eBay Seller -$19,250 - eBay Buyer -$1.44 - eBay 0
8 September 2015
MED EXPRESS, INC. vs. AMY NICHOLS, et al.
Case No.: 13CIV0351 13CIV0352
Court of Common Pleas, Medina County, Ohio
“The Plaintiff's conduct consisted of allegations or other factual contentions that had no evidentiary support or, if specifically so identified, were not likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. Again, Mr. Rudy had no objective evidence suggesting the statements of fact made by the Defendants were not true. Furthermore, the Plaintiff misrepresented the matter in the pleadings and to the court."
Magistrate James R. Leaver, August 31 2015, Court of Common Pleas, Ohio
Ars Technica posted the article "eBay seller who sued over negative feedback dinged $19K in legal fees" "Judge didn't find Med Express founder's testimony credible" on September 3 2015. The article began with:
"When Med Express sued Amy Nicholls for giving negative feedback on eBay, she didn't back down and remove the feedback. Instead, she lawyered up"
Beginning with this statement in the first paragraph of the "Magistrate's Decision":
"On July 6, 2015, counsel for the Plaintiff filed a motion to withdraw from the representation of the Plaintiff citing irreconcilable differences with the client."
The action that started the legal snowball moving?
- Plaintiff: "Med Express pain the full amount of the shipping cost, but for some reason unknown to Med Express, the equipment was received by Nicolls with $1.44 postage due."
- Plaintiff: "Nicholls on February 26, 2013, apparently as a result of the $1.44 postage due, posted negative feedback and comments for the transaction on Ebay's website"
“Okay kids. This is where it gets complicated.”
Amy Pond, Doctor Who, Time (2011)
Indeed. The Court record, as signed by Magistrate James R. Leaver, states:
- "Med Express initiated a second lawsuit against Defendants Dennis Rogan and Ebay, INC."
- "WHEREFORE, Plaintiff Med Express Inc. demands judgement against Defendants Dennis Rogan and Ebay, Inc."
Leading to, as signed by Magistrate James R. Leaver:
- "On March 28, 2013, the Court denied the motions for a temporary restraining order in both cases."
- "On April 18, 2013, the complaints in both cases were voluntarily dismissed."
- "Ebay never filed an answer in either case."
Which lead to more Court action, as signed by Magistrate James R. Leaver:
- "Counsel further prompted Mr. Rady by asking, "So as you sit here today, you remember those ratings were from Ms. Nicholls--is that right?" "Mr. Rady testified "Yes", and again stated all categories were rated 1's."
- "On November 7, 2014, Counsel for the Defendants took the deposition of Rebakah Long, an Ebay representative, in Draper, Utah. Ms. Long's testimony revealed that Mr. Rady's prior testimony regarding seeing the Defendants rate him with all 1's on Ebay's detailed seller ratings page was false. She testified detailed seller ratings are anonymous and the seller cannot view the ratings. Furthermore, the ratings left by Defendants Rogan and Nicholls were not all 1's."
- "The deposition of Ms. Long shows that Mr. Rady's testimony was false."
Ars Technica noted:
- "Following the second trial, Radey's original lawyer James Amodio agreed to pay part of the attorney's fees, and Public Citizen dropped him from their motion for sanctions."
- "Radey had two different lawyers during the sanctions proceedings, and the second lawyer stopped representing him in July 2015."
Moving along to the sanctions portion, "The matter proceeded to oral evidentiary hearing before the undersigned Magistrate on April 2, 2015":
- "Mr. Radey also testified again. His testimony varied from the first hearing in that he attempted to clarify his prior trial testimony" ... "This time he testified he must jumped to the conclusion Nicholls and Rogan rated him with all 1's (as opposed to his prior testimony that he basically watched it happen almost live). Mr. Rady also testified he called Ebay years ago and Ebay gave him the idea to file suit against Ebay and buyers leaving negative feedback. The negative feedback could be removed by court order. The testimony wasn't credible." Magistrate James R. Leaver
A few tidbits from Magistrate James R. Leaver's Conclusion of Law:
- "4. Opinion speech is protected speech that is never actionable as defamation. When determining whether a statement is fact or opinion, a court is to consider the specific language used, whether the statement is verifiable, the general context of the statement, and context in which the statement appeared. An objective "ordinary reader" test is to be applied to determine whether a statement is a false statement of fact. The court must determine whether a reasonable reader would view the words to be language that normally conveys information of a factual nature or opinion. If the language is factual in nature, a truthful statement cannot be defamation because an element of defamation is a false defamatory statement."
- "5. The feedback generated by Nicholls and Rogan is part opinion and part statement of fact."
- "6. An argument could be made the narrative statements left by Defendants Nicholls and Rogan were intended to be statement of facts even though they appear in a forum designed to elicit opinions. Nevertheless, these statement could not have been the basis of a defamation action because the statements are undeniable true and Mr. Rady had no objective reason whatsoever to question their veracity when he caused the complaints to be filed."
- "7. The Plaintiff's complaints had no merit, legally or factually, when they were filed."
- "8. R.C 2323.51(A)(2) defines frivolous conduct ..."
- "9. A violation of any one of the above sections is frivolous conduct. The Plaintiff has violated all four sections."
- "13. The Magistrate finds the Plaintiff's complaint and motions set forth factual contentions that the Plaintiff knew or should have known were not warranted by the evidence."
- "14. R.C. 2323.51 allows a party adversely affected by frivolous conduct to recover an award of court costs, reasonable attorney fees, and other reasonable expenses incurred in connection with the civil action."
- "22. The Magistrate finds the Defendants are entitled to an award of attorney fees in the amount of $16,446.00 (total hours of 164.46 x 1/2 x $200.00) plus expenses of $2,804.00,, for a total award of $19,250.00 against Med Express, Inc."
There was one bright spot, for the Plaintiff's lawyers James Amodio and Richard Cardenas:
- "Defendants withdrew their motion for sanctions as to Attorney James Amodio only."
- "The Defendants' motion for a default award of sanctions is denied."
“What is the moral?
Must be a moral.
Here is the moral, wrong or right: Morals tomorrow!
Comedy, comedy, comedy, comedy,
Comedy, comedy, comedy, comedy tonight!”
A Funny Thing Happened on the Way to the Forum (1966)
The moral? Well, don't sue eBay INC.
According to the court document, Amy Nichols never did get the $1.44 refund.
“Section 11, Article I of the Ohio Constitution provides in relevant part: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press."
Magistrate James R. Leaver, 2015
“Take it easy, lad. Everybody's entitled to an opinion.”
Montgomery Scott, The Trouble With Tribbles, 1967