Preview
CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 2 Trans ID: LCV2023310372
WILLIAM N. SOSIS (#100032014)
15 Brantwood Terrace
Hackettstown, New Jersey 07840
Tel: (201) 655-6400
Fax: (201) 781-7855
Email: Bill@SosisLaw.com
Attorney for Defendants, OPRAMACHINE.COM
and GAVIN ROZZI
ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY
RYAN LADD, Individually and on CAPE MAY COUNTY
Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION
Situated,
Plaintiffs,
Docket#: CPM-L-443-22
v.
CITY OF NORTH WILDWOOD, W. SCOTT
JETT, INSIGHT INTELLIGENCE, LLC NOTICE OF MOTION
D/B/A OPRAMACHINE.COM, and GAVIN
ROZZI, JOHN DOE 1-50 (fictitious
names), JOHN DOE, Inc. (1-50)
fictitious entities
Defendants.
PLEASE TAKE NOTICE that the undersigned counsel, William N. Sosis, Esq., will
apply to the above named Court on a date and time to be set by the Court, or as soon thereafter
as counsel may be heard, for an Order Dismissing the Complaint against Defendants,
OPRAmachine.com and Gavin Rozzi because the complaint fails to state a claim upon which
relief can be granted. This motion is made upon the grounds stated in the attached
certifications and brief.
PLEASE TAKE FURTHER NOTICE that at the time and place aforesaid,
Defendants shall rely upon the Brief and Certification of Counsel attached thereto, in support
of Defendant's Motion to Dismiss Pursuant to R. 4:6-2(e).
A proposed form of Order is attached.
Pursuant to R. 1:6-2 moving party consents to disposition on the papers.
CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 2 of 2 Trans ID: LCV2023310372
Date: 01/19/2023 By: /s/ William N. Sosis, Esq.
William N. Sosis, Esq.
Attorney for Defendants,
OPRAMACHINE.COM and GAVIN
ROZZI
CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 1 Trans ID: LCV2023310372
WILLIAM N. SOSIS (#100032014)
15 Brantwood Terrace
Hackettstown, New Jersey 07840
Tel: (201) 655-6400
Fax: (201) 781-7855
Email: Bill@SosisLaw.com
Attorney for Defendants, OPRAMACHINE.COM and GAVIN ROZZI
ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY
RYAN LADD, Individually and on CAPE MAY COUNTY
Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION
Situated,
Plaintiffs,
Docket#: CPM-L-443-22
v.
CITY OF NORTH WILDWOOD, W. SCOTT
JETT, INSIGHT INTELLIGENCE, LLC ORDER
D/B/A OPRAMACHINE.COM, and GAVIN
ROZZI, JOHN DOE 1-50 (fictitious
names), JOHN DOE, Inc. (1-50)
fictitious entities
Defendants.
THIS MATTER, having been opened to the Court by the Defendants, INSIGHT
INTELLIGENCE, LLC and GAVIN ROZZI (“Individual Defendants”), upon application for
an Order to Dismiss COUNT II of Plaintiff’s Complaint dated November 16, 2022 with
prejudice as to said Defendants; and the Court having considered Defendants’ motion and the
opposition of Plaintiffs, if any, and for good cause appearing,
IT IS ON THIS ____ day of JANUARY, 2023, ORDERED:
1. COUNT II of Plaintiff’s Complaint dated November 16, 2022 is hereby dismissed
with prejudice as to Defendants, INSIGHT INTELLIGENCE, LLC and GAVIN ROZZI.
J.S.C
Opposed: ________
Unopposed: ________
CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 3 Trans ID: LCV2023310372
WILLIAM N. SOSIS (#100032014)
15 Brantwood Terrace
Hackettstown, New Jersey 07840
Tel: (201) 655-6400
Fax: (201) 781-7855
Email: Bill@SosisLaw.com
Attorney for Defendants, OPRAMACHINE.COM
and GAVIN ROZZI
ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY
RYAN LADD, Individually and on CAPE MAY COUNTY
Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION
Situated,
Plaintiffs,
Docket#: CPM-L-443-22
v.
CITY OF NORTH WILDWOOD, W. SCOTT
JETT, INSIGHT INTELLIGENCE, LLC CERTIFICATION OF GAVIN ROZZI
D/B/A OPRAMACHINE.COM, and GAVIN
ROZZI, JOHN DOE 1-50 (fictitious
names), JOHN DOE, Inc. (1-50)
fictitious entities
Defendants.
Gavin Rozzi, of full age, certifies:
1. I am a Defendant named personally in this matter and submit this Certification in
support of my motion seeking a dismissal of the Complaint filed against me.
2. I am the sole officer of the co-defendant, Insight Intelligence, LLC (d/b/a
OPRAmachine.com) a New Jersey Limited Liability Company. Attached as Appendix A is a
certificate of formation.
3. At no time during the periods alleged in the Complaint did I act personally with the
Plaintiffs. I always acted as a representative of co-defendant Insight Intelligence, LLC.
4. I formed Insight Intelligence, LLC to avoid personal liability. The Plaintiffs named me
personally to harass and pressure me. At no time did I act personally but always as a
representative of Insight Intelligence, LLC.
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5. I have read the foregoing letter brief in support of my motion to dismiss and know of
its contents. Such contents are true of my own knowledge, except as to matters stated on
information and belief, and, as to such matters, they are true to the best of my knowledge and
belief.
6. I certify that the foregoing statements made by me are true. I am aware that if same is
willfully false, I am subject to punishment.
Date: 01/19/2023 By: /s/ Gavin Rozzi
Gavin Rozzi
Appendix "A"
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Appendix "A"
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WILLIAM N. SOSIS, ESQ.
Sosis Law, LLC TELEPHONE (201) 655-6400
15 BRANTWOOD TERRACE
BILL@SOSISLAW.COM MANSFIELD TOWNSHIP, NEW JERSEY 07840 FAX (201) 781-7855
January19, 2022
VIA E-Courts Electronic Filing
The Honorable John C. Porto, J.S.C.
Cape May County Courthouse
1201 Bacharach Blvd.
Atlantic City, New Jersey 08401
RE: Andrew Moon, Tyler Huck, and Ryan Ladd v. City Of North Wildwood, W. Scott Jett, Insight
Intelligence, LLC d/b/a OPRAmachine.com, and Gavin Rozzi, et al.
Docket#: CPM-L-443-22
Dear Judge Porto:
Please accept this letter brief in lieu of a more formal brief in support of Defendants
Insight Intelligence, LLC and Gavin Rozzi’s motion to dismiss the Complaint against them in the
above referenced matter.
