Beruflich Dokumente
Kultur Dokumente
_______________________________________:
:
ANTHONY L MARFIONE AND :
MICROTECH KNIVES, INC. :
:
Plaintiffs, : Jury Trial Demanded
:
v. : No. 1:17-cv-00070
:
KAI U.S.A., LTD. AND KALE BEYER, : Electronically Filed
:
Defendants. :
_______________________________________:
______________________________________________________________________________
By /s/Michael P. Flynn
Steven W. Zoffer, Esq. (PA I.D. #62497)
szoffer@dmclaw.com
Douglas M. Grimsley (PA I.D. # 92948)
dgrimsley@dmclaw.com
Michael P. Flynn, Esq. (PA I.D. #206150)
mflynn@dmclaw.com
PRELIMINARY STATEMENT
Plaintiffs’ Motion for Reconsideration follows this Court’s Order of March 27, 2018
granting Defendant KAI U.S.A. LTD’s (“KAI”) Motion to Dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6). By that same order, the Court invited Plaintiffs to file this Motion for
Reconsideration and attach any information obtained during discovery to support the contention
that KAI created or developed the Sculimbrene Article. (ECF Doc. No. 44 at 18). Plaintiffs are in
possession of information produced during discovery, and have attached, a statement from
Sculimbrene regarding KAI’s direct involvement in the creation and/or development of the
Sculimbrene Article (the “Sculimbrene Statement”). A true and correct copy of the Sculimbrene
In its Order, the Court noted that KAI could not take advantage of the immunity afforded
by Section 230 of the Communications Decency Act (“CDA”) as a republisher if Kai “created,
edited, or otherwise developed” the Sculimbrene Article. (ECF Doc. No 44 at 12). However,
upon its review of the email correspondence attached to the Amended Complaint, the Court
concluded that the correspondence between KAI and Sculimbrene did not support an inference
that KAI jointly developed or created the Sculimbrene Article. (ECF Doc. No. 44 at 14-15). The
Court also concluded that Sculimbrene’s statements in the comments section to the Sculimbrene
Article did not support the conclusion that KAI jointly developed or created the Sculimbrene
Article. (ECF Doc. No. 44 at 15). Plaintiffs respectfully request that the Court grant their Motion
for Reconsideration in light of the Court’s obligation to accept Plaintiffs’ allegations as true at
this stage of litigation, and upon the Court’s review of Sculimbrene’s admission that KAI
the Western District of Pennsylvania, which was voluntarily dismissed in May, 2017. As part of
that action, Sculimbrene executed a signed statement which detailed the background of the
Sculimbrene Article and KAI’s role in the development and creation of the same. Sculimbrene
states that he communicated with KAI’s Thomas Welk via “phone call, emails, and a podcast.”
(Ex. A). Sculimbrene describes his relationship with Welk and the extensive communications
history between the two prior to the creation of the Sculimbrene Article. (Ex. A. at ¶¶ 1-12).
Moreover, Sculimbrene points out an additional email which lends further context to
Plaintiffs’ “snake in the grass” allegations in the Amended Complaint. After Welk indicated he
wasn’t sure what Sculimbrene meant by the “joke” in the January 5, 2017 email (the first joke
being KAI’s naming the knife “Natrix” as juxtaposed to Microtech’s knife called the “Matrix”),
Welk feigns ignorance and explains a second layer of the joke/pun. Namely, Welk informs
Sculimbrene that the use of the name “Natrix” is meant not only as a play on words in reference
to Microtech’s “Matrix” knife, but also that the term “Natrix” refers to a certain types of grass
snakes – i.e., Microtech and/or Anthony Marfione is a snake in the grass. For the purposes of
Welk’s sarcasm rather than any purported naiveté. A true and correct copy of the exchange of
Sculimbrene identifies another email wherein Welk provides “his account of the history
between KAI and Microtech.” (Ex. A at ¶ 16). Sculimbrene then goes on to state that “it was
based upon these conversations and communications with Mr. Welk that I wrote the article about
Microtech and Mr. Marfione.” (Ex. A at ¶ 22). Sculimbrene states that Welk provided
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information to “manipulate me into adopting a negative opinion of both Microtech and Mr.
(Ex. A at ¶ 22)(emphasis added). Sculimbrene signed this statement and provided it to Plaintiffs.
“‘The purpose of a motion for reconsideration is to correct manifest errors of law or fact
or to present newly discovered evidence.’” Breslin v. Dickinson Twp., No. 1:09-CV-1396, 2011
U.S. Dist. LEXIS 54420, at *8 (M.D. Pa. May 19, 2011) (quoting Harsco Corp. v. Zlotnicki, 779
F.2d 906, 909 (3d Cir. 1985)). Third Circuit precedent states that “a judgment may be altered or
amended if the party seeking reconsideration shows at least one of the following grounds: (1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court granted the motion; or (3) the need to correct a clear error of law or fact
or to prevent manifest injustice.” Howard Hess Dental Laboratories Inc. v. Dentsply Intern.,
Inc., 602 F.3d 237, 251 (3d Cir. 2010) (citations omitted).
