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Kimzey v. Yelp Inc.

United States District Court, W.D. Washington

May 7, 2014

DOUGLAS L KIMZEY, Plaintiff,
v.
YELP INC., Defendant

Douglas L Kimzey, Plaintiff, Pro se, BELLEVUE, WA.

For Yelp Inc., Defendant: Aaron Schur, LEAD ATTORNEY, PRO HAC VICE, YELP INC, SAN FRANCISCO, CA; Venkat Balasubramani, FOCAL PLLC, SEATTLE, WA.

OPINION

The Honorable Richard A. Jones, United States District Judge.

Page 1121

ORDER

This matter comes before the court on defendant Yelp Inc.'s special motion to strike and motion to dismiss for failure to state a claim. Dkt. # 10. Having reviewed the memoranda, complaint, documents subject to judicial notice or referenced extensively in the complaint, and the record herein, the court finds that the Communications Decency Act (" CDA" ) immunizes defendant from the entirety of plaintiff's lawsuit. Accordingly, the court does not address defendant's special motion to strike.

Plaintiff alleges claims for violation of the Racketeer Corrupt and Influenced Organizations Act (" RICO" ), violation of the Washington Unfair Practices and Unfair Competition Act, malicious libel and libel per se.[1] Dkt. # 1. All of plaintiff's claims rely on statements made on Yelp regarding plaintiff's business in September 2011 and September 2012, and that were published on Google. Id. ¶ ¶ 22-23, 30, 52-53 63, 67, 74. Plaintiff alleges that the libelous statements were " created and developed in whole or in part by Yelp" and that " Yelp took ownership and was the speaker of the Libelous Per Se statement at which time Yelp caused it to appear on Google to promote the Yelp brand and to gain prominence in the market place and to profit from it financially." Id. ¶ ¶ 33, 35.

The September 20, 2011 Yelp review referenced in plaintiff's complaint [2] was posted by a user " Sarah K" :

THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY. I had just flew back from a

Page 1122

long business trip with absolutely no sleep, had to drive into work right after getting off the plane. I was so tired that I locked my keys in the car. So when I realized what happened I called Redmond Mobile. The gentlemen on the phone told me that a technician would be out ASAP and quoted me $50 for the service, which seemed reasonable. $35 for the service call and $15 for the lock. The technician called and said he'd be at my office in 30 min, an hour goes by and nothing. Call the company back to ask about the ETA and was greeted rudely by the person I had spoken to earlier. He took no responsibility. After the technician finally showed up, he was trying to charge me $35 for the service call and $175 for the lock. I got 20% off after trying to argue with him about being late and the incorrect quote. Supposedly, the lock is $15 and up. Bullshit. CALL THIS BUSINESS AT YOUR OWN RISK. I didn't even need new keys. I just needed my car unlocked.

Dkt. # 11-1 (Ex. A to MacBean Decl.). The September 24, 2012 Yelp statement referred to in the complaint was also posted by a user " Sarah K" :

I was just informed recently by a friend that this business has been trying to contact others on my friends list asking about my original review. A year ago, I had also received similar msgs from this business and also yelp requesting authentication of the review and the business directly asking me to take down the review because I must have gotten the company incorrect. So let me clarify, I do not work for a competitor of this business nor do I appreciate this type of harassment. I've already confirmed to Yelp that indeed this review ...

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