PRELIMINARY STATEMENT
Defendants Insight Intelligence, LLC d/b/a OPRAmachine.com, and Gavin Rozzi
(hereinafter "Defendants") are accused of several violations of the New Jersey Consumer Fraud
Act N.J.S.A. § 56:8-2, et seq. (hereinafter "CFA"). Despite failing to articulate any ascertainable
loss, Plaintiffs have demanded several injunctive and monetary damages. However, Plaintiffs'
Complaint cites no cases on point, contains no legal analysis to support their allegations, and
ignores controlling law. As argued below, comparing the facts of this case to the law will show
that Plaintiffs' alleged violations are, in fact, not violations at all.
Plaintiffs have, misapplied or misinterpreted the law or Plaintiffs seek to have this court
rewrite the law to comply with how they believe it should be. In short, the claims being made by
Plaintiffs are baseless and without merit. They do not even make out a threshold basis upon
which this Court could or should entertain Plaintiffs' allegations. Simply stated Plaintiffs' claims
are deficient in their content, unsubstantiated, and fail to state any claim or cause of action upon
which relief may be granted.
CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 2 of 10 Trans ID: LCV2023310372
The Honorable John C. Porto, J.S.C. William N. Sosis, Esq.
Page 2
STANDARD OF REVIEW
A motion to dismiss a complaint under Rule 4:6-2 for failure to state a claim upon which
relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the
complaint. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). The
court must view the allegations with great liberality and without concern for the Plaintiffs' ability
to prove the alleged facts. Ibid. The plaintiffs should receive the benefit of every reasonable
inference of fact. Ibid. If, on a Rule 4:6-2(e) motion, "matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to
present all material pertinent to such a motion." R. 4:6-2.
ARGUMENT
POINT 1: PLAINTIFFS' COMPLAINT FAILS TO STATE A CAUSE OF
ACTION FOR A VIOLATION OF THE CONSUMER FRAUD ACT,
N.J.S.A. 56:8-1 et seq.
The Consumer Fraud Act (CFA) prohibits:
The act, use or employment by any person of any unconscionable commercial practice,
deception, fraud, false pretense, false promise, misrepresentation, or the knowing,
concealment, suppression, or omission of any material fact with intent that others rely
upon such concealment, suppression or omission, in connection with the sale or
advertisement of any merchandise or real estate, or with the subsequent performance of
such person....
N.J.S.A. 56:8–2 (emphasis added)
Under Count II of the Complaint, Plaintiffs allege that Defendants have "engaged in a
variety of unconscionable and deceptive acts, practices, and omissions related to data security,
which amount to 'unconscionable commercial practices' within the meaning of the New Jersey
Consumer Fraud Act". Plaintiffs then purport to provide "examples" of said violations by setting
forth a litany of self-serving assertions, none of which are violations of the CFA. Their
conclusory statements alone have not identified any specific actions that Defendants have taken
in the course of running a public records service that rise to a CFA violation.
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The Honorable John C. Porto, J.S.C. William N. Sosis, Esq.
Page 3
a. The Consumer Fraud Act Does Not Provide Remedies for invasion of privacy
and emotional injuries
New Jersey courts have held that claims for invasion of privacy and emotional injuries
are non-economic damages that cannot be recovered under the Consumer Fraud Act.
Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005); Cole v. Laughrey Funeral
Home, 376 N.J. Super. 135, 152 (App. Div. 2005); see also Jones v. Sportelli, 166 N.J.Super.
383, 391-92 (Law Div.1979).
In their Complaint, Plaintiffs have failed to allege facts or evidence from which a
factfinder could find or infer that a Plaintiffs suffered a quantifiable or otherwise measurable loss
as a result of the alleged CFA unlawful practice. In such cases the New Jersey Supreme Court
has held that summary judgment should be entered in favor of the moving party. Thiedemann,
183 N.J. at 238. Moreover, Plaintiffs' do not allege "any ascertainable loss of monies or
property, real or personal." N.J.S.A. 56:8-19. To support a private cause of action under the
CFA, the complaint must allege an "ascertainable loss of monies or property, real or personal."
N.J.S.A. 56:8-19; see Weinberg v. Sprint Corp., 173 N.J. 233, 248-54 (2002). Here, Plaintiffs'
damages consist merely of bald-face assertions of intangible harm resulting from alleged
invasions of their rights of privacy and confidentiality regarding their disclosure of their social
security numbers and personal identifiers resulting from a local municipality's failure to redact
said information. All of which have nothing to do with the Defendants.
b. Plaintiffs' CFA Claim Fails Because Defendants Are Not "Subsequent
Performers" to the initial transaction
Under the CFA, a person who lacks any connection to the initial "sale" or
"advertisement" of the merchandise or real estate cannot be liable as a "subsequent performer."
For a connection to be established, the CFA requires that any wrongful conduct by Defendants
must occur "in connection with" the advertisement, sale, or subsequent performance on which
the defendant's liability is based. N.J.S.A. 56:8-2. In contrast, here there is no interaction or
communication between Plaintiffs and Defendants and thus no connection can be established.
see Matera v. M.G.C.C. Group, Inc., 402 N.J. Super. 30, 38-39 (Law Div. 2007) (property
seller's misrepresentations to purchaser were made "in connection with the sale of real estate").
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The Honorable John C. Porto, J.S.C. William N. Sosis, Esq.
Page 4
There is also nothing in Plaintiffs' Complaint that pleads a cause of action under the
CFA's subsequent performance requirement. The reason for this is simple, there is no role that
Defendants played, initially or subsequently, that meets the CFA's subsequent performance
requirement.
POINT 2: PLAINTIFFS' COMPLAINT AGAINST DEFENDANTS IS BARRED
BY THE COMMUNICATIONS DECENCY ACT (CDA)
The Federal Communications Decency Act states in part that:
No provider or user of an interactive computer service shall be treated as the publisher or
speaker of any information provided by another information content provider.
