Opinion
No. 03 Civ. 5035 (NRB).
June 10, 2005
Kathy Knight-McConnell, Bronx, NY, Plaintiff Pro Se.
Mary Cummins, Los Angeles, CA, Defendant Pro Se.
MEMORANDUM AND ORDER
Plaintiff pro se Kathy Knight-McConnell has filed an amended complaint in this suit against defendant pro se Mary Cummins, alleging tortious interference with existing and prospective business relationships, defamation of character, prima facie tort, and intentional infliction of emotional damage. Now pending is defendant's pro se motion to dismiss plaintiff's amended complaint on the following grounds: 1) lack of subject matter jurisdiction; 2) lack of personal jurisdiction; 3) improper venue; and 4) failure to state a claim. For the reasons set forth below, defendant's motion is granted.
BACKGROUND
The parties to this action are involved in a bitter online feud which has descended primarily into name-calling. While the exact origins of the dispute are unclear, the basic substance of their disagreement is relatively simple. Plaintiff, a New York resident, maintained a website that published a newsletter on various stocks in small companies and offered a forum for investor discussions. Defendant, a California resident and licensed real estate broker, has accused the plaintiff of receiving payments from certain companies to tout their stocks on plaintiff's website and on other investor sites. Plaintiff vigorously denies this, and accuses the defendant of spreading false rumors about plaintiff and the aforementioned companies in order to damage their respective reputations. Plaintiff further contends that defendant is attempting to depress the price of these stocks so that defendant can profit from short selling.The dispute between the parties has occurred almost entirely through postings on various websites and internet bulletin boards. At various times defendant has called plaintiff a "fraudster," "hypster unextraordinaire," "paid stock promoter," "insane," and "criminal." Pl.'s Exs. B, J-1. Defendant has posted these statements about plaintiff on third party websites, such as RagingBull.com, as well as on her own personal website where defendant has devoted a few pages to exposing plaintiff's alleged activities. Finally, plaintiff accuses the defendant of having mailed a defamatory letter about plaintiff to the chief executive of one of the companies covered by plaintiff, as well as of reporting plaintiff's actions to the SEC.
In her amended complaint, plaintiff accuses the defendant of "illegally" linking to plaintiff's website. Am. Compl. ¶ 22. However, as is clear from a full reading of plaintiff's amended complaint and from defendant's affidavit, the defendant's activity consisted of copying material from plaintiff's website and hosting that information on defendant's own website.
Plaintiff first filed suit against defendant on July 7, 2003, and defendant filed her first motion to dismiss on May 27, 2004. On July 29, 2004, we issued an opinion dismissing plaintiff's federal claims and most of her state law claims, but allowing plaintiff to amend her complaint in order to clarify her allegation of tortious interference with business relations. Plaintiff filed her amended complaint on August 13, 2004, and on November 15, 2004, defendant filed her second motion to dismiss.
In connection with her opposition to defendant's motion to dismiss, plaintiff filed a motion to strike defendant's motion from the record because it was improperly signed and appeared to have been prepared by a lawyer. Upon review of defendant's motion, we tentatively concluded that the defendant had received legal assistance in its preparation. Because the submission of "ghost-written" documents by pro se parties raises ethical concerns under Rule 11 of the Federal Rules of Civil Procedure and under the New York Code of Professional Responsibility, we ordered defendant to submit an affidavit attesting to her authorship of the motion in question. On April 14, 2005, we received defendant's affidavit in which defendant stated that she had not received any legal assistance in this case, and that she had prepared all papers submitted to court on her own. Accordingly, we treat defendant's motion to dismiss as proper.
DISCUSSION
I. JurisdictionA. Legal Standard
While this Court has subject-matter jurisdiction over plaintiff's state law claims based on diversity jurisdiction, defendant asserts that she does not have sufficient contacts with the State of New York for this court to exercise jurisdiction over her. Accordingly, defendant moves to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(2).
In her opposition, plaintiff argues that defendant has waived her personal jurisdiction defense by appearing in this matter without noting that her appearance was a "special appearance" to contest jurisdiction. This argument is without merit. Defendant raised the issue of personal jurisdiction from the outset, and has continued to deny that she is subject to personal jurisdiction in New York as the litigation has continued.
When a defendant denies jurisdiction, the plaintiff bears the burden of showing that jurisdiction exists over the defendant.See Distefano v. Carozzi North America Inc., 286 F.3d 81, 84 (2d Cir. 2001). Prior to discovery, plaintiff must only make aprima facie showing of jurisdiction. Bank Brussels Lambert v. Fiddler Gonzalez Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). At this early stage, the plaintiff may rely on the complaint, affidavits, and other supporting materials, Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981), and the court must "construe the pleadings and affidavits in plaintiff's favor." PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997).
