1505
E-mail: scott.sifton@huschblackwell.com

Attorneys for Defendant Books-A-Million, Inc.

CERTIFICATE OF SERVICE

The undersigned certifies that on July 28, 2010 the foregoing was filed electronically
with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon
Richard J. Oparil and Kevin M. Bell of Patton Boggs LLP, attorneys for plaintiffs; Stephen
Smith, Mathew Segal, Kari Vander Stoep and John Longstreth of K&L Gates LLP, attorneys for
defendant Amazon.com, Inc. and Linda Steinman and John Eastburg of Davis Wright Tremaine
LLP, attorneys for defendant Barnes & Noble, Inc. and Barnesandnoble.com, Inc. The
undersigned further certifies that a copy of the foregoing was mailed to Lawrence W. Sinclair,
Nine Spring Drive, Fort Orange, FL 32129 this 28th day of July, 2010 via first-class U.S. Mail,
postage pre-paid.

/s/ Steven J. Weber

Attorney

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 Case 1:10-cv-00897-RJL Document 34-1 Filed 07/28/10 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANIEL PARISI, et al., )

)
Plaintiffs, )
)
vs. )
) Civil Case No. 1:10-cv-00897 (RJL)
LAWRENCE W. SINCLAIR , )
)
BOOKS-A-MILLION, INC., et al., )
)
Defendants. )
)

MEMORANDUM IN SUPPORT OF DEFENDANT BOOKS-A-MILLION,

INC.’S MOTION TO DISMISS

Plaintiffs’ claims against defendant Books-A-Million, Inc. must be dismissed pursuant to

47 U.S.C. § 230 of the Communications Decency Act because Plaintiffs seek to treat Books-A-

Million as a publisher of allegedly defamatory material provided by a third party. Plaintiffs also

fail to allege adequately that Books-A-Million actually knew statements in defendant Larry

Sinclair’s book were false, precluding book distributor liability. Plaintiffs’ claims against

Books-A-Million must therefore be dismissed for failure to state a claim upon which relief can

be granted.

FACTUAL BACKGROUND

Plaintiffs Daniel Parisi, Whitehouse.com, Inc., Whitehouse Network LLC and White

House Communications Inc. allege defendant Larry Sinclair’s book Barack Obama & Larry

Sinclair: Cocaine, Sex, Lies & Murder? defames them in several respects. Complaint ¶¶ 32-33.

In addition to their claims against Sinclair and his publishing company, Plaintiffs also sued

Books-A-Million and other booksellers for selling Sinclair’s book. Id. ¶ 34.

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Apart from statements in the book itself, Plaintiffs claim a synopsis of Sinclair’s book

appearing on Books-A-Million’s website also defamed them. Id. ¶ 38. Third parties Ingram

Content Group, Inc. and/or Lightning Source Inc. “wrote, distributed and/or published” the

synopsis. See Ex. A ¶¶ 32, 35. It states “You’ll read how the Obama campaign used internet

porn king Dan Parisi and Ph.D. fraud Edward I. Gelb to conduct a rigged polygraph exam in an

attempt to make the Sinclair story go away.” Complaint ¶ 38.

Based on these alleged facts, Parisi sues Books-A-Million for libel / libel per se and false

light invasion / misappropriation of privacy. Whitehouse.com sues Books-A-Million for

business disparagement, and tortious interference with economic advantage. All Plaintiffs sue

Books-A-Million for civil conspiracy. For the reasons set forth below, Plaintiffs fail to state a

claim upon which relief can be granted.

ARGUMENT AND AUTHORITIES

I. RULE 12(b)(6) STANDARD.

“On a motion to dismiss for failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must construe the allegations and

facts in the complaint in the light most favorable to plaintiff.” Vila v. Inter-American Investment,

Corp., 570 F.3d 274, 290 (D.C. Cir. 2009). A FED. R. CIV. P. 12(b)(6) motion to dismiss should

be granted unless an adequately stated claim is “supported by showing any set of facts consistent

with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 546

(2007). In ruling on a motion to dismiss, the Court may take into consideration matters of which

judicial notice may be taken. See Lipton v. MCI WorldCom, Inc., 135 F.Supp.2d 182, 186 (D.

D.C. 2001); Paley v. Estate of Ogus, 20 F.Supp.2d 83, 90 (D. D.C. 1998).

