Marfione's Motion For Reconsideration, KAI's Opposition, and Order Dismissing Case

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.
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.

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).
3
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).
4
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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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
6
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
7
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,
8
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.
mflynn@dmclaw.com

(412) 281-7272 – telephone
(412) 392-5367 – facsimile

MICROTECH KNIVES, INC.
9

_______________________________________ :
ANTHONY L MARFIONE AND :
:
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.
mflynn@dmclaw.com

(412) 281-7272 – telephone
(412) 392-5367 – facsimile

MICROTECH KNIVES, INC
7067459.1
10
Case 1:17-cv-00070-BR Document 45-1 Filed 04/06/18 Page 1 of 4

ANTHONY L. MARFIONE and :

:
vs. : Civil Action No. 1:17-cv-00070-BR
:
KAU U.S.A., LTD. and KALE BEYER :
BRIEF OF DEFENDANT, KAI U.S.A., LTD., IN OPPOSITION

TO PLAINTIFFS’ MOTION FOR RECONSIDERATION
I. THE AUGMENTED RECORD STILL FAILS TO STATE A

PLAUSIBLE FACTUAL BASIS FOR THE PLAINTIFFS’ CLAIMS
The defendant respectfully submits that the factual allegations of the plaintiffs’ amended
complaint, even when augmented by extrinsic documents in the form of an e-mail communication
and a typewritten statement purportedly prepared and signed by the author of the offending article,
still fail to state a plausible claim that KAI USA either created, or developed the allegedly tortious
content of that article, as would be necessary to defeat that defendant’s immunity from suit under
the CDA as an interactive computer service provider.
At the Court’s invitation, the plaintiffs have attempted to enhance their deficient complaint
allegations by offering a signed, unsworn, hearsay statement from the original author of the article
(knife enthusiast, internet blogger, and New Hampshire criminal defense attorney Anthony
Sculimbrene) a document which the author apparently created as part of the consideration
underlying his non-monetary settlement agreement with the plaintiffs, who withdrew their separate
lawsuit against Sculimbrene in return, and agreed to defend and indemnify him when he is joined
as a third-party defendant to this suit. [A copy of the Settlement Agreement and Release relating
to the plaintiffs’ separate action against Sculimbrene and calling for him to prepare such a
document is attached as Exhibit “A”].
The first two pages of that written statement offer a seemingly innocuous account of
Sculimbrene’s past history of communicating with KAI’s Sales Director, Thomas Welk, regarding
new product information and reviews starting in 2012 (nearly five years before the publications
giving rise to this litigation occurred,) none of which appears to have any bearing upon the issue
presently before the Court, or suggests that either party to those communications was guilty of
behavior that would have been in any way unethical, unexpected, or improper in terms of the
relationship between the sales director of a product manufacturer and an individual engaged in the
business or hobby of reviewing such products.
Nor does the statement appear to suggest that Messrs. Welk and Sculimbrene maintained
an unusually close relationship as inferred by plaintiffs’ counsel. If anything, the first two pages
of the statement [Paras. 1-12] would indicate that the two individuals maintained an independent,
friendly, arms-length relationship, and that Welk and Sculimbrene had freely exchanged not only
product information, but conflicting opinions in the past.
Apart from providing Sculimbrene with production prototypes of two knives that he wished
to review in 2015 (which he later returned) and sending him a pen and a pad of paper bearing the
“ZT” brand name [Para. 11] there is no indication in the statement that Sculimbrene was ever paid
by KAI to write reviews of its products, or those of any competitor, or was offered any financial
incentives or rewards based upon the content of his articles or the favorable quality of his opinions.
Sculimbrene would later confirm that he “did not derive any monetary gain from KAI for
publishing the article” in question [Para. 22].
Mr. Sculimbrene’s statement then essentially indicates that he reached out to Mr. Welk at
the end of 2016, advised him that he intended to write some new product reviews, and asked Welk
for early access to KAI’s new product catalogs, which was freely given with the understanding
that Sculimbrene would not go public with the information prior to a forthcoming knife show
[Paras. 12-13].
Later, Mr. Sculimbrene’s statement indicates that he commented upon the name given to
KAI’s “Natrix” knife during an e-mail exchange with Mr. Welk. Sculimbrene then offers a
patently inaccurate account of what followed [Para. 14] falsely attributing his own statement
regarding a “double pun of the snake in the grass” and his own stated intention to buy one for the
laughs to Mr. Welk, when it is obvious on the face of those communications that it was
Sculimbrene himself who made those comments. [A more complete copy of the e-mail exchange
in question than that which accompanied the motion for reconsideration was previously filed as
2
Exhibit “A” to the plaintiffs’ amended complaint, Document 45-2, and accompanies this response
as Exhibit “B”.]
Finally, at Paragraph 22 of the signed statement, Sculimbrene offered the following
narrative on which the plaintiffs’ chiefly rely in augmenting their complaint allegations, essentially
indicating (1) that Sculimbrene’s article of January 20, 2017 was based upon the conversations
and communications outlined previously in his statement (none of which would support the
plaintiffs’ claim that KAI created or developed the offending content of the article without
resorting to unreasonable inferences or distortion); (2) that, in retrospect (after having been sued
by the plaintiffs,) Sculimbrene now thinks, though he did not see it at the time, that Mr. Welk had
dropped “breadcrumbs” of information for him to find in order to “manipulate” him into forming
his own negative opinion of Microtech and Marfione, and (3) that he would never have written
any of the statements that he made about Mr. Marfione absent his communications with Mr. Welk:
22. 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 and 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 was 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 Mictrotech 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.
Sculimbrene’s statement confirms that he was the sole author of the article and that the
opinions expressed in the article, though he now regrets offering them, were entirely his own.
Although the statement would indicate that Sculimbrene relied upon the largely unspecified
information provided by Mr. Welk, it does not say that Welk was the source of the allegedly
defamatory opinions, or the terms of personal invective expressed in his article.
3
Most significantly, the factual assertions appearing in the Sculimbrene statement in

no way suggest that KAI “created” or “developed” the offending content of his article. The
statement does not suggest that Mr. Welk, or any other KAI representative, had any advance
knowledge regarding the intended content of Sculimbrene’s article prior to its publication.
There is absolutely no indication that he and Mr. Welk discussed the content of the article in
advance, that anyone at KAI offered suggestions or proposed changes, or that anyone at KAI
knew, before Sculimbrene published the article, that he intended to review the Natrix knife,
or to attack, or insult the plaintiffs in the process, let alone encouraged him to do so, or had
a hand in writing it. Nor does the statement provide any factual support for the plaintiffs’
conclusory allegation that KAI directed Sculimbrene to publish the offending article, or that
they colluded to injure the plaintiffs. In short, the statement is like the amended complaint
in the sense that it offers conclusions without any the facts to support them.
Mr. Sculimbrene’s conclusory pronouncement that he would not have written the
statements which appeared in his article about Mr. Marfione had he not communicated with Mr.
Welk is left completely unexplained, and that is something which might very well be true for a
variety of reasons having nothing to do with KAI’s purported involvement with the article or its
immunity from suit under the CDA. For just one example, Sculimbrene would not have been in a
position to review any of KAI’s new products, including the “Natrix” knife, had Mr. Welk not
provided him with an advance copy of the company’s new catalog as requested. Whatever was
meant by Sculimbrene in offering that bare assertion, his statement does not elaborate on the
subject, and falls considerably short of offering any facts which might establish the necessary
causation between the defendant’s acts and Sculimbrene’s publication of any particular statement
or statements appearing in the article, or their allegedly defamatory content.
Of course, to the extent that it is averred in the amended complaint that the plaintiffs were
disparaged or defamed by not only by Sculimbrene’s article, but also by unspecified statements
offered after the initial publication of Sculimbrene’s article by other third parties in the public
“comments” section [Amended Complaint, Para. 49] neither the amended complaint, nor Mr.
Sculimbrene’s signed statement, offers any factual basis to suggest that the defendants authored,
altered, or materially contributed to their content in any way. See, Collins v. Purdue University,
703 F.Supp.2d 862, (N.D.Ind. 2010).
4
Finally, although the plaintiffs did not choose to augment their complaint allegations with
this document, it should be noted that Mr. Sculimbrene was also required to publish a written
retraction as part of his settlement agreement with the plaintiffs, a copy of which was produced by
the plaintiffs in discovery and is attached as Exhibit “C”. In that retraction, Mr. Sculimbrene
takes full credit for his article, for all of the opinions expressed in the article, and for his completely
unprofessional failure to seek any comment or input from Mr. Marfione before writing it, stating
that he was embarrassed and ashamed to have personally disparaged Mr. Marfione, that his
comments served no purpose, and that they were his own rank, crass and ill-informed opinions,
which he said were motivated by his own “zeal for a zinger,” as opposed to any purported
manipulation on the part of Mr. Welk.
II. THERE IS STILL NO PLAUSIBLE BASIS FOR THE PLAINTIFFS’ BALD

