1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 John Laake, No. CV-19-5444-PHX-DMF
10 Plaintiff,
11 v. ORDER
12 Dirty World LLC, et al.,
13 Defendants. 14 15 This matter is before the Court on the motion to dismiss Plaintiff’s First Amended 16 Complaint filed by Defendant Dirty World LLC (“Dirty World”) pursuant to Fed. R. Civ. 17 P. 12(b)(6). Plaintiff has responded (Doc. 37), and Dirty World has replied (Doc. 38). 18 Dirty World seeks dismissal of Plaintiff’s copyright claim against Dirty World because 19 Plaintiff did not allege that he registered the work in question with the U.S. Copyright 20 Office as required by 17 U.S.C. § 411(a). Dirty World seeks dismissal of Plaintiff’s 21 defamation claim against Dirty World because the claim is barred under the 22 Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). Both of the named parties 23 in this case, Plaintiff John Laake and Defendant Dirty World, have consented to the 24 undersigned United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c) 25 (Docs. 10, 33).1 Dirty World’s motion to dismiss is ripe for decision. 26 1 The First Amended Complaint also alleges claims against “John Doe”, who has 27 not been identified or served. While unserved defendants generally must also consent for 28 a magistrate judge to exercise jurisdiction based on “consent of the parties” under 28 U.S.C. § 636(c), see Williams v. King, 875 F.3d 500 (9th Cir. 2017), this Court is not aware of any 1 I. LEGAL STANDARD 2 “The purpose of a motion to dismiss under [Fed. R. Civ. P.] 12(b)(6) is to test the 3 legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 4 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage is relatively light. Rule 5 8(a) of the Federal Rules of Civil Procedure states that a “pleading which sets forth a claim 6 for relief ... shall contain ... a short and plain statement of the claim showing that the pleader 7 is entitled to relief.” Fed. R. Civ. P. 8(a). 8 In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must 9 analyze the complaint and take “all allegations of material fact as true and construe them 10 in the light most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 11 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a lack of a cognizable legal 12 theory or on the absence of facts that would support a valid theory. Balistreri v. Pacifica 13 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint “must contain either direct 14 or inferential allegations respecting all the material elements necessary to sustain recovery 15 under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) 16 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) with 17 internal quotations removed). “A pleading that offers ‘labels and conclusions’ or ‘a 18 formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 19
20 decision holding that consent is necessary from a defendant who is both unknown and 21 unserved. Courts disregard such defendants in other contexts, including contexts affecting jurisdiction. See, e.g., 28 U.S.C. § 1441(b)(1) (providing that for removal based on 22 diversity of citizenship, “the citizenship of defendants sued under fictitious names shall be 23 disregarded”); Fat T, Inc. v. Aloha Tower Assocs. Piers 7, 8 & 9, 172 F.R.D. 411, 414-15 (D. Hawaii 1996) (reaching the same conclusion for diversity jurisdiction with respect to 24 cases initially filed in federal court). Plaintiff cannot proceed against unknown, fictitious John Doe without filing a motion for substitution to identify him, supporting a conclusion 25 that John Doe is not yet a “party” under the present complaint. See Steger v. Peters, 2018 26 WL 3430671, at *1 n.1 (D. Oregon July 16, 2018) (holding at a later stage in the case that consent of unserved defendants identified only by fictitious names was unnecessary for 27 jurisdiction under 28 U.S.C. § 636(c)). Thus, undersigned concludes that consent of 28 unknown, fictitious, and unserved John Doe is not necessary for undersigned to proceed under 28 U.S.C. § 636(c). 