IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION S.C., Plaintiff, v.

DIRTY WORLD, LLC, and NIK RICHIE, Defendants. ) ) ) ) ) ) ) ) ) )

No. 11-CV-392-DW

ORDER
Pending before the Court is the Plaintiffs Rule 56(f) Motion to Deny or Delay Ruling on Defendants Motion for Summary Judgment, or in the Alternative Enlargement of Time to Reply (the "Rule 56 Motion"). See Doc. 17. The Plaintiff filed Suggestions in Support of the Rule 56 Motion (Doc. 18), the Defendants filed Suggestions in Opposition (Doc. 19), and the Plaintiff filed Reply Suggestions (Doc. 20). Also before the Court is the Plaintiffs Motion for Leave of Court to Amend Complaint (the "Motion to Amend") and Suggestions in Support thereof. See Docs. 21, 22. The Defendants have not filed a response to the Motion to Amend. For the reasons explained below, the motions are related and both are GRANTED. I. The facts of this case were discussed in an Order dated June 1, 2011, and will not be repeated herein. Briefly, and as explained in the Complaint, the Plaintiff seeks compensatory and punitive damages as a result of the Defendants "unauthorized publication and ratification of defamatory statements and embarrassing private facts on a website owned and operated by Defendants located at www.thedirty.com." Complaint, p. 1. Shortly after the Plaintiff filed this action, the Defendants filed a Motion for Summary

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Judgment. See Doc. 13. The Defendants argue that summary judgment is proper because the Plaintiffs claims are barred under the Communications Decency Act ("CDA"). See 47 U.S.C. 230(c)(1). The CDA generally provides that a website host or internet service provider may be shielded from liability if a third party posts defamatory content on its website. The Defendants argue that this immunity applies to them because the allegedly actionable statements were made by a thirdparty. The Plaintiffs Rule 56 Motion seeks to delay a summary judgment ruling because no discovery has been exchanged. The Plaintiff argues that "affirmative actions by website providers to create and foster a product that is mainly and knowingly used for potentially illegal purposes is enough to make a determination that the website provider developed the content and deny immunity." Plt.s Sugg. in Support, p. 5. The Plaintiff claims in part that discovery will allow her to determine whether the Defendants engaged in such affirmative actions. II. Discovery need not be completed before the entry of summary judgment. Ray v. American Airlines, Inc., 609 F.3d 917, 923 (8th Cir. 2010). That said, "summary judgment is proper only after the nonmovant has had adequate time for discovery." Id. (citations and quotations omitted). To help provide adequate time, Rule 56(f)1 provides that a nonmovant may "postpone a summary judgment decision, but [must] file an affidavit with the district court showing what specific facts further discovery might uncover." Anuforo v. C.I.R., 614 F.3d 799, 808 (8th Cir. 2010) (citations and quotations omitted). A district court has considerable discretion in ruling on a Rule 56(f) motion, which is reviewed for abuse of discretion. Marksmeier v. Davie, 622 F.3d 896, 903 (8th Cir. 2010). III. Here, and after the Defendants filed their motion for summary judgment, the Plaintiff filed her Motion to Amend. The proposed amended complaint adds additional underlying facts. It also

Federal Rule of Civil Procedure 56(f) was recently renumbered to Rule 56(d). Because the parties refer to Rule 56(f), and for purposes of consistency, the Court will similarly cite to Rule 56(f).

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adds a claim for intentional infliction of emotional distress (Count V) and for public disclosure of private facts (Count VI). Both claims are allegedly based on statements made by Defendant Nik Richie ("Richie") on the Defendants website after this case was filed, and after the Defendants filed their motion for summary judgment. In particular, the proposed amended complaint alleges that on June 6, 2011, Defendant Richie posted the following: So this girl named (S.C.) is suing me after I gladly removed her post. (S.C.) is from Missouri and she is a girl of God. In my opinion, (S.C.) is trying to hide the fact that she is trying to sue me from the public because she doesnt want her church to know. Well, the judge denied her request to seal the case. If you know this (S.C.) girl please fill me in because now it is game on."

Proposed First Amended Complaint at 25. The Plaintiff alleges that readers of the website responded with comments about the Plaintiff, and also commented on the previous "defamatory content posted about her." Id. In part, the Plaintiff alleges that Richies request for information wrongly "gave publicity to Plaintiffs private life." Id. at 54. As stated above, the Defendants have not filed a response to the Motion to Amend. Consequently, and importantly, the Defendants have not argued that Richies most recent comments are entitled to CDA immunity. Additionally, the Plaintiffs Rule 56 Motion is accompanied by an affidavit. See Doc. 17-1. In the affidavit, Plaintiffs counsel claims that discovery is needed on a number of issues. Id. at 9(a)-(l). Some of these issues may not be germane to the issue of CDA immunity, and some of the information may be found on the Defendants website without the need for discovery. Nonetheless, the affidavit demonstrates that consideration of the summary judgment motion would be premature absent at least some discovery. This is particularly true considering that Defendants have not opposed the proposed complaint or argued that it is futile. Absent any 3

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opposition, and because leave to amend should be "freely give[n]," the Court will grant the Motion to Amend and allow discovery to proceed. See Fed. R. Civ. P. 15(a)(2). IV. For the foregoing reasons, it is hereby ORDERED that the Plaintiffs Rule 56(f) Motion to Deny or Delay Ruling on Defendants Motion for Summary Judgment, or in the Alternative Enlargement of Time to Reply (Doc. 17) is GRANTED; it is further ORDERED that at this time, the Defendants Motion for Summary Judgment (Doc. 13) is DENIED WITHOUT PREJUDICE; it is further ORDERED that the Plaintiffs Motion for Leave of Court to Amend Complaint (Doc. 21) is GRANTED. The Plaintiff shall file her First Amended Complaint (Doc. 21-1) within twenty (20) days from the date of this Order. IT IS SO ORDERED.

Date:

July 27, 2011

/s/ Dean Whipple Dean Whipple United States District Judge

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