Doe 1 et al v. Ciolli et al

Filing 85

Memorandum in Opposition Plaintiffs' Memorandum of Law In Support of Opposition to Matthew Ryan's Motion to Dismiss re 77 MOTION to Dismiss for Lack of Jurisdiction filed by Doe 1, Doe 2. (Berkowitz, Benjamin) Modified on 11/26/2008 to correct text (Grady, B.).

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DOE I, and DOE II,
Plaintiffs,
v.

Case No. 3:07CV00909 (CFD)

November 25, 2008

Matthew C. Ryan, a.k.a. ":D"; and individuals using the following pseudonyms: pauliewalnuts; neoprag; ST ANORDtroll; lkjhgf; yalelaw; Spanky; ylsdooder; HI; David Car; Cheese Eating Surender Monkey; A horse walks into a bar; The Ayatollah of Rock-nRollah; DRACULA; Sleazy Z; Ar Gold; Ugly Women; playboytroll; Dean_Harold _ Koh; krOnz; reminderdood; r(fygold; who is; Joel Sche 11 hammer; Prof. Brian Leiter; hitlerhitlerhitler; lonelyvirgin; Patrick Zeke -:patrick8765(fhotmai1.com:?; Patrick Bateman
-:batemanls08(fhotmai1.com:?; (DOE I) got a
157 LSA T; am, azn, azn; Dirt Nigger; leaf; t14

guner; kibitzer; yalels2009; AK47,

Defendants.

PLAINTIFFS' MEMORADUM OF LAW IN SUPPORT OF OPPOSITION TO MATTHEW RYAN'S MOTION TO DISMISS

430684.02

TABLE OF CONTENTS

Paee
i. INTRODUCTION........................... ................................. ..................................... ........... ...1

II. FACTUAL BACKGROUN .............................................................................. ................1
A. Several AutoAdmit users, including Defendant Ryan, used AutoAdmit

to harass and defame DOE I. ............ ..... ...... ..... ............. ............... ............. ..... .........2
B. Ryan and other pseudonymous posters also used AutoAdmit to harass

and defame DOE II. ............................................... ............................. .....................3

C. Ryan admitted during his deposition that he posted the messages about
DOE I and DOE II that are described in the Second Amended Complaint and knew that those messages were viewable by Yale Law Students. ...................................................................................................................4

III. ARGUMENT .......................................................................................................................5

A. The Court has subject-matter jurisdiction over this case. .......................................5
1. The Cour has exclusive federal-question

jurisdiction over DOE II's federal copyrght claim and has supplemental jursdiction over Plaintiffs' state-law claims because they are par ofthe same case and controversy. ........................................................5
diversity JUTIsdiction. ................................................ ........................ ...........6

2. Tlie p~es~nc~ or ~onymous defendants does not defeat

B. The Court has personal jursdiction over Ryan........................................................8
N . CONCLUSION. . . . . . ........... ..................... ............... .................. ....... ............ .............. ........11

430684.02

TABLE OF AUTHORITIES
Paee( s)

Federal Cases
Ammerman v. Sween 54 F .3d 423 (7th Cir. 1995) .... .................. .......... .................................. ............. ..... ............... ...... 7

Bryant v. Ford Motor Co. 844 F.2d 602 (9th Cir. 1987) ("Bryant IF').................................................................................7 Bryant v. Ford Motor Co. 886 F.2d 1526 (9th Cir. 1989) ("Bryant IIF') ..............................................................................7 Burger King Corp. v. Rudzewicz 4 71 U.S. 462 (1985). .......................... .................... ............................. ............................ ......... ..11

Choquette v. Sanfilippo .
No. 3:99CV562 (CFD), 2001 WL 1266305 (D. Conn. Sept. 28,2001)......................................8
City of New Yorkv. Smokes-Spirits. com, Inc. 541 F .3d 425 (2d Cir. 2008) ................... ........................................ .............................................8

DeNuzzo v. Yale New Haven Hosp.
465 F. Supp. 2d 148 (D. Conn. 2006)..........................................................................................6

Grupo Dataflux v. Atlas Global Group, L.P.
541 U.S. 567 (2004).... ............ ...................... .......... .......... ..... ............ ............. ............... ........... ...8

In re Methyl Tertiary Butyl Ether ("MTBE'') Products Liabilty Litig. 510 F. Supp. 2d 299 (S.D.N.Y. 2007) .........................................................................................7
Inset Systems, Inc. v. Instruction Set, Inc. 937 F. Supp. 161 (D. Conn. 1996).........................................................................................9, 10