ASSERTION THAT THE DEFENDANTS CREATED, OR MATERIALLY
CONTRIBUTED TO THE ALLEGED ILLEGALITY OF THE PURPORTEDLY
DEFAMATORY STATEMENTS APPEARING IN SCULIMBRENE’S ARTICLE
The plaintiffs have argued that “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.”
Nothing could be farther from the truth.
As the Court is already aware from the parties’ original briefing, an interactive computer
service provider (such as the defendant through its website) is immune from civil tort liability
based upon its posting or republication of content provided by third parties such as Mr.
Sculimbrene under Section 230 of the Communications Decency Act (“CDA”) unless it is shown
that the defendant also functioned as an “information content provider,” a term defined as referring
to an entity that “is responsible, in whole or in part, for the creation or development” of the
information provided. 47 U.S.C. Section 230.
That statutory language has consistently been interpreted as requiring something more
involved than merely displaying or facilitating access to content created and originally published
by a third party. Jones v. Dirty World Entertainment Recordings, LLC, 755 F.3d 398, 410 (6th Cir.
2014).
5
To remain subject to tort liability under the statute, a defendant must have “created or
developed the particular information at issue,” or have taken an “active role” in causing a particular
statement, or perhaps its actionable content, to be made. Carafano v. Metrosplash.com, Inc., 339
F.3d 1119, 1125 (9th Cir. 2003); Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v.
Craigslist, 519 F.3d 666, 671 (7th Cir. 2008).
Under the “material contribution” standard adopted by most courts and advanced by the
plaintiffs in their pending motion for reconsideration, the term “development” has been defined as
not merely augmenting the content of a third-party posting, but “materially contributing to its
alleged unlawfulness,” or being responsible for what makes the displayed content allegedly
unlawful. Dirty World, supra; Fair Housing Council v. Roomates.com., LLC, 521 F.3d 1157,
1167-68 (9th Cir. 2008).
Merely encouraging disparaging or defamatory posts, or expressing post hoc agreement
with their content is not sufficient to avoid CDA immunity. Dirty World, supra at 415; Global
Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929, 933 (D.Ariz. 2008); Ascentive,
LLC v. Opinion Corp., 842 F.Supp.2d 450, 476 (E.D.N.Y. 2011), (noting that there is simply no
authority for the proposition that encouraging the publication of defamatory content renders a
website operator responsible for the creation or development of every posting on the site); La Park
La Brea A LLC v Airbnb, Inc., 2017 U.S. Dist. LEXIS 213721 (C.D.Calif. 2017); Russell v.
Implode-Explode Heavy Industries, Inc., 2013 U.S. Dist. LEXIS 133358, 2013 WL 5276557
(D.Md. 2013); Best Western Int’l. v. Ferber, 2008 U.S. Dist. LEXIS 7052, 2008 WL 4182827
(D.Ariz. 2008), (suggesting that visitors should make statements defaming the plaintiff was
insufficient to avoid immunity); Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281,
952 N.E/2d 1011, 1018 (NY 2011), (implicit encouragement does not make a website operator an
information content provider for the purpose of immunity).
Although the case law offers numerous examples of conduct that has been viewed as the
“development” of content for the purpose of avoiding CDA immunity, none of those examples
bear any resemblance to the present situation, and the plaintiffs have not really attempted to explain
how it is that KAI purportedly developed the allegedly defamatory content of Sculimbrene’s
article.
6
One recognized example of the “development” of content falling outside of CDA immunity
involves the selective editing or alteration of third party content, changing its meaning and
transforming an innocent message into a libelous one. Roomates.com, supra at 1163; Implode-
Explode, supra; General Steel Domestic Sales, LLC v. Chumley, 2015 U.S. Dist. LEXIS 108789
(D.Colo. 2015). This can also be accomplished without changing the original content of a third
party publication simply by adding disparaging titles, headings or editorial messages which
become part of the website content. MCW, Inc. v. Badbusinessbureau.com, LLC, 2004 U.S. Dist.
LEXIS 6678 (N.D.Tex. 2004). There are no allegations suggesting that KAI did any of those
things.
Another example of “development” occurs where an interactive computer service provider
pays for someone else to write the offending article. See, e.g., Advantafort Co. v. Int’l. Registries,
Inc., 2015 U.S. Dist. LEXIS 62125, 2015 WL 2238076 (E.D.Va. 2015), (holding that the plaintiffs
had failed to plead facts sufficient to support a plausible inference that the defendant was
responsible for the creation or development of an article, and suggesting that they might overcome
that hurdle if the defendant had paid the author of the article to write it, or had done so in the past);
FTC v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009), (no immunity where defendant paid third
party researchers to obtain confidential telephone records for its website, intended to display such
information unlawfully, and affirmatively solicited the information). As noted previously, Mr.
Sculimbrene has indicated that he was not paid by KAI for his publication of the article, and there
is nothing in his statement or in the complaint allegations to suggest that there was any past practice
or understanding between Sculimbrene and KAI that payment would be made if he wrote a review
that was favorable to KAI, or disparaged one or more of its competitors.
A defendant can also be viewed as having been responsible in part for the “development”
of third party content where the structure of its website requires users to input the unlawful content
on which a plaintiff’s claims are based. Roomates.com, supra. Again, that is not what happened
here, where Sculimbrene published the offending article all by himself, and the defendant merely
linked that existing article to its website.
There is simply no authority suggesting that a company that agrees to provide an
independent and unpaid product reviewer with advance copies of its catalogs, product samples, a
telephone interview, and unspecified ”information,” can be considered “responsible” for the
creation or development of the content of that third party’s resulting article, or for the reviewer’s
7
own admittedly rank, crass and ill-informed opinions, especially where the content of the article
was not shared with, or known to the company prior to publication, or in any way altered when it
was later linked to the company’s website.
Although research has not disclosed any authorities holding that a defendant must be aware
of the allegedly defamatory content of an article before it has been published in order to be
considered “responsible” for its creation, or development, that would appear to be rather obvious.
While some of KAI’s representatives were undoubtedly pleased or amused by Mr.
Sculimbrene’s article when they first saw it after the fact, as were a number of readers apparently,
there is absolutely nothing here to indicate that anyone other than the author himself knew
beforehand what the content of that article would be, let alone took an active role in creating or
developing any actionable portions of that content.
III. PLAUSIBILITY CANNOT BE PREMISED UPON UNWARRANTED

