Free Speech

Plaintiff Dropping Case in Which He Got Order to Google to Vanish Photo from Search Results

This will lead the order to be vacated; and the parallel case seeking removal of a Chicago Tribune post has also been dropped.

|The Volokh Conspiracy |

As I wrote on Aug. 3, a New Jersey state court (in Malandrucco v. Google) issued an order requiring Google to remove the photograph of the plaintiff from its search results. Also, in a parallel case (Malandrucco v. Chicago Tribune), the plaintiff was seeking an order requiring the Chicago Tribune to take down a blog post about the plaintiff that also included that photograph. The judge orally stated at the hearing that he was indeed ordering the Tribune to do so, but the written order didn't reflect that.

You can read more details about that order (including links to the underlying documents) here. The short version of the legal analysis is "the order was clearly unconstitutional." The short version of the facts is that the photo was a picture of plaintiff after he had been beaten by the police in 2010; he then sued the city, successfully, and became an anti-police-brutality activist, but around 2016 concluded that he wanted the stories about him, as well as the photo, removed.

Late on Aug. 6, Google and the Tribune removed the case to federal court, as they are entitled to do because they are citizens of a different state from the plaintiff and the plaintiff's lawsuits seek damages that could reach $75,000 or more, the jurisdictional threshold for removal to federal court. And now, the plaintiff is dropping the cases: An official stipulation signed by all parties agreeing to the dismissal of the case and the vacating of any orders has been filed in the Tribune case, and I expect the same to be filed in the Google case shortly.

Here is plaintiff's letter to the court about the Tribune case explaining his reasoning; it was apparently submitted last Thursday, but I think it wasn't placed on the docket until today:

My wedding is scheduled for a date in less than two months and my family has been highly distressed as a result of my graphic crime victim photo populating the top of Google search results of my name, as it is hosted by the Chicago Tribune.

Thus, I was seeking relief in this matter through my local state court in Hudson County, New Jersey, pursuant to Google's policy stating that a court order would help us attain said relief from this graphic image. We do not wish to proceed with this matter in federal court.

Google stated that upon receipt of a court order it would de-index third party content. Though we received and served a court order on Chicago Tribune, with notification submitted to Google, Google still did not de-index the content.

I had decided this past weekend (August 4, 2018} that I would be withdrawing the case from the Superior Court of Hudson County in New Jersey, where it was filed, and began to take steps toward that end.

On Tuesday, August 6, 2018, I wrote Chicago Tribune counsel to notify that I had a filed a Motion of Voluntary Dismissal to Hudson County New Jersey Superior Court Chancery Division Justice Jeffrey R. Jablonski. At that time, Chicago Tribune counsel told me that a Notice of Removal had already been submitted to have the case moved into Federal Court.

Had I received any information to this end, I would have conveyed that I was planning to voluntarily dismiss the case in New Jersey Superior Court on Tuesday, August 7, 2018 once I was able to ascertain the necessary and proper protocol for this action. I pray that the judge assigned to this case will permit me to voluntarily withdraw my case without prejudice.

And here are portions from the letter to the court about the Google case (submitted today); I exclude the material repeated from the letter about the Tribune case:

Though we received and served a court order against Chicago Tribune in this matter, Google still did not de-index the content.

Google stated in a telephone conversation on Tuesday, July 31, 2018 that a remedy could be achieved without proceeding through the court process. Thus, we attempted to continue dialogue with Google on multiple occasions, including on Thursday, August 2 and Friday, August 3, 2018, to see if a remedy could be agreed upon prior to withdrawal, but we were met with no response….

On Monday night, August 6 at 10:53 pm, Google counsel in New York City notified us [plaintiff and his fiancee, who was also listed as a co-plaintiff in the Google suit] via email a "heads up" (in attorney Brian M. Willen's words) that a Notice of Removal would be submitted to have the case moved into Federal Court. Then, at 11:24 pm on the same night, Google's counsel in New Jersey Patricia M. Graham, sent an email stating that the documents had been filed.

When we saw this email on Tuesday morning we were completely shocked, as we were not given any reasonable amount of notice of this next step, and contrary to defense counsel statements last week (both via phone and email), Google did not respond to our request for discussion, despite telling us that they would be amenable to negotiation if we "immediately withdrew our Motion for Contempt"—which we immediately did. Please note that we withdrew our Motion for Contempt in good faith as per Google's statement that it would enter discussions after that point. Google's next course of action was rather to notify us that the case was being removed to federal court.

Had we received Google's "heads up" during regular business hours or at some point during the day, we would have conveyed that we were planning to voluntarily dismiss our case upon learning the necessary and proper protocol for this action….

I can't speak to what communications the plaintiff might have had with Google, but I should note that:

  1. Google's general policy, as I understand it, is to often voluntarily deindex material in response to a court order addressed to the author finding it libelous—but to aggressively fight any attempts to order Google itself to deindex material, attempts that they view as legally unsound and often unconstitutional.
  2. There is no general requirement to give people notice that you are removing their case against you to federal court, and indeed litigants who sue out-of-state entities in state court should generally expect (at least when the lawsuit claims unspecified but possibly quite large damages) that the defendants will remove it to federal court, though I realize that many self-represented litigants may not be aware of that.
  3. The New Jersey state court docket does not contain any entry showing that the motion for contempt (i.e., the motion filed by the plaintiff to have Google fined for not complying with the court's earlier deindexing order) was ever withdrawn, though perhaps there was some attempt made that didn't make its way into the docket because of a glitch somewhere in the process.
  4. The stipulation in the Tribune case states that the parties agree to have the case dismissed "with prejudice," which is to say in a way that keeps the plaintiff (or his fiancee) from refiling the case in the future; I expect the same to happen in the Google case.

UPDATE: Late last night, the signed stipulation to dismiss the Google case was indeed filed, and it provided for dismissal with prejudice and for vacating the order against Google.

FURTHER UPDATED: As expected, the court has dismissed the lawsuits with prejudice, and vacated the orders.

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  1. “. . . and indeed litigants who sue out-of-state entities in federal court should generally expect (at least when the lawsuit claims unspecified but possibly quite large damages) that the defendants will remove it to federal court, though . . .”

    Is this a typo, and did you mean to talk about litigants who sue out-of-state parties in *state* court? If I sue you in federal court, why should I generally expect it removed to (a different venue??) federal court?

    1. Whoops, fixed it, thanks!

  2. I love a happy ending.

  3. I’ll be one of those people …

    Religion Clause Blog cited an opinion with multiple quotable portions [e.g., “In his most loudly bruited claim of error, Lively beseeches us to purge certain unflattering statements from the district court’s dispositive opinion.”] involving a claim arising from language in a lower court opinion allegedly causing a person injury.

    Also, John Legend’s Washington Post op-ed on non-unanimous juries addresses a subject flagged on this blog as well.

  4. So if his lawyers were smart, they would have sued for $1 of damages and ducked the removal?

    I guess they learned for next time . . .

  5. The plaintiff should have voluntarily dismissed his own case WITHOUT PREJUDICE. His circumstances might one day change and by voluntarily dismissing his own suit without prejudice he would have had the option of renewing his fight.

    Now he no longer has that option.

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