IN THE CGURT GF COMMON PLEAS MEDENA CGUNTY, GHIG MED EXPRESS, Case No. Plaintiff, Judge Collier V. ANSWER AND CGUNTERCLAIM 9F DEFENDANT ARW NICI-IOLLS, et al., Defendants V. A. RADEY 5478 Grafton Road Valley City, OH 44280 Counterelaim defendant Now comes defendant Amy Nicholls, by and through counsel, and for her answer hereby states as follows: FIRST DEFENSE 1. Admit fill. 2. Admit 112. 3. Deny fi[3 for lack of knowledge. 4. Admit fi[4. 5. Admit 115. 6. Admit that the item and shipping were paid for through PayPal. Deny for lack of knowledge where Med Express took the equipment or where it was weighed. Admit that it was shipped to and received at the appropriate location. Deny for lack of knowledge what Med Express paid. Admit that it was received with postage due. 7. Deny that Med Express "immediately" offered to reimburse the postage amount. Rather, Nicholls notified Med Express of the problem via eBay message on February 19, 2013. A true and accurate copy of that message is attached as Exhibit A. Med Express then acknowledged the error on February 20, 2013 (saying '"no argument from us," and also averring that problem of postage happening to a lot of [Med Express's] USPS packages lately") but did not offer to refund the postage, as also shown on Exhibit A. Admit that on February 26, 2013, Nicholls posted feedback and comments for the transaction. Further answering, Nicholls states that the feedback and comments included the truthful statement: "Order arrived with postage due with no communication from seller beforehand." A true and accurate copy of a screenshot of the "Feedback profile" of Med Express on eBay.com, which includes that statement by Nicholls, is attached hereto as Exhibit B. Admit that Nicholls gave Med Express low ratings in the "Detailed Seller Ratings" section. Deny that Nicholls's truthful statement "resulted in a negative feedback profile for Med Express." Further answering, Nicholls states that the feedback profile in Exhibit shows that Med Express has a feedback rating that is 99.3% positive. Deny that the foregoing conduct constitutes "falsely and deliberately slander[ing] the good name and reputation of Med Express"; a truth cannot be a slander, and Med Express's own complaint alleges Nicholls's statement to be true. Further answering, Nicholls states that Exhibit B, like Exhibit A additionally includes an admission from Med Express which concedes the truth of Nicholls's statement and avers that Nicholls's experience is not an isolated occurrence. Further answering, Nicholls states that because Med Express's own complaint alleges the statements made by Nicholls to be true, the allegation that Nicholls "falsely and deliberately slandered" Med Express by making a true statement is frivolous conduct sanctionable under R.C. 2323.51. Further answering, Nicholls states that her ratings of Med Express in the "detailed seller ratings" section of eBay are opinions and therefore are protected speech as a matter of law. 8. Deny fi[8. ABDITIGNAL DEFENSES 9. The complaint fails to state a claim upon which relief can be granted. 10. The complaint is barred by the First Amendment to the US Constitution, Section ll, Article I of the Ohio Constitution, and/or Article I, Section 2 of the South Carolina Constitution. 1 1. The complaint is barred by privilege. 12. The statements and ratings constitute opinions, which are protected speech and not actionable. 13. The complaint constitutes frivolous conduct and is sanctionable under RC. 2323.51 and/or Civil Rule 1 1. 14. Any damage suffered by Med Express is the result of an intervening or superseding cause not attributable to Nicholls. 15. Med Express Waived or release any right it may have had to claim damages from negative feedback by agreeing to eBay's terms of service. 16. The claim in the complaint is barred by contributory negligence, Med Express's own reckless or intentional conduct, estoppel, illegality, license, payment, release, and/or waiver. 17. This Court lacks personal jurisdiction over Nicholls. CGUNTERCLAIM For her counterclaim against plaintiff Med Express, Inc., and new counterclaim defendant Richard A. Radey, Nicholls hereby states as follows: 1. Radey is the President of Med Express. 2. As alleged in the complaint and admitted in the answer, Med Express is in the business of selling goods on eBay and Nicholls purchased goods from Med Express at that site. 3. As alleged in the complaint and admitted in the answer, even though Nicholls paid in full for the item purchased, including shipping costs, before the item was shipped, Nicholls nevertheless received the item with postage due. 4. As alleged in the complaint and admitted in the answer, Nicholls published on eBay the true statement that she received the item with postage d.ue. 5. Notwithstanding the truthful nature of Nieholls's statement, Med Express nevertheless sued her for "slander," or defamation, in the complaint in this case, and is seeking an injunction ordering her and defendant eBay, lnc., to remove her statement. 6. Notwithstanding Med Express's knowledge that Nicholls was a South Carolina resident with no relevant contact with Ohio other than this transaction, and notwithstanding Med Express's knowledge that Nicho1ls's truthful statement was made in and from South Carolina, Med Express sued her in Ohio in order to make the litigation more cumbersome and expensive to defend. 