INFERENCES OR THE MISCHARACTERIZATION OF EVIDENCE
The Court has already thoroughly addressed the plaintiffs’ past reliance upon unsupported
and unreasonable inferences, as well as misstatements of the evidence, when responding to the
defendants’ motions to dismiss in its Order of March 27, 2018, and that pattern of behavior has
not changed significantly with their motion for reconsideration, in which the plaintiffs have again
done both repeatedly, stepping at least slightly across the line between poetic license or acceptable
legal advocacy and misleading conduct. As before, however, the Court’s careful examination of
the actual documents involved should serve to resolve the problem.
Among them, the plaintiffs have referred at Page 2 of their motion to what they have
characterized as “Sculimbrene’s admission that KAI contributed and jointly developed the
Sculimbrene article,” when Mr. Sculimbrene’s hearsay statement actually says nothing of the sort.
On the same page, the plaintiffs have also misrepresented the content of the e-mail
exchanges between Sculimbrene and Welk on January 5, 2017, in stating that “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 certain types of grass snakes
– i.e., Microtech and /or Anthony Marfione is a snake in the grass.” As an examination of the
actual e-mail exchanges plainly indicates, Mr. Welk did not say that at all. Instead, the e-mail
8
thread would indicate that Sculimbrene cleverly pieced that together and arrived at that conclusion
himself.
As previously explained in this Brief, Sculimbrene also misstated the evidence himself
with regard to the same e-mail exchanges in his signed statement, where he falsely attributed some
of his own statements to Mr. Welk, as is clear from the face Exhibit “A” to the amended complaint,
which is also attached as Exhibit “B” to this Brief.
At Page 2 of the plaintiffs’ motion, they also misleadingly suggest that Mr. Welk sent
Sculimbrene an e-mail offering his account of the history between KAI and Microtech and that
this was one of the communications on which Sculimbrene relied in writing his article, whereas
Paragraph 16 of Sculimbrene’s statement instead indicates that the e-mail in question was not sent
to him by Welk until three days after the offending article was published, a fact also evident from
face of the e-mail itself.
Moreover, as the Court has already ably explained in its Order granting the defendants’
motions to dismiss, even assuming that the “snake in the grass” statement in Sculimbrene’s article
was intended to refer to the plaintiffs and is legally actionable (insults, opinions and terms of
personal invective are not ) there is nothing in the complaint allegations to indicate that Mr. Welk
knew beforehand that Sculimbrene intended to include that particular statement (or anything else)
in his upcoming article, let alone put him up to it, and nothing about that is changed by Mr.
Sculimbrene’s signed statement.
IV. IMMUNITY IS BROADLY CONSTRUED AND MUST BE AFFORDED

AT THE FIRST LOGICAL POINT OF THE LITIGATION PROCESS
The plaintiffs not only contend that reconsideration is appropriate based upon “new
evidence” in the form of Sculimbrene’s signed statement (dated over two weeks before the
amended complaint was filed on May 19, 2017) but also on the basis that the Court erred in
granting KAI’s motion to dismiss at the pleadings stage.
While it is true that some courts have been hesitant to do so, the seemingly prevailing view
is that immunity under the CDA is meant to be given a very broad scope to further the policies
underlying the statute, and should be afforded “at the earliest logical point in the litigation
process.” As noted by the U.S. Court of Appeals for the Fourth Circuit in Nemet Chevrolet, Ltd.
9
v. Consumeraffiairs.com, 591 F.3d 250, 254-55 (4th Cir. 2009) when upholding the dismissal of
an action against an internet service provider pursuant to a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6):
To further the polices underlying the CDA, courts have generally accorded Section 230
immunity a broad scope. [citations omitted]. This Circuit has recognized the “obvious
chlling effect” the “specter of tort liability” would otherwise pose to interactive computer
service providers given the “prolific” nature of speech on the Internet. [citation omitted].
Section 230 immunity, like other forms of immunity, is generally afforded at the first
logical point in the litigation process. As we have often explained in the qualified immunity
context, “immunity is an immunity from suit rather than a mere defense to liability” and “it
is effectively lost if a case is erroneously permitted to go to trial.” [citation omitted]. We
thus aim to resolve the question of Section 230 immunity at the earliest possible stage of
the case because that immunity protects websites not only from “ultimate liability,” but
also from “having to fight costly and protracted legal battles.” Roomates.com, 521 F.3d at
1175.
Consistent with that broad scope of immunity, it has also been held that even “close cases”
must be resolved in favor of immunity, “lest we cut the heart out of Section 230 by forcing websites
to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged –
or at least tacitly assented to – the illegality of third parties.” Roomates.com, supra, 521 F.3d at
1174; Dirty World, supra, 755 F.3d at 408.
As stated in the Court’s prior Order, Rule 8 “does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions,” and that is particularly true where the
plaintiffs have already been supplied with all of the private communications exchanged between
Sculimbrene and the only individual at KAI with whom he allegedly communicated before
publishing his article, Thomas Welk, yet still cannot manage to offer a factual predicate for their
claims.
The Court’s Order granting the defendants’ motions to dismiss afforded the plaintiffs the
opportunity to augment the deficient factual allegations of their amended complaint with evidence
produced in discovery to support their bare and conclusory assertions that the defendants created
or developed the allegedly tortious content of the Sculimbrene article, and from the hundreds of
pages of documents available, the plaintiffs chose to present only a copy of Sculimbrene’s signed
10
statement and an incomplete e-mail exchange, neither of which is sufficient to solve the problem,
in that neither provides any factual basis to support their allegations.
Under the circumstances, there is no justification for allowing this suit to proceed,
subjecting the parties and the Court to a protracted legal battle over purportedly defamatory
communications that were authored and originally published by someone other than the
defendants, who merely linked that existing article to their website.
Respectfully submitted,
/s/ Andrew J. Gallogly

Andrew J. Gallogly (PA I.D. No. 34554)
MARGOLIS EDELSTEIN
170 S. Independence Mall West, Suite 400E
Philadelphia, PA 19106
(215) 931-5866
agallogly@margolisedelstein.com
Emily E. Mahler (PA I.D. No. 310058)

MARGOLIS EDELSTEIN
525 William Penn Place, Suite 3300
Pittsburgh, PA 15219
(412) 355-4923
emahler@margolisedelstein.com
Attorneys for Defendants
11
CERTIFICATE OF SERVICE
I, Andrew J. Gallogly, hereby certify that a true and correct copy of the foregoing Brief
was served upon counsel of record for the plaintiffs upon its filing and acceptance through the
electronic case filing system.
/s/ Andrew J. Gallogly

Andrew J. Gallogly
12
UNITED STATES DISTRICT COURT

ANTHONY L MARFIONE AND )

