Barker v. Patrick Collins Inc. et al

Filing 30

MEMORANDUM OPINION AND ORDER by Senior Judge Charles R. Simpson, III on 7/17/2013; 19 Motion for Discovery is DENIED; 25 Motion to Strike is DENIED. cc:counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE

JENNIFER BARKER AND SABREE HUTCHINSON,
Individually and on Behalf of All Others Similarly Situated

v.

PLAINTIFFS

CIVIL ACTION NO. 3:12CV-372-S

PATRICK COLLINS, INC., et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER

This matter is before the court for consideration of a number of motions. The plaintiffs,
Jennifer Barker and Sabree Hutchinson, individually and on behalf of all others similarly situated,
have moved for leave to take limited discovery prior to a Rule 26 planning meeting in this case. DN
19.1 The defendants objected to the motion, and also filed a motion to strike certain language in the
plaintiffs’ reply brief as scandalous or impertinent. DN 25.
Barker and Hutchinson have brought suit against five companies, Patrick Collins, Inc.,
Malibu Media, LLC, Raw Films, Ltd., K-Beech, Inc., and Third Degree Films, who allegedly are
pornography distributors. Patrick Collins, Malibu Media, K-Beech and Third Degree Films are all
alleged to be California corporations or LLCs. Raw Films is allegedly a British company. The
plaintiffs claim that the defendants have obtained their contact information and demanded that they

1

The defendants, Patrick Collins, Inc, Malibu Media, LLC, K-Beech, Inc., and Third Degree Films, Inc., have filed a motion
to dismiss the complaint on the grounds of lack of standing, lack of personal jurisdiction, lack of subject matter jurisdiction, and
failure to state a claim upon which relief may be granted. DN 15. Defendant Raw Films, Ltd. did not join in the motion. The court
entered an agreed order permitting the plaintiffs to respond to the motion to dismiss within ten days of the date of entry of an order
overruling plaintiffs’ motion for limited discovery, should the court enter such an order. DN 21. Therefore, the motion to dismiss
is not presently before the court for decision.

pay money in settlement of a claim of copyright infringement for allegedly illegally downloading
the defendants’ protected pornographic materials using file sharing technology such as BitTorrent.
In order to identify the purported infringers, the defendants allegedly hired Intellectual
Property Protection, Ltd. (“IPP”), a British company, to monitor certain websites and Internet
locations for BitTorrent activity. It is alleged that once an IP address was identified as utilizing
BitTorrent to download files, the IP address was recorded and forwarded to the plaintiffs. The
plaintiffs claim that the defendants have joined together and filed “bill of discovery” lawsuits in the
Florida state courts in which they have obtained “mass subpoenas” issued for the Internet service
providers associated with the harvested IP addresses to obtain the names and addresses of
individuals associated with the IP addresses.
The plaintiffs claim that the demands for money in settlement from them, and from others
similarly situated, were fraudulent and coercive, harassing them to pay or be publicly exposed as
downloaders of pornography. The plaintiffs contend that the defendants had no proof that the
plaintiffs downloaded any of the defendants’ materials.
The plaintiffs allege violation of the federal Racketeer Influenced and Corrupt Practices Act
(“RICO”), 18 U.S.C. § 1961, et seq. (Count I); common law fraud (Count II); common law
defamation (Count III); intentional infliction of emotional distress (Count IV); unjust enrichment
(Count V); violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et
seq.; (Count VII); and a claim entitled “Defendants’ [sic] do not have Valid, enforceable Copyrights

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(Fraud)” (Count VI)2 The plaintiffs seek punitive damages (Count VIII), and seek to be named as
class representatives.
We first address the defendants’ motion to strike certain language from the plaintiffs’ reply
brief.
The defendants take issue with two statements made in the plaintiffs’ reply brief on early
discovery(DN 24). First, the defendants take offense at the plaintiffs’ statement that “Obviously,
counsel for the Defendants are not Biblical scholars.” The defendants’ counsel states that he
considers this statement to impugn his religious upbringing and religious education. The plaintiffs
have agreed to the striking of this statement. Therefore, we will not address it further.
Second, the defendants take umbrage at the characterization by the plaintiffs of the
defendants’ use of “pure bill of discovery” lawsuits in Florida and “‘reverse’ federal class action
lawsuits”3 as a “bastardiz[ation] of the litigation process.”
The defendants contend that the use of the term “bastardize” is “cursing,” and (1) is crass
and undignified language which does not belong in the federal courts; (2) impugns the character of
the defendants; and (3) calls into question the wisdom and good reputation of judges who have ruled
favorably to the defendants in such cases. (DN 25).
The United States Supreme Court has used the term “bastardize” in a number of opinions.
It appears in the landmark Dred Scott Decision, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1856) in
which it was held that United States citizenship could be afforded to emancipated slaves only by

