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Nasser v. Whitepages, Inc.

United States District Court, W.D. Virginia, Harrisonburg Division

April 1, 2014

MICHAEL J. NASSER, Plaintiff,
v.
WHITEPAGES, INC., Defendant.

MEMORANDUM OPINION

JOEL C. HOPPE, Magistrate Judge.

Pending before the Court are Defendant WhitePages, Inc.'s ("WhitePages") post-judgment motion for a pre-filing injunction or monetary sanctions (ECF No. 59) and Plaintiff Michael J. Nasser's motion to "dismiss" WhitePages's sanctions motion and "quash" the exhibits filed in support of that motion (ECF No. 68.) The Court will deny both motions, but admonish Nasser for his uncivil behavior and improper filings in this matter.

I. Factual and Procedural Background

In October 2009, Plaintiff Michael J. Nasser began receiving calls from a large number of customers trying to contact Comcast, the cable provider for the Winchester, Virginia area. (ECF No. 1-1, p. 2.) Understandably annoyed, Nasser investigated these calls and soon discovered that Defendant WhitePages, Inc. listed his number after entries for "Comcast Phone of Virginia" and "Comcast Phont of Virginia" on its website, whitepages.com. ( Id. )

Nasser called WhitePages on October 28, 2009, and asked for the listing to be removed. During that call, a WhitePages representative allegedly told him that she had processed the requested removals. ( Id., pp. 3-4.) However, the calls continued, and WhitePages maintained the erroneous listing on its website until February 17, 2011, more than a year after Nasser first contacted WhitePages to alert it of the problem. ( Id., p. 5.)

In April, 2010, Nasser sued WhitePages and Verizon Virginia, Inc. in state court for nuisance, intentional infliction of emotional distress, and negligent infliction of emotional distress. (ECF No. 51, p. 2.) Nasser settled his nuisance claim against Verizon after the court dismissed his other two claims, and he non-suited the claims against WhitePages. ( Id. )

Nasser re-filed his claims against WhitePages in state court on August 6, 2012. ( Id. ) WhitePages removed the case to federal court the following month. ( Id. ) After discovery limited to the issue of whether Nasser's claims against WhitePages were barred by the Communications Decency Act, 47 U.S.C. § 230, both parties moved for summary judgment. On November 22, 2013, presiding United States District Judge Michael F. Urbanski denied Nasser's motion and granted WhitePages's motion, finding that WhitePages was entitled to immunity under § 230 and that Nasser could not rely on promissory estoppel because Virginia law does not recognize it as a cause of action. On December 10, 2013, Nasser filed a "motion for reconsideration" of the Court's summary judgment order, which the Court denied on January 7, 2014.

On January 30, 2014, WhitePages filed a motion seeking entry of a pre-filing injunction, or, alternatively, monetary sanctions against Nasser. (ECF No. 59.) In this motion, WhitePages requests that the Court enjoin Nasser from filing any further papers in this matter without leave of Court "upon demonstration that any such pleading is being made without improper purpose, is in compliance with Rule 11 of the Federal Rules of Civil Procedure, and can survive a challenge under Rule 12 of the Federal Rules of Civil Procedure (if applicable)." ( Id. at 2.) In the alternative, WhitePages requests that the Court "impose monetary sanctions against Nasser in order to deter [him] from further abuse of the legal process." ( Id. ) WhitePages filed three affidavits and several exhibits in support of the motion. (ECF Nos. 60-62.)

On February 18, 2014, Nasser filed his response to WhitePages's sanctions motion. (ECF Nos. 63, 65.) That same day, WhitePages filed its reply in support of its motion. (ECF No. 66.) On March 12, Nasser filed a motion seeking to "dismiss" WhitePages's sanctions motion and "quash" the exhibits filed along with it. (ECF Nos. 68, 69.)

By order dated February 21, 2014, Judge Urbanski referred all non-dispositive motions to me to determine pursuant to 28 U.S.C. § 636(b)(1)(A), and all dispositive motions to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 67.)[1]

II. Facts Relevant to the Sanctions Motion

WhitePages bases its request for sanctions largely on Nasser's communications with its attorneys. Accordingly, it has submitted copies of several letters and emails it alleges that Nasser sent to counsel over the past two years. These exhibits show that Nasser frequently and gratuitously alluded to WhitePages's legal fees in settlement demands (ECF Nos. 60-3, 60-5, 60-6, 60-7, 60-9) and, at times, even taunted WhitePages about those expenses. (ECF Nos. 60-1, 60-6, 60-9.) They also show that Nasser first threatened and then filed bar complaints, which both the Virginia and Washington state bars determined were unfounded, against two of WhitePages's attorneys in this matter. (ECF Nos. 60-8, 61-1, 61-2.) Additionally, the emails contain insulting and sarcastic remarks that Nasser directed at WhitePages's counsel. (ECF Nos. 60-3, 60-4, 60-5.)

Nasser's filings with this Court over the past two months have exhibited similar behavior. In one recent motion, Nasser mocked WhitePages's accrual of legal expenses, declaring that "[t]he purpose of litigation against an adversary is to extract a price for their transgressions. If you los[e] your legal case, you at least know that it came at a cost to the Defendant." (ECF No. 69, p. 1.) In Nasser's memorandum opposing the sanctions motion and supporting his own motion for expenses, he recounts an exchange from a hearing on November 14, 2012, in this case before United States Magistrate Judge B. Waugh Crigler. (ECF No. 65, p. 16.) At the hearing, Judge Crigler complimented Nasser on being "respectful" and "honoring to the court" and "articulate about his position." Judge Crigler then added that Nasser was "better than most lawyers who have come into court on some of the same kind of issues." (ECF No. 28, p. 52.) In his brief, Nasser suggests that the fact that "the court did not state with exception of present company' speaks volumes." (ECF No. 65, p. 16.) In the same brief, Nasser repeatedly refers to Focal, PLLC, the firm representing WhitePages, as the "anti-law firm." ( See, e.g., ECF No. 65, p. 3.)[2] He also repeatedly accuses WhitePages and its counsel of perpetuating a fraud on the court and engaging in "duplicitous language." (ECF No. 65, p. 5.) Additionally, as I have explained in the Report and Recommendation entered the same day as this Memorandum Opinion, Nasser's motion to recover his expenses from WhitePages and his motion to certify questions to the Virginia Supreme Court are frivolous.

III. Discussion

A. WhitePages's Request for an ...


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