Doe v. Fernandez

Filing 32

ORDER granting 27 MOTION to Dismiss for Lack of Jurisdiction 1 Complaint First MOTION to Dismiss 1 Complaint filed by Nathalie Egea. Closing Case. Signed by Judge Cecilia M. Altonaga on 6/25/2015. (ps1) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 15-20219-CIV-ALTONAGA/O’Sullivan
JANE DOE,
Plaintiff,
v.
MONICA EGEA, et al.,
Defendants.
_________________________/
ORDER
THIS CAUSE came before the Court upon Defendants, Monica Egea and Natalie Egea’s
Motion to Dismiss Plaintiff’s Complaint [sic] (“Motion”) [ECF No. 27], filed June 2, 2015. By
their Motion Defendants presumably seek to dismiss Plaintiff, Jane Doe’s Second Amended
Complaint (“SAC”) [ECF No. 18] for lack of subject matter jurisdiction. Plaintiff filed her
Response . . . (“Response”) [ECF No. 28] on June 18, 2015. The Court has carefully reviewed
the parties’ written submissions and applicable law. For the reasons explained below, the
Motion is granted.
I.

BACKGROUND

Plaintiff filed a two-count Complaint [ECF No. 1] against Defendant Lazara Fernandez
on January 20, 2015, on the basis of diversity jurisdiction, alleging claims of libel and “Criminal
Cyber Stalking/Intentional Infliction of Severe Emotional Distress” predicated upon a violation
of a state criminal statute (id. 2). Concerned about the basis of the Court’s subject matter
jurisdiction and service over the foreign (Mexican) Defendant (see id. 1), the Court sua sponte
set the case for hearing [ECF No. 4]. Thereafter, Plaintiff amended her Complaint twice, with a

CASE NO. 15-20219-CIV-ALTONAGA
First Amended Complaint [ECF No. 16] filed March 26, 2015; and later with the operative SAC
filed May 6, 2015.
In the SAC, Plaintiff alleges Defendants used the pseudonym “Lazara Fernandez” on the
social media Facebook to harass and cyberstalk Plaintiff “as defined by United States Code 47
U.S.C. § 223 (a)(1) and (a)(1)(E).” (SAC ¶¶ 11, 21). As a result of Defendants’ outrageous
conduct, Plaintiff has suffered severe emotional distress. (See id. ¶¶ 15, 17, 25, 27). Plaintiff
seeks $100,000 in damages in Count One, titled “Criminal Cyberstalking/Intentional Infliction of
Severe Emotional Distress Pursuant to United States Code 47 U.S.C. § 223 (Defendant Monica
Egea).” (Id. ¶ 18). Plaintiff similarly seeks another $100,000 in Count Two, titled, “Criminal
Cyberstalking/Intentional Infliction of Severe Emotional Distress Pursuant to United States Code
47 § 223 (Defendant Nathalie Egea).” (Id. ¶ 28).
Defendants challenge the Court’s subject matter jurisdiction, insisting (1) the SAC does
not properly allege the diversity of citizenship of the parties, as it only alleges Plaintiff’s Florida
residency rather than affirm she is a Florida citizen, nor does it allege Defendants’ citizenship;
and (2) the SAC fails to allege the existence of a federal question. (See generally Mot.). In
response, Plaintiff does not assert there is diversity of the parties’ citizenship. Rather, Plaintiff
argues the Communications Decency Act (“CDA”), 47 U.S.C. § 223, furnishes an implied
private remedy and hence a federal question is presented, giving the Court subject matter
jurisdiction over this action pursuant to 28 U.S.C. section 1331. (See generally Resp.).
II.

STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) may present a
facial or a factual attack to subject-matter jurisdiction. See McElmurray v. Consol. Gov’t of
Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). Defendants brings a facial

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attack, and so the Court must “merely” “look and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction, and the allegations in [her] complaint are taken as true for the
purposes of the motion.” Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d
1229, 1232–33 (11th Cir. 2008) (internal quotation marks and citation omitted; alteration added).
Nevertheless, the Court is “not required to accept mere conclusory allegations as true . . . .”
Lawrence v. United States, 597 F. App’x 599, 602 (11th Cir. 2015) (alterations added; citation
omitted).
III.

ANALYSIS

Defendants argue the CDA is a criminal statute that does not provide individual plaintiffs
a private right of action. (See Mot. 5). In this, Defendants are correct. The CDA is a criminal
statute that prohibits the making of “obscene or harassing” telecommunications. 47 U.S.C. §
223(a). Certainly a criminal statute may supply an implied right of action, but only if Congress
so intended. See Thompson v. Thompson, 484 U.S. 174, 179 (1988). As the Eleventh Circuit
recently explained in Rock v. BAE Systems, Inc., 556 F. App’x 869 (11th Cir. 2014):
In this context, the Supreme Court has discussed four factors: (1) whether the
plaintiff is a member of the class for whose especial benefit the statute was
enacted; (2) whether there is any indication of legislative intent, explicit or
implicit, either to create such a remedy or to deny one; (3) whether an implied
private remedy is consistent with the underlying purposes of the legislative
scheme; and (4) whether the cause of action is one traditionally relegated to state
law. . . . However, while these four factors are relevant, the central inquiry
remains whether Congress intended to create, either expressly or by implication, a
private cause of action.
Id. at 870–71 (alteration added; internal quotation marks and citations omitted; citing also
Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979) (noting criminal statutes “rarely” are read to
imply a private right of action)).

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As noted by the court in Viola v. A & E Television Networks, 433 F. Supp. 2d 613, 618
(W.D. Pa. 2006), “It appears beyond dispute that the CDA criminalizes certain activity and
imposes criminal penalties, i.e., fines pursuant to Title 18, which is the criminal code, and
imprisonment, for violations thereof.”

Id. (citations omitted).

Defendants cite to Ashland

Hospital Corp. v. International Brotherhood of Electrical Workers Local 575, 807 F. Supp. 2d
633 (E.D. Ky. 2011), where the court noted it was “well settled” “the CDA does not authorize a
private right of action.” Id. at 645 (citing cases). Further, the court stated “[w]here plaintiffs
have initiated civil suits under this statute, courts have consistently refused to imply a private
right of action.” Id. (alteration added; citing additional cases).
In response to these and to other cases cited by Defendants in their Motion, Plaintiff
merely quotes from section 223 and relies on a tortured reading of the statute to advance the
argument Congress “could have limited the cause of actions only to government actors with a
simple clause, but did not.” (Resp. 4). As Plaintiff sees it, the following language in the CDA,
“A fine under this paragraph may be assessed either — (i) by a court, pursuant to civil action by
the Commission or any attorney employed by the Commission . . . , or (ii) by the Commission
after appropriate administrative proceedings,” 47 U.S.C. § 223(5)(B) (alterations added), creates
a list of mutually exclusive means of enforcement. (See Resp. 5). Plaintiff concludes this is so
given Congress’s use of the word “or” in between “Commission” and “any attorney employed by
the Commission,” coupled with the comma after the word “court.” (Id.). Plaintiff is not a
grammarian, nor does her argument about the statute’s use of the disjunctive “or” — allowing
either the Commission or an attorney employed by the Commission to assess fines — indicate
anything about a Congressional intent to create an implied private right of action to an otherwise
singularly criminal statute.

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IV.

CONCLUSION

For the foregoing reasons, and because no basis for the Court’s subject matter jurisdiction
appears from the face of the Plaintiff’s Second Amended Complaint, it is
ORDERED AND ADJUDGED that Defendants, Monica Egea and Natalie Egea’s
Motion to Dismiss Plaintiff’s Complaint [ECF No. 27] is GRANTED. The Clerk is instructed
to mark this case as CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida this 25th day of June, 2015.

_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

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