2

It is unclear what the plaintiffs allege in this claim. It appears to be a claim challenging the validity of the defendants’
copyrights. They cite no statutory authority under which they make this claim, nor do they appear to seek declaratory relief.
However, the viability of plaintiffs’ claims is not presently before the court.
3

These descriptors are used as terms of art by the plaintiffs. Their definitions are immaterial to this opinion.

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constitutional amendment. Individuals of African descent, brought to the United States as slaves,
were then“property” under the law, and not contemplated by the founding fathers as persons entitled
to the rights of citizenship. The Court in Dred Scott noted that, in a state which prohibited slavery,
Scott and his wife had been validly married, and that no person could “assert title to the married
persons as slaves, and thus destroy the obligation of the contract of marriage and bastardize their
issue, and reduce them to slavery.” 60 U.S. at 601.
The term “bastardize” is used in the Dred Scott Decision in the literal sense of “bastardy,”
meaning illegitimate issue. The origin of the term “bastard” is Old French from fils de bast,
meaning “child of a packsaddle.” The term’s history indicates that the phrase refers to the
“unsanctified circumstances in which the child was conceived. Travelers used packsaddles as
beds...The word bastard was formed in Old French from bast, “packsaddle,” and the pejorative
suffix - ard.” Websters II New Riverside University Dictionary (Riverside Publ. 1994).
The term “bastardize” had been used in a Supreme Court decision eighteen years earlier in
the case of The State of Rhode Island and Providence Plantations v. The Commonwealth of
Massachusetts, 37 U.S. (12 Pet.) 657, 9 L.Ed. 1233 (1838). The term was used in that case with an
entirely different (and, significantly, non-pejorative) connotation. The case involved a boundary
dispute between two states. In the course of the opinion, the Court took note of the principles
underlying the colonial acquisition of land, and, after independence was declared, the inviolability
of these land titles. Stating that the inviolability of these titles was the “doctrine of the patriots of
the revolution,” the Court remarked that inviolable title to land by a sovereign state necessarily
included the power to maintain that title or to abandon it. The court stated, “To maintain that it was
inviolable by the crown, was the doctrine of the patriots of the revolution; but to deny them the

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power of abrogating, dissolving, annihilating it, is to bastardize the revolution itself.” 37 U.S. at
682.
The use of the term “bastardize” in the context of the Rhode Island case was not in a
pejorative sense, but rather indicated a corruption or debasement of a principle. Websters II, supra.
Similarly, the term “bastardize” was not used pejoratively, but rather in an allegorical sense,
in a case from this Circuit. Rehm v. Interstate Motor Freight System, 133 F.2d 154, 157 (6th Cir.
1943(“It is not the function of a Federal court either to legitimatize, or to bastardize, the
brainchildren of state courts in diversity of citizenship cases.”).
Thus, the court finds no ground upon which to conclude that the particular use of the term
“bastardize” by plaintiffs in their brief was impertinent, scandalous, or otherwise improper.
Finally, to the extent that the defendants take issue with the vehemence with which the
plaintiffs state their opposition, we note that the defendants, alleged pornography distributors, rely
heavily upon the protections of the 1st Amendment to engage in their business. To strike the term
“bastardize” on the ground that it offends the sensibilities of these defendants would be, in this
court’s view, somewhat ironic. The motion to strike certain terminology in the plaintiff’s reply brief
(DN 25) is DENIED.
The defendants4 filed a motion to dismiss (DN 15) on numerous grounds. The plaintiffs have
not filed a responsive brief, but rather seek early limited discovery purportedly to determine “the
extent to which the defendants do business in Kentucky through their websites.” (DN 19-1, p. 5),
in order to respond to the allegation that the court lacks personal jurisdiction over them.

4

With the exception of Raw Films, Ltd. (see fn. 1). It appears that Raw Films may not have been served. See DN 15-1,

p. 1, fn. 1.