Determination of personal jurisdiction is a two-step process. First, we must examine whether personal jurisdiction is appropriate under the New York state's long-arm statute.Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997). If there is jurisdiction under the long-arm statute, then we must examine whether the jurisdiction comports with the requirements of due process. Id.
B. Jurisdiction Under New York's Long-Arm Statute
New York's long-arm statute allows for long-arm jurisdiction over a nondomiciliary in three circumstances: (1) if the nondomiciliary transacts business in the state and the claim arises out of that business transaction; (2) if the nondomiciliary commits a tortious act within the state; or (3) if the nondomiciliary commits a tortious act without the state injuring a person within the state. N.Y.C.P.L.R. § 302(a). Defendant's contacts with New York via the internet can provide the basis for jurisdiction if those contacts satisfy the requirements of the long-arm statute. In all cases, there must be "a strong nexus between the plaintiff's cause of action and the defendant's in state conduct" for long-arm jurisdiction to apply.Welsh v. Servicemaster Corp., 930 F. Supp. 908, 910 (S.D.N.Y. 1996).
1. Section 302(a)(1)
The first clause of section 302(a) provides jurisdiction over a defendant who "transacts any business within the state or contracts anywhere to supply goods or services in the state" if the cause of action arises from that transaction. N.Y.C.P.L.R. § 302(a)(1). A defendant transacts business in New York if he "purposefully avails [himself] of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws." Citigroup Inc. v. City Holding Co., 97 F. Supp. 2d 549, 564 (S.D.N.Y. 2000) (internal quotations and citations omitted). Whether a defendant engaged in purposeful activity within New York depends on the totality of the circumstances. See Sterling Nat'l Bank Trust Co. v. Fidelity Mortgage Investors, 510 F.2d 870, 873 (2d Cir. 1975).
Depending on their nature, a defendant's contacts with New York via the internet can provide a basis for jurisdiction under section 302(a)(1). See Citigroup, 97 F. Supp. 2d. at 564-65. In assessing whether a defendant has availed itself of the forum state through its online activities, courts examine "the nature and quality of commercial activity that [a defendant] conducts over the internet." Zippo Mfg. Co. v. Zippo Dot Com, 952 F. Supp. 1119, 1124 (W.D. Pa. 1997). Courts have identified a spectrum of potential website contacts with a forum state, ranging from "passive" websites, which merely display information and therefore are unlikely to support jurisdiction, to websites which clearly allow defendant to transact business in the forum state over the internet, and thus sustain jurisdiction. See Seldon v. Direct Response Techs., No. 03 Civ. 5381, 2004 WL 691222 at *3 (S.D.N.Y. Mar. 31, 2004); Hsin Ten Enter. USA v. Clark Enters., 138 F. Supp. 2d 449, 456 (S.D.N.Y. 2000); Citigroup, 97 F. Supp. 2d. at 565. In the middle of the spectrum are interactive websites that allow the exchange of information between users in the forum state and the defendant, and which may be a basis for jurisdiction depending on the level and the nature of the exchange. Citigroup, 97 F. Supp. 2d at 565.
When a case only involves online postings of information, rather than commercial transactions, it is unlikely that jurisdiction will be appropriate. "The mere fact that the allegedly defamatory postings may be viewed in New York is . . . insufficient to sustain a finding of jurisdiction." Best Van Lines v. Walker, No. 03 Civ. 6585, 2004 WL 964009, at *5 (S.D.N.Y. May 5, 2004). Instead, "jurisdiction will lie only if the posting is intended to target or focus on internet users in the state where the cause of action is filed." Seldon, 2004 WL 691222, at *4-*5; see also Revell v. Lidov, 317 F.3d 467, 471 (5th Cir. 2002); Best Van Lines, 2004 9640009, at *4; Realuyo v. Villa Abrille, No. 01 Civ. 10158, 2003 WL 21537754, at *6-*7 (S.D.N.Y. July 8, 2003). "Absent an allegation that [defendant] is projecting himself into New York, [a] Court cannot exercise specific personal jurisdiction over [defendant]." Lenahan Law Offices, LLC v. Hibbs, No. 04 Civ. 6376, 2004 WL 2966926, at *6 (S.D.N.Y. Dec. 22, 2004).