MICROTECH KNIVES, INC. )
)
Plaintiffs, ) Civil Action No. 17-70
)
v. )
) ORDER GRANTING DEFENDANT
) BEYER’S MOTION TO DISMISS AND
KAI U.S.A., LTD. AND KALE BEYER, ) DEFENDANT KAI’S MOTION TO
) DISMISS
Defendants. )
)
____________________________________)
Plaintiffs Anthony L. Marfione and Microtech Knives, Inc. (“Microtech”) bring the present
action against a Microtech competitor, Defendant KAI U.S.A. Ltd. (“Kai”), and Defendant Kale
Beyer, a Kai employee, alleging violations of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), as well
as defamation and commercial disparagement. Each Defendant has moved to dismiss Plaintiffs’
claims. Specifically, Defendant Kai maintains that it was not the “publisher” of the third-party
statements at issue, and, therefore, that it cannot be subject to liability under the Lanham Act as a
matter of law; and, for the same reason, that it is immune from Plaintiffs’ state law claims pursuant
to the Communications Decency Act, 47 U.S.C. § 230. Doc. 28. 1 Defendant Beyer argues that the
Court lacks personal jurisdiction over him. Doc. 29. 2 Plaintiffs oppose both motions. Pls.’ Opp’n
to Kai Mot., Doc. 32; Pls.’ Opp’n to Beyer Mot., Doc. 31. Having reviewed the parties’ briefs
1
Defendant Kai additionally argues that because it did not “publish” the statements at issue, Plaintiffs have failed to
state actionable defamation and commercial disparagement claims against it. Doc. 28. The Court need not address
this argument as the Court finds that Defendant Kai is immune from Plaintiffs’ state law claims pursuant to the
Communications Decency Act, 47 U.S.C. § 230.
2
Additionally, or alternatively, and for the same reasons as Defendant Kai, Defendant Beyer argues that he did not
“re-publish” the third-party statements at issue, and, therefore, that Plaintiff has failed to state actionable claims against
him. Doc. 29. The Court need not address these arguments as to Defendant Beyer as the Court finds that it lacks
personal jurisdiction over him.
1
together with all relevant materials, the Court finds that it lacks personal jurisdiction over
Defendant Beyer, and that Defendant Kai did not “publish” the statements at issue for the purposes
of Plaintiffs’ claims. Accordingly, the Court grants each Defendant’s motion to dismiss. The
Court’s reasoning follows:
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Anthony L. Marfione, a resident of North Carolina, is the President of Plaintiff
Microtech, a corporation organized and existing under the laws of Pennsylvania. (Am. Compl.,
Doc. 26 ¶ ¶ 1, 3.) Microtech designs, manufactures, assembles, and sells knives. (Id. ¶ 2).
Defendant Kai is a corporation that also designs, manufactures, assembles, and sells knives. (Id. ¶
¶ 10-11). Kai is organized and exists under the laws of Oregon, and ships its “Kershaw” and “Zero
Tolerance” (“ZT”) brand knives into Pennsylvania. (Id. ¶ ¶ 4, 12). Defendant Beyer is employed
as Kai’s social medial specialist. (Id. ¶ 59; Doc. 26-6). Beyer resides and has “a regular place of
business” in Oregon. (Id. ¶ ¶ 6-7).
The parties agree on many of the facts germane to the present motions. (See Kai Mot., Doc.
28 at 3-5; Beyer Mot., Doc. 29 at 3-5; Pls.’ Opp’ns, Doc. 32 at 2-3, 5-7, Doc. 31 at 2-3, 6-8). In
2011, Plaintiff Microtech began selling a knife that it named the “Matrix.” (Compl., Doc. 26 ¶ 20).
In 2016, Kai issued Microtech a cease and desist letter, claiming that the Matrix infringed a utility
patent that Kai had obtained in 2015. (Id. ¶ 22). In response, Microtech “immediately
discontinued” selling that version of the Matrix and other knives that it believed utilized Kai’s
patent. (Id. ¶ 24). By redesigning the Matrix and discontinuing the sale of certain other products,
Microtech “resolved” the patent infringement claim, and no patent infringement or other related
lawsuit was ever filed against Microtech. (Id. ¶ ¶ 27, 30).
2
On January 3, 2017, a knife enthusiast and blogger, Anthony Sculimbrene, 3 emailed Kai’s
Director of Sales and Marketing, Thomas Welk. (Doc. 26 ¶ 34 (citing 1/3/17 Sculimbrene to Welk
Email, Doc. 26-1)). 4 In his email, Sculimbrene stated that he was “working on a series of articles
for [another website dedicated to hunting, fishing, and camping gear, regarding] new releases for
2017,” and asked Welk for information about Kai’s new Kershaw and ZT brand knives. (Doc. 26-
1 at 2; see Doc. 26-3 at 1). Sculimbrene additionally provided a link to one of his blog posts in
which he had written that Kai was 2016’s “Company of the Year.” (Doc. 26-1 at 2).
Welk responded two days later with the specifications for the requested products, which,
according to the linked files, included a new Kai knife named the “Natrix.” (Doc. 26 ¶ 25 (citing
1/5/17 Welk to Sculimbrene Email, Doc. 26-2 at 1-2)). Two hours later, Sculimbrene replied:
“[T]he in-joke—the Natrix—is my favorite product Kai has released ever. Oh god that is funny.”
(Doc. 26 ¶ 38 (quoting 1/5/17 Sculimbrene to Welk Email, Doc. 26-1 at 1)). Welk replied: “Not
sure what you mean…joke? Natrix is a genus of colubrid snakes. Four species are in the genus.
They are collectively called grass snakes and water snakes. Am I missing something?” (Doc. 26
¶ 39 (quoting 1/5/17 Welk to Sculimbrene Email, Doc. 26-1 at 1)).
Approximately two weeks later, on January 20, 2017, Sculimbrene posted to his website
an article titled “The Story Behind the Greatest Knife of All Time” (the “Sculimbrene Article”).
(Doc. 26 ¶ 45 (citing Sculimbrene Article, Doc. 26-4 at 1-2)). In his Article, Sculimbrene writes
3
Sculimbrene maintains a website on which he reviews knives and other “gear,” such as flashlights, water bottles,
and wallets. See Doc. 26 at ¶ ¶ 32-45 (citing Docs. 26-1—26-7, accessed at: http://www.everydaycommentary.com);
see Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (in reviewing a motion to
dismiss, the court may consider matters of public record referenced in the complaint). According to Sculimbrene’s
website, Sculimbrene hopes that readers find his reviews “useful, interesting, and funny.”
(http://www.everydaycommentary.com/about). Sculimbrene further informs readers that he is a criminal defense
attorney who resides in New Hampshire. (Id.).
4
The emails and other documents referenced herein were attached to Plaintiffs’ Complaint; thus, the Court may review
them. See Guidotti, 716 F.3d at 772 (in reviewing a motion to dismiss, the court is to “consider only the complaint,
exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the
complainant’s claims are based upon these documents”) (internal quotation omitted).
3
that he considers Kai’s Natrix knife the “greatest” knife of all time because it has a “dash of
storytelling” to it. (Doc. 26-4 at 1). According to the Sculimbrene Article, this “story” includes,
for example, Plaintiffs having “blatantly cop[ied]” and “ripped [] off” Kai’s knives when
Microtech released various versions of their Matrix knives. (Id. at 1). The Sculimbrene Article
further claims that Kai’s Natrix knife is “aimed at [Plaintiff] Marfione, and it is named after a
snake in the grass.” (Id. at 2).
That afternoon, a link to the Sculimbrene Article was posted on each of Kai’s ZT knives’
and Kershaw knives’ Instagram accounts with the following respective messages: “This is
definitely worth a read—this is the story behind the #zt0777 [a ZT knife] & the new
@kershawknives #7007 Natrix[;]” and “Wonder what the backstory to the new #7007 Natrix is?
See why [Sculimbrene] calls it ‘the greatest knife of all time!’” (Doc. 26 ¶ 60 (citing ZT knives’
& Kershaw knives’ Instagram Posts, Doc. 26-7)). Also that afternoon, Defendant Beyer posted on
his Instagram account a link to the Sculimbrene Article with the following message: “This is the
whole backstory behind [one of Kai’s knives] and the knockoff, ‘the Matrix’ by @microtechknives
and how the new @kershawknives struck a chord with its latest model, the #7007Natrix—read it
at [Sculimbrene’s website.]” (Doc. 26 ¶ 59 (citing Beyer Instagram Post, Doc. 26-6)). Beyer
directed his post to Plaintiffs’ Instagram accounts and continued: “I invite any sort of response[.]
It will, as always, be unedited. Say what you want in response and I will publish it.” (Doc. 26-6).
The next day, Welk emailed Sculimbrene. (Doc. 26 ¶ 54 (citing 1/21/17 Welk to
Sculimbrene Email, Doc. 26-5)). The email’s subject line reads: “Your article…[,]” and the body
of Welk’s email reads: “Just read it with a big smile on my face…Cheers.” (Doc. 26-5).
In February 2017, Marfione filed before this Court a lawsuit against Sculimbrene alleging
that the Sculimbrene Article contained defamatory statements. (Docket No. 1:17-cv-46 (W.D. Pa.,
4
filed Feb. 17, 2017)). 5
In this action, Plaintiffs contend that “Kai and/or [] Welk was the creator and/or developer”
of the Sculimbrene Article; that “the Article was originally published by Sculimbrene at the
direction of Kai and/or [] Welk;” and that Kai and Beyer each “republished” the Sculimbrene
Article when they posted a link to it on their respective Instagram accounts. (Am. Compl., Doc.
26 ¶ ¶ 55-56, 57-72). The Sculimbrene Article, Plaintiffs continue to assert, contains false,
misleading, and defamatory statements; and, as a result, Plaintiffs have suffered—and will
continue to suffer—“monetary and reputational injury.” (Id. ¶ 80). Through Defendant Beyer’s
“republication” of the Sculimbrene Article, Plaintiffs contend, Beyer defamed Marfione (Count 2)
and commercially disparaged Microtech (Count 4). Through Defendant Kai’s “joint development
and subsequent republication” of the Sculimbrene Article, Plaintiffs claim that Kai violated the
Lanham Act, 15 U.S.C. § 112(a)(1)(B) (Count 1), defamed Marfione (Counts 3, 5, 6, 7), 6 and
commercially disparaged Microtech (Count 7).
Defendants now move to dismiss. Defendant Beyer argues that the Court lacks personal
jurisdiction over him because he is a resident of Oregon and has no contacts with Pennsylvania.
Doc. 29. Defendant Kai maintains that it was not the original publisher of Sculimbrene’s Article,
nor did it republish the Article, and, therefore, that Kai cannot be subject to liability under the
Lanham Act as a matter of law; and, for the same reasons, that it is immune from Plaintiffs’ state
law claims pursuant to the Communications Decency Act, 47 U.S.C. § 230. Doc. 28. The Court
addresses each Defendant’s motion in turn.
5
In May 2017, Marfione filed a notice of voluntary dismissal, which the Court granted. (Id. at Docs. 17, 18).
6
Count 3 is premised upon Kai’s “vicarious[] liab[ility]” for Defendant Beyer’s having republished the Sculimbrene
Article. (Doc. 26 at ¶¶ 96-97).
5
II. THE COURT LACKS PERSONAL JURISDICTION OVER DEFENDANT