1 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Importantly, “courts are 2 not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 3 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) with internal 4 quotations removed). “Nor does a complaint suffice if it tenders naked assertion[s] devoid 5 of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 6 557 with internal quotations removed) (alteration in original). The claim being evaluated 7 must be “plausible on its face,” meaning that the plaintiff must plead in the complaint 8 sufficient factual allegations to allow “the court to draw the reasonable inference that the 9 defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570 10 with internal quotations removed). 11 II. ANALYSIS 12 A. Copyright Claim Against Dirty World 13 Plaintiff bases his copyright claim against Dirty World on 17 U.S.C. § 504. See 14 First Amended Complaint, Doc. 29 at page 3, paragraph 11. Dirty World correctly points 15 out that the First Amended Complaint (Doc. 29) does not allege that the image at issue has 16 been registered with the U.S. Copyright Office (Doc. 30 at 5). Dirty World asserts that 17 17 U.S.C. § 411(a) requires for maintaining a copyright infringement claim that the “work in 18 question has been registered with the U.S. Copyright Office” (Id. at 4). The Court agrees 19 with Dirty World that “[w]hen such an allegation is lacking, the claim is not tenable” (Id.). 20 See Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, __ U.S. __, 139 21 S.Ct. 881 (2019). 22 In his response to Dirty World’s motion to dismiss, Plaintiff does not attempt to 23 counter Dirty World’s argument about the copyright claim.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 John Laake, No. CV-19-5444-PHX-DMF
10 Plaintiff,
11 v. ORDER
12 Dirty World LLC, et al.,
13 Defendants. 14 15 This matter is before the Court on the motion to dismiss Plaintiff’s First Amended 16 Complaint filed by Defendant Dirty World LLC (“Dirty World”) pursuant to Fed. R. Civ. 17 P. 12(b)(6). Plaintiff has responded (Doc. 37), and Dirty World has replied (Doc. 38). 18 Dirty World seeks dismissal of Plaintiff’s copyright claim against Dirty World because 19 Plaintiff did not allege that he registered the work in question with the U.S. Copyright 20 Office as required by 17 U.S.C. § 411(a). Dirty World seeks dismissal of Plaintiff’s 21 defamation claim against Dirty World because the claim is barred under the 22 Communications Decency Act, 47 U.S.C. § 230 (the “CDA”). Both of the named parties 23 in this case, Plaintiff John Laake and Defendant Dirty World, have consented to the 24 undersigned United States Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c) 25 (Docs. 10, 33).1 Dirty World’s motion to dismiss is ripe for decision. 26 1 The First Amended Complaint also alleges claims against “John Doe”, who has 27 not been identified or served. While unserved defendants generally must also consent for 28 a magistrate judge to exercise jurisdiction based on “consent of the parties” under 28 U.S.C. § 636(c), see Williams v. King, 875 F.3d 500 (9th Cir. 2017), this Court is not aware of any 1 I. LEGAL STANDARD 2 “The purpose of a motion to dismiss under [Fed. R. Civ. P.] 12(b)(6) is to test the 3 legal sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 4 (9th Cir. 1983). Generally, a plaintiff’s burden at the pleading stage is relatively light. Rule 5 8(a) of the Federal Rules of Civil Procedure states that a “pleading which sets forth a claim 6 for relief ... shall contain ... a short and plain statement of the claim showing that the pleader 7 is entitled to relief.” Fed. R. Civ. P. 8(a). 8 In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must 9 analyze the complaint and take “all allegations of material fact as true and construe them 10 in the light most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 11 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a lack of a cognizable legal 12 theory or on the absence of facts that would support a valid theory. Balistreri v. Pacifica 13 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint “must contain either direct 14 or inferential allegations respecting all the material elements necessary to sustain recovery 15 under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) 16 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984) with 17 internal quotations removed). “A pleading that offers ‘labels and conclusions’ or ‘a 18 formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 19
