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Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF PENNSYLVANIA

_______________________________________:
:
ANTHONY L MARFIONE AND :
MICROTECH KNIVES, INC. :
:
Plaintiffs, : Jury Trial Demanded
:
v. : No. 1:17-cv-00070
:
KAI U.S.A., LTD. AND KALE BEYER, : Electronically Filed
:
Defendants. :
_______________________________________:

______________________________________________________________________________

PLAINTIFFS’ MOTION FOR RECONSIDERATION OF DISMISSAL OF CLAIMS


AGAINST DEFENDANT KAI U.S.A., LTD.
______________________________________________________________________________

DICKIE McCAMEY & CHILCOTE, P.C.

By /s/Michael P. Flynn
Steven W. Zoffer, Esq. (PA I.D. #62497)
szoffer@dmclaw.com
Douglas M. Grimsley (PA I.D. # 92948)
dgrimsley@dmclaw.com
Michael P. Flynn, Esq. (PA I.D. #206150)
mflynn@dmclaw.com

Two PPG Place, Suite 400


Pittsburgh, PA 15222-5402
(412) 281-7272 – telephone
(412) 392-5367 – facsimile

ATTORNEYS FOR PLAINTIFFS


ANTHONY L. MARFIONE AND
MICROTECH KNIVES, INC.
Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 2 of 11

PRELIMINARY STATEMENT

Plaintiffs’ Motion for Reconsideration follows this Court’s Order of March 27, 2018

granting Defendant KAI U.S.A. LTD’s (“KAI”) Motion to Dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). By that same order, the Court invited Plaintiffs to file this Motion for

Reconsideration and attach any information obtained during discovery to support the contention

that KAI created or developed the Sculimbrene Article. (ECF Doc. No. 44 at 18). Plaintiffs are in

possession of information produced during discovery, and have attached, a statement from

Sculimbrene regarding KAI’s direct involvement in the creation and/or development of the

Sculimbrene Article (the “Sculimbrene Statement”). A true and correct copy of the Sculimbrene

Statement is attached hereto as Exhibit A.

In its Order, the Court noted that KAI could not take advantage of the immunity afforded

by Section 230 of the Communications Decency Act (“CDA”) as a republisher if Kai “created,

edited, or otherwise developed” the Sculimbrene Article. (ECF Doc. No 44 at 12). However,

upon its review of the email correspondence attached to the Amended Complaint, the Court

concluded that the correspondence between KAI and Sculimbrene did not support an inference

that KAI jointly developed or created the Sculimbrene Article. (ECF Doc. No. 44 at 14-15). The

Court also concluded that Sculimbrene’s statements in the comments section to the Sculimbrene

Article did not support the conclusion that KAI jointly developed or created the Sculimbrene

Article. (ECF Doc. No. 44 at 15). Plaintiffs respectfully request that the Court grant their Motion

for Reconsideration in light of the Court’s obligation to accept Plaintiffs’ allegations as true at

this stage of litigation, and upon the Court’s review of Sculimbrene’s admission that KAI

contributed and jointly developed the Sculimbrene Article.


Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 3 of 11

Plaintiffs had instituted a separate action against Sculimbrene docketed at 1:17-cv-46 in

the Western District of Pennsylvania, which was voluntarily dismissed in May, 2017. As part of

that action, Sculimbrene executed a signed statement which detailed the background of the

Sculimbrene Article and KAI’s role in the development and creation of the same. Sculimbrene

states that he communicated with KAI’s Thomas Welk via “phone call, emails, and a podcast.”

(Ex. A). Sculimbrene describes his relationship with Welk and the extensive communications

history between the two prior to the creation of the Sculimbrene Article. (Ex. A. at ¶¶ 1-12).