Le Blanc v. Cleveland
248 F .3d 95 (2d Cir. 2001) ......... .................. ...............................................................................8

Macheras v. Center Art Galleries-Hawaii, Inc. 776 F. Supp. 1436 (D. Haw. 1991). ................ ............. ..................... ........... .............. ............ .....8 Merril Lynch Business Financial Services Inc. v. Heritage Packaging Corp No. CV-06-3951 (DGT), 2007 WL 2815741 (E.D.NY. Sept. 25, 2007) ...................................8 Promisel v. First Am. Artifcial Flowers Inc. 943 F .2d 251 (2d Cir. 1991) .............................................. .......................... ................................6 Weber Co. v. Kosack No. 96 CN 9581 (LMM), 1997 WL 666246 (S.D.N.Y. Oct. 24, 1997).....................................8 World-wide Volkswagen Corp. v. Woodson 444 U.S. 286 (1980). ........................................... ................................ ....... ............................ ......9

Federal Statutes
28 U.S.C. § 1367( a) .................... ............ ....................................................................... ..................7
State Statutes
Connecticut General Statutes § 52-59b(a)(2)........................................................... ...9

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11

TABLE OF AUTHORITIES (cont'd)
Federal Rules
Federal Rules of

Paee(s)

Civil Procedure 19 and 21....................................................................................9

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11

I. INTRODUCTION
This Court has both subject-matter and personal jurisdiction to adjudicate Plaintiffs'

claims'against Defendant Matthew Ryan ("Ryan"). As this Court previously decided in its June
13,2008 Order, the Cour possesses federal question

jurisdiction over DOE II's copyrght claim

and supplemental

jursdiction over Plaintiffs' state-law claims, which arse from the same case

and controversy. Additionally, Ryan's attack on Plaintiffs' assertion of diversity jurisdiction as

an alternative basis of subject-matter jurisdiction relies on explicitly overrled case law. Case
law within the Second Circuit demonstrates that Plaintiffs may assert diversity jursdiction
despite the presence of anonymous defendants. Finally, Ryan's tortious conduct, which
specifically targeted victims he knew to be in Connecticut, subjects him to personal jursdiction

in Connecticut. For these and other reasons which are set forth below, the Cour should deny
Ryan's motion to dismiss.

II. FACTUAL BACKGROUND
Plaintiffs summarze only the facts relevant to Ryan's motion to dismiss. In brief,

AutoAdmit.com ("AutoAdmit") is an Internet discussion board on which paricipants post and
review comments and information about undergraduate colleges, graduate schools, and law
schools. The web site, which describes itself as "(t)he most prestigious law school discussion

board in the world," draws between 800,000 and one million visitors per month. See Second
Amended Complaint ("SAC") ir 10. Anyone who uses the Internet and visits the AutoAdmit site,
either directly or via an Internet search engine such as Google, may view the messages posted to

the discussion board. Individuals who register with the AutoAdmit site may, but are not required

to, provide their real names. Id. irir 12-14. Registered AutoAdmit users may post new messages
and respond to the messages of other registered users. Id. After a paricipant posts a new
message, any fuher comments or responses to the subject area of

that message are collected as a

"thread." The threads on the AutoAdmit site can be found by searching on the site or through
search engines such as Google. Id. ir 17. By entering a person's name as a search term, a search

engine wi1list varous threads in which that name appears in search results. Id.

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1

A. Several AutoAdmit users, including Defendant Ryan, used AutoAdmit to harass

and defame DOE I.
The summer before she enrolled at Yale Law School, Plaintiff

DOE I became the subject

of a message thread on AutoAdmit titled "Stupid Bitch to Attend Yale Law." Id. ir 21. The
author of that message thread, STANORDtroll, wrote, "She will be a par of

the class of '08,

and her name is (DOE I). If

you're going to Yale this fall, watch out for her." See id. In

response to that message, several AutoAdmit users, including Defendant Ryan, posted messages

that contained sexual threats and false claims about DOE i. For example, an AutoAdmit user
posting under the pseudonym "neoprag" posted a message about DOE I stating, "I think I will

sodomize her. Repeatedly." Id. ir 22. In response, Ryan posted a message under the pseudonym
":D" falsely stating, "just don't FUCK her, she has herpes." Id. ir 22 (all caps in original). Later,
Ryan falsely alleged that DOE I was a "dirty whore," an "ugly whore," and a "ho." !d. ir 29.
The harassment and defamation aimed at DOE I on AutoAdmit continued to proliferate

while she was a student at Yale Law SchooL. For example, one pseudonymous poster named