BEYER
A. Legal Standards
Federal district courts sitting in Pennsylvania have personal jurisdiction over non-resident
defendants to the extent permissible under Pennsylvania law. Mellon Bank (E.) PSFS, Nat. Ass’n
v. Farino, 960 F.2d 1217, 1221 (3d Cir. 1992); Fed. R. Civ. P. 4(e). Pennsylvania’s long-arm
statute extends jurisdiction to the limit of federal due process. Mellon Bank, 960 F.2d at 1221
(citing Pa. Con. Stat. Ann. §5332(b)). Thus, the Court need determine only whether the exercise
of personal jurisdiction over Defendant Beyer comports with due process. Id.; Miller Yacht Sales,
Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004).
Due process requires that the defendant has sufficient “minimum contacts [with the forum
state] such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Carteret Sav. Bank,
FA v. Shushan, 954 F.2d 141, 145 (3d Cir. 1992). A defendant’s contacts with the forum state
may support either general or specific jurisdiction. General jurisdiction is not at issue in this case. 7
Specific jurisdiction “is invoked when the claim is related to or arises out of the defendant’s
7
Plaintiffs make a half-hearted attempt at establishing that the Court has general jurisdiction over Beyer by virtue of
his being an employee for Kai, a company that sells products that are “routinely shipped into, and sold, within the
Commonwealth of Pennsylvania.” (See Doc. 31 at 6; Compl., Doc. 26 ¶ 12). However, even where the company is
the defendant challenging personal jurisdiction, the Supreme Court has been clear that “a court may assert general
jurisdiction over foreign (sister-state or foreign-country) corporations…when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler AG v. Bauman, 571
U.S. 117, 134 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 546 U.S. 915, 919 (2011)). It will
be the “exceptional case” where “a corporation’s operations in a forum other than its formal place of incorporation or
principal place of business may be so substantial…as to render the corporation at home in that State.” Daimler, 571
U.S. at 134 n.19. Kai is incorporated and has its principal place of business in Oregon. (Doc. 26 ¶ 4). Plaintiffs have
not alleged facts that suggest Kai is “at home” in Pennsylvania. Furthermore, Beyer’s being employed by Kai is far
too attenuated to satisfy due process under a theory of general personal jurisdiction. See, e.g., Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 472-73 (1985).
6
contacts with the forum[; thus,] the focus must be on minimum contacts.” Carteret Sav. Bank, 954
F.2d at 149 (internal quotations omitted).
When a defendant raises a jurisdictional defense under Federal Rule of Civil Procedure
12(b)(2), the plaintiff bears the burden of demonstrating that jurisdiction is proper. BP Chems. Ltd.
v. Formosa Chem. & Fibre Corp., 229 F.3d 254 259 (3d Cir. 2000). “The plaintiff meets this
burden and presents a prima facie case for the exercise of personal jurisdiction by establishing with
reasonable particularity sufficient contacts between the defendant and the forum state.” Mellon
Bank, 960 F.2d at 1223 (internal quotation omitted). The plaintiff may not rely on “mere
allegations” or “the bare pleadings alone[; instead the] plaintiff must respond with actual proofs,”
such as “sworn affidavits or other competent evidence[.]” Time Share Vacation Club v. Atl.
Resorts, Ltd. 735 F.2d 61, 66 n.9 (3d Cir. 1984).
B. Plaintiffs Have Not Demonstrated That Beyer Has Sufficient Contacts with
Pennsylvania
Defendant Beyer contends that he does not have the minimum contacts with Pennsylvania
to support an exercise of personal jurisdiction. (Doc. 29 at 3, 5-10). Beyer, Plaintiffs agree, is a
resident of, and works in, Oregon. (Compl., Doc. 26 ¶ ¶ 6-7). The sole alleged basis for personal
jurisdiction is Beyer’s Instagram post, in which he links to the Sculimbrene Article, states that the
Matrix was a “knockoff,” and invites Plaintiffs to respond. (Doc. 29 at 3, 5-10; Doc. 31 at 7-8).
Plaintiffs contend that this post constitutes sufficient contacts with Pennsylvania. (Doc. 31 at 7-8).
Specifically, Plaintiffs assert that Beyer’s post was defamatory and commercially disparaging; and
that Microtech “felt the brunt of the harm” in Pennsylvania. (Id. at 7). Thus, Plaintiffs argue,
jurisdiction is proper under the effects test set forth in Calder v. Jones, 465 U.S. 783 (1984). (See
id.).
7
The Supreme Court in Calder considered an allegedly defamatory tabloid article that had
been written and edited in Florida (by Florida residents), and had been published nationwide. 465
U.S. 783 (1984). The article concerned the California activities of a California resident and
entertainer. Emphasizing that the alleged tort was not “mere untargeted negligence” but instead
“intentional, and allegedly tortious, actions…expressly aimed at California,” the Supreme Court
held that California had jurisdiction over the Floridian author and editor because the “effects” of
their conduct were primarily felt in California, where plaintiff lived and worked. 465 U.S. at 789.
In the Third Circuit, a plaintiff relying upon the Calder effects test must show that: “(1)
The defendant committed an intentional tort; (2) The plaintiff felt the brunt of the harm in the
forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as
a result of that tort; [and] (3) The defendant expressly aimed his tortious conduct at the forum such
that the forum can be said to be the focal point of the tortious activity.” Remick v. Manfredy, 238
F.3d 248, 258 (3d Cir. 2001) (citing IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 265-66 (3d
Cir.1998) (emphasis in original).
Here, Plaintiffs do not satisfy the Calder effects test. Even assuming that Beyer, through
his Instagram post, commercially disparaged Microtech and defamed Marfione, Plaintiffs have not
pled that they felt the brunt of the resulting harm in Pennsylvania, or that Beyer expressly aimed
his tortious conduct at Pennsylvania. (See Compl., Doc. 26 ¶ ¶ 98-102 (failing to identify any
forum in which Microtech allegedly felt its harm, and stating only that “Beyer acted with reckless
or intentional disregard for the truth [and] Microtech has and will experience financial loss as a
result of Beyer’s statements”); id. ¶ ¶ 81-94 (failing to allege any forum in which Marfione
allegedly felt his harm, and failing to explain how—or even acknowledge that—Marfione, a
8
resident of North Carolina, felt any harm in Pennsylvania); see also Pls.’ Opp’n, Doc. 31 (failing
to mention “Marfione” anywhere other than in the case caption)).
However, in their opposition, and without attaching or citing to affidavits or other evidence,
Plaintiffs maintain that Microtech “felt the brunt of the harm…in Pennsylvania [because]
Microtech employs 18 individuals, a significant part of its workforce, [and has] a manufacturing
facility located” in Pennsylvania. (Doc. 31 at 7); compare Time Share Vacation Club, 735 F.2d at
66 n.9 (plaintiffs must respond to a jurisdiction challenge with “actual proofs”).
Even assuming that Plaintiffs had pled and adequately demonstrated that Microtech
suffered Pennsylvania-based harm, “jurisdiction under Calder requires more than a finding that
the harm caused by the defendant’s intentional tort is primarily felt within the
forum…[T]he Calder ‘effects test’ can only be satisfied if the plaintiff can point to contacts which
demonstrate that the defendant expressly aimed its tortious conduct at the forum, and thereby made
the forum the focal point of the tortious activity.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254,
265 (3d Cir. 1998) (emphasis in original). “Simply asserting that the defendant knew that the
plaintiff’s principal place of business was located in the forum [is] insufficient in itself to meet this
requirement.” Id. (citing ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625 (4th Cir. 1997),
and Southmark Corp. v. Life Investors Inc., 851 F.2d 763, 773 (5th Cir. 1988)); see also Walden
v. Fiore, 134 S. Ct. 1115, 1125 (2014) (“mere injury to a forum resident is not a sufficient
connection to a forum”). Here, Plaintiffs do not allege, let alone demonstrate, that Beyer, by
linking to a third-party article on an Instagram post—a posting that can be seen worldwide on any
device capable of accessing the Internet, and which does not mention Pennsylvania or any other
forum—somehow targeted Pennsylvania residents. Thus, Plaintiffs have failed to meet their
burden in demonstrating that the exercise of personal jurisdiction over Beyer satisfies due process
9
for the purposes of their claims. 8 See IMO Indus., 155 F.3d at 265; FireClean, LLC v. Tuohy, 2016
WL 3952093, at *5-7 (E.D. Va. July 21, 2016) (finding the exercise of personal jurisdiction
improper over non-Virginia resident who posted allegedly defamatory content about plaintiff’s
product on various websites, despite defendant having received the product from plaintiffs in