47 U.S.C. § 230(c)(1) (emphasis added)
a. OPRAmachine Operates an Interactive Computer Service
OPRAmachine is entitled to immunity from Plaintiff’s claims because it provides an
“interactive computer service” as defined by 47 U.S.C. § 230(c)(1). The basis of Plaintiff’s
causes of action against Defendants stems from a single piece of third-party content, which they
allege was released in response to an OPRA request made by Greg Walsh using Defendants’
website on January 10th, 2022 (See Plaintiff’s Complaint, ¶ 5-9). Plaintiffs have not proffered
any evidence in their complaint that Defendants were the publisher or speaker of the content at
issue that they contend was improperly released in response to Walsh’s OPRA request that was
provided by the City of North Wildwood. Indeed, Plaintiff’s complaint specifically noted that the
third-party content at issue was uploaded by Scott Jett, City Clerk in response to an OPRA
request that was received by the City via OPRAmachine, and submitted by Mr. Walsh. They
have further alleged that the document uploaded & published by Clerk Jett was “...generated by
the New Jersey Civil Service Commission” (Plaintiffs' Complaint, ¶ 6-7).
Here, there is no question that OPRAmachine is an interactive computer service within
the meaning of 47 U.S.C. § 230(c)(1), as the information was released solely by Clerk Jett,
through the use of the OPRAmachine web service by Greg Walsh to submit his request.
Defendants’ only role in this matter is the operation and ownership of the website.
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The Honorable John C. Porto, J.S.C. William N. Sosis, Esq.
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b. The Content Was Released & Published by Another Information Content
Provider
The facts alleged in Plaintiff’s complaint fail to establish even a single statement that has
been made by Defendants or alleged that they were the authors of the content at issue which gave
rise to Plaintiff’s causes of action, so OPRAmachine fulfills the second prong of CDA 230
immunity, as the content in this case clearly originated from another information content
provider, the City of North Wildwood. As the records custodian of the City of North Wildwood,
Clerk Jett and the City had full knowledge that their response would be a matter of public record
via the OPRAmachine platform.
c. Plaintiff Inappropriately Seeks To Treat OPRAmachine as the Publisher or
Speaker of the Content At Issue
Here, Plaintiffs inappropriately seek to treat Defendants as the 'publisher or speaker' of
the third-party content released by the City of North Wildwood in response to an OPRA request
submitted by a third-party user of the OPRAmachine platform via their causes of action, in clear
violation of Section 230 of the Communications Decency Act, 47 U.S.C.A. § 230 et seq.
Furthermore, Section 230 of the Communications Decency Act not only provides
immunity for interactive computer service providers from liability for third-party content, but
also includes a "good samaritan" provision as stated in 47 U.S.C.A. § 230(c)(2)(A) which shields
providers or users from liability for any actions taken in good faith to restrict access to or
availability of content they consider to be offensive or objectionable. This further underscores
the protection offered to OPRAmachine and strengthens the argument for dismissal based on
Section 230 immunity.
Because Plaintiff’s claims against Defendants are barred by Section 230 immunity, they
must be dismissed.
Drawing the Court's attention to Defendants' attached Appendix B, it is clear that Courts
across the country have upheld Section 230 immunity and its policy of regulatory forbearance in
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The Honorable John C. Porto, J.S.C. William N. Sosis, Esq.
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a variety of factual contexts. Accordingly, here the Defendants are clearly not "publishers" but
providers of an interactive computer service (OPRAmachine) that promotes government
transparency and civic engagement. Defendants' OPRAmachine allows citizens to make Open
Public Records requests to state and local government agencies. Defendants website supports
New Jersey's history of commitment to public participation in government and an informed
citizenry by providing an easy-to-use interface for searching and viewing the records that are
obtained. More importantly, it can be argued that Defendants' OPRAmachine is well-aligned
with the goals of our New Jersey Supreme Court which in 1977 wrote:
A popular Government without popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern
ignorance: And a people who mean to be their own Governors, must arm themselves with
the power which knowledge gives.
Polillo v. Deane, 74 N.J. 562, 571 (1977) (quoting Letter to W.T. Barry, Aug. 4, 1822, in 9
Writings of James Madison 103 (G. Hunt ed. 1910)
Similarly, the Government Records Council (GRC) (established under a separate section
of the Open Public Records Act, N.J.S.A. 47:1A-1 et seq) favorably mentions Defendants'
OPRAmachine on page 17 of its Handbook for Records Custodians where it states:
Internet Requests: Some public agencies and third parties (such as OPRAmachine) have
created or contracted out systems that allow a citizen to fill out an online request form
and file it with the custodian over the Internet. The means of submitting a request form
(mail, in-person, Internet) will not affect which records will or will not be available for
access.
See: The New Jersey Open Public Records Act - Handbook for Records Custodian.
Available at: https://www.nj.gov/grc/custodians/handbook/Custodians%20Handbook
%20(Seventh%20Edition%20-%20Nov%202022)(Final).pdf
In light of this well-established case law, it is clear that OPRAmachine should be granted
a motion to dismiss based on Section 230 immunity from liability for third-party content posted
by the City of North Wildwood.
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POINT 3: THE COMPLAINT AGAINST DEFENDANT GAVIN ROZZI
MUST BE DISMISSED
As has been noted by numerous New Jersey Courts, "[A] corporation is an entity separate
and distinct from its principals." Touch of Class Leasing v. Mercedes-Benz Credit of Can., Inc.,
248 N.J. Super. 426, 441 (App. Div.), certif. denied, 126 N.J. 390 (1991). Absent fraud, statutory
liability or and injustice "officers of corporations are insulated from personal liability for the
conduct of the corporation." Macysyn v. Hansler, 329 N.J. Super. 476, 486 (App. Div. 2000).
Similarly, to hold an individual member of an LLC liable, Plaintiffs must articulate
extraordinary reasons why the Court should pierce the corporate veil. See Richard A. Pulaski
Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 472 (2008) (quoting Dept. of Envtl. Prot.
v. Ventron Corp., 94 N.J. 473, 500 (1983)) ("'[e]xcept in cases of fraud, injustice, or the like,
courts will not pierce a corporate veil'").
Here, Plaintiffs' Complaint fails to articulate any such reasons. At no time did the
Defendant, Gavin Rozzi, act personally but always acted as the owner of Insight Intelligence,
LLC d/b/a OPRAmachine.com. (See Gavin Rozzi Certification) At no time did Defendant, Gavin
Rozzi communicate with the Plaintiffs or sign any documents relied upon by Plaintiffs. These
facts alone, vitiate any allegations of fraud made by Plaintiffs.
POINT 4: PLAINTIFFS' ALLEGATION THAT DEFENDANTS FAILED
TO REDACT PUBLIC RECORDS HAS NO BASIS IN LAW
AND MUST BE DISMISSED
The Open Public Records Act states that every public agency has a responsibility and an
obligation to safeguard from public access a citizen's personal information entrusted to it when
disclosure of the information would violate the citizen's reasonable expectation of privacy.