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In opposing a motion to dismiss, the plaintiffs bear the burden of establishing personal
jurisdiction. Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002) (citing
Nationwide Mut’l Ins. Co. v. Tryg Int’l Ins. Co., Ltd., 91 F.3d 790, 793 (6th Cir. 1996)). While the
district court may hold an evidentiary hearing to determine whether or not jurisdiction exists, it need
not do so. Where no hearing is held, a plaintiff “need only make a prima facie showing of
jurisdiction,” Compuserve, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir. 1996), establishing the
necessary facts with “reasonable particularity.” Neogen, 282 F.3d at 887 (quoting Provident Nat’l
Bank v. California Fed. Savings Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987)). Without a hearing
the court may not “consider facts proffered by the defendant that conflict with those offered by the
plaintiff,” id. (citing Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989)),
and “must consider the pleadings and affidavits in a light most favorable to the plaintiff,”
Compuserve, 89 F.3d at 1262 (citing Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)).
As this court stated in Envirometric Process Controls, Inc. v. Adman Electric, Inc., No.
3:12CV-62, 2012 WL 4023789 (W.D. Ky. Sept. 12, 2012), a federal district court can exercise
jurisdiction over any person subject to the jurisdiction of the state in which it sits. Kerry Steel, Inc.
v. Paragon Indus., 106 F.3d 147, 148 (6th Cir. 1997). In all questions of personal jurisdiction, “the
constitutional touchstone remains whether the defendant purposefully established ‘minimum
contacts’ in the forum state.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (quoting
International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The Due Process Clause imposes
constitutional restrictions on the court’s jurisdiction. Kentucky’s long-arm statute, KRS 454.210,
has been interpreted, until recently, as reaching “the outer limits of the due process clause of the
Fifth and Fourteenth Amendments to the United States Constitution.” See, Cummings v. Pitman, 239

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S.W.3d 77, 84 (Ky. 2007), overruled, Caesars Riverboat Casino, LLC v. Beach, 336 S.W.2d 51 (Ky.
2011))(citing Mohler v. Dorado Wings, Inc., 675 S.W.2d 404, 405 (Ky.App. 1984)).
The Kentucky Supreme Court has refined this inquiry into personal jurisdiction:
[T]he proper analysis of long-arm jurisdiction over a nonresident defendant must
proceed under KRS 454.210 to determine if the cause of action arises from conduct
or activity of the defendant that fits into one of the statute’s enumerated categories.
If not, then in personam jurisdiction may not be exercised. When that initial step
results in a determination that the statute is applicable, a second step of analysis must
be taken to determine if exercising personal jurisdiction over the non-resident
defendant offends his federal due process rights.

Caesars, 336 S.W.3d at 57.
The Supreme Court of Kentucky held in Caesars that a defendant’s activities must fit into
one of the nine provisions of the Kentucky long-arm statute in order for in personam jurisdiction to
be exercised. Id. The court clarified that the long-arm statute is not, per se, coextensive with the
limits of federal due process. Id. at 56.
In their own words, the plaintiffs seek discovery to determine “the extent to which the
defendants do business in Kentucky through their websites.” (DN 19-1, p. 5). The plaintiffs allege
that they received phone calls from the defendants’ agent in California attempting to extort money
from them.
The defendants deny that they regularly do or solicit business in Kentucky, or engage in
other persistent conduct in Kentucky or derive substantial revenue from Kentucky.

(See

Declarations in Support of Mo. to Dismiss). The plaintiffs need not accept the averments offered
by defendants at face value, of course. They seek to test the defendants’ assertions through limited
discovery. However, in the context of this motion addressed to the question of personal jurisdiction,