Virginia, and despite plaintiff’s allegations that: (a) defendant placed relevant phone calls to
plaintiffs in Virginia; (b) servers hosting or transmitting defendant’s website were located in
Virginia; (c) defendant’s online comments demonstrated electronic activity with the intent to
engage in interactions in Virginia; and that (d) plaintiff felt the effects of defendant’s conduct in
Virginia, where its company was headquartered); Binion v. O’Neal, 95 F. Supp. 3d 1055, 1060-61
(E.D. Mich. 2015) (finding the exercise of personal jurisdiction improper over non-Michigan
resident who posted allegedly defamatory content on Instagram and Twitter, despite plaintiff’s
feeling harm in the forum state, and despite defendant having property interests in the forum state,
because plaintiff could not establish that defendant’s posts were expressly aimed at or disseminated
in the forum state, nor was there any allegation that defendant “took affirmative steps to direct the
posts to a Michigan audience”). Accordingly, the Court dismisses the claims against Beyer
(Counts 2 and 4) for lack of personal jurisdiction.
8
Further, Plaintiffs’ claims against Beyer appear to be based on the statements expressed within the Sculimbrene
Article, and not on Beyer’s own posted statement that the Matrix was a “knockoff.” (See Doc. 26 ¶ ¶ 82, 98-100).
Unlike as against Defendant Kai, however, Plaintiffs do not allege that Beyer originally wrote or directed the
publication of the Sculimbrene Article. (See id. ¶ ¶ 45-56). In his motion, Beyer alternatively argues that merely
posting a link on Instagram does not constitute “publication,” as required for actionable defamation claims, nor does
it constitute having made the offending statements, as required for actionable commercial disparagement claims.
Beyer is correct. See, e.g., Synygy, Inc. v. Scott-Levin, Inc., 51 F. Supp. 2d 570, 578–79 (E.D. Pa. 1999), aff’d sub
nom. Synygy, Inc. v. Scott-Levin, 229 F.3d 1139 (3d Cir. 2000).
10
III. PLAINTIFFS’ CLAIMS AGAINST DEFENDANT KAI
A. Plaintiffs’ Defamation and Commercial Disparagement Claims
Plaintiffs’ claims against Kai stem from the allegedly tortious content within the
Sculimbrene Article—which Kai linked to on Instagram—and not on any statements made by Kai
on the posts themselves. 9 (Compl., Doc. 26 at ¶ ¶ 74, 95-97, 105, 121, 125).
1. Immunity Under the Communications Decency Act
Under the “Good Samaritan” provision of the Communications Decency Act (“CDA”), 47
U.S.C. § 230, a “provider or [a] user of an interactive computer service” may not be treated as the
“publisher or speaker of any information provided by another information content provider.” 47
U.S.C. § 230(c)(1). The Act further provides that “[n]o cause of action may be brought and no
liability may be imposed under any State or local law that is inconsistent with” section 230. Id. at
§ 230(e)(3). Thus, section 230 “precludes courts from entertaining [any] claims that would place
a computer service provider [or user] in a publisher’s role, and therefore, bars lawsuits seeking to
hold a service provider [or user] liable for its exercise of a publisher’s traditional editorial
functions—such as deciding whether to publish, withdraw, postpone, or alter content.” Green v.
America Online, 318 F.3d 465, 471 (3d Cir. 2003) (internal quotation omitted); see also Mitan v.
A. Neumann & Assoc., LLC, 2010 WL 4782771, at *4 (D.N.J. Nov. 17, 2010) (Section 230(c)(1)
provides “immunity from common law defamation claims for persons who republish the work of
other persons through internet-based methodologies, such as websites, blogs, and email”); Dimeo
v. Max, 433 F. Supp. 2d 523, 529 (E.D. Pa. 2006), aff’d, 248 F. App’x 280 (3d Cir. 2007) (Section
230(c)(1) of the CDA provides immunity from state law defamation claims where “the defendant
9
Kai’s Instagram accounts linked to the Sculimbrene Article and stated, respectively: “This is definitely worth a
read—this is the story behind the #zt0777 [a ZT knife] & the new @kershawknives #7007 Natrix[;]” and “Wonder
what the backstory to the new #7007 Natrix is? See why @everydaycommentary [Sculimbrene’s website] calls it ‘the
greatest knife of all time!’”
11
[is] a provider or user of an ‘interactive computer service[;] the asserted claims [] treat the
defendant as a publisher or speaker of information[; and] the challenged communication [is]
‘information provided by another information content provider.’”). The Act does not, of course,
prohibit the imposition of state tort liability where interactive computer service providers or users
engage in “joint development” of the content posted. See, e.g., Blumenthal v. Drudge, 992 F. Supp.
44, 50 (D.D.C. 1998) (citing 47 U.S.C. § 230).
Here, the parties agree that pursuant to the CDA, Kai is a “user” of an “interactive computer
service,” i.e., Instagram; and that Plaintiffs’ claims treat Kai as the “publisher or speaker” of the
Sculimbrene Article. (See Def.’s Mot., Doc. 28 at 9-10; Pls.’ Opp’n, Doc. 32 at 8-12). Thus, there
is no dispute that under § 230, Kai is immune from Plaintiffs’ state tort claims if Kai is found to
have only posted a link to the Sculimbrene Article on Instagram, and not to have created, edited,
or otherwise developed it. (See Def.’s Mot., Doc. 28 at 9-10; Pls.’ Opp’n, Doc. 32 at 8-12); see
also, e.g., Green, 318 F.3d at 471.
2. Plaintiffs Have Not Plausibly Stated That Kai Created or Developed the Allegedly
Tortious Content in the Sculimbrene Article
Defendant Kai, in its motion, maintains that the exhibits attached to Plaintiffs’ Complaint
demonstrate that Kai did not create, develop, or originally publish the Sculimbrene Article. (Doc.
28 at 10-12). Specifically, Defendant asserts, the Article shows that it is attributed only to
Sculimbrene. (Id. at 10 (citing Doc. 26-4)). Further, Defendant asserts, the emails between Welk
and Sculimbrene were “all one-sided[:] Sculimbrene, not Kai, repeatedly references Marfione and
Microtech.” (Id. at 11 (citing Docs. 26-1, 26-3)). “Kai’s emails,” Defendant continues, “were
limited to the distribution of production magazines and inquiries into leaks of its upcoming
products.” (Id.). Thus, Defendant contends, Plaintiffs’ own evidence demonstrates that Kai “was
not involved in the Sculimbrene Article.” (Id.). Any inference to the contrary, Defendant asserts,
12
is not reasonable, and, therefore, Plaintiffs’ state law claims should be dismissed. (Id. at 10-11;
Doc. 33 at 6 (citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Plaintiff, interpreting the same
evidence, maintains that it has plausibly demonstrated that “Kai is the creator or developer, in
whole or in part, of the content at issue.” (Doc. 32 at 11-12).
To survive a motion to dismiss made pursuant to Rule 12(b)(6), a plaintiff must plead
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In “[d]etermining whether a complaint states a plausible claim for relief,”
the reviewing court must “draw on its judicial experience and common sense.” Id. at 679.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to
relief.’” Id. (quoting Fed. R. Civ. Pro. 8(a)(2)).
Here, the Sculimbrene Article states that it was “[p]osted by Tony Sculimbrene,” on
Sculimbrene’s own, un-affiliated website. (Doc. 26-4). Plaintiffs’ proffered evidence (the email
correspondence between Welk and Sculimbrene) begins with Sculimbrene reaching out to Welk;
and Sculimbrene does so because he is working on “a series of articles for AllOutdoor” regarding
new product releases. (Doc. 26-1). According to its website, AllOutdoor “is a fishing, hunting and
outdoor blog dedicated to obsessively covering product reviews, breaking news, and expert
advice.” (accessed at: http://www.alloutdoor.com/about-us/). Plaintiff has not alleged—and there
is no indication—that AllOutdoor is affiliated with Kai. (See id.) (AllOutdoor is “powered by a
writing staff whose viewpoints are as unique as their experiences”)); see generally Doc. 26; Doc.
13
26-1)). In response to Sculimbrene’s request for Kai’s not-yet-released product information, Welk
does not highlight the Natrix or any other Kai product; instead, he provides Sculimbrene with links
to four files, and writes that Sculimbrene should “let [him] know if [he] ha[s] questions, or need[s]
anything more.” (Doc. 26-1 at 1-2). In response to the files provided, Sculimbrene writes that “the
Natrix” is Sculimbrene’s “favorite product” and indicates that he is “in” on some “joke.” (Id. at 1).
Welk, in turn, responds: “Not sure what you mean…joke? Natrix is a genus of colubrid
snakes...[.]” (Id.).
Even assuming, as Plaintiffs suggest, that these emails demonstrate that the Natrix name
“was selected to portray [Plaintiff] Marfione and Microtech as a ‘snake in the grass[,]’” (Doc. 32
at 12), and that this portrayal constitutes actionable, tortious conduct, there is no indication that
Welk knew, let alone encouraged, Sculimbrene to include this or anything else in his upcoming
Article. To the contrary, Welk’s subsequent (and only) communication with Sculimbrene, one