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II. THE COMMUNICATIONS DECENCY ACT BARS PLAINTIFFS’ CLAIMS WITH RESPECT
TO THE BOOK SYNOPSIS ON BOOKS-A-MILLION’S WEBSITE.

Books-A-Million cannot be liable as a publisher or speaker of the synopsis of Sinclair’s

book on its website because third parties provided it. The Communications Decency Act of 1996

thus shields Books-A-Million from liability.

The Act states “[n]o provider or user of an interactive computer service shall be treated as

the publisher or speaker of any information provided by another information content provider.”

47 U.S.C. § 230(c)(1). Congress’ intent in passing the CDA was to “effectively immunize

providers of interactive computer services from civil liability in tort with respect to material

disseminated by them but created by others.” Blumenthal v. Drudge, 992 F. Supp. 44, 49 (D.

D.C. 1998). Whether CDA immunity applies can properly be determined on a Rule 12(b)(6)

motion to dismiss. See Nemet Cheverolet, Ltd. v. consumeraffairs.com, 564 F.Supp.2d 544, 550

(E.D. Va. 2008).

Courts use a three-part test to determine whether CDA immunity attaches: “1) whether

Defendant is a provider of an inter-active computer service; 2) if the postings at issue are

information provided by another information content provider; 3) whether Plaintiffs claims seek

to treat Defendant as a publisher or speaker of third party content.” Nemet. at 548; see Schneider

v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash. Ct. App. 2001). Plaintiffs’ claims against Books-A-

Million meet all three parts of the test.

A. www.booksamillion.com is an Interactive Computer Service.

The CDA defines an “interactive computer service” as “any information service, system,

or access software provider that provides or enables computer access by multiple users to a

computer server, including specifically a service or system that provides access to the

Internet . . . .” 47 U.S.C. 230(f)(2). Plaintiffs admit Books-A-Million operate the website

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www.booksamillion.com. See Complaint ¶¶ 34, 38. A website constitutes an “interactive

computer service.” Nemet, 564 F.Supp.2d at 550 (“It is clear from the allegations that [consumer

internet site] provides an interactive computer service.”); Schneider, 31 P.3d at 41 (in

determining the application of CDA immunity, “[w]e can discern no difference between website

operators and ISPs in the degree to which immunity will encourage editorial decisions that will

reduce the volume of offensive material on the Internet”).

B. Another Information Content Provider Generated the Synopsis at Issue.

Plaintiffs admit in a separate lawsuit also pending before this Court that Ingram Content

Group, Inc. and Lightning Source Inc. “distributed Sinclair’s defamatory book and promotional

materials to third-parties, including sellers” and “wrote, distributed and/or published” the

promotional statement found on Books-A-Million’s website. Ex. A. ¶¶ 27, 35. The Court may

take judicial notice of such admissions by Plaintiffs. Lipton, 135 F. Supp.2d 182, 186; see T.V.T.

Corp. v. Bailiko, 257 F.2d 185, 187 (D.C. Cir. 1958) (court “could take judicial notice of its own

records and files, including papers in related cases” in ruling upon dispositive motion).

Plaintiffs’ parallel pleading establishes Ingram, Lightning Source and/or Sinclair are

“information content providers” of the synopsis vis-à-vis Books-A-Million under the Act. “The

term ‘information content provider’ means any person or entity that is responsible, in whole or in

part, for the creation or development of information provided through the Internet or any other

interactive computer service.” 47 U.S.C. § 230(f)(3). The synopsis written, distributed and/or

published by Ingram and Lightning Source and appearing on Books-A-Million’s website was

“provided by another information content provider,” not Books-A-Million.

Here, as in Nemet, “Plaintiff has failed to sufficiently or substantively allege that

Defendant participated in the creation or development of the website content at issue in this

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claim.” Nemet, 564 F.Supp.2d at 549. Nowhere in the Complaint do Plaintiffs allege Books-A-

Million created the synopsis. See Schneider, 31 P.23d at 42. Plaintiffs instead admit somebody

other than Books-A-Million provided the content at issue. See Ex. A.

C. Plaintiffs’ Claims Seek to Treat Books-A-Million as a Publisher of Third

Party Content.