Defendant's online activities consist of postings regarding plaintiff, and as such, do not provide a basis for jurisdiction. The sole connection between plaintiff's cause of action and New York — the fact that plaintiff, the subject of defendant's postings, is a resident of New York — is not sufficient to support a finding of jurisdiction under 302(a)(1). See Best Van Lines, 2004 WL 964009, at *3-*4;Seldon, 2004 WL 691222, at *5. Beyond the internet activity already referenced, plaintiff has submitted no further evidence to connect defendant with the New York. Furthermore, defendant attests that "[n]o web page on any of my web sites or public message postings have ever been directed at the forum state of New York. Anything I advertise, publish, or state as a matter of free speech is intended to be read by the entire worldwide internet audience, and is not directed at any specific forum." Def.'s Aff. ¶ 7. As there is nothing in the record to suggest that defendant purposefully availed herself of the benefits and protections of the laws of New York, there is no jurisdiction under section 302(a)(1). Best Van Lines, 2004 WL 964009, at *5;Seldon, 2004 WL 691222, at *5; Realuyo, 2003 WL 21537754, at *7.
Many of the postings in question were posted on message boards hosted by third party websites. Absent some connection between defendant and the third party website, it is unclear that defendant's postings on third party websites can constitute a proper basis for jurisdiction over the defendant. Cf. Trintec Industries v. Pedre Promotional Products, Inc., 395 F.3d 1275, 1281-82 (D.C. Cir. 2005). Nevertheless, we have considered defendant's postings on websites besides her own in considering her contacts with New York.
2. Section 302(a)(2)
Section 302(a)(2) provides jurisdiction over a person who "commits a tortious act within the state" unless the act is one of defamation. N.Y.C.P.L.R. § 302(a)(2). In general, to obtain jurisdiction under this section, the defendant must be physically present within New York while committing the tort. See Bensusan, 126 F.3d at 28; Seldon, 2004 WL 691222, at *3;Ahava Food Corp. v. Donnelly, No. 02 Civ. 4344, 2002 WL 31757449, at *2 (S.D.N.Y. Dec. 9, 2002).
Plaintiff's complaint alleges that defendant has committed the torts of defamation, intentional infliction of emotional damage, prima facie tort, and tortious interference with business relations. As noted in our earlier opinion, the New York long-arm statute expressly declines jurisdiction over defamation claims. With respect to plaintiff's other causes of action, none of these claims arise from tortious acts that were physically performed by defendant within New York. See Seldon, 2004 WL 691222, at *5; Ahava Food, 2002 WL 31757449, at *3; Westvaco Corp. v. Viva Magnetics, Ltd., No. 00 Civ. 9399, 2002 WL 1933756, at *2 (Aug. 20, 2002). As noted above, all of defendant's activities consisted of online postings regarding plaintiff, and there is no evidence that any of the postings occurred within New York. As such, they do not constitute torts committed within the state for purposes of section 302(a)(2).See, e.g. Ahava Food, at *3 (communication by mail or phone from outside New York to New York are not tortious acts committed in New York for jurisdiction under 302(a)(2));Heinfling v. Colapinto, 946 F. Supp. 260, 264 (S.D.N.Y. 1996) (same); Carlson v. Cuevas, 932 F. Supp. 76, 80 (S.D.N.Y. 1996) (same). Accordingly, there is no jurisdiction under section 302(a)(2). See Van Essche v. Leroy, 692 F. Supp. 320, 324 (S.D.N.Y. 1988).
Furthermore, courts also are instructed to decline jurisdiction over claims that attempt to avoid the requirements of New York's long-arm statute by merely restating a defamation claim under a different name. See Findlay v. Duthuit, 86 A.D.2d 789, 790, 446 N.Y.S.2d 951, 953 (1st Dep't 1982).
3. Section 302(a)(3)
Section 302(a)(3) provides jurisdiction if the non-domiciliary "commits a tortious act without the state" injuring a person within New York and the non-domiciliary either (1) regularly does or solicits business in the state, or (2) derives substantial revenue from interstate commerce and should reasonably expect the tortious act to have consequences in the state. N.Y.C.P.L.R. § 302(a)(3). Like section 302(a)(2), this section also excludes jurisdiction over causes of action for defamation.
The facts alleged may constitute tortious acts committed outside of the state that caused an injury in New York. However, plaintiff has not alleged, nor does the record reflect, that defendant has engaged in regular business in New York, or derived substantial revenue from interstate commerce and should reasonably have expected the tortious acts would have consequences in the state. Accordingly, there is no jurisdiction under section 302(a)(3).