week before the Article’s release, indicates that Welk was focused only on keeping the new product
information confidential until the public release, and on Sculimbrene’s reviews of how Kai’s
products worked. (See 1/13/17 Welk to Sculimbrene Emails, Doc. 26-3 (asking Sculimbrene
whether he “leak[ed]” the new product specifications, and telling Sculimbrene that if there were
“any samples” Sculimbrene wanted, to let Welk know). Thus, the inference Plaintiffs suggest is
unsupported. See Iqbal, 556 U.S. at 678; Cf. Dimeo v. Max, 433 F. Supp. 2d 523, 530 (E.D. Pa.
2006), aff’d, 248 F. App’x 280 (3d Cir. 2007) (citing cases and finding that defendant “did no more
than select and edit posts,” and, therefore, that he was not the “provider” of the “content” for the
purposes of the CDA). 10
10
Plaintiffs are likely correct that Welk does not like Marfione as a person. (See Welk Email, Doc. 26-3 at 1) (“Fuck
Tony Marfione…[.]”). However, given the remainder, or lack thereof, of Plaintiffs’ proffered evidence, it is not
reasonable to infer that Welk’s general dislike of Marfione suggests that Welk, or any other Kai employee, created,
developed, or published any of the allegedly defamatory statements in the Sculimbrene Article.
14
Plaintiffs additionally maintain that Welk’s “express[ion of] pleasure and approval of the
Article the day after it was posted,” demonstrates that “Welk provided information and direction
to Sculimbrene with the direct purpose of damaging Microtech with false information.” (Doc. 32
at 12). However, there is nothing untoward about a Director of Marketing and Sales being pleased
that a reviewer of his company’s products considers one of those products “the greatest of all
time.” Without more, the inference that Welk created the Article merely because he was pleased
with some or all of it after its release is unreasonable. See, e.g., Russell v. Implode-Explode Heavy
Indus., Inc., 2013 U.S. Dist. LEXIS 133358, at *28 (D. Md. Sept. 18, 2013) (“Defendant’s mere
agreement with the content of the article does not give rise to liability for defamation”) (citing S.C.
v. Dirty World, LLC, 2012 WL 3335284, at *4 (W.D. Mo. Mar. 12, 2012), Global Royalties, Ltd.
V. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008), and Zeran v. Am. Online,
Inc., 129 F.3d 327, 330 (4th Cir. 1997)).
Plaintiffs’ additional references to the record misstate the evidence or are otherwise
irrelevant. (See Doc. 32 at 12). First, Plaintiffs maintain that in the comments section underneath
the Article, Sculimbrene “admit[ted] that he received assistance from and relied upon information
from Kai’s Tom Welk to publish the defamatory claims.” (Id.). Plaintiffs here refer to
Sculimbrene’s response to an unknown party, in which Sculimbrene wrote: “I had a long 3 hour
interview with [Welk] in which he discussed this issue.” (Id. (quoting Doc. 26-4)). Plaintiffs would
have the Court believe that the “issue” to which Sculimbrene refers is something defamatory
and/or commercially disparaging within the Article. However, Sculimbrene’s comment clearly
relates to which knife design features he believes are patentable, which he believes are not, and
which of Kai’s patents was potentially infringed by Plaintiffs’ first—and now re-designed—Matrix
knife. (Compare id. at 1 with Doc. 26-4 at 4).
15
Plaintiffs next contend that that Kai, in its Instagram posts, “added a statement that the
[A]rticle was true,” thereby “adopt[ing] Sculimbrene’s words as its own.” (Doc. 32 at 13).
Plaintiffs contend that this “admission” combined with Kai—through the Instagram posts by
Beyer, Kershaw knives, and ZT knives—“presents more than enough facts to state a claim for
relief that is plausible on its face.” (Id. at 12). However, Kai’s Instagram posts do not state that
the Sculimbrene Article is true. (See Doc. 26-7). To the contrary, Kershaw knives’ post tells
followers to “[s]ee why @everydaycommentary,” i.e., Sculimbrene, “calls [the Natrix] ‘the
greatest knife of all time!’” (Id. at 4) (emphasis added). Moreover, Plaintiffs do not provide any
support for their contention that potential increased viewership of allegedly tortious content effects
who should be considered the “creator” or “developer” of that content. (See Doc. 32 at 11-12);
compare Novins v. Cannon, 2010 WL 1688695, at *2–3 (D.N.J. Apr. 27, 2010) (“multiple courts
have accepted” that CDA immunity applies to a “user [of an interactive computer service] who
takes affirmative steps to republish another’s content”) (citing cases); accord Obado v. Magedson,
612 F. App’x 90, 93 (3d Cir. 2015). Accordingly, the Court finds that the exhibits attached to
Plaintiffs Complaint, and as described in Plaintiffs’ briefing, are insufficient to plausibly support
Plaintiffs’ defamation and commercial disparagement claims against Kai.
Finally, Plaintiffs contend that “the extent of the content to which Kai jointly developed
and created with Sculimbrene will be the subject of discovery.” (Doc. 32 at 13). However, Rule 8
“does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Iqbal, 556 U.S. at 678-79. The Court has found that Plaintiffs, in alleging that Kai and/or Welk
created the offending statements within the Sculimbrene Article, have alleged nothing more than
conclusions. Additionally, Plaintiffs have already been provided with private communications
between Welk and Sculimbrene, and Plaintiffs attached those communications to their Complaint.
16
In their briefing, Plaintiffs do not allege that anyone else at Kai communicated with Sculimbrene
prior to Sculimbrene’s posting the Article. Nor have Plaintiffs alleged what additional discovery
might produce. 11 Thus, the Court grants Defendant Kai’s motion to dismiss the defamation and
commercial disparagement claims against it (Counts 3, 5, 6, 7). See id.; Nemet Chevrolet, Ltd. V.
Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009) (finding that plaintiff had not sufficiently
alleged that defendant was not entitled to immunity under § 230 of the CDA, that further discovery
was not warranted, and that the district court’s granting defendant’s 12(b)(6) motion was
appropriate).
B. Plaintiffs’ Lanham Act Claim
The Lanham Act, 15 U.S.C. § 1125(a), provides a cause of action for any “false or
misleading” description or representation of a product or service. Specifically, the Lanham Act
requires a plaintiff to show that the defendant made a false or misleading statement about a
product or service that is used in interstate commerce, that the statement deceived or had the
tendency to deceive, and that as a result, plaintiff suffered a likelihood of declining sales. U.S.
Healthcare Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 922–23 (3d Cir.), cert.
denied, 498 U.S. 816, (1990) (citing 15 U.S.C. § 1125(a)). Thus, as a threshold matter, Plaintiffs
must demonstrate that Kai “made” the allegedly tortious statements. See id. For the reasons
described above, the Court finds that Plaintiffs have failed to do so, and, therefore, the Court
dismisses Microtech’s Lanham Act claim against Kai (Count 1). 12
11
Discovery closed without Plaintiffs having submitted to the Court further evidence in support of their contention
that Kai contributed to or created the allegedly tortious portions of the Sculimbrene Article. (See Doc. 30). However,
if, in the course of discovery, Plaintiffs have unearthed additional support for their contention that Kai created or
contributed to the allegedly tortious portions of the Sculimbrene Article, they have leave to file a motion for
reconsideration of this Order. Plaintiffs must, however, attach to this motion additional evidence turned over during
discovery that they believe supports their claims.
12
Accordingly, the Court need not address Defendant’s argument that Sculimbrene’s only statement pertaining to
Microtech’s knife was not false or misleading under the Lanham Act. (Doc. 28 at 12-15).
17
IV. CONCLUSION
Having found that the Court lacks subject matter jurisdiction over Defendant Beyer, and that
Defendant Kai was not the publisher or the maker of the allegedly tortious statements at issue,
the Court hereby ORDERS as follows:
1. Defendant Beyer’s motion to dismiss [29] is GRANTED;
2. Defendant Kai’s motion to dismiss [28] is GRANTED;
3. Plaintiffs’ Complaint is DISMISSED;
4. Plaintiffs are granted leave to file a motion for reconsideration as to the Court’s ruling
on their claims against Kai. To this motion, Plaintiffs must attach evidence produced
during discovery that Plaintiffs believe support their contention that Kai created or
developed the allegedly tortious portions of the Sculimbrene Article. Plaintiffs must
file this motion no later than April 6, 2018. In the event that Plaintiffs file a motion for
reconsideration, Defendant Kai may file a responsive brief no later than April 16,
2018;
5. The clerk is ordered to send copies of this Order to the parties.
IT IS SO ORDERED.
DATED this 27th day of March, 2018.
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
18