"Spany" said: "( c )learly she deserves to be raped so that her little fantasy world can be shattered
by real

life. " Id. ir 24. In another thread titled "(DOE I) is a dumbass bitch. . .," "Dirty Nigger"
DOE I's second

wrote "I wish to rape (DOE I) ... in the ass." Id. ir 26. In the spring semester of

year, pseudonymous poster "Patrick Zeke" sent an email to the Yale Law School Faculty with

the subject heading: "Yale Law Faculty concerning pending lawsuit." The author ofthe email
made false and harful comments about DOE I, including: "(DOE I) is barely capable of reading

(159 LSAT)," and "it seems like the risk of contracting herpes from (DOE I) would convince any

rational person to go to a prostitute first." This defamatory email was then posted as a thread on
the AutoAdmit site by pseudonymous poster "lonelyvirgin" with the thread title "new
lonelyvirgin e-mail to YLS faculty." Id. ir 30.
The harassing and defamatory statements posted about DOE I on AutoAdmit, including

the messages posted by Ryan, caused her severe emotional distress, interfered with her

educational progress, and damaged her reputation. Id. ir 34. As a result ofthese false statements

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2

and threats, DOE I has suffered actual pecuniary losses and emotional injury. !d. irir 34,83, 87,
93, 104.

B. Ryan and other pseudonymous posters also used AutoAdmit to harass and defame

DOE II.
DOE I wasn't the only Yale Law Student that was victimized by Ryan and other

pseudonymous posters on AutoAdmit. In early 2007, Ryan and other AutoAdmit posters stared
using the website as a foru to harass, threaten and defame DOE II, who, like DOE I, also was a

. student at Yale Law SchooL. The first message about DOE II that appeared on AutoAdmit was
posted on Januar 31, 2007, by an anonymous poster using DOE II's initials as a pseudonym.
Id. ir 36. In that message, the poster linked to a photo of

DOE II and encouraged others to "Rate

this HUGE breasted cheerful big tit girl from YLS." !d. Within a week, dozens of additional

messages about DOE II appeared in this thread. See id. Many of the messages commented
crudely on DOE II's breasts; others described in graphic detail the poster's desire to have sexual

relations with her. See id. Even more disturbing, certain anonymous posters appeared to be
among DOE II's classmates at Yale Law SchooL. In paricular, one poster wrote a message
describing DOE II's attire while she exercised at the law school gym, which prompted another

user to post a message suggesting that someone should follow DOE II to the gym, take her
pictue, and then post it on AutoAdmit. Id. ir 38.

In March 2007, Ryan gleefully joined in the attacks against DOE II on AutoAdmit. In
paricular, on March 4, 2007-after hundreds of

threatening and offensive messages had been

posted about DOE II on AutoAdmit-Ryan posted a message on the site under the pseudonym

":D" stating, "I'm doing carheels knowing this stupid Jew bitch is getting her self esteem
raped." Id. ir 44. Thereafter, Ryan continued to harass and defame DOE II, calling her a
"(s)tupid cunt," a "STUPID FUCKING CUNT," and a "silicon tit'd (sic) whore," and making

repeated and vulgar references to DOE II's breasts. Id. ir 45 (all caps in original). In addition,

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3

varous posters, including Ryan, reveled in dredging up painful and embarrassing history about

DOE II's father. In particular, Ryan stared a thread entitled "Does (DOE Ill's dad give
blowjobs at Sing Sing for the protein?" Id. ir 59. Continuing with this theme in another thread,

apparently referrng to prison rape, Ryan posted a message directly aimed at DOE II: "HERE'S

A HINT YOU STUPID FUCKIG CUN: IT'S A DAILY ROUTIN FOR YOUR FELON
FAGGOT FATHER." Id. (all caps in original).
The numerous harassing and defamatory messages posted about DOE II on AutoAdmit, including the statements posted by Ryan, have caused DOE II physical illness and severe

emotional distress, interfered with her educational progress, damaged her reputation, and caused
her pecuniary harm. Id. ir 71.

