Getaway.com LLC et al v. Does 1-26
Filing
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MEMORANDUM. Signed by Judge Sue L. Robinson on 7/30/2015. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GETAWAY.COM LLC,
@MYPLACE.COM LLC, INSIDER.COM
LLC, and INSURANCEBROKER.COM
LLC,
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Plaintiffs,
v.
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Civ. No. 15-531-SLR
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JOHN DOES 1 - 26,
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Defendants.
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MEMORANDUM
1. Introduction. On June 24, 2015, plaintiffs Getaway.com LLC,
@MyPlace.com LLC, Insider.com LLC, and lnsuranceBroker.com LLC (collectively,
"plaintiffs") filed this action alleging internet defamation under Delaware law against
twenty-six anonymous online commenters John Does 1 - 26. (D.I. 1) On June 25,
2015, plaintiffs filed an ex parte motion for leave to engage in pre-service of process
discovery to ascertain the identities of defendants John Does 1 - 21 (collectively,
"defendants"). (D.I. 4) Specifically, plaintiffs seek to serve a third-party subpoena on
WOT Services, Ltd. ("WOT") in order to obtain the Internet Protocol ("IP") addresses
that were used to create the allegedly defamatory comments on www.mywot.com, a
website owned by WOT. For the reasons articulated below, the court has jurisdiction
pursuant to 28 U.S.C. § 1332.
2. Background. Plaintiffs are Delaware limited liability companies that own
several internet domain names and use these domain names to offer free email
services and subdomain names to the public. (D.I. 1 at 11111, 10-11) Plaintiffs are
owned by Phillip Gordon ("Gordon"). (Id. at 118) Before or during 2009, individuals
unassociated with plaintiffs or Gordon used plaintiffs' services to create malicious online
spamming and phishing schemes. (Id. at 1113)
3. Defendants are individuals who used pseudonymous screen names to
complain of the spamming and phishing schemes on a website devoted to reviewing
internet domain names. (Id. at 1111 2) Plaintiffs maintain that these comments falsely
attribute the spamming and phishing schemes to plaintiffs and Gordon. (Id. at 1121)
Although the comments date from January 2009, plaintiffs were first notified of the
alleged defamation when Gordon discovered the comments in July 2013. (D.I. 1 at 11
15; D.I. 3)
4. Standard of Review.
a. Subject Matter Jurisdiction. "If the court determines at any time that
it lacks subject matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P.
12(h)(3). Federal courts have an obligation to address issues of subject matter
jurisdiction sua sponte. See Zambelli Fireworks Mfg. Co., Inc. v. Wood, 592 F.3d 412,
420 (3d Cir. 2010). Because no federal questions are asserted, jurisdiction is not
appropriate under 28 U.S.C. § 1331. Therefore, the court must discern whether
jurisdiction is proper by reason of the diversity of the parties pursuant to 28 U.S.C. §
1332. In a diversity action, a district court has subject matter jurisdiction over state law
claims, pursuant to 28 U.S.C. § 1332, if a plaintiff is a citizen from a state different from
each defendant and the amount in controversy exceeds $75,000. See Werwinski v.
Ford Motor Co., 286 F.3d 661, 666 (3d Cir. 2002). Complete diversity is required under
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28 U.S.C. § 1332. See Braun v. Gonzales, 557 Fed. App'x. 176, 179 (3d Cir. 2014)
(unpublished) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)). This
means that each defendant must be a citizen of a different state from each plaintiff.
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978).
b. Pre-Service of Process Discovery. "[B]efore a defamation plaintiff
can obtain the identity of an anonymous defendant through the compulsory discovery
process he must support his defamation claim with facts sufficient to defeat a summary
judgment motion." Doe v. Cahill, 884 A.2d 451, 460 (Del. 2005). "[T]o obtain discovery
of an anonymous defendant's identity under the summary judgment standard, a
defamation plaintiff 'must submit sufficient evidence to establish a prima facie case for
each essential element of the claim in question.'" Id. at 463 (citing Co/gain v. Oy-Parlek
Ab (In re Asbestos Litig.), 799 A.2d 1151, 1152 (Del. 2002)). Finally, "to the extent
reasonably practicable under the circumstances, the plaintiff must undertake efforts to
notify the anonymous poster that he is the subject of a subpoena or application for order
of disclosure.'' Id. at 460.