7. Med Express has engaged in a pattern of frivolous litigation by suing out~of-state defendants in cases calculated to chill their free speech rights. On the same day that South Carolina resident Nicholls was sued in Medina County, Med Express also sued Dennis Rogan of West Pittston, and Tan Jan Chan of Tarnuning, Guam, in lawsuits which also seek damages and inj unctive relief against those defendants for posting true statements on eBay. 8. The statements in the complaint were verified by Radey, meaning that he swore to their truth under oath and in the presence of a notary. Radey additionally executed an affidavitmafier "being first duly sworn according to law"--in support of Med Express's motion for temporary restraining order, a true and accurate copy of which is attached hereto as Exhibit C. 9. The claim in the complaint has no basis in law. Its true purpose is to squelch public comment and discussion which is true but unflattering to Med Express. It serves merely to harass or maliciously injure Nicholls, and/or is improper for another purpose. 10. The claim in the complaint is not warranted under existing law, cannot be supported by a good faith argument for an extension, modification, or reversal of existing law, and/or cannot be supported by a good faith argument for the establishment of new law. Despite reasonable opportunity for further investigation, the statements in Radey's verification and affidavit have no basis in fact and no evidentiary support. 11. Civil Rule 11 provides in part as follows: "Every pleading, motion, or other document of a party represented by an attorney shall be signed by at least one attorney of record . . . . The signature of an attorney or pro se party constitutes a certificate by the attorney or party that the attorney or party has read the document; that to the best of the attorney's or party's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay." l2. The filing of the complaint and motion for temporary restraining order were made in violation of Civil Rule 1 1, in that there is no good ground to support the claim in the complaint and the request for a temporary restraining order or preliminary injunction. COUNT ONE -- ERIVGLGUS CGNDUCT UNDERRC. 2323.51 BY MED EXPRESS. RADEY. AND AMODIG 13. Nicholls realleges and reincorporates all prior allegations. 14. The filing of the complaint, the verification of the complaint by Radey, the filing of the motion for temporary restraining order, and the execution and filing of the affidavit of Radey in support of the claim in the complaint and motion, constitute "frivolous conduct" as that term is defined in RC. Each of the foregoing is sanctionable under RC. 2323.5 1 (B), and Nicholls is entitled to an award of court costs, attorney's fees, and other reasonable expenses incurred in connection with this civil action. Pursuant to R.C. Nicholls is entitled to recover the foregoing award of costs, fees, and expenses, from Med Express, its counsel (James A. Amodio and Brown Arnodio Chandler, LPA), Radey, or a combination of two or all of them. CGUNT TWO PUNITIVE GR EXEMPLARY DAMAGES AGAINST MED EXPRESS, RADEY, AMODIG 15. Nicholls realleges and reincorporates all prior allegations. 16. The actions or omissions of Med Express and Radey demonstrate malice or aggravated or egregious fraud towards or against Nicholls. Radey, as principal or master of agent Med Express, knowingly authorized, participated in, or ratified actions or omissions of Med Express that so demonstrate. 17. Nicholls is entitled to an award of punitive or exemplary damages, including attorney's fees, as provided for in R.C. 2315.21. Having fully pleaded her counterclaim, Amy Nicholls prays for the following relief: a 011 Count One, a monetary judgment in the amount ofNicho1ls's court costs, reasonable attorney's fees, and expenses, as provided for in RC. 2323.51; 011 Count Two, an award of punitive or exemplary damages, including attorney's fees, in an amount provided for in RC. 2315.21; 9 For sanctions and relief under Civil Rule 1 1; and For such other relief as Nicholls is entitled to under the law. 8 47) 5 3. SARA 1 ON 0. .P.A. 2623 Erie Ave, Cincinnati, OH 45208 (513) 533-6714 (513) 533-6711-fax Thomas G. Harer1(#0088238) Seeley, Savidge, Ebert Gourash Co., LPA 26600 Detroit Road, Suite 300 Westlake, Ohio 44145 (216) 566-8200 3 (216) 566~0213 (fax) Trial attorneys for defendant Amy Nicholle CERTEFICATE OF SERVICE Pursuant to Ohio Civil Rules and the undersigned does hereby certify that a true and accurate copy of the foregoin erved upon the following via ordinary US. mail or electronic mail on this fl dayof Apr?' 1 . 1* ll Jeffrey If all . . Ebay, Inc 2145 Hamilton Avenue San Joes, California 95125 James A. Amodio 109 West Liberty Street Medina, OH 44256 Attorney for Plaintiff Med Express Inc. My eaagc Messages: lnhox: Message ct/1.113 5:28 PM Dally Deals MyeBay Sail cmnmunity cusmmer suppmt "gs; Cart nun 1 I i Shop by Sea;-chm aft" fitivflricfid category are -- -- at eBay Ad Fm-<< Message My eBay Activity ggsgi) -.. Ac?ount .. .- Vryv-.u\ .. white I I i ..-. Delete Archive 5 Rel Forward 5a Maven: _lf? 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