C. Ryan admitted during his deposition that he posted the messages about DOE I and
DOE II that are described in the SAC and knew that those messages were viewable by Yale Law Students.
On July 24, 2008, Plaintiffs deposed Ryan in accordance with this Cour's order
permitting them to engage in expedited discovery to uncover the identities of

the defendants in

this case. Declaration of

Benjamin Berkowitz, fied herewith, ("Berkowitz Decl.") ir 2. During

his deposition, Ryan admitted to posting the messages on AutoAdmit about DOE I and DOE II

that are described in the SAC. See id. Ex. A at 27:9-16,28:13-30:2,41:23-42:4,45:5-16,56:1321,59:14-21. Ryan also admitted that he knew that the messages posted on AutoAdmit were
viewable by Yale Law Students. See id. at 33:14-34:18, 43:8-11, 48:9-11. In addition, based on
the content ofthe threads in which Ryan posted his messages, Ryan knew or should have known
that DOE I and DOE II also were Yale Law Students. See, e.g., SAC irir 21-22,44. Indeed,
Ryan himself

made reference in his posts to DOE II's presence at Yale Law School, saying

"Thanks for the cell phone pics suggestion (DOE II) (huge fucking titties at YLS)!" Berkowitz
Decl. Ex. A at 54:25-55:9.
!l

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4

III. ARGUMENT

A. The Court has subject-matter jurisdiction over this case.
1. The Court has exclusive federal question jurisdiction over DOE II's federal copyright claim and has supplemental jurisdiction over Plaintiffs' state-law claims because they are part of the same case and controversy.
This Court previously considered the question of

its subject-matter jurisdiction in this

case when it ruled on John Doe 21's (a.k.a., "AK47'''s) motion to quash. The Court stated:

The basis for the plaintiffs' copyrght claim, which is the only federal claim in the
plaintiffs' complaint, is that one ofthe plaintiffs owns copyrghts in her

photographs, which are registered with the United States Copyrght Offce, and that these photographs were published without her permission on AutoAdmit.

. .. (T)his Cour has original jursdiction over "all civil actions arsing under the... States;" 28 U.S.c. § 1331; and may exercise supplemental jursdiction over state-law claims "that are so related to claims in the action within such original jursdiction that they form par of the same case or controversy under Aricle III of the United States Constitution." 28 U.S.C. § 1367(a). Thus, since the Cour properly has jurisdiction over the copyrght claim, which arses from the same case or controversy as the various state law tort and statutory claims, the Cour also has subject-matter jursdiction as these state law claims, which arse from a "common nucleus of operative fact" namely, the alleged harassment of DOE I and DOE II on AutoAdmit.com and other web sites.
laws... ofthe United

DOE I and DOE II v. Individuals whose true names are unknown, 561 F. Supp. 2d 249, 253 (D.
Conn. 2008).
The Cour's analysis of

its subject-matter jursdiction was correct. This case is about the
users who frequent the
federal

campaign of

harassment unleashed on the Plaintiffs by the commui.ity of

AutoAdmit message board. That campaign of

harassment included both the violation of

copyrght law and the commission of

numerous state-law torts, but these violations are

inextricably linked by their common purose-the harassment of

the Plaintiffs. The Court
jurisdiction over Plaintiffs' state-law

may-and should-continue to exercise supplemental

claims for appropriation of another's name or likeness, unreasonable publicity, false light,

intentional and negligent infliction of emotional distress, and libeL. Each and every one of

Plaintiffs' state-law claims, along with DOE II's copyrght claim, arses from the same nucleus
of operative facts-namely, defendants' threatening, harassing and defamatory conduct targeting

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5

Plaintiffs on AutoAdmit. See DeNuzzo v. Yale New Haven Hosp., 465 F. Supp. 2d 148, 152 (D.

Conn. 2006) (exercising supplemental jurisdiction over state-law claims where plaintiff's federal
and state claims were derived from a common nucleus of operative facts, concerned the '~same

conduct," and would require the "same evidence" or "the determination of the same facts") (citation omitted); Promisel v. First Am. Artifcial Flowers Inc., 943 F.2d 251, 254 (2d Cir. 1991)

(disputes are par of the "same case or controversy" within § 1367 when they "derive from a
common nucleus of operative fact") (internal citation omitted).
The fact that DOE II's copyrght claim is subject to exclusive federal

jursdiction is a

signficant factor in favor of applying supplemental jursdiction over the Plaintiffs' state-law
claims. In re Methyl Tertiary Butyl Ether ("MTBE'') Products Lia:bilty Litig., 510 F. Supp. 2d

299 (S.D.N.Y. 2007) (where the court has exclusive jursdiction over federal claims, judicial

efficiency weighs heavily in favor of applying supplemental jurisdiction to state-law claims). If
the Cour chose to decline supplemental jursdiction over the state-law claim, the result would be

a multiplicity of actions and repetitive litigation regarding the same common questions of fact.

