Agora Incorporated v. AXXESS Incorporated , 11 F. App'x 99 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AGORA, INCORPORATED, 
Plaintiff-Appellant,
v.
AXXESS, INCORPORATED, d/b/a
FinancialWeb.Com, Incorporated,  No. 00-1570
Defendant-Appellee,
and
STOCKDETECTIVE.COM, INCORPORATED,
Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-99-3162-AMD)
Argued: March 2, 2001
Decided: April 9, 2001
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Matthew Joseph Turner, AGORA, INCORPORATED,
Baltimore, Maryland, for Appellant. Kara Lynn Daniels, HOLLAND
& KNIGHT, L.L.P., Washington, D.C., for Appellee. ON BRIEF:
2 AGORA v. AXXESS
Christopher "Kip" Schwartz, HOLLAND & KNIGHT, L.L.P., Wash-
ington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Agora, Incorporated appeals the dismissal of its defamation action
against Axxess, Incorporated. The district court dismissed the case for
failure to state a claim upon which relief could be granted, based upon
a determination that the allegedly defamatory statement was an opin-
ion that relied on readily available facts and therefore was not action-
able. We affirm on the reasoning of the district court, with a slight
modification regarding procedure.
I.
Agora is a Maryland company that publishes a monthly investment
magazine called Taipan. Axxess, a Nevada corporation doing busi-
ness in Florida, also provides investment advice, through an Internet
site called FinancialWeb.com.
FinancialWeb offers an on-line service called Stock Detective,
which is "[d]edicated to educating investors about the risks of stock
scams and securities fraud." J.A. 122. From the FinancialWeb home-
page, users can link to an index of Stock Detective’s features, one of
which is called "THE List!" Id. at 124. THE List! is an internet docu-
ment titled "THE STOCK DETECTIVE DIRECTORY OF FINAN-
CIAL INFORMATION SOURCES CONTAINING PAID SMALL-
CAP COMPANY ‘ANALYSIS.’"1 Id. at 126. This document con-
1
This title appears on a hard copy of THE List! that was submitted to
the district court by Agora. A slightly different title appears in Agora’s
AGORA v. AXXESS 3
tains an introductory paragraph, a list of publications and accompany-
ing ratings, a hyperlink to an article about deceptive stock promotion
practices, a glossary, and a disclaimer.
The introduction to THE List! sets forth its purpose:
Stock promoters on the Internet are a busy group. Not only
are they constantly spinning new hype for the companies
they promote, but they seem to replace each other almost
seamlessly on a regular basis. But not all promoters are cre-
ated - or paid - equally. The latest trend is toward promoters
who claim no compensation from the companies they’re
writing about, but allude to unfettered trading in these same
companies’ shares. Check out the key at the bottom of The
List for a complete explanation of the disclosure ratings.
Id. The disclaimer describes, in broad terms, how ratings are assigned
to publications:
The ratings associated with the publications listed in the
above referenced table were compiled by Stock Detective
from information or materials believed to be accurate. These
ratings are the opinion of the publisher as defined above.
This does not purport to be a complete analysis of the afore-
mentioned media.
Id. at 128.
The list itself is divided into three columns, captioned "Publication
Name," "Media Source(s)," and "Disclosure Rating." Id. at 126. The
entry for Taipan reads as follows:
Taipaonline Internet Unpaid promoter
Id. at 127. The word in the middle column, "Internet," is a hyperlink
to Taipan’s website, which contains the following policy statement
concerning information published in Taipan:
complaint. We have relied on the hard copy rather than the complaint
because, as will be explained below, we are applying summary judgment
standards in this appeal, so we may look beyond the face of the com-
plaint.
4 AGORA v. AXXESS
[T]he editors, staff, and associates of the Taipan Group, as
well as its directors, employees and associated individuals,
are prohibited from trading on this information until after
the information is published — i.e., at least 3 days after our
publication has been mailed to our subscribers.
Id. at 293 (internal quotation marks omitted). As for the term "unpaid
promoter" (the disclosure rating assigned to Taipan), the glossary
near the bottom of THE List! defines "unpaid promoters" as "‘ana-
lysts’ or ‘stock pickers’ who claim they are not paid by the companies
for publishing reports, but acknowledge that they do or might trade
in shares of the companies they’r [sic] writing about." Id. at 128.
Agora contends that calling Taipan an unpaid promoter is defama-
tory. After failing to persuade Axxess to remove this designation,
Agora sued Axxess, FinancialWeb, and Stock Detective. Axxess
moved to dismiss for lack of personal jurisdiction and for failure to
state a claim upon which relief could be granted. See Fed. R. Civ. P.
12(b)(2), (6).
The district court granted the motion to dismiss for failure to state
a claim. The court concluded that "the rating of Taipaonline as an
‘unpaid promoter’ is not actionable because it constitutes an expres-
sion of opinion based on disclosed or readily available facts." J.A. 297.2
II.
In reaching its judgment, the district court applied the standard
applicable to Rule 12(b)(6) motions. The court did not restrict its
inquiry to the face of the complaint, however, but instead examined
materials furnished by the parties in conjunction with the motion to
dismiss. By examining such materials, the court implicitly converted
the Rule 12(b)(6) proceeding into a summary judgment proceeding.
2
Having determined that dismissal was appropriate for another reason,
the district court did not fully address the issue of personal jurisdiction.
Because Axxess withdrew its claim regarding personal jurisdiction at
oral argument, we will not address this issue either. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584 (1999) (noting that objections to
personal jurisdiction are waivable).
AGORA v. AXXESS 5
See Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253,
260-61 (4th Cir. 1998). Neither party has raised this issue, and it does
not appear that either party was prejudiced. Accordingly, reversal on
this basis is not warranted. See id. at 261; Alioto v. Marshall Field’s
& Co., 77 F.3d 934, 936 (7th Cir. 1996).
Summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any mate-
rial fact and that the moving party is entitled to a judgment as a matter
of law." Fed. R. Civ. P. 56(c). Having examined the record and the
parties’ briefs in light of this standard, and having had the benefit of
oral argument, we concur in the reasoning of the district court. We
therefore affirm.
AFFIRMED