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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

PLAINTIFFS’ MOTION FOR RECONSIDERATION OF DISMISSAL OF CLAIMS

DICKIE McCAMEY & CHILCOTE, P.C.

Two PPG Place, Suite 400

ATTORNEYS FOR PLAINTIFFS

Statement is attached hereto as Exhibit A.

contributed and jointly developed the Sculimbrene Article.

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

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

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

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

It was based upon these conversations and communications with

STANDARD FOR RECONSIDERATION

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

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

the forbidden content may not be a publisher”).

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

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

evidentiary record before it.”)

contribution to the Sculimbrene Article.

The additional information contained in the Sculimbrene Statement reinforces and

defamatory information that appeared in the Sculimbrene Article.

the Sculimbrene Article.

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

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

Dated: April 6, 2018 Respectfully submitted,

DICKIE McCAMEY & CHILCOTE, P.C.

Two PPG Place, Suite 400

ATTORNEYS FOR PLAINTIFFS

IN THE UNITED STATES DISTRICT COURT

day of April, 2018.

Two PPG Place, Suite 400

ATTORNEYS FOR PLAINTIFFS

IN THE UNITED STATES DISTRICT COURT

ANTHONY L. MARFIONE and :

BRIEF OF DEFENDANT, KAI U.S.A., LTD., IN OPPOSITION

I. THE AUGMENTED RECORD STILL FAILS TO STATE A

Most significantly, the factual assertions appearing in the Sculimbrene statement in

II. THERE IS STILL NO PLAUSIBLE BASIS FOR THE PLAINTIFFS’ BALD

III. PLAUSIBILITY CANNOT BE PREMISED UPON UNWARRANTED

IV. IMMUNITY IS BROADLY CONSTRUED AND MUST BE AFFORDED

/s/ Andrew J. Gallogly

Emily E. Mahler (PA I.D. No. 310058)

Attorneys for Defendants

/s/ Andrew J. Gallogly

UNITED STATES DISTRICT COURT

ANTHONY L MARFIONE AND )

Court’s reasoning follows:

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Anthony L. Marfione, a resident of North Carolina, is the President of Plaintiff

business” in Oregon. (Id. ¶ ¶ 6-7).

lawsuit was ever filed against Microtech. (Id. ¶ ¶ 27, 30).

¶ 39 (quoting 1/5/17 Welk to Sculimbrene Email, Doc. 26-1 at 1)).

snake in the grass.” (Id. at 2).

filed Feb. 17, 2017)). 5

commercially disparaged Microtech (Count 7).

addresses each Defendant’s motion in turn.

II. THE COURT LACKS PERSONAL JURISDICTION OVER DEFENDANT

Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004).

F.2d at 149 (internal quotations omitted).

Resorts, Ltd. 735 F.2d 61, 66 n.9 (3d Cir. 1984).