N.J.S.A. 47:1A-1. The New Jersey Supreme Court has characterized this section of the statute as
"substantive" in nature. Burnett v. County of Bergen, 198 N.J. 408, 422-423 (2009).
Thus it should be clear that the responsibility to safeguard personal information from
public access befalls on the public agency and not Defendants. Prior to releasing public records,
public agencies are obligated to make the redactions Plaintiffs are complaining about.
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The Honorable John C. Porto, J.S.C. William N. Sosis, Esq.
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Additionally, as discussed above, Section 230 of the Communications Decency Act protects
online platforms such as Defendants from liability for user-generated content. Despite these
laws, Plaintiffs' nonetheless falsely claim that Defendants "intentionally communicated or
otherwise made available" unredacted information.
Finally, the law does not require Defendants to redact public records that are generated
and uploaded to OPRAmachine by public agencies. To hold that Defendants are in violation of
Plaintiffs' privacy rights for failing to redact government records is absurd. For Defendants to do
so would equate to a judicial rewrite of the law, something the Supreme Court of New Jersey
has deemed inappropriate. Therefore, Defendants are entitled to dismissal on Count II of the
Complaint. Further, Defendants' failure to redact government records does not violate any
provision of the CFA, nor is injunctive relief appropriate in this matter.
CONCLUSION
For the reasons set forth above the moving party seeks a dismissal of the Complaint
against OPRAmachine and Gavin Rozzi personally.
Respectfully submitted,
William N. Sosis
cc: Oliver T. Barry, Esq. (via eCourts)
Erika Lezama-Simonson, Esq. (via eCourts)
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The Honorable John C. Porto, J.S.C. William N. Sosis, Esq.
Page 9
APPENDIX “B”
Cases where Courts have upheld Section 230 of Title 47 of the United States Code (47 U.S.C.
§ 230) immunity and its policy of regulatory forbearance in a variety of factual contexts.
• Parker v. Google, Inc., 422 F. Supp. 2d 492, decision summary aff'd, 242 Fed. Appx. 833
(3d Cir. 2007), cert denied 522 U.S. 1156 (2008) (An author sued Google for
defamation, invasion of privacy and negligence because Google archived defamatory
messages posted about him on a third-party website and displayed "an authorized
biography of Plaintiff" when his name was entered as a Google search query. The court
rejected the claims: "It is clear that § 230 was intended to provide immunity for service
providers like Google on exactly the claims Plaintiff raises here.");
• Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing
email sent to listserv)
• Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (Internet dating service
provider was entitled to Section 230 immunity from liability stemming from third party’s
submission of false profile);
• Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002) (eBay is entitled to immunity);
• Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001) (library not liable for
providing access);
• Universal Commc'ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (message
board not liable for users' messages);
• Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash. Ct. App. 2001) (online bookseller
providing forum for others to submit book reviews is “interactive computer service”
provider (“ICS provider”));
• Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct.
208 (2000) (§ 230 immunizes America Online (“AOL”) for negligence);
• Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000),
cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information);
• Marczeski v. Law, 122 F.Supp.2d 315, 327 (D. Conn. 2000) (individual who created
private “chat room” was ICS provider entitled to immunity);
• Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230
immunity from liability for content of independent contractor’s news reports, despite
agreement with contractor allowing AOL to modify or remove such content).
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• Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D. Ariz. 2008)
(website operator immune under 230 for refusing to remove post despite notification of
its potentially defamatory content).
• Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009). Plaintiff, Jenna
Goddard, claimed that she and a class of similarly situated individuals suffered injury at
the hands of Google, Inc., Defendant, as a result of clicking on Google AdWords web-
based advertisements created by allegedly fraudulent providers of services for various
mobile devices. In its prior decision, the court granted Defendant’s motion to dismiss
with leave to amend, holding that, “[e]ach of Plaintiff’s claims, as currently pled, is
premised fundamentally on Google’s publication of the AdWords advertisements,” and
therefore Plaintiff was unable to avoid section 230 immunity. 2008 WL 5245490 (N.D.
Cal. Dec. 17, 2008) at *7. In the latest decision, the court dismissed without leave to
amend under 12(b)(6) and CDA § 230, because "Plaintiff has not come close to
substantiating the 'labels and conclusions' by which she attempts to evade the reach of the
CDA." 640 F. Supp. 2d at 1196. Furthermore, the court stressed that the CDA “must be
interpreted to protect websites not merely from ultimate liability, but from having to fight
costly and protracted legal battles.” Id. at 1202.
• Nemet Chevrolet Ltd. v. ConsumerAffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). The
court granted immunity from defamation and tortious interference with a business
expectancy claims to a website that included consumer complaints. The court found the
allegations that ConsumerAffairs.com was a ICP because it fabricated complaints or
helped write them was insufficiently supported by facts to survive a motion to dismiss.
• Johnson v. Arden, 614 F. 3d 785 (8th Cir. 2010). The interactive website
www.ComplaintsBoard.com immune for allegedly defamatory statements about the Cozy
Kitten Cattery because Section 230 "bar[s] plaintiffs from holding ISPs legally
responsible for information that third parties created and developed."
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WILLIAM N. SOSIS (#100032014)
15 Brantwood Terrace
Hackettstown, New Jersey 07840
Tel: (201) 655-6400
Fax: (201) 781-7855
Email: Bill@SosisLaw.com
Attorney for Defendants, OPRAMACHINE.COM
and GAVIN ROZZI
ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY
RYAN LADD, Individually and on CAPE MAY COUNTY
Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION
Situated,
Plaintiffs,
Docket#: CPM-L-443-22
v.
CITY OF NORTH WILDWOOD, W. SCOTT
JETT, INSIGHT INTELLIGENCE, LLC PROOF OF SERVICE
D/B/A OPRAMACHINE.COM, and GAVIN
ROZZI, JOHN DOE 1-50 (fictitious
names), JOHN DOE, Inc. (1-50)
fictitious entities
Defendants.
I am counsel for Defendants, INSIGHT INTELLIGENCE, LLC and GAVIN ROZZI.
On January 19, 2023, I served one copy of Defendants’ Notice of Motion, Proposed Order,
Certification of Electronic Signature, Certification of Gavin Rozzi, Letter Brief, and Proof of
Service being filed in support of Defendants’ Motion to Dismiss by operation of the eCourts
system on counsel for the Plaintiff:
OLIVER T. BARRY, ESQUIRE ERIKA LEZAMA-SIMONSON, ESQUIRE
Attorney ID # 082282013 Attorney ID # 246812018
BARRY, CORRADO & GRASSI, P.C. BARRY, CORRADO & GRASSI, P.C.