Moreover, Sculimbrene points out an additional email which lends further context to

Plaintiffs’ “snake in the grass” allegations in the Amended Complaint. After Welk indicated he

wasn’t sure what Sculimbrene meant by the “joke” in the January 5, 2017 email (the first joke

being KAI’s naming the knife “Natrix” as juxtaposed to Microtech’s knife called the “Matrix”),

Welk feigns ignorance and explains a second layer of the joke/pun. Namely, Welk informs

Sculimbrene that the use of the name “Natrix” is meant not only as a play on words in reference

to Microtech’s “Matrix” knife, but also that the term “Natrix” refers to a certain types of grass

snakes – i.e., Microtech and/or Anthony Marfione is a snake in the grass. For the purposes of

determining a motion to dismiss, Welk’ explanation to Sculimbrene should only be interpreted as

Welk’s sarcasm rather than any purported naiveté. A true and correct copy of the exchange of

January 5, 2017 emails is attached hereto as Exhibit B.

Sculimbrene identifies another email wherein Welk provides “his account of the history

between KAI and Microtech.” (Ex. A at ¶ 16). Sculimbrene then goes on to state that “it was

based upon these conversations and communications with Mr. Welk that I wrote the article about

Microtech and Mr. Marfione.” (Ex. A at ¶ 22). Sculimbrene states that Welk provided

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information to “manipulate me into adopting a negative opinion of both Microtech and Mr.

Marfione.” (Ex. A at ¶ 22). Sculimbrene states in full:

It was based upon these conversations and communications with


Mr. Welk that I wrote the article about Microtech and Mr.
Marfione. I did not have any personal axe to grind with Microtech
or Mr. Marfione, no personal motive in attacking Mr. Marfione or
Microtech and did not derive any monetary gain from KAI for
publishing the article. While at the time I did not see or otherwise
recognize what happening, now, after reviewing the emails as a
whole and rethinking my conversations with Mr. Welk, including
the emails regarding loyalty, I believe that Mr. Welk was
dropping these “breadcrumbs” of information for me to pick
up along the way and manipulate me into adopting a negative
opinion of both Microtech and Mr. Marfione. As someone who
enjoys knives and feels a responsibility to the knife industry, I
believed that I was doing the knife industry a service by writing the
article and “exposing” what I perceived to be, based upon my
communications with Mr. Welk, a disservice to the Industry. That
was the sole reason for publishing the article and was based, in
large part upon the information fed to me by Mr. Welk In the
above referenced emails and conversation. I would never have
written any of the statements about Mr. Marfione absent my
communications with Mr. Welk.

(Ex. A at ¶ 22)(emphasis added). Sculimbrene signed this statement and provided it to Plaintiffs.

STANDARD FOR RECONSIDERATION

“‘The purpose of a motion for reconsideration is to correct manifest errors of law or fact

or to present newly discovered evidence.’” Breslin v. Dickinson Twp., No. 1:09-CV-1396, 2011

U.S. Dist. LEXIS 54420, at *8 (M.D. Pa. May 19, 2011) (quoting Harsco Corp. v. Zlotnicki, 779

F.2d 906, 909 (3d Cir. 1985)). Third Circuit precedent states that “a judgment may be altered or

amended if the party seeking reconsideration shows at least one of the following grounds: (1) an

intervening change in the controlling law; (2) the availability of new evidence that was not

available when the court granted the motion; or (3) the need to correct a clear error of law or fact

or to prevent manifest injustice.” Howard Hess Dental Laboratories Inc. v. Dentsply Intern.,

Inc., 602 F.3d 237, 251 (3d Cir. 2010) (citations omitted).