Plaintiffs are suing Books-A-Million as a publisher of the website synopsis of Sinclair’s

book, meeting the final element necessary to establish CDA immunity. Plaintiffs claim “[t]he

defamatory statements were made and published by defendants with knowledge of their falsity or

with reckless disregard for their truth.” Complaint ¶ 45. That allegation1 serves as the

cornerstone of Parisi’s libel claim (¶¶ 55-56), of Parisi’s false light invasion / misappropriation

of privacy claim (¶ 66), of Whitehouse.com’s business disparagement claim (¶¶ 71-72), of

Whitehouse.com’s tortious interference claim (¶ 80) and of all Plaintiffs’ civil conspiracy claim

(¶ 84) against Books-A-Million. Plaintiffs allege no basis of liability on the part of Books-A-

Million for the website synopsis other than as a publisher of the statements at issue.

In light of Plaintiffs’ allegations in the Complaint and their admissions in the parallel

lawsuit, the Communication Decency Act of 1996 immunizes Books-A-Million from liability for

the statement on its website that “You’ll read how the Obama campaign used internet porn king

Dan Parisi and Ph.D. fraud Edward I. Gelb to conduct a rigged polygraph exam in an attempt to

make the Sinclair story go away.”

1
As set forth below below, the allegations in ¶ 45 of the Complaint fail to state a claim for
defamation based on Books-A-Million’s mere distribution of Sinclair’s book.

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III. PLAINTIFFS’ CONCLUSORY ALLEGATIONS ARE INSUFFICIENT TO STATE A CLAIM

FOR DEFAMATION BASED UPON MERE DISTRIBUTION OF SINCLAIR’S BOOK.

In light of Books-A-Million’s CDA immunity, Plaintiffs are left with their claim that

Books-A-Million is somehow liable for the statements in Sinclair’s book simply because it

offered the book for sale. That claim fails because Plaintiffs’ conclusory allegation that “[t]he

defamatory statements were made and published by defendants with knowledge of their falsity or

with reckless disregard for their truth” is insufficient to state a claim for distributor liability

against Books-A-Million upon which relief can be granted. In fact, although they hedge,

Plaintiffs do not and cannot plead Books-A-Million so much as carried a physical copy of

Sinclair’s book in stores to even know what it said.

A. A Bookseller must have Actual Knowledge of Falsity.

Legal research has not revealed any case in which a book distributor was held liable for

defamation appearing in the pages of a book it sold. There is good reason why that is the case.

“First Amendment guarantees have long been recognized as protecting distributors of

publications.” Lerman v. Flynt Distributing Co., 745 F.2d 123, 139 (2d Cir. 1984), citing Smith

v. California, 361 U.S. 147, 150 (1959). “Obviously, the national distributor of hundreds of

periodicals has no duty to monitor each issue . . . it distributes. Such a rule would be an

impermissible burden on the First Amendment.” Id.

“With respect to entities such as . . . book stores . . . vendors and distributors of

defamatory publications are not liable if they neither know nor have reason to know of the

defamation.” Cubby, Inc. v. Compuserve, Inc., 776 F.Supp. 135, 139 (S.D. N.Y. 1991) (citation

omitted). “The requirement that a distributor must have knowledge of the contents of a

publication before liability can be imposed for distributing that publication is deeply rooted in

the First Amendment . . . .” Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).

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To impose liability absent actual knowledge of falsity would require that “[e]very bookseller . . .

be placed under an obligation to make himself aware of the contents of every book in his shop.

It would be altogether unreasonable to demand so near an approach to omniscience.” Smith, 361

U.S. at 152-53.

“[A]ctual knowledge of the defamatory statements upon which liability is predicated”

must be alleged and proven. Id. Beyond that, “a public figure may only recover . . . where a

distributor acts with ‘actual malice’ . . . .” Lerman, 735 F.2d at 139; see Hustler Magazine v.

Falwell, 485 U.S. 46, 56 (1988).

B. Plaintiffs’ Conclusory Allegations are Insufficient.

Plaintiffs fail to allege Books-A-Million sold Sinclair’s book with actual knowledge that

it contained false and defamatory statements. The closest Plaintiffs come is the allegation that

“[t]he defamatory statements were made and published by defendants with knowledge of their

falsity or with reckless disregard for their truth.” Complaint ¶ 45. Conclusory allegations that a

distributor knew or had reason to know of statements’ falsity are insufficient to establish

distributor liability. See Cubby, Inc., 776 F. Supp. at 141; Beus v. Uinta County Bd. of County

Com’rs, 143 Fed. Appx. 945, 950 (10th Cir. 2005).

