Best Western v. Doe [1]

Best Western International (BWI) is a non-profit organization whose members operate Best Western hotels around the world. In May 2006, the website "www.freewrites.com" was established as a forum for BWI members and "governors" to discuss matters about BWI administration on a confidential basis. (BWI "governors" act as liasons between the members and the board of directors.) Although designed as a forum for members and governors only, the website was accessible to members of the public who knew of its location. The site was not authorized by BWI.

Proposed changes in BWI's method of operation drew extensive comment and criticism from anonymous posters on the site.

In June 2006, BWI brought a lawsuit in federal court in Arizona against the website administrator (John Doe), as well as BWI members who posted comments on the website ('Jane Does 1-X') and BWI governors who posted comments on the website ('John Does 1-X'). BWI alleged defamation and trademark infringement, as well as breach of contract, breach of implied contract, and breach of implied covenant of good faith and fair dealing. The complaint did not specify any allegedly defamatory statements.

BWI moved for expedited discovery, requesting permission to serve subpoenas on various internet service providers. The subpoenas sought disclosure of the identities of the operator of the forum site and those individuals who had posted messages.

Following Doe v. Cahill [2], 884 A.2d 451 (Del. 2005), the court denied BWI's motion to expedite discovery, concluding that BWI had not made a sufficient evidentiary showing to overcome the defendants' qualified First Amendment right to engage in anonymous speech. The court stressed that BWI had failed to identify a single false statement made by the anonymous defendants, a single item of confidential information posted on the site by them, or a single instance where BWI's mark was improperly used. Best West. Int'l v. Doe [3], 06-cv-01537, slip op. at 7 (D. Ariz. July 25, 2006). The court left open the possibility that BWI could meet its required evidentiary showing on a renewed motion.

During the course of litigation, two defendants came forward of their own accord: James Furber, the operator of the website, and James Dial, a BWI member who posted comments on the site.

BWI renewed its motion for expedited discovery seeking disclosure of the identities of the remaining anonymous defendants, and the court granted the motion in October 2006. The court found that BWI had overcome the defendants' qualified First Amendment right to engage in anonymous speech by introducing evidence sufficient to create a genuine issue of fact on its breach of contract claims. Best West. Int'l v. Doe [4], 06-cv-01537, slip op. at 9-10 (Oct. 25, 2006).

In the same opinion, the court dismissed the trademark and unfair competition claims in BWI's original complaint because there was no allegation that the defendants had used BWI's marks in connection with the sale or advertising of goods or services. See id. at 4-5. The dismissal was without prejudice, and the trademark claims appeared again in BWI's amended complaints.

In November 2006, BWI named Furber and Dial in its first amended complaint. After conducting discovery, BWI filed its second amended complaint in August 2007, naming six defendants: James Dial, Nidrah Dial, James Furber, Teresa Furber, Loren Unruh, and Gayle Unruh. James and Nidrah Dial and Loren Unruh are BWI members.

In May 2007, the court denied James Furber's motion for summary judgment without prejudice, finding it premature. It granted Furber leave to re-file his motion after August 17, 2007.

Update:

8/21/2007 - Best Western filed second amended complaint [5].

9/10/2007 - James Dial filed answer [6] to second amended complaint.

11/28/2007 - Parties filed joint stipulation [7] to dismiss defendant Theresa Thurber.

5/9/2008 - Defendants James Dial, Nidrah Dial, Loren Unruh, Gayle Unruh, and James Furber moved [8] for summary judgment.

9/5/2008 - The court granted in part and denied in part [9] the defendants motion for summary judgment.

10/20/2008 - Court denied [10] the plaintiffs' motion to dismiss [11] Dial's counterclaim.

12/5/2008 - Court referred [12] the case to a magistrate for a settlement conference. 

3/12/2009 - Court dismissed [13] the case with prejudice after the parties stipulated [14] to the dismissal.