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Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 5 of 11

ARGUMENT

The Sculimbrene Statement, taken together with the evidence attached to the Amended

Complaint, is sufficient to state a plausible claim that KAI jointly created and developed the

Sculimbrene Article. “When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), the Court must accept the factual allegations in the Complaint as true and

draw all reasonable inferences in the Plaintiffs’ favor.” Ghrist v. CBS Broad, Inc., 40 F. Supp. 3d

623, 626 (W.D. Pa. 2014); citing Malleus v. George, 641 F.3d 560, (3d Cir. 2011). The Court

cannot dismiss a Complaint “merely because it appears unlikely or improbable that Plaintiff can

prove the facts alleged or will ultimately prevail on the merits…instead, [the] Court must ask

whether the facts alleged raise a reasonable expectation that discovery will reveal evidence of the

necessary elements.” Hill v. Cosby, 2016 U.S. Dist. LEXIS 7300, *4 (W.D. Pa. 2016) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8, 556 (2007).

As the Supreme Court reiterated in Iqbal, the Twombly standard does not impose a

“probability requirement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

U.S. at 556). Twombly “does not require as a general matter that the plaintiff plead facts

supporting an inference of defendant's liability more compelling than the opposing inference.” In

re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 341 n.42 (3d Cir. 2010). Twombly requires the

plaintiff to plead only enough “factual content [to] allow[] the court to draw [a] reasonable

inference that the defendant is liable for the misconduct alleged.” Id. “This ‘plausibility’

determination will be ‘a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d

Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949).

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This Court should reconsider its Order on Defendant KAI’s Motion to Dismiss as the

Sculimbrene Statement asserts sufficient facts to support the contention that KAI jointly created

or developed the Sculimbrene Article and is not subject to immunity under Section 230 of the

CDA. The Third Circuit has not addressed how involved a party must be in the “creation or

development” of content for the party to lose immunity under Section 230. However, the Ninth

Circuit's “material contribution” test, first set forth in Fair Hous. Council v. Roommates.com,

LLC, 521 F.3d 1157 (9th Cir. 2008), has been adopted by several other circuits. See, e.g., Nemet

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009); Jones v. Dirty World

Entm't Recordings LLC, 755 F.3d 398 (6th Cir. 2014); F.T.C. v. Accusearch Inc., 570 F.3d 1187

(10th Cir. 2009). Under the material contribution test, a person makes a material contribution to

the content by “being responsible for what makes the displayed content allegedly unlawful.”

Dirty World Entm't, 755 F.3d at 410-11. See also Chi. Lawyers' Comm. for Civil Rights Under

Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008) (“Causation . . . must refer to

causing a particular statement to be made, or perhaps the discriminatory content of a statement.

That's the sense in which a non-publisher can cause a discriminatory ad, while one who causes

the forbidden content may not be a publisher”).

Importantly, another court in the Third Circuit, namely the United States Court for the

District of Delaware, has indicated its belief that “the Third Circuit would follow its sister

circuits in applying this test.” Moretti v. Hertz Corp., 2017 U.S. Dist. LEXIS 38581, at *5 n.1

(D. Del. Mar. 17, 2017). In Moretti, the District Court refused to grant judgment on the

pleadings on the basis of Section 230 immunity because “the Court cannot treat the Complaint's

silence as to whether Hotwire materially contributed to the false statement as an affirmative

allegation that Hotwire did not do so.” 2017 U.S. Dist. LEXIS 38581, at *10 (emphasis in

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Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 7 of 11

original). The underlying claim was that the Hertz supplied misleading information about car

rental prices and terms to Hotwire, and Hotwire incorporated the content into listings on its

website and continued to use it even after consumer complaints. Id. at *2-3. Hotwire moved for

judgment on the pleadings on the basis of Section 230, arguing the plaintiff did not allege it was

the creator or author of the misleading information. Id. at *6. The court held that because the

complaint did not allege that Hertz was not a content provider, Hertz could not demonstrate

Section 230 immunity because “a factual dispute as to the nature and degree of Hotwire's

involvement in the allegedly misleading statement” existed. Id. at *8-11. The court also noted its

reasoning was supported by similar decisions in other courts. See e.g., Swift v. Zynga Game

Network, Inc., 2010 U.S. Dist. LEXIS 117355, *18 (N.D. Cal. Nov. 3, 2010)(denying

defendants’ motions to dismiss based on CDA immunity as court deemed “it would be improper

to resolve this issue on the pleadings”); Suk Jae Chang v. Wozo LLC, 2012 U.S. Dist. LEXIS