2700 Pacific Avenue 2700 Pacific Avenue
Wildwood, New Jersey 08260 Wildwood, New Jersey 08260
CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 2 of 2 Trans ID: LCV2023310372
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
Date: 01/19/2023 By: /s/ William N. Sosis, Esq.
William N. Sosis, Esq.
Attorney for Defendants
OPRAMACHINE.COM
and GAVIN ROZZI
Preview
CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 2 Trans ID: LCV2023310372 WILLIAM N. SOSIS (#100032014) 15 Brantwood Terrace Hackettstown, New Jersey 07840 Tel: (201) 655-6400 Fax: (201) 781-7855 Email: Bill@SosisLaw.com Attorney for Defendants, OPRAMACHINE.COM and GAVIN ROZZI ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY RYAN LADD, Individually and on CAPE MAY COUNTY Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION Situated, Plaintiffs, Docket#: CPM-L-443-22 v. CITY OF NORTH WILDWOOD, W. SCOTT JETT, INSIGHT INTELLIGENCE, LLC NOTICE OF MOTION D/B/A OPRAMACHINE.COM, and GAVIN ROZZI, JOHN DOE 1-50 (fictitious names), JOHN DOE, Inc. (1-50) fictitious entities Defendants. PLEASE TAKE NOTICE that the undersigned counsel, William N. Sosis, Esq., will apply to the above named Court on a date and time to be set by the Court, or as soon thereafter as counsel may be heard, for an Order Dismissing the Complaint against Defendants, OPRAmachine.com and Gavin Rozzi because the complaint fails to state a claim upon which relief can be granted. This motion is made upon the grounds stated in the attached certifications and brief. PLEASE TAKE FURTHER NOTICE that at the time and place aforesaid, Defendants shall rely upon the Brief and Certification of Counsel attached thereto, in support of Defendant's Motion to Dismiss Pursuant to R. 4:6-2(e). A proposed form of Order is attached. Pursuant to R. 1:6-2 moving party consents to disposition on the papers. CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 2 of 2 Trans ID: LCV2023310372 Date: 01/19/2023 By: /s/ William N. Sosis, Esq. William N. Sosis, Esq. Attorney for Defendants, OPRAMACHINE.COM and GAVIN ROZZI CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 1 Trans ID: LCV2023310372 WILLIAM N. SOSIS (#100032014) 15 Brantwood Terrace Hackettstown, New Jersey 07840 Tel: (201) 655-6400 Fax: (201) 781-7855 Email: Bill@SosisLaw.com Attorney for Defendants, OPRAMACHINE.COM and GAVIN ROZZI ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY RYAN LADD, Individually and on CAPE MAY COUNTY Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION Situated, Plaintiffs, Docket#: CPM-L-443-22 v. CITY OF NORTH WILDWOOD, W. SCOTT JETT, INSIGHT INTELLIGENCE, LLC ORDER D/B/A OPRAMACHINE.COM, and GAVIN ROZZI, JOHN DOE 1-50 (fictitious names), JOHN DOE, Inc. (1-50) fictitious entities Defendants. THIS MATTER, having been opened to the Court by the Defendants, INSIGHT INTELLIGENCE, LLC and GAVIN ROZZI (“Individual Defendants”), upon application for an Order to Dismiss COUNT II of Plaintiff’s Complaint dated November 16, 2022 with prejudice as to said Defendants; and the Court having considered Defendants’ motion and the opposition of Plaintiffs, if any, and for good cause appearing, IT IS ON THIS ____ day of JANUARY, 2023, ORDERED: 1. COUNT II of Plaintiff’s Complaint dated November 16, 2022 is hereby dismissed with prejudice as to Defendants, INSIGHT INTELLIGENCE, LLC and GAVIN ROZZI. J.S.C Opposed: ________ Unopposed: ________ CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 3 Trans ID: LCV2023310372 WILLIAM N. SOSIS (#100032014) 15 Brantwood Terrace Hackettstown, New Jersey 07840 Tel: (201) 655-6400 Fax: (201) 781-7855 Email: Bill@SosisLaw.com Attorney for Defendants, OPRAMACHINE.COM and GAVIN ROZZI ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY RYAN LADD, Individually and on CAPE MAY COUNTY Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION Situated, Plaintiffs, Docket#: CPM-L-443-22 v. CITY OF NORTH WILDWOOD, W. SCOTT JETT, INSIGHT INTELLIGENCE, LLC CERTIFICATION OF GAVIN ROZZI D/B/A OPRAMACHINE.COM, and GAVIN ROZZI, JOHN DOE 1-50 (fictitious names), JOHN DOE, Inc. (1-50) fictitious entities Defendants. Gavin Rozzi, of full age, certifies: 1. I am a Defendant named personally in this matter and submit this Certification in support of my motion seeking a dismissal of the Complaint filed against me. 2. I am the sole officer of the co-defendant, Insight Intelligence, LLC (d/b/a OPRAmachine.com) a New Jersey Limited Liability Company. Attached as Appendix A is a certificate of formation. 3. At no time during the periods alleged in the Complaint did I act personally with the Plaintiffs. I always acted as a representative of co-defendant Insight Intelligence, LLC. 4. I formed Insight Intelligence, LLC to avoid personal liability. The Plaintiffs named me personally to harass and pressure me. At no time did I act personally but always as a representative of Insight Intelligence, LLC. CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 2 of 3 Trans ID: LCV2023310372 5. I have read the foregoing letter brief in support of my motion to dismiss and know of its contents. Such contents are true of my own knowledge, except as to matters stated on information and belief, and, as to such matters, they are true to the best of my knowledge and belief. 6. I certify that the foregoing statements made by me are true. I am aware that if same is willfully false, I am subject to punishment. Date: 01/19/2023 By: /s/ Gavin Rozzi Gavin Rozzi Appendix "A" CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 3 of 3 Trans ID: LCV2023310372 Appendix "A" CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 10 Trans ID: LCV2023310372 WILLIAM N. SOSIS, ESQ. Sosis Law, LLC TELEPHONE (201) 655-6400 15 BRANTWOOD TERRACE BILL@SOSISLAW.COM MANSFIELD TOWNSHIP, NEW JERSEY 07840 FAX (201) 781-7855 January19, 2022 VIA E-Courts Electronic Filing The Honorable John C. Porto, J.S.C. Cape May County Courthouse 1201 Bacharach Blvd. Atlantic City, New Jersey 08401 RE: Andrew Moon, Tyler Huck, and Ryan Ladd v. City Of North Wildwood, W. Scott Jett, Insight Intelligence, LLC d/b/a OPRAmachine.com, and Gavin Rozzi, et al. Docket#: CPM-L-443-22 Dear Judge Porto: Please accept this letter brief in lieu of a more formal brief in support of Defendants Insight Intelligence, LLC and Gavin Rozzi’s motion to dismiss the Complaint against them in the above referenced matter. PRELIMINARY STATEMENT Defendants Insight Intelligence, LLC d/b/a OPRAmachine.com, and Gavin Rozzi (hereinafter "Defendants") are accused of several violations of the New Jersey Consumer Fraud Act N.J.S.A. § 56:8-2, et seq. (hereinafter "CFA"). Despite failing to articulate any ascertainable loss, Plaintiffs have demanded several injunctive and monetary damages. However, Plaintiffs' Complaint cites no cases on point, contains no legal analysis to support their allegations, and ignores controlling law. As argued below, comparing the facts of this case to the law will show that Plaintiffs' alleged violations are, in fact, not violations at all. Plaintiffs have, misapplied or misinterpreted the law or Plaintiffs seek to have this court rewrite the law to comply with how they believe it should be. In short, the claims being made by Plaintiffs are baseless and without merit. They do not even make out a threshold basis upon which this Court could or should entertain Plaintiffs' allegations. Simply stated Plaintiffs' claims are deficient in their content, unsubstantiated, and fail to state any claim or cause of action upon which relief may be granted. CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 2 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 2 STANDARD OF REVIEW A motion to dismiss a complaint under Rule 4:6-2 for failure to state a claim upon which relief can be granted must be evaluated in light of the legal sufficiency of the facts alleged in the complaint. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989). The court must view the allegations with great liberality and without concern for the Plaintiffs' ability to prove the alleged facts. Ibid. The plaintiffs should receive the benefit of every reasonable inference of fact. Ibid. If, on a Rule 4:6-2(e) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion." R. 4:6-2. ARGUMENT POINT 1: PLAINTIFFS' COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR A VIOLATION OF THE CONSUMER FRAUD ACT, N.J.S.A. 56:8-1 et seq. The Consumer Fraud Act (CFA) prohibits: The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person.... N.J.S.A. 56:8–2 (emphasis added) Under Count II of the Complaint, Plaintiffs allege that Defendants have "engaged in a variety of unconscionable and deceptive acts, practices, and omissions related to data security, which amount to 'unconscionable commercial practices' within the meaning of the New Jersey Consumer Fraud Act". Plaintiffs then purport to provide "examples" of said violations by setting forth a litany of self-serving assertions, none of which are violations of the CFA. Their conclusory statements alone have not identified any specific actions that Defendants have taken in the course of running a public records service that rise to a CFA violation. CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 3 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 3 a. The Consumer Fraud Act Does Not Provide Remedies for invasion of privacy and emotional injuries New Jersey courts have held that claims for invasion of privacy and emotional injuries are non-economic damages that cannot be recovered under the Consumer Fraud Act. Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005); Cole v. Laughrey Funeral Home, 376 N.J. Super. 135, 152 (App. Div. 2005); see also Jones v. Sportelli, 166 N.J.Super. 383, 391-92 (Law Div.1979). In their Complaint, Plaintiffs have failed to allege facts or evidence from which a factfinder could find or infer that a Plaintiffs suffered a quantifiable or otherwise measurable loss as a result of the alleged CFA unlawful practice. In such cases the New Jersey Supreme Court has held that summary judgment should be entered in favor of the moving party. Thiedemann, 183 N.J. at 238. Moreover, Plaintiffs' do not allege "any ascertainable loss of monies or property, real or personal." N.J.S.A. 56:8-19. To support a private cause of action under the CFA, the complaint must allege an "ascertainable loss of monies or property, real or personal." N.J.S.A. 56:8-19; see Weinberg v. Sprint Corp., 173 N.J. 233, 248-54 (2002). Here, Plaintiffs' damages consist merely of bald-face assertions of intangible harm resulting from alleged invasions of their rights of privacy and confidentiality regarding their disclosure of their social security numbers and personal identifiers resulting from a local municipality's failure to redact said information. All of which have nothing to do with the Defendants. b. Plaintiffs' CFA Claim Fails Because Defendants Are Not "Subsequent Performers" to the initial transaction Under the CFA, a person who lacks any connection to the initial "sale" or "advertisement" of the merchandise or real estate cannot be liable as a "subsequent performer." For a connection to be established, the CFA requires that any wrongful conduct by Defendants must occur "in connection with" the advertisement, sale, or subsequent performance on which the defendant's liability is based. N.J.S.A. 56:8-2. In contrast, here there is no interaction or communication between Plaintiffs and Defendants and thus no connection can be established. see Matera v. M.G.C.C. Group, Inc., 402 N.J. Super. 30, 38-39 (Law Div. 2007) (property seller's misrepresentations to purchaser were made "in connection with the sale of real estate"). CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 4 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 4 There is also nothing in Plaintiffs' Complaint that pleads a cause of action under the CFA's subsequent performance requirement. The reason for this is simple, there is no role that Defendants played, initially or subsequently, that meets the CFA's subsequent performance requirement. POINT 2: PLAINTIFFS' COMPLAINT AGAINST DEFENDANTS IS BARRED BY THE COMMUNICATIONS DECENCY ACT (CDA) The Federal Communications Decency Act states in part that: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 47 U.S.C. § 230(c)(1) (emphasis added) a. OPRAmachine Operates an Interactive Computer Service OPRAmachine is entitled to immunity from Plaintiff’s claims because it provides an “interactive computer service” as defined by 47 U.S.C. § 230(c)(1). The basis of Plaintiff’s causes of action against Defendants stems from a single piece of third-party content, which they allege was released in response to an OPRA request made by Greg Walsh using Defendants’ website on January 10th, 2022 (See Plaintiff’s Complaint, ¶ 5-9). Plaintiffs have not proffered any evidence in their complaint that Defendants were the publisher or speaker of the content at issue that they contend was improperly released in response to Walsh’s OPRA request that was provided by the City of North Wildwood. Indeed, Plaintiff’s complaint specifically noted that the third-party content at issue was uploaded by Scott Jett, City Clerk in response to an OPRA request that was received by the City via OPRAmachine, and submitted by Mr. Walsh. They have further alleged that the document uploaded & published by Clerk Jett was “...generated by the New Jersey Civil Service Commission” (Plaintiffs' Complaint, ¶ 6-7). Here, there is no question that OPRAmachine is an interactive computer service within the meaning of 47 U.S.C. § 230(c)(1), as the information was released solely by Clerk Jett, through the use of the OPRAmachine web service by Greg Walsh to submit his request. Defendants’ only role in this matter is the operation and ownership of the website. CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 5 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 5 b. The Content Was