20 decision holding that consent is necessary from a defendant who is both unknown and 21 unserved. Courts disregard such defendants in other contexts, including contexts affecting jurisdiction. See, e.g., 28 U.S.C. § 1441(b)(1) (providing that for removal based on 22 diversity of citizenship, “the citizenship of defendants sued under fictitious names shall be 23 disregarded”); Fat T, Inc. v. Aloha Tower Assocs. Piers 7, 8 & 9, 172 F.R.D. 411, 414-15 (D. Hawaii 1996) (reaching the same conclusion for diversity jurisdiction with respect to 24 cases initially filed in federal court). Plaintiff cannot proceed against unknown, fictitious John Doe without filing a motion for substitution to identify him, supporting a conclusion 25 that John Doe is not yet a “party” under the present complaint. See Steger v. Peters, 2018 26 WL 3430671, at *1 n.1 (D. Oregon July 16, 2018) (holding at a later stage in the case that consent of unserved defendants identified only by fictitious names was unnecessary for 27 jurisdiction under 28 U.S.C. § 636(c)). Thus, undersigned concludes that consent of 28 unknown, fictitious, and unserved John Doe is not necessary for undersigned to proceed under 28 U.S.C. § 636(c). 1 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). Importantly, “courts are 2 not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 3 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) with internal 4 quotations removed). “Nor does a complaint suffice if it tenders naked assertion[s] devoid 5 of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 6 557 with internal quotations removed) (alteration in original). The claim being evaluated 7 must be “plausible on its face,” meaning that the plaintiff must plead in the complaint 8 sufficient factual allegations to allow “the court to draw the reasonable inference that the 9 defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570 10 with internal quotations removed). 11 II. ANALYSIS 12 A. Copyright Claim Against Dirty World 13 Plaintiff bases his copyright claim against Dirty World on 17 U.S.C. § 504. See 14 First Amended Complaint, Doc. 29 at page 3, paragraph 11. Dirty World correctly points 15 out that the First Amended Complaint (Doc. 29) does not allege that the image at issue has 16 been registered with the U.S. Copyright Office (Doc. 30 at 5). Dirty World asserts that 17 17 U.S.C. § 411(a) requires for maintaining a copyright infringement claim that the “work in 18 question has been registered with the U.S. Copyright Office” (Id. at 4). The Court agrees 19 with Dirty World that “[w]hen such an allegation is lacking, the claim is not tenable” (Id.). 20 See Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, __ U.S. __, 139 21 S.Ct. 881 (2019). 22 In his response to Dirty World’s motion to dismiss, Plaintiff does not attempt to 23 counter Dirty World’s argument about the copyright claim. In fact, in his response, 24 Plaintiff does not at all refer to his copyright claim against Dirty World. If Plaintiff had 25 registered the image at issue with the U.S. Copyright Office, he would have asserted such 26 in his response and would have requested leave to amend the First Amended Complaint to 27 allege such. Plaintiff has not done so. Without such registration, Plaintiff’s copyright 28 claim against Dirty World cannot proceed. Thus, Plaintiff’s copyright claim against Dirty 1 World will be dismissed without prejudice. See Fourth Estate Public Benefit Corporation, 2 139 S.Ct. at 886-887. 3 B. Defamation Claim Against Dirty World 4 Plaintiff’s First Amended Complaint alleges a defamation claim against Dirty 5 World and against an unknown individual (Doc. 29). Plaintiff alleges that the unknown 6 individual, referenced with the fictitious name John Doe, “posted anonymously upon the 7 host website: www.thedirty.com under the pseudonym ‘psychic vampire slayer’” (Doc. 29 8 at page 2, paragraph 6). The First Amended Complaint describes Defendant Dirty World 9 as “a user-submitted gossip website on the worldwide web which began in 2007 at the 10 website: www.thedirty.com” (Id. at page 2, paragraph 4). The First Amended Complaint 11 alleges that Dirty World “specifically encourages users to upload their own ‘dirt’ which 12 may include news, gossip, accusations, photos, videos, or text, and users can comment on 13 posts submitted by others” (Id.). The First Amended Complaint alleges that Dirty World 14 “is made part of this lawsuit for hosting a website that they know libels people” (Id. at page 15 4 paragraph 16). The First Amended Complaint alleges that Dirty World “created the 16 platform” for defamation and, thus, is liable (Id.). This “platform” or “host” theory of 17 liability is reiterated in other paragraphs of the First Amended Complaint (Doc. 29), such 18 as paragraphs 17, 20, 28, 29, 30. 