That the only federal claims in the case, DOE II's copyrght claims, do not specifically

identify Ryan does not undercut this Cour's subject-matter jursdiction. Supplemental
jursdiction in federal question cases extends to claims by or against any party that are

sufficiently related to the federal claim to be part ofthe same "case or controversy." 28 US.C. §
1367(a). For example, in

Ammerman v. Sween, 54 F.3d 423,425 (7th Cir. 1995), a college lab

instructor brought a Title YII claim and a claim for wage discrimination under the federal Equal
Pay Act against the college for not protecting her from another instructor's sexual harassment.

She also sued the alleged harasser for assault, battery and other state-law torts. The court found
it had supplemental

jursdiction over the state-law claims against the harasser even though the

only federal claims were directed against the college. 54 F.3d at 424-25.

2. The presence of anonymous defendants does not defeat diversity jurisdiction.
Alternatively, even ifthis Court reversed its decision and decided that it did not have
federal subject-matter jurisdiction, or were inclined to decline to exercise supplemental

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6

jurisdiction, this Cour has subject-matter jurisdiction over this case because of diversity between
the paries.

The inclusion of anonymous defendants does not defeat diversity. The first case relied
upon by Ryan in arguing that the inclusion of anonymous defendants defeats diversity is Bryant
v. Ford Motor Co., 844 F.2d 602,605 (9th Cir. 1987) ("Bryant IF'). However, Bryant II

was

legislatively overrled by Section 1016(a) ofthe Judicial Improvements and Access to Justice
Act of 1988 and vacated

by the Ninth Circuit, which stated: "Congress obviously reached the

conclusion that doe defendants should not defeat diversity jursdiction." Bryant v. Ford Motor
Co., 886 F.2d 1526, 1528 (9th Cir. 1989) ("BryantIIF'). Following Bryant III and the Judicial
Improvements and Access to Justice Act of 1988, cours within the Ninth Circuit have held that
the presence of anonymous defendants does not destroy diversity, whether in cases removed to

federal cour or those brought originally in federal cour. See, e.g., Macheras v. Center Art
Galleries-Hawaii, Inc., 776 F. Supp. 1436 (D. Haw. 1991).
While the Second Circuit has not explicitly addressed the question of

whether anonymous

defendants destroy diversity jursdiction, it has answered this question in the negative by
implication. For example, in City of New York v. Smokes-Spirits.

com, Inc., 541 F.3d 425 (2d Cir.

2008), the cour applied diversity jursdiction to hear state-law claims despite the inclusion of
one hundred Doe defendants in the suit. See id. at 458; see also id. at 458-61 (Winter, J.,
dissenting) (refusing to join the majority opinion on federal

law issues but agreeing with the

majority that the Cour had diversity jursdiction). Moreover, numerous distrct courts within the
Second Circuit have explicitly held that anonymous defendants do not destroy diversity. See,

e.g., Merril Lynch Business Financiql Services Inc. v. Heritage Packaging Corp, No. CY-063951 (DGT), 2007 WL 2815741 (E.D.N.Y. Sept. 25, 2007) (inclusion of

Doe defendants does

not destroy diversity); W. Weber Co. v. Kosack, No. 96 CN 9581 (LMM), 1997 WL 666246,
*2-3 (S.D.N.Y. Oct. 24, 1997) (same). In particular, courts within the District of

Connecticut

have found diversity jursdiction despite the presence of

Doe defendants. See Choquette v.

Sanfilippo, No. 3:99CY562 (CFD), 2001 WL 1266305, *1 (D. Conn. Sept. 28, 2001). Were the

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rule otherwise, no diversity case could ever be brought that names Does as additional defendants.