Released & Published by Another Information Content Provider The facts alleged in Plaintiff’s complaint fail to establish even a single statement that has been made by Defendants or alleged that they were the authors of the content at issue which gave rise to Plaintiff’s causes of action, so OPRAmachine fulfills the second prong of CDA 230 immunity, as the content in this case clearly originated from another information content provider, the City of North Wildwood. As the records custodian of the City of North Wildwood, Clerk Jett and the City had full knowledge that their response would be a matter of public record via the OPRAmachine platform. c. Plaintiff Inappropriately Seeks To Treat OPRAmachine as the Publisher or Speaker of the Content At Issue Here, Plaintiffs inappropriately seek to treat Defendants as the 'publisher or speaker' of the third-party content released by the City of North Wildwood in response to an OPRA request submitted by a third-party user of the OPRAmachine platform via their causes of action, in clear violation of Section 230 of the Communications Decency Act, 47 U.S.C.A. § 230 et seq. Furthermore, Section 230 of the Communications Decency Act not only provides immunity for interactive computer service providers from liability for third-party content, but also includes a "good samaritan" provision as stated in 47 U.S.C.A. § 230(c)(2)(A) which shields providers or users from liability for any actions taken in good faith to restrict access to or availability of content they consider to be offensive or objectionable. This further underscores the protection offered to OPRAmachine and strengthens the argument for dismissal based on Section 230 immunity. Because Plaintiff’s claims against Defendants are barred by Section 230 immunity, they must be dismissed. Drawing the Court's attention to Defendants' attached Appendix B, it is clear that Courts across the country have upheld Section 230 immunity and its policy of regulatory forbearance in CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 6 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 6 a variety of factual contexts. Accordingly, here the Defendants are clearly not "publishers" but providers of an interactive computer service (OPRAmachine) that promotes government transparency and civic engagement. Defendants' OPRAmachine allows citizens to make Open Public Records requests to state and local government agencies. Defendants website supports New Jersey's history of commitment to public participation in government and an informed citizenry by providing an easy-to-use interface for searching and viewing the records that are obtained. More importantly, it can be argued that Defendants' OPRAmachine is well-aligned with the goals of our New Jersey Supreme Court which in 1977 wrote: A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives. Polillo v. Deane, 74 N.J. 562, 571 (1977) (quoting Letter to W.T. Barry, Aug. 4, 1822, in 9 Writings of James Madison 103 (G. Hunt ed. 1910) Similarly, the Government Records Council (GRC) (established under a separate section of the Open Public Records Act, N.J.S.A. 47:1A-1 et seq) favorably mentions Defendants' OPRAmachine on page 17 of its Handbook for Records Custodians where it states: Internet Requests: Some public agencies and third parties (such as OPRAmachine) have created or contracted out systems that allow a citizen to fill out an online request form and file it with the custodian over the Internet. The means of submitting a request form (mail, in-person, Internet) will not affect which records will or will not be available for access. See: The New Jersey Open Public Records Act - Handbook for Records Custodian. Available at: https://www.nj.gov/grc/custodians/handbook/Custodians%20Handbook %20(Seventh%20Edition%20-%20Nov%202022)(Final).pdf In light of this well-established case law, it is clear that OPRAmachine should be granted a motion to dismiss based on Section 230 immunity from liability for third-party content posted by the City of North Wildwood. CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 7 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 7 POINT 3: THE COMPLAINT AGAINST DEFENDANT GAVIN ROZZI MUST BE DISMISSED As has been noted by numerous New Jersey Courts, "[A] corporation is an entity separate and distinct from its principals." Touch of Class Leasing v. Mercedes-Benz Credit of Can., Inc., 248 N.J. Super. 426, 441 (App. Div.), certif. denied, 126 N.J. 390 (1991). Absent fraud, statutory liability or and injustice "officers of corporations are insulated from personal liability for the conduct of the corporation." Macysyn v. Hansler, 329 N.J. Super. 476, 486 (App. Div. 2000). Similarly, to hold an individual member of an LLC liable, Plaintiffs must articulate extraordinary reasons why the Court should pierce the corporate veil. See Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 472 (2008) (quoting Dept. of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 500 (1983)) ("'[e]xcept in cases of fraud, injustice, or the like, courts will not pierce a corporate veil'"). Here, Plaintiffs' Complaint fails to articulate any such reasons. At no time did the Defendant, Gavin Rozzi, act personally but always acted as the owner of Insight Intelligence, LLC d/b/a OPRAmachine.com. (See Gavin Rozzi Certification) At no time did Defendant, Gavin Rozzi communicate with the Plaintiffs or sign any documents relied upon by Plaintiffs. These facts alone, vitiate any allegations of fraud made by Plaintiffs. POINT 4: PLAINTIFFS' ALLEGATION THAT DEFENDANTS FAILED TO REDACT PUBLIC RECORDS HAS NO BASIS IN LAW AND MUST BE DISMISSED The Open Public Records Act states that every public agency has a responsibility and an obligation to safeguard from public access a citizen's personal information entrusted to it when disclosure of the information would violate the citizen's reasonable expectation of privacy. N.J.S.A. 47:1A-1. The New Jersey Supreme Court has characterized this section of the statute as "substantive" in nature. Burnett v. County of Bergen, 198 N.J. 408, 422-423 (2009). Thus it should be clear that the responsibility to safeguard personal information from public access befalls on the public agency and not Defendants. Prior to releasing public records, public agencies are obligated to make the redactions Plaintiffs are complaining about. CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 8 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 8 Additionally, as discussed above, Section 230 of the Communications Decency Act protects online platforms such as Defendants from liability for user-generated content. Despite these laws, Plaintiffs' nonetheless falsely claim that Defendants "intentionally communicated or otherwise made available" unredacted information. Finally, the law does not require Defendants to redact public records that are generated and uploaded to OPRAmachine by public agencies. To hold that