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ARGUMENT
The Sculimbrene Statement, taken together with the evidence attached to the Amended
Complaint, is sufficient to state a plausible claim that KAI jointly created and developed the
Sculimbrene Article. “When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court must accept the factual allegations in the Complaint as true and
draw all reasonable inferences in the Plaintiffs’ favor.” Ghrist v. CBS Broad, Inc., 40 F. Supp. 3d
623, 626 (W.D. Pa. 2014); citing Malleus v. George, 641 F.3d 560, (3d Cir. 2011). The Court
cannot dismiss a Complaint “merely because it appears unlikely or improbable that Plaintiff can
prove the facts alleged or will ultimately prevail on the merits…instead, [the] Court must ask
whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the
necessary elements.” Hill v. Cosby, 2016 U.S. Dist. LEXIS 7300, *4 (W.D. Pa. 2016) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8, 556 (2007).
As the Supreme Court reiterated in Iqbal, the Twombly standard does not impose a
“probability requirement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550
U.S. at 556). Twombly “does not require as a general matter that the plaintiff plead facts
supporting an inference of defendant's liability more compelling than the opposing inference.” In
re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 341 n.42 (3d Cir. 2010). Twombly requires the
plaintiff to plead only enough “factual content [to] allow[] the court to draw [a] reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “This ‘plausibility’
determination will be ‘a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d
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This Court should reconsider its Order on Defendant KAI’s Motion to Dismiss as the
Sculimbrene Statement asserts sufficient facts to support the contention that KAI jointly created
or developed the Sculimbrene Article and is not subject to immunity under Section 230 of the
CDA. The Third Circuit has not addressed how involved a party must be in the “creation or
development” of content for the party to lose immunity under Section 230. However, the Ninth
Circuit's “material contribution” test, first set forth in Fair Hous. Council v. Roommates.com,
LLC, 521 F.3d 1157 (9th Cir. 2008), has been adopted by several other circuits. See, e.g., Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009); Jones v. Dirty World
Entm't Recordings LLC, 755 F.3d 398 (6th Cir. 2014); F.T.C. v. Accusearch Inc., 570 F.3d 1187
(10th Cir. 2009). Under the material contribution test, a person makes a material contribution to
the content by “being responsible for what makes the displayed content allegedly unlawful.”
Dirty World Entm't, 755 F.3d at 410-11. See also Chi. Lawyers' Comm. for Civil Rights Under
Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008) (“Causation . . . must refer to
That's the sense in which a non-publisher can cause a discriminatory ad, while one who causes
Importantly, another court in the Third Circuit, namely the United States Court for the
District of Delaware, has indicated its belief that “the Third Circuit would follow its sister
circuits in applying this test.” Moretti v. Hertz Corp., 2017 U.S. Dist. LEXIS 38581, at *5 n.1
(D. Del. Mar. 17, 2017). In Moretti, the District Court refused to grant judgment on the
pleadings on the basis of Section 230 immunity because “the Court cannot treat the Complaint's
allegation that Hotwire did not do so.” 2017 U.S. Dist. LEXIS 38581, at *10 (emphasis in
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original). The underlying claim was that the Hertz supplied misleading information about car
rental prices and terms to Hotwire, and Hotwire incorporated the content into listings on its
website and continued to use it even after consumer complaints. Id. at *2-3. Hotwire moved for
judgment on the pleadings on the basis of Section 230, arguing the plaintiff did not allege it was
the creator or author of the misleading information. Id. at *6. The court held that because the
complaint did not allege that Hertz was not a content provider, Hertz could not demonstrate
Section 230 immunity because “a factual dispute as to the nature and degree of Hotwire's
involvement in the allegedly misleading statement” existed. Id. at *8-11. The court also noted its
reasoning was supported by similar decisions in other courts. See e.g., Swift v. Zynga Game
Network, Inc., 2010 U.S. Dist. LEXIS 117355, *18 (N.D. Cal. Nov. 3, 2010)(denying
defendants’ motions to dismiss based on CDA immunity as court deemed “it would be improper
to resolve this issue on the pleadings”); Suk Jae Chang v. Wozo LLC, 2012 U.S. Dist. LEXIS
42896, *47 (D. Mass. Mar. 28, 2012) (denying defendants’ motions to dismiss based on CDA
immunity as court deemed this “a dispute of fact that cannot be resolved at this juncture”);
CYBERsitter, LLC v. Google Inc., 905 F. Supp. 2d 1080, 1086 (CD. Cal. 2012)(denying
defendant’s motions to dismiss false advertising claims and holding “because Defendant's
materially contributed to the content of these advertisements, it is too early at this juncture to
determine whether CDA immunity applies.”); Perfect 10, Inc. v. Google, Inc., 2008 U.S. Dist.