19 Yet, federal law forbids defamation claims against host or platform website 20 operators such as Dirty World, such as those alleged here, under the Communications 21 Decency Act, 47 U.S.C. § 230 (the “CDA”). Dirty World cites multiple cases explaining 22 the reasons underlying CDA’s prohibition (Doc. 30 at 6-7). Conclusory and speculative 23 allegations that the host or platform website operator must have created the speech is not 24 sufficient to state a claim. See Kimzey v. Yelp!, Inc., 836 F.3d 1263, 1268-69 (9th Cir. 25 2016). Plaintiff has not plead facts here that “tend to demonstrate that the” post “was not, 26 as is usual, authored by a user.” Kimzey, 836 at 1268 (citation and internal quotations 27 omitted). Further, the possibility that the posts were created by the website owner is not 28 sufficient for a defamation claim to proceed against a host or platform website operator. 1 See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250 (4th Cir. 2009). 2 The First Amended Complaint’s allegation that “it is evident” that Dirty World 3 “itself places comments on the webpages that are posted on their website 4 www.thedirtyarmy.com” because the phrase “The Dirty Army” is present on Dirty World’s 5 website and also its Facebook page is not sufficient to defeat CDA immunity (Doc. 29 at 6 page 2, paragraph 17). 7 Because the CDA prevents Plaintiff’s defamation claim against Dirty World, 8 Plaintiff’s defamation claim against Dirty World will be dismissed. The dismissal will be 9 without prejudice. Although Plaintiff has not alleged, and it appears cannot allege in good 10 faith, facts supporting a claim that Dirty World created the purportedly defamatory content 11 at issue in the litigation, Plaintiff has not yet identified the person who created the allegedly 12 defamatory post. Dismissal without prejudice is appropriate to account for the possibility 13 that Plaintiff were to discover that Dirty World created the content at issue rather than 14 hosted a forum for the content at issue which was authored by users. 15 III. CONCLUSION 16 Dirty World asks for dismissal with prejudice of the claims against Dirty World, 17 rather than without prejudice. Dirty World requests dismissal with prejudice, arguing 18 futility and asserting that Plaintiff has amended his complaint multiple times. For the 19 reasons stated above and because Plaintiff has only amended his claims against Dirty 20 World one time, Plaintiff’s copyright claim against Dirty World and Plaintiff’s defamation 21 claim against Dirty World will be dismissed without prejudice. 22 Accordingly, 23 IT IS ORDERED granting Defendant Dirty World, LLC’s motion to dismiss as 24 stated herein (Doc. 30). Plaintiff’s copyright claim against Dirty World and Plaintiff’s 25 defamation claim against Dirty World are dismissed without prejudice. 26 IT IS FURTHER ORDERED that the only remaining defendant in this matter is 27 unidentified defendant John Doe. 28 1 IT IS FURTHER ORDERED that on or before June 16, 2020, Plaintiff must || identify John Doe, Plaintiff must file a corresponding motion for substitution of John Doe, || and, if Plaintiff desires the United States Marshal to attempt service of the person Plaintiff 4|| seeks to substitute, Plaintiff must return to the Clerk of Court a completed service packet || for the person he seeks to substitute. 6 IT IS FURTHER ORDERED that the deadline to serve a person who is substituted for unidentified defendant John Doe is July 30, 2020. 8 IT IS FURTHER ORDERED that the Clerk of Court mail to Plaintiff a service 9|| packet for Plaintiff to complete for defendant John Doe so that service of the person 10 || substituted for defendant John Doe will proceed in a timely manner. 11 Dated this 14th day of April, 2020. 12 fp 13 Labtrak Ul Jing Honorable Deborah M. Fine United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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