The opinion of the court was delivered by: Ambrose, Chief District Judge.
In this action, Plaintiff brings suit for commercial disparagement against Defendants, as the result of statements that Defendants posted on an internet bulletin board. Defendant Conner has moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6), based on, inter alia, failure to effectuate service and expiration of the applicable limitations period. By Order of Court, I advised the parties that the Motion would be treated as one for summary judgment, and provided the opportunity to file additional materials.
For the following reasons, Defendant's Motion is granted.
Plaintiff's Complaint alleges that Defendant, using the pseudonym Pun2dex, made several postings on the internet relating to Plaintiff's business.
Plaintiff acknowledges that the postings occurred between August, 2005 and March, 2006. The present Complaint was filed in the Court of Common Pleas of Allegheny County on April 4, 2006, against three Doe Defendants, as their online pseudonyms denunz2005, stocker606, and pun2dex. Plaintiff, via letters rogatory and subpoenae, attempted to obtain information from the internet provider Yahoo! relating to the identity of the Doe Defendants.*fn1 Subsequently, Yahoo! Advised Plaintiff that it sent an "e-mail notification to the user named in the Subpoena indicating that a Subpoena...was issued." Thereafter, under cover of letter dated August 17, 2006, Yahoo! advised Plaintiff that the pun2dex online identity was registered under Defendant Conner's name. For the first time, on February 21, 2008, Plaintiff filed a Praecipe to Reinstate the Complaint, adding Conner as a Defendant. On May 5, 2008, Defendants removed the action to this Court.
Plaintiff alleges that after filing the Complaint, it "immediately" sent an electronic copy of the Complaint to pun2dex's e-mail address; and that, at some point, the internet provider advised Plaintiff that it would send a copy of the Complaint to Defendant. There is no affidavit or other record evidence to support these allegations, and no suggestion that the provider in fact sent a copy of the Complaint, or that Defendant Conner received such a copy. Moreover, the state court docket does not reflect service of the Complaint, as originally filed or as reinstated.
Additionally, on August 17, 2007, Plaintiff's CEO filed an action in state court, for false light and defamation, against Defendant Conner. That action was removed to this Court, and subsequently dismissed on statute of limitations grounds. Bradley v. Conner, No. CV-07-1347 (W.D. Pa. Nov. 29, 2007).
Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chem . Co., 898 F. 2d 946, 949 (3d Cir. 1990). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. United States v. Onmicare, Inc., 382 F. 3d 432 (3d Cir. 2004). Rule 56, however, mandates the entry of judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. Celotex Corp. v. Cattrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 265 (1986).*fn2
III. Statute of Limitations
Defendant argues that this action should be dismissed, because Plaintiff failed to make a good faith effort to serve him with process within applicable time limitations.*fn3 In particular, Defendant relies on the one-year statute of limitations for corporate disparagement, found at 42 Pa.C.S. § 5523(1). Because the pertinent events occurred while this action was in ...