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the plaintiffs may only “obtain discovery regarding any nonprivileged matter that is relevant to any
party’s...defense...” Fed.R.Civ.P. 26(b)(1).
Assuming arguendo that the discovery plaintiffs seek revealed that the defendants, in fact,
conduct significant business with Kentucky residents through their Internet websites, only the first
part of the relevance test would be met. The plaintiffs have not shown that such evidence would go
toward establishing that their claims “arise from” or “arise out of” the doing of such Internet
business, as required under the Kentucky long-arm statute and current caselaw. See Envirometric
Process, supra. at **3-4. There is no connection apparent to this court between pornography sales
through websites, even those, arguably, accessed on a regular basis by Kentucky residents, and the
purported extortionate acts alleged to have been committed against the plaintiffs in this action. Thus
the discovery the plaintiffs seek has not been shown to be relevant or reasonably calculated to lead
to the discovery of relevant evidence in establishing personal jurisdiction over the defendants.
Indeed, the plaintiffs urge that Caesars is actually inapplicable to the jurisdictional analysis
in this case. They contend that business contacts are not necessary to establish jurisdiction over the
defendants. Rather, they urge that the tort was committed within Kentucky:
[T]he Defendants committed tortious acts within the state of Kentucky, and
therefore, they are subject to personal jurisdiction here. Their shakedown of the
Plaintiffs occurred in Kentucky. Ms. Barker was defamed by Malibu Media and/or
its agents in Kentucky. Ms. Hutchinson was extorted by K-Beech and/or its agents
in Kentucky. The plaintiffs’ complained of injuries occurred in Kentucky.
Reply Brief, pp. 4-5.
The plaintiffs contend that the defendants committed tortious acts within the state of
Kentucky and therefore fall within KRS 454.210(2)(a)(3). Subsection (a)(3) states that “A court
may exercise personal jurisdiction over a person...as to a claim arising from the person’s...[c]ausing

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tortious injury by an act or omission in this Commonwealth.” However, we are mindful of the
distinction between causing an injury in Kentucky and causing a consequence in Kentucky by an
act committed outside of Kentucky. See Pierce v. Serafin, 787 S.W.2d 705 Ky.App. 1990) (mailing
an allegedly tortious letter into Kentucky from outside the forum did not constitute an act in the
Commonwealth under (a)(3), despite, presumably, that such mail caused a consequence in
Kentucky. Id. at 706; Subsection (a)(4) (“causing a tortious injury in this Commonwealth by an act
or omission outside this Commonwealth”) would be completely obviated as every set of facts which
gave rise to tortious injury could be brought within the terms of paragraph three (3).”). See also,
Thompson v. Koko, No. 3:11CV-648-H, 2012 WL 374054 (W.D.Ky. Feb. 3, 2012)(a post-Caesars
case in which court found (a)(3) inapplicable, citing Pierce and Spectrum Scan, LLC v. AGM
California, 519 F.Supp.2d 655 (W.D.Ky. 2007)); Caesars, 336 S.W.3d at 56 (“It is fundamental that
in determining the meaning of a statute, we must defer to the language of the statute and are not at
liberty to add or subtract from the legislative enactment or interpret it at variance from the language
used.”). The plaintiffs did not address this line of reasoning in reply to the opposition to their
motion for limited discovery.
In summary, the plaintiffs claim that the defendants obtained subpoenas in Florida to
discover information leading to the identification of their IP addresses. They contend that they were
then contacted by telephone by an agent of the defendants located in California concerning their
purported illegal downloading of pornographic materials. The plaintiff have not shown that any
fruits of discovery concerning the defendants’ Internet sales to Kentucky buyers would assist the
plaintiffs in establishing the requisite nexus between such business activities and the plaintiffs’
claims of extortion by telephone, as would be required to satisfy the Kentucky long-arm statute.

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In Caesars, the court stated that
The reach of Kentucky’s long-arm jurisdiction is a policy choice of the General
Assembly, limited by federal and state constitutional considerations. KRS 454.210
is the legislature’s expression of that policy, and as such, the statute operates
independently of federal due process analysis. Thus, we clarify that proper deference
to the language of the statute compels that, as an initial step, review is necessary to
determine whether long-arm jurisdiction over a foreign defendant is permissible
under KRS 454.210.
Caesars, 336 S.W.3d at 57.
We conclude that on the briefs before the court, we have not been shown that discovery into
the extent to which the defendants do business in Kentucky through their websites would bear upon
our jurisdiction over the plaintiffs’ claims of extortion, because the extortion claims do not appear
to arise from the defendants’ web business activities.5 Therefore, the motion for leave to take
limited discovery (DN 19) is DENIED.
The completion of the briefing of the motion to dismiss shall be done in accordance with this
court’s previous order. (DN 21).

IT IS SO ORDERED.

July 17, 2013

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5

This decision should not be construed as a decision on the merits of the motion to dismiss with respect to the exercise of
personal jurisdiction over the defendants. The motion to dismiss is not before the court for decision, and the matter has not been
addressed by the current papers. We discuss the jurisdictional argument only to the extent necessary to decide whether plaintiffs
made their case for limited discovery. Further, the court expresses no opinion concerning personal jurisdiction over the defendants
with respect to the federal claims asserted. Additionally, the court expresses no opinion concerning any of the other grounds for
dismissal.

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