Plaintiffs fail to allege Books-A-Million ever even saw or obtained a copy of Sinclair’s

book. See Complaint ¶ 34. They do not allege that the book ever appeared on Books-A-

MiIllion’s shelves. Id. They instead fudge by alleging Books-A-Million offered the book for

sale “in stores and/or though internet order and delivery.” Id. (emphasis added). Plaintiffs have

not alleged facts sufficient to establish Books-A-Million’s actual knowledge that statements in

Sinclair’s book were false.

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IV. PLAINTIFFS’ CLAIMS AGAINST BOOKS-A-MILLION FAIL ABSENT DEFAMATION.

The absence of defamation on the part of Books-A-Million undermines each and all of

Plaintiffs’ claims. See Hustler, 485 U.S. at 56 (public figures may not recover for tort based on

defamation where underlying defamation claim fails). Parisi premises his libel claim solely on

the alleged “defamatory statements.” See Complaint, ¶¶ 55-62. The same is true for his false

light invasion / misappropriation of privacy claim, as well as Whitehouse.com’s business

disparagement claim. Id. ¶¶ 66, 71-73. Although neither Whitehouse.com’s tortious interference

claim nor the civil conspiracy claim identify “defamatory statements” as their basis, the

Complaint identifies no other conduct upon which such claims could be based. Plaintiffs’ failure

to allege actionable defamation on the part of Books-A-Million therefore necessitates the

dismissal of all of Plaintiffs’ claims against it.

CONCLUSION

WHEREFORE, defendant Books-A-Million, Inc. respectfully requests that the Court

enter its order dismissing the claims against it, awarding Books-A-Million, Inc. its costs and

granting such other and further relief as the Court deems necessary and just under the

circumstances.

Dated: July 28, 2010

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HUSCH BLACKWELL SANDERS LLP

By: /s/ Steven J. Weber

Steven J. Weber # 412165
750 17th Street N.W., Suite 1000
Washington, D.C. 20006
Telephone: (202) 378-2300
Facsimile: (202) 378-2319
E-mail: steven.weber@huschblackwell.com

Ralph W. Kalish, Jr. (pro hac vice)

R. Prescott Sifton, Jr. (pro hac vice)
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Telephone: (314) 480-1500
Facsimile: (314) 480-1505
E-mail: scott.sifton@huschblackwell.com

Attorneys for Defendant Books-A-Million, Inc.

CERTIFICATE OF SERVICE

The undersigned certifies that on July 28, 2010 the foregoing was filed electronically
with the Clerk of the Court to be served by operation of the Court’s electronic filing system upon
Richard J. Oparil and Kevin M. Bell of Patton Boggs LLP, attorneys for plaintiffs; Stephen
Smith, Mathew Segal, Kari Vander Stoep and John Longstreth of K&L Gates LLP, attorneys for
defendant Amazon.com, Inc. and Linda Steinman and John Eastburg of Davis Wright Tremaine
LLP, attorneys for defendant Barnes & Noble, Inc. and Barnesandnoble.com, Inc. The
undersigned further certifies that a copy of the foregoing was mailed to Lawrence W. Sinclair,
Nine Spring Drive, Fort Orange, FL 32129 this 28th day of July, 2010 via first-class U.S. Mail,
postage pre-paid.

/s/ Steven J. Weber

Attorney

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DANIEL PARISI, et al., )

)
Plaintiffs, )
)
vs. )
) Civil Case No. 1:10-cv-00897 (RJL)
LAWRENCE W. SINCLAIR , )
)
BOOKS-A-MILLION, INC., et al., )
)
Defendants. )
)

ORDER

Upon consideration of defendant Books-A-Million, Inc.’s Motion to Dismiss and for

good cause shown,

IT IS HEREBY ORDERED that defendant Books-A-Million, Inc.’s Motion to Dismiss

is GRANTED, and;

IT IS FURTHER ORDERED that the action filed against defendant Books-A-Million,

Inc. is hereby dismissed with prejudice.

SO ORDERED.

SIGNED this day of , 2010

The Honorable Richard J. Leon

United States District Judge

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