5. Discussion. "Federal courts are divided on the question of whether the
existence of unidentified or 'Doe' defendants defeats diversity jurisdiction." Doe v. Ciolli,
611 F. Supp. 2d 216, 219 (D. Conn. 2009) (footnote omitted) (holding that anonymous
defendants do not destroy complete diversity at the pleading stage); McMann v. Doe,
460 F. Supp. 2d 259, 264-65 (D. Mass. 2006) (holding that an anonymous defendant
destroyed complete diversity). Under the circumstances of this case, in which the
allegedly defamatory comments did not concern a local matter and could have been
posted by anyone in the world connected to the internet, the court follows the reasoning
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in Ciolli and declines to question its jurisdiction before plaintiffs have had an opportunity
to identify defendants. Should the court discover at a later stage of the litigation that
one or more of defendants is a citizen of Delaware and thus not diverse from plaintiffs,
the court will review its jurisdiction pursuant to 28 U.S.C. § 1332.
6. The elements of defamation under Delaware law are: "1) the defendant made
a defamatory statement; 2) concerning the plaintiff; 3) the statement was published; and
4) a third party would understand the character of the communication as defamatory."
Cahill, 884 A.2d at 463 (citing Read v. Carpenter, 1995 WL 945544, *2, (Del. Super.
1995)). The court can consider context when determining whether the comments are
defamatory as a matter of law. See id. Cahill emphasized that "[b]logs and chat rooms
tend to be vehicles for the expression of opinions; by their very nature, they are not a
source of facts or data upon which a reasonable person would rely." Id. at 465. The
comments at issue here were "representations concerning [the] safety and reliability" of
plaintiffs' domain names. (D.I. 1 at 1[17) These comments were relied upon to create a
rating for plaintiffs' domain names. (D.I. 1 at 1[19) While the ratings express an opinion,
the comments themselves function as statements offact. (See D.I. 3) Therefore, the
court finds the comments defamatory as a matter of law.
7. The only aspect of the comments alleged to be defamatory are the allegations
that plaintiffs and Gordon participated in spamming and phishing scams. Although
Gordon is not a plaintiff, a for-profit corporation has a cause of action for defamatory
speech related to the corporation's officers if such speech will "reflect discredit upon the
method by which the corporation conducts its business." Restatement (Second) of
Torts§ 561 (b). One Delaware court has cited this rule. See Delaware Exp. Shuttle,
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Inc. v. Older, 2002 WL 31458243, at *21 (Del. Ch. Oct. 23, 2002). Accordingly, plaintiffs
have satisfied the requirement that the defamatory speech concern the plaintiffs.
Plaintiffs satisfy the publication requirement by alleging that defendants' comments are
available for any internet user to read. (D.I. 1 at~ 18) Finally, the nature of the
comments, which question the integrity of plaintiffs' business operations and their
principal officer Gordon, could be understood by a third party to be defamatory.
Plaintiffs' complaint satisfactorily pleads a prima facie defamation claim.
8. With respect to the notice requirement in Cahill, plaintiffs aver that they
provided notice "on the very forum" where the allegedly defamatory comments were
found. (D.I. 5) This effort satisfies the notice standard in Cahill and plaintiffs' motion is
properly before the court. 1
9. Conclusion. Plaintiffs have complied with Cahill by providing notice and
pleading a prima facie case of defamation sufficient to withstand summary judgment.
Plaintiffs' motion to engage in pre-service of process discovery is granted. An order
directing and limiting this discovery shall issue.
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The court notes that the allegedly defamatory comments were posted on
several websites. (D.I. 3) To the extent that plaintiffs' assurance that notice was
provided "on the very forum" where the comments were found implies that notice was
provided on only one but not all of the implicated websites, plaintiffs are directed to
comply with the notice requirement by posting a similar notice on each affected website
before commencing the discovery that the court deems appropriate.
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