Defendants are in violation of Plaintiffs' privacy rights for failing to redact government records is absurd. For Defendants to do so would equate to a judicial rewrite of the law, something the Supreme Court of New Jersey has deemed inappropriate. Therefore, Defendants are entitled to dismissal on Count II of the Complaint. Further, Defendants' failure to redact government records does not violate any provision of the CFA, nor is injunctive relief appropriate in this matter. CONCLUSION For the reasons set forth above the moving party seeks a dismissal of the Complaint against OPRAmachine and Gavin Rozzi personally. Respectfully submitted, William N. Sosis cc: Oliver T. Barry, Esq. (via eCourts) Erika Lezama-Simonson, Esq. (via eCourts) CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 9 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 9 APPENDIX “B” Cases where Courts have upheld Section 230 of Title 47 of the United States Code (47 U.S.C. § 230) immunity and its policy of regulatory forbearance in a variety of factual contexts. • Parker v. Google, Inc., 422 F. Supp. 2d 492, decision summary aff'd, 242 Fed. Appx. 833 (3d Cir. 2007), cert denied 522 U.S. 1156 (2008) (An author sued Google for defamation, invasion of privacy and negligence because Google archived defamatory messages posted about him on a third-party website and displayed "an authorized biography of Plaintiff" when his name was entered as a Google search query. The court rejected the claims: "It is clear that § 230 was intended to provide immunity for service providers like Google on exactly the claims Plaintiff raises here."); • Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (website operator immune for distributing email sent to listserv) • Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (Internet dating service provider was entitled to Section 230 immunity from liability stemming from third party’s submission of false profile); • Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002) (eBay is entitled to immunity); • Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001) (library not liable for providing access); • Universal Commc'ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (message board not liable for users' messages); • Schneider v. Amazon.com, Inc., 31 P.3d 37, 39 (Wash. Ct. App. 2001) (online bookseller providing forum for others to submit book reviews is “interactive computer service” provider (“ICS provider”)); • Doe v. America Online, 783 So.2d 1010, 1013-1017 (Fl. 2001), cert. denied, 122 S.Ct. 208 (2000) (§ 230 immunizes America Online (“AOL”) for negligence); • Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980, 984-985 (10th Cir. 2000), cert. denied, 531 U.S. 824 (2000) (no liability for posting of incorrect stock information); • Marczeski v. Law, 122 F.Supp.2d 315, 327 (D. Conn. 2000) (individual who created private “chat room” was ICS provider entitled to immunity); • Blumenthal v. Drudge, 992 F. Supp. 44, 49-53 (D.D.C. 1998) (AOL has Section 230 immunity from liability for content of independent contractor’s news reports, despite agreement with contractor allowing AOL to modify or remove such content). CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 10 of 10 Trans ID: LCV2023310372 The Honorable John C. Porto, J.S.C. William N. Sosis, Esq. Page 10 • Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F.Supp.2d 929 (D. Ariz. 2008) (website operator immune under 230 for refusing to remove post despite notification of its potentially defamatory content). • Goddard v. Google, Inc., 640 F. Supp. 2d 1193 (N.D. Cal. 2009). Plaintiff, Jenna Goddard, claimed that she and a class of similarly situated individuals suffered injury at the hands of Google, Inc., Defendant, as a result of clicking on Google AdWords web- based advertisements created by allegedly fraudulent providers of services for various mobile devices. In its prior decision, the court granted Defendant’s motion to dismiss with leave to amend, holding that, “[e]ach of Plaintiff’s claims, as currently pled, is premised fundamentally on Google’s publication of the AdWords advertisements,” and therefore Plaintiff was unable to avoid section 230 immunity. 2008 WL 5245490 (N.D. Cal. Dec. 17, 2008) at *7. In the latest decision, the court dismissed without leave to amend under 12(b)(6) and CDA § 230, because "Plaintiff has not come close to substantiating the 'labels and conclusions' by which she attempts to evade the reach of the CDA." 640 F. Supp. 2d at 1196. Furthermore, the court stressed that the CDA “must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.” Id. at 1202. • Nemet Chevrolet Ltd. v. ConsumerAffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). The court granted immunity from defamation and tortious interference with a business expectancy claims to a website that included consumer complaints. The court found the allegations that ConsumerAffairs.com was a ICP because it fabricated complaints or helped write them was insufficiently supported by facts to survive a motion to dismiss. • Johnson v. Arden, 614 F. 3d 785 (8th Cir. 2010). The interactive website www.ComplaintsBoard.com immune for allegedly defamatory statements about the Cozy Kitten Cattery because Section 230 "bar[s] plaintiffs from holding ISPs legally responsible for information that third parties created and developed." CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 1 of 2 Trans ID: LCV2023310372 WILLIAM N. SOSIS (#100032014) 15 Brantwood Terrace Hackettstown, New Jersey 07840 Tel: (201) 655-6400 Fax: (201) 781-7855 Email: Bill@SosisLaw.com Attorney for Defendants, OPRAMACHINE.COM and GAVIN ROZZI ANDREW MOON, TYLER HUCK, and SUPERIOR COURT OF NEW JERSEY RYAN LADD, Individually and on CAPE MAY COUNTY Behalf of All Others Similarly LAW DIVISION-CIVIL ACTION Situated, Plaintiffs, Docket#: CPM-L-443-22 v. CITY OF NORTH WILDWOOD, W. SCOTT JETT, INSIGHT INTELLIGENCE, LLC PROOF OF SERVICE D/B/A OPRAMACHINE.COM, and GAVIN ROZZI, JOHN DOE 1-50 (fictitious names), JOHN DOE, Inc. (1-50) fictitious entities Defendants. I am counsel for Defendants, INSIGHT INTELLIGENCE, LLC and GAVIN ROZZI. On January 19, 2023, I served one copy of Defendants’ Notice of Motion, Proposed Order, Certification of Electronic Signature, Certification of Gavin Rozzi, Letter Brief, and Proof of Service being filed in support of Defendants’ Motion to Dismiss by operation of the eCourts system on counsel for the Plaintiff: OLIVER T. BARRY, ESQUIRE ERIKA LEZAMA-SIMONSON, ESQUIRE Attorney ID # 082282013 Attorney ID # 246812018 BARRY, CORRADO & GRASSI, P.C. BARRY, CORRADO & GRASSI, P.C. 2700 Pacific Avenue 2700 Pacific Avenue Wildwood, New Jersey 08260 Wildwood, New Jersey 08260 CPM-L-000443-22 01/19/2023 1:34:15 PM Pg 2 of 2 Trans ID: LCV2023310372 I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Date: 01/19/2023 By: /s/ William N. Sosis, Esq. William N. Sosis, Esq. Attorney for Defendants OPRAMACHINE.COM and GAVIN ROZZI