SUPERIOR COURT OF NEW JERSEY
(pseeker is named as a defendant for his bashing activities, I think this speaks volumes regarding his character.)
SOMERSET COUNTY
CHANCERY DIVISION
HONORABLE ROSEMARIE RUGGIERO WILLIAMS
RETURN DATE: March 5, 2004
DOCKET NO.: HNT-C-14001-04
DIGITAL BROADBAND v. “DBBDISFUNNY”, “DALILAMA”, “STOCK_PICK”, “SMOOTHER_1999”, “WNSRFR”, “MRWRIGHTAIDE”, “PSEEKER”, AND JOHN DOES 1-10
EX PARTE MOTION TO CONDUCT LIMITED PRETRIAL DISCOVERY
MOVANT: PLAINTIFF (Digital Broadband Networks, Inc. and Patrick S. Lim)
MOVANT’S ATTORNEY: Jay McDaniel
Sichenzia Ross Friedman Ference
OPPONENT: NONE
ORAL ARGUMENT: NO
I. Background
Plaintiffs, Digital Broadband Networks, Inc. (“DBBD”) and Patrick S. Lim (collectively, “Plaintiffs”) seek to ascertain the identities of persons (“Defendants”) who anonymously posted allegedly actionable messages on the internet in order that Plaintiffs can comply with the requirements of service of process. In the underlying action, Plaintiffs seek preliminary and permanent injunctive relief enjoining Defendants and their agents from posting defamatory messages on the internet which are intended to manipulate the price of the common stock of DBBD. They also seek damages at law for violation of New Jersey statutory law, libel, and civil conspiracy.
DBBD is a publicly traded corporation which files periodic reports with the U.S. Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934. Lim serves as the DBBD’s chief executive officer and chairman of the board; he is also the company’s majority shareholder.
Beginning in December of 2003, Defendants, through various aliases on internet financial message boards owned and operated by Yahoo, Inc. and Lycos, Inc., allegedly posted numerous false statements regarding DBBD, DBBD’s business, and Lim. Plaintiffs allege that by posting such statements, Defendants engaged in a pattern of behavior constituting an unlawful scheme to manipulate the price of DBBD’s publicly-traded stock. Plaintiffs also believe that Defendants’ conduct has contributed to a significant and steady decrease in DBBD’s stock.
II. Discussion
When considering a plaintiff’s request to conduct discovery (prior to service on defendant) to uncover the actual identity of a defendant, the reviewing court must determine whether the plaintiff has set forth a prima facie cause of action against the fictitiously-named anonymous defendants— in other words, whether or not the plaintiff’s underlying claims can withstand a motion to dismiss—although the court is not required to apply such a deferential standard. See Dendrite Intern., Inc. v. Doe No. 3, 342 N.J.Super. 134 (App.Div. 2001). In so holding, the Appellate Division affirmed the trial judge’s reliance on Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573 (N.D.Cal. 1999) to resolve the issue at hand. The Court in Columbia Ins. established a four-pronged test to determine whether or not to permit a plaintiff to conduct discovery to ascertain the identity of a defendant. On plaintiff’s request to conduct discovery, prior to service on defendant, to uncover actual identity of defendant, plaintiff should:
(1) identify missing party with sufficient specificity such that court can determine that defendant is real person or entity who could be sued in federal court; (2) identify all previous steps taken to locate elusive defendant; (3) establish to court's satisfaction that plaintiff's suit could withstand motion to dismiss; and (4) file statement of reasons justifying specific discovery requested as well as identification of limited number of persons or entities on whom discovery process might be served and for which there is reasonable likelihood that discovery process will lead to identifying information about defendant that would make service of process possible.
See Id. Plaintiffs maintain that they have sufficiently “identified” Defendants by their internet aliases which they have used and continue to use to post messages on the Yahoo financial message board and the Raging Bull financial message board—which is operated by Lycos. Message board users must register to become members before they are permitted to use these boards. Registration requirement forms require registrants to provide personal information, including names and addresses. What’s more, before given access to the message boards, registrants must respond to a confirming email further confirming their identities. Because these registration processes themselves, are geared towards the ascertainment of an applicant’s true identity, the court agrees that by naming Defendants by their internet aliases, Plaintiffs have identified Defendants with sufficient specificity such that their true identities are likely to be revealed by service of subpoenas on Yahoo and Lycos.
Next, Plaintiff asserts that all if its claims against Defendants can withstand a motion to dismiss. The court notes that, for the purpose of this motion, they need make only one showing. Here, Plaintiffs claim to have stated facts in the Complaint sufficient to sustain a cause of action in, inter alia, defamation.
The New Jersey Supreme Court, in Romaine v. Kallinger, 109 N.J. 282 (1988), defined a defamatory statement as one that is false and injurious to the reputation of another or exposes another person to hatred, contempt or ridicule or subjects another person to a loss of the good will and confidence in which he or she is held by others. Id. at 289; citing Leers v. Green, 24 N.J. 239, 251 (1957). The Restatement (Second) of Torts § 559 (1977) describes a communication as defamatory if it tends so to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Romaine v. Kallinger, 109 N.J. at 289.
The threshold issue in any defamation case is whether the statement at issue is reasonably susceptible of a defamatory meaning. Id. at 290; citing Kotlik