42896, *47 (D. Mass. Mar. 28, 2012) (denying defendants’ motions to dismiss based on CDA

immunity as court deemed this “a dispute of fact that cannot be resolved at this juncture”);

CYBERsitter, LLC v. Google Inc., 905 F. Supp. 2d 1080, 1086 (CD. Cal. 2012)(denying

defendant’s motions to dismiss false advertising claims and holding “because Defendant's

entitlement to immunity under the CDA depends on whether Defendant ‘developed’ or

materially contributed to the content of these advertisements, it is too early at this juncture to

determine whether CDA immunity applies.”); Perfect 10, Inc. v. Google, Inc., 2008 U.S. Dist.

LEXIS 79200, *24 (C.D. Cal. July 16, 2008)(“The question whether any of Google's conduct

disqualifies it for immunity under the CDA will undoubtedly be fact-intensive. Neither party has

proffered evidence sufficient for the Court to determine at this stage whether Google is entitled

to CDA immunity. Although it is highly likely that [Plaintiff] will encounter difficulty in

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Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 8 of 11

establishing that Google engaged in the ‘creation or development in whole or in part’ of unlawful

content, it would be improper for the Court to resolve this issue on the pleadings and the limited

evidentiary record before it.”)

Taking Sculimbrene’s statements as true, as the Court must at this stage, it is clear that

KAI materially contributed to the content of the Sculimbrene Article. Sculimbrene states in no

uncertain terms that the defamatory comments would never have been published but for the

information given to Sculimbrene by Welk. Sculimbrene also provides additional context for the

emails where he indicated he was “in” on the Natrix naming joke, as well as the “double pun of

the snake in the grass” that was explained by Welk. (Ex. A at ¶ 14; Ex. B). This email exchange

occurred around the same time that Welk provided an email to Sculimbrene detailing “his

account of the history between KAI and Microtech.” (Ex. A at ¶ 16). This Court concluded that

the documents attached to the Amended Complaint “focused only on keeping the new product

information confidential until the public release, and on Sculimbrene’s reviews of how Kai’s

products worked,” but did not show any inference of joint development or creation by Kai. (ECF

Doc. No. 44 at 14). However, based on the Sculimbrene Statement, and taking all inferences in

favor of Plaintiff, these statements support the allegations in the Amended Complaint regarding

not just KAI’s animosity towards Plaintiffs, but instead and more importantly KAI’s material

contribution to the Sculimbrene Article.

The additional information contained in the Sculimbrene Statement reinforces and

confirms the inferences as to KAI’s joint creation and development of the Sculimbrene Article.

Sculimbrene states explicitly that “it was based upon these conversations and communications

with Mr. Welk that I wrote the article about Microtech and Mr. Marfione.” (Ex. A at ¶ 22).

Sculimbrene states that Welk provided information to “manipulate me into adopting a negative

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Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 9 of 11

opinion of both Microtech and Mr. Marfione.” (Ex. A at ¶ 22). Without the information from

Welk, the Sculimbrene Article would not, and could not, exist. KAI cannot counter this factual

assertion at this stage and it must be taken as true that KAI, through Welk, supplied the

defamatory information that appeared in the Sculimbrene Article.

Sculimbrene states he wrote the Sculimbrene Article because he “believed that [he] was

doing the knife industry a service by writing the article and ‘exposing’ what [he] perceived to be,

based upon my communications with Mr. Welk, a disservice to the industry.” (Ex. A. at ¶ 22).