In fact, however, there are numerous such cases, and courts do not reject them for lack of subject-matter jurisdiction. See, e.g., id.
Ryan argues that permitting this case to move forward on diversity jurisdiction is

"especially dangerous," because ofthe probability that an anonymous defendant may later be
found to be a resident of Connecticut. Memorandum of Law in Support of

Matthew Ryan's

Motion to Dismiss at 8-9. But Ryan greatly exaggerates this "danger," as the Court may dismiss
a non-diverse, dispensable party at any stage of

the action in order to preserve diversity

jursdiction. See Grupo Dataflux v. Atlas Global Group, L.P., 541 US. 567, 571 (2004); Le
Blanc v. Cleveland, 248 F.3d 95, 99-101 (2d Cir. 2001). Should one of

the anonymous

defendants turn out to be non-diverse-and should the Cour reject supplemental jursdictionthen the Court may dismiss that defendant pursuant to Federal Rules of

Civil Procedure 19 and

21.
B. The Court has personal jurisdiction over Ryan.

A defendant's conduct is sufficient for the exercise of personal jurisdiction if (1) the
conduct satisfies the requirements of

the Connecticut Long Ar Statute and (2) the conduct
the Due Process Clause ofthe Fourteenth

satisfies the "minimum contacts" requirement of

Amendment to the United States Constitution. See Inset Sys., Inc. v. Instruction Set, Inc., 937 F.
Supp. 161, 163 (D. Conn. 1996); World-wide Volkswagen Corp. v. Woodson, 444 US. 286, 297

(1980).
Here, the requirements of

Connecticut's long-ar statute, c.G.S. § 52-59b(a)(2), have

been satisfied because Ryan has repeatedly transmitted tortious content to Connecticut through

the AutoAdmit website. See Inset Sys., 937 F. Supp. at 164; C.G.S. § 52-59b(a)(2) (providing
that personal jursdiction over a nonresident individual exists if

the individual or his agent

commits a tortious act within the state). A Connecticut distrct cour previously considered
personal jurisdiction over a foreign defendant that posted actionable information on the Web in
Inset Systems. In that case, the court exercised personal

jursdiction over a foreign defendant

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8

who used a website that was accessible to Internet users nationwide, including Connecticut

residents, to advertise goods and services. The court noted that "unlike hard-copy

advertisements. . . which are often quickly disposed of and reach a limited number of
consumers, Internet advertisements are in electronic printed form so that they can be accessed

again and again by many more potential consumers." Inset Sys. at 164. The court thus held that,
although the defendant did not specifically direct its advertisements to Connecticut residents, its

conduct was sufficiently repetitive in natue such that it amounted to soliciting business within
the state under Connecticut's long-arm statute. !d.

The facts of this case present an even stronger argument for personal jursdiction than
Inset Systems. As with the information posted on the Internet by the defendant in Inset Systems,

Ryan's messages about DOE I and DOE II were not in printed form readable by a limited

number of users over a limited time period. Instead, they were in electronic form on the
AutoAdmit website, easily readable by millions of

Internet users, including Connecticut

residents, and accessible for an indefinite period oftime. Moreover, unlike the defendant that
was subject to personal jursdiction in Inset Systems, Ryan purposefully aimed his conduct at

Connecticut by posting tortious content about DOE I and DOE II-who he knew were Yale Law
Students--n a website that he knew was viewable by DOE I, DOE II, and their classmates. See

generally Berkowitz Decl. Ex. A.I If advertising on the Internet-even the sort not specifically
1 Ryan's sworn deposition testimony directly contradicts the statements he made in the Affidavit that he submitted to the Cour (doc. # 77-2). Specifically, in his Affdavit, Ryan claims that he never directed his activities on Internet websites (including AutoAdmit) so that they would be
paricularly reviewed or read by persons in Connecticut nor made statements on Internet

websites that he believed would be paricularly reviewed by or affect persons in Connecticut. See Ryan Aff. (doc. # 77-2) ir 5. At his deposition, however, Ryan admitted that he knew that the offensive messages he posted about DOE I and DOE II on AutoAdmit were viewable by Yale Law Students. See Berkowitz Decl. Ex. A at 33:14-34:18, 43:8-11, 48:9-11. In addition, based on the content of the threads in which Ryan posted his messages, Ryan knew or should have known that DOE I and DOE II themselves were Yale Law Students. See, e.g., SAC irir 21-22, 44. Indeed, in one post he specifically refers to DOE II as being "at YLS." Berkowitz Decl. Ex. A at 54:25-55:9. To the extent that Ryan seeks to submit evidence to support his argument against personal jurisdiction, this Court can-indeed must-consider contrary evidence in the
record. Here, the contrary evidence includes Ryan's own sworn testimony and the evidence of

his posts on AutoAdmit, as well as the inferences that can be drawn regarding the credibility of Ryan's Affdavit from the fact that he has contradicted it under oath.

