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Philip Seldon v. Edward Magedson A/K/A Ed

September 28, 2012

PHILIP SELDON, PLAINTIFF,
v.
EDWARD MAGEDSON A/K/A ED MAGEDSON, AND XCENTRIC VENTURES L.L.C., DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

DOCUMENT ELECTRONICALLY FILED

DOC #: _________________

ORDER ADOPTING REPORT AND RECOMMENDATION

Philip Seldon ("Seldon"), pro se, commenced this action on September 6, 2011 against Edward Magedson ("Magedson") and Xcentric Ventures, LLC ("Xcentric") (collectively, "Defendants") for defamation and breach of contract. Seldon claims that Defendants knowingly posted false and defamatory comments on their website, entitled ripoffreport.com, and that Defendants failed to perform certain reputation-repair services for which he and Defendants had contracted. Seldon seeks compensatory and punitive damages as well as specific performance of the alleged contract.

After the Court referred the general pretrial and dispositive motions in the case to Magistrate Judge Michael H. Dolinger, by Order dated September 12, 2011, Seldon amended his complaint on November 8, 2011, and on November 28, 2011, Defendants moved to dismiss all of Seldon's claims for lack of personal jurisdiction under either Section 301 or Section 302(a)(1) of the New York Civil Practice Law and Rules ("CPLR"), to dismiss the claims for defamation and part of the breach of contract claim under the Communications Decency Act ("CDA"), 47 U.S.C. § 230 et seq., and to dismiss the remaining contract claim under the Statute of Frauds or for lack of subject matter jurisdiction. On July 9, 2012, Magistrate Judge Dolinger issued a Report and Recommendation ("R&R"), recommending granting the motion to dismiss for want of personal jurisdiction.*fn1 The report further recommended that if the Court found that it had jurisdiction, that the defamation claims and the contract claim concerning the Communications Decency Act be dismissed as well, leaving only the contract claim dealing with website advertising. The Court's review of the R&R finds no clear error, and accordingly the Court adopts Magistrate Judge Dolinger's R&R that the action be dismissed for want of personal jurisdiction. The Court therefore does not address the contingent recommendations.

I.BACKGROUND

A. Facts*fn2

The Court assumes the parties' familiarity with the underlying facts of the case. Stated briefly, Magedson and his company, Xcentric, own and operate a website called ripoffreport.com. The website allows users to post about their "individual 'reports'" regarding the practices of a business. Seldon became the subject of multiple unflattering posts by users of the website. These posts accused him of various actions from sexual harassment to fraud and tax evasion.

Seldon alleges that he contacted Magedson, who agreed to contact the users in an attempt to verify the accusations. Magedson also allegedly agreed to remove the posts if the users were unable to verify the claims, as well as to advertize on the site for companies associated with Seldon in exchange for Seldon's transferring to Magedson several websites worth approximately $150,000. Magedson failed to perform these actions.

II.DISCUSSION

A. Standard of Review

The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "The district court may adopt those portions of the report to which no timely objection has been made, so long as there is no clear error on the face of the record." Feehan v. Feehan No. 09 Civ. 7016 (DAB), 2011 WL 497776, at *1 (S.D.N.Y. Feb. 10, 2011).

B. Personal Jurisdiction

"In diversity cases, the issue of personal jurisdiction is governed by the law of the forum state." D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 104 (2d. Cir. 2006). Under the New York Civil Practice Law and Rules, jurisdiction over out-of-state defendants can be based on (1) general jurisdiction under CPLR ยง 301 ...


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