The Sculimbrene Article “was based, in large part upon the information fed to [Sculimbrene] by

Mr. Welk.” Sculimbrene also unequivocally states that he “would never have written any of the

statements about Mr. Marfione absent [his] communications with Mr. Welk” and that

Sculimbrene was being “manipulated” by Welk and Kai with “breadcrumbs” of defamatory

content regard to the Sculimbrene Article. (Ex. A at ¶ 22). As per Sculimbrene’s unequivocal

admission, but for KAI’s material contribution to Sculimbrene, the Sculimbrene Article would

not exist. These allegations, taken as true, establish KAI’s material contribution in the creation of

the Sculimbrene Article.

The Sculimbrene Statement, taken as true, meets the standard for reconsideration in that

it represents new evidence which supports the allegations in Plaintiffs’ Amended Complaint. The

inferences that KAI was responsible for the creation of the Sculimbrene Article are now amply

supported by the factual statements contained in the Sculimbrene Statement which KAI cannot

contradict at this stage. Sculimbrene’s allegations, taken as true, indicate that KAI was materially

contributed to the joint development of the Sculimbrene Article, which, as this Court noted, does

not give rise to Section 230 immunity. (ECF Doc. No. 44 at 12) (citing Blumenthal v. Drudge,

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Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 10 of 11

992 F. Supp. 44, 50 (D.D.C. 1998)). Because Section 230 immunity does not apply in light of the

Sculimbrene Statement, reconsideration of KAI’s Motion to Dismiss is appropriate.

Additionally, reconsideration is appropriate in this matter to correct an error of law in

dismissing the Amended Complaint at this stage. The question of whether KAI’s involvement in

the creation of the Sculimbrene Article is sufficient to overcome Section 230 immunity is a

factual question. As the Moretti court held, Section 230 is an affirmative defense which KAI

must prove. The allegations in the Amended Complaint, along with the Sculimbrene Statement,

satisfy the Rule 8 pleading standard and dismissal of the Amended Complaint at this stage would

require the Court to make factual determinations, which is not appropriate at this stage.

CONCLUSION

For the foregoing reasons, this Honorable Court should reconsider its Order on Defendant

KAI’s Motion to Dismiss and reinstate Counts 1, 3, 5, 6, and 7 of Plaintiffs’ Amended

Complaint.

Dated: April 6, 2018 Respectfully submitted,

DICKIE McCAMEY & CHILCOTE, P.C.

By /s/Michael P. Flynn
Michael P. Flynn, Esq. (PA I.D. #206150)
mflynn@dmclaw.com

Two PPG Place, Suite 400


Pittsburgh, PA 15222-5402
(412) 281-7272 – telephone
(412) 392-5367 – facsimile

ATTORNEYS FOR PLAINTIFFS


ANTHONY L. MARFIONE AND
MICROTECH KNIVES, INC.

9
Case 1:17-cv-00070-BR Document 45 Filed 04/06/18 Page 11 of 11

IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF PENNSYLVANIA

_______________________________________ :
ANTHONY L MARFIONE AND :
MICROTECH KNIVES, INC. :
:
Plaintiffs, : Jury Trial Demanded
v. : No. 1:17-cv-00070
:
KAI U.S.A., LTD. AND KALE BEYER, : Electronically Filed
:
Defendants. :
_____________________________________________________:

CERTIFICATE OF SERVICE

I, Michael P. Flynn, Esquire, hereby certify that a true and correct copy of the foregoing

Plaintiffs’ Motion for Reconsideration of Dismissal of Claims Against Defendant KAI U.S.A.

LTD. was electronically filed with the Court and served upon counsel of record via ECF this 6th

day of April, 2018.

Respectfully submitted,
DICKIE, McCAMEY & CHILCOTE, P.C.

By /s/Michael P. Flynn
Michael P. Flynn, Esq. (PA I.D. #206150)
mflynn@dmclaw.com

Two PPG Place, Suite 400


Pittsburgh, PA 15222-5402
(412) 281-7272 – telephone
(412) 392-5367 – facsimile

ATTORNEYS FOR PLAINTIFFS


ANTHONY L. MARFIONE AND
MICROTECH KNIVES, INC

7067459.1

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