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aimed at Connecticut-is suffcient to subject a foreign corporate defendant to personal
jurisdiction in this state, surely Ryan's purposeful and repetitive conduct on AutoAdmit-which
was intentionally aimed at Connecticut-also is suffcient to subject him to personal jurisdiction

here.

In addition, Ryan has suffcient minimum contacts within Connecticut to satisfy
constitutional due process requirements. "(Due Process) limitations require that a nonresident
corporate defendant have 'minimum contacts' with the forum state such that it would reasonably
anticipate being haled into cour there. (Furher), maintenance of

the suit in the forum state

canot offend traditional notions of fair play and substantial justice." Inset Systems, 937 F.
Supp. at 164 (citing World-wide Volkswagen, 444 US. at 297 and Intl Shoe Co. v. Washington,

326 US. 310,316 (1945)). In this case, because Ryan purposefully and repeatedly posted
tortious content about DOE I and DOE II, who he knew were Yale Law Students, on a message

board he also knew was viewable by Plaintiffs and their classmates, he could reasonably
anticipate the possibility of

being haled into cour in Connecticut. See generally Berkowitz

Decl. Ex. A. Moreover, exercising personal jursdiction over Ryan would not offend traditional

notions of fair play and substantial justice. In determining if this constitutional requirement is

satisfied, the Cour should consider the relative burdens on Ryan and Plaintiffs oflitigating the
suit in this or another forum, Connecticut's interest in adjudicating the dispute, and the interstate

judicial system's interest in effcient resolution of controversies. See Burger King Corp. v.
Rudzewicz, 471 US. 462, 476-77 (1985). Here, the burden on Ryan of

tryng this case in

Connecticut would be minimal as he has already retained counsel in the state. In addition, the
burdens associated with travel between Ryan's home state and Connecticut could be minimized

by using electronic procedures for discovery and fiing documents with the Court. Furher, since
this action involves har to Connecticut residents and concerns issues of Connecticut common
law, Connecticut has an interest in adjudicating the dispute. And because there are multiple
defendants, adjudicating the case as a whole in Connecticut would prevent the filing of numerous

lawsuits that would of necessity revisit many of the same facts. This being the case, adjudication

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in Connecticut would dispose of

this matter effciently. Therefore, subjecting Ryan to personal

jurisdiction in Connecticut comports with due process.

iv. CONCLUSION
Because this Cour has subject-matter and personal jurisdiction to adjudicate Plaintiffs'
claims against Defendant Matthew Ryan, the Court should deny his motion to dismiss.

Dated: November 25, 2008 PLAINTIFFS DOE I AN
DOE II
By: Isl Mark Lemlev

Mark Lemley (pro hac vice) Ashok Ra'ani (pro hac vice) KEKER & Y AN NEST, LLP
71 0 Sansome Street

San Francisco, CA 94111
Telephone: [phone]

Facsimile: [phone] Email: MLemley~kvn.com

ARaman~kvn.com
David N. Rosen David Rosen & Associates PC 400 Orange Street New Haven, CT 06511
Telephone: [phone]

Facsimile: [phone] Email: drosen~davidrosenlaw.com

430684.02

11

CERTIFICATION OF SERVICE
This is to certify that a copy of

the foregoing was mailed, first class, postage prepaid, on

November 25, 2008, to:

James A. Newsom MUISTERI SPROTT RIGBY NEWSOM

Attorneys for Defendant Matthew Ryan

AN ROBBINS, P.c.
3323 Richmond Avenue Houston, TX 77098
Susan O'Donnell, Esq.

Halloran & Sage LLP One Goodwin Square

Harford, CT 06103-4303
Charles E. Yermette, Jr.
LITCHFIELD CA YO LLP

Attorneys for Defendant A Horse Walks Into a

Bar

40 Tower Lane, Suite 200
Avon, CT 06001

W. Anthony Collins Jr. Ojeda, LLC 1827 Powers Ferr Road SE Building 7, Suite 350.
Hoppe, Collns &

Atlanta GA 30339

Isl Beniamin Berkowitz

430684.02
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