Blockowicz v. Williams

Citation: Blockowicz v. Williams, 1:09-cv-03955 (N.D. Ill. Dec. 21, 2009).

Factual Background
Defendants posted statements about the Blockowiczes on various websites, including ripoffreport.com, Facebook, MySpace, and complaintsboard.com. The plaintiffs subsequently filed an action for defamation and the court found the defendants in default leading to a permanent injunction requiring them to, among other things, remove the defamatory postings from the internet.

The injunction also recognized the Blockowiczes’ counsel’s ability to contact third party website hosts directly to facilitate the process of removing the offending material. Ripoffreport.com (“ROR”), operated by Xcentric was the only site to refuse to remove the postings. Plaintiffs filed a “Motion for Third Party Enforcement of Injunction” seeking an order compelling Xcentric Ventures, LLC to remove the defamatory postings.

Trial Court Proceedings
Under Federal Rule of Civil Procedure 65(d)(2), “an injunction binds not only the parties to the injunction but also nonparties who act with the named party.” To be in violation of an injunction a third party must have actual knowledge of the court order and either abet the party named in the order or legally identify with that party. This rule was drafted to prevent circumvention of a court order by acting through an agent or intermediary. Independent actors, however, are free to act in a manner that appears to benefit the party to an injunction so long as they are not acting in concert with that party.

Plaintiff’s motion as originally drafted, argued that the contractual relationship between defendants and Xcentric entered into by the parties whereby defendants agreed to ROR’s Terms of Service and posted to the website was enough to establish the necessary privity for enforcement of the court order. Plaintiff amended its motion, however, to make the argument that the provision in ROR’s Terms of Service that ROR’s ongoing promise to publish and never remove user posts in exchange for indemnification and an exclusive copyright license demonstrates that ROR acted in concert or partnership with defendants.

Ultimately the court found this argument unpersuasive and determined that plaintiff position would require the court to ignore the Terms of Service provision requiring users to post “truthful and accurate” statements and those terms that expressly prohibit defamatory postings. Additionally the court stated that plaintiff lacked any evidence that ROR or Xcentric had had any contact with defendants after the entry of the permanent injunction or that they had acted with the defendant to violate the court order.