LEXIS 79200, *24 (C.D. Cal. July 16, 2008)(“The question whether any of Google's conduct
disqualifies it for immunity under the CDA will undoubtedly be fact-intensive. Neither party has
proffered evidence sufficient for the Court to determine at this stage whether Google is entitled
to CDA immunity. Although it is highly likely that [Plaintiff] will encounter difficulty in
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establishing that Google engaged in the ‘creation or development in whole or in part’ of unlawful
content, it would be improper for the Court to resolve this issue on the pleadings and the limited
Taking Sculimbrene’s statements as true, as the Court must at this stage, it is clear that
KAI materially contributed to the content of the Sculimbrene Article. Sculimbrene states in no
uncertain terms that the defamatory comments would never have been published but for the
information given to Sculimbrene by Welk. Sculimbrene also provides additional context for the
emails where he indicated he was “in” on the Natrix naming joke, as well as the “double pun of
the snake in the grass” that was explained by Welk. (Ex. A at ¶ 14; Ex. B). This email exchange
occurred around the same time that Welk provided an email to Sculimbrene detailing “his
account of the history between KAI and Microtech.” (Ex. A at ¶ 16). This Court concluded that
the documents attached to the Amended Complaint “focused only on keeping the new product
information confidential until the public release, and on Sculimbrene’s reviews of how Kai’s
products worked,” but did not show any inference of joint development or creation by Kai. (ECF
Doc. No. 44 at 14). However, based on the Sculimbrene Statement, and taking all inferences in
favor of Plaintiff, these statements support the allegations in the Amended Complaint regarding
not just KAI’s animosity towards Plaintiffs, but instead and more importantly KAI’s material
confirms the inferences as to KAI’s joint creation and development of the Sculimbrene Article.
Sculimbrene states explicitly that “it was based upon these conversations and communications
with Mr. Welk that I wrote the article about Microtech and Mr. Marfione.” (Ex. A at ¶ 22).
Sculimbrene states that Welk provided information to “manipulate me into adopting a negative
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opinion of both Microtech and Mr. Marfione.” (Ex. A at ¶ 22). Without the information from
Welk, the Sculimbrene Article would not, and could not, exist. KAI cannot counter this factual
assertion at this stage and it must be taken as true that KAI, through Welk, supplied the
Sculimbrene states he wrote the Sculimbrene Article because he “believed that [he] was
doing the knife industry a service by writing the article and ‘exposing’ what [he] perceived to be,
based upon my communications with Mr. Welk, a disservice to the industry.” (Ex. A. at ¶ 22).
The Sculimbrene Article “was based, in large part upon the information fed to [Sculimbrene] by
Mr. Welk.” Sculimbrene also unequivocally states that he “would never have written any of the
statements about Mr. Marfione absent [his] communications with Mr. Welk” and that
Sculimbrene was being “manipulated” by Welk and Kai with “breadcrumbs” of defamatory
content regard to the Sculimbrene Article. (Ex. A at ¶ 22). As per Sculimbrene’s unequivocal
admission, but for KAI’s material contribution to Sculimbrene, the Sculimbrene Article would
not exist. These allegations, taken as true, establish KAI’s material contribution in the creation of
The Sculimbrene Statement, taken as true, meets the standard for reconsideration in that
it represents new evidence which supports the allegations in Plaintiffs’ Amended Complaint. The
inferences that KAI was responsible for the creation of the Sculimbrene Article are now amply
supported by the factual statements contained in the Sculimbrene Statement which KAI cannot
contradict at this stage. Sculimbrene’s allegations, taken as true, indicate that KAI was materially
contributed to the joint development of the Sculimbrene Article, which, as this Court noted, does
not give rise to Section 230 immunity. (ECF Doc. No. 44 at 12) (citing Blumenthal v. Drudge,
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992 F. Supp. 44, 50 (D.D.C. 1998)). Because Section 230 immunity does not apply in light of the
dismissing the Amended Complaint at this stage. The question of whether KAI’s involvement in
the creation of the Sculimbrene Article is sufficient to overcome Section 230 immunity is a
factual question. As the Moretti court held, Section 230 is an affirmative defense which KAI
must prove. The allegations in the Amended Complaint, along with the Sculimbrene Statement,
satisfy the Rule 8 pleading standard and dismissal of the Amended Complaint at this stage would
require the Court to make factual determinations, which is not appropriate at this stage.
CONCLUSION
For the foregoing reasons, this Honorable Court should reconsider its Order on Defendant
Complaint.
By /s/Michael P. Flynn
Michael P. Flynn, Esq. (PA I.D. #206150)
mflynn@dmclaw.com
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_______________________________________ :
ANTHONY L MARFIONE AND :
MICROTECH KNIVES, INC. :
:
Plaintiffs, : Jury Trial Demanded
v. : No. 1:17-cv-00070
:
KAI U.S.A., LTD. AND KALE BEYER, : Electronically Filed
:
Defendants. :
_____________________________________________________:
CERTIFICATE OF SERVICE
I, Michael P. Flynn, Esquire, hereby certify that a true and correct copy of the foregoing
Plaintiffs’ Motion for Reconsideration of Dismissal of Claims Against Defendant KAI U.S.A.
LTD. was electronically filed with the Court and served upon counsel of record via ECF this 6th
Respectfully submitted,
DICKIE, McCAMEY & CHILCOTE, P.C.
By /s/Michael P. Flynn
Michael P. Flynn, Esq. (PA I.D. #206150)
mflynn@dmclaw.com
7067459.1
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