Baker et al v. Does 1-10
Filing
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Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER Accordingly, it is hereby ORDERED that: 1. Plaintiffs' Motion for Leave to Supplement Plaintiffs' Motion for Early Discovery (Docket No. 10) is ALLOWED. 2. Plaintiffs' Emer gency Ex Parte Motion for Early Discovery (Docket No. 6) is DENIED without prejudice. 3. If plaintiffs wish to renew the Motion, they shall do so by January 31, 2013, and address the jurisdictional, procedural, and constitutional concerns articulated in Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 132-34 (D.D.C. 2009) and McMann v. Doe, 460 F. Supp. 2d 259, 263-70 (D. Mass. 2006). 4. If plaintiffs do not renew the Motion by January 31, 2013, or obtain an extension of time to do so, this case will be dismissed.(Hohler, Daniel)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CLARK BAKER and the
OFFICE OF MEDICAL &
SCIENTIFIC JUSTICE, INC.,
Plaintiffs,
)
)
)
)
)
)
)
)
)
v.
JOHN DOES 1-10,
Defendants
C.A. No. 12-10434-MLW
MEMORANDUM AND ORDER
WOLF, D.J.
December 27, 2012
Plaintiffs Clark Baker and the Office of Medical & Scientific
Justice, Inc. ("OMSJ") allege that they have been libeled by
knowingly false statements, made on numerous Internet websites, by
ten unidentified "John Doe" defendants. The Complaint does not
allege a violation of federal law. Rather, federal jurisdiction is
based on alleged diversity of citizenship between plaintiffs and
the unidentified defendants pursuant to 28 U.S.C. §1332.
Plaintiffs have filed an Ex Parte Motion for Early Discovery,
seeking to compel Comcast Corporation, an Internet Service Provider
("ISP"), to disclose information that would identify the defendants
(the "Motion"). Plaintiffs have subsequently requested leave to
supplement
the
Motion.
As
there
are
meaningful
questions
concerning, among other things, whether this court has subject
matter jurisdiction in this case, the Motion is being denied
without prejudice.
"[I]t is well established that the courts have a duty to
ensure that they are not called upon to adjudicate cases which in
fact
fall
outside
the
jurisdiction
conferred
by
Congress."
Esquilín-Mendoza v. Don King Prods., Inc., 638 F.3d 1, 3 (1st Cir.
2011); see also McBee v. Delica Co., 417 F.3d 107, 127 (1st Cir.
2005). It is particularly important that courts do so when a
plaintiff seeks relief ex parte, before the defendants have been
served. Therefore, courts have examined whether alleged diversity
jurisdiction appears to exist in cases in which plaintiffs seek
subpoenas to discover the identities of "John Doe" defendants. See
Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 132-34 (D.D.C.
2009); McMann v. Doe, 460 F. Supp. 2d 259, 263-65 (D. Mass. 2006).
Motions for the issuance of ex parte subpoenas to discover the
identities of defendants sued because of their alleged activities
on
the
Internet
have
been
denied
in
cases
where
meaningful
questions were discerned concerning the existence of subject matter
and/or personal jurisdiction. See Sinclair, 596 F. Supp. 2d at 134;
McMann, 460 F. Supp. 2d at 270.1
1
The cases on which plaintiffs rely in their memorandum in
support of the Motion each alleged federal question jurisdiction
under 28 U.S.C. §1331. See London-Sire Records, Inc. v. Doe 1, 542
F. Supp. 2d 153, 159, 165 (D. Mass. 2008) (alleged violation of the
federal Copyright Act); Columbia Ins. Co. v. Seescandy.com, 185
F.R.D. 573, 576 (N.D. Cal. 1999) (alleged infringement of federally
registered trademark); Sony Music Entm't Inc. v. Does 1-40, 326 F.
Supp. 2d 556, 558, 565-66 (S.D.N.Y. 2004) (alleged violation of
federal Copyright Act). These cases, therefore, did not involve the
important, threshold subject matter jurisdiction issue presented in
the instant case.
2
This is another such case. Diversity jurisdiction exists only
if
there
is
complete
diversity
of
citizenship
between
the
plaintiffs and all defendants. See 28 U.S.C. §1332; Diaz-Rodríguez
v. Pep Boys Corp., 410 F.3d 56, 58 (1st Cir. 2005). The state of an
individual's citizenship is not necessarily the state in which he
resides. See Valentín v. Hosp. Bella Vista, 254 F.3d 358, 361 n.1
(1st Cir. 2001). A corporation is a citizen of both the state in
which it is incorporated and the state in which it has its
principal place of business. See 28 U.S.C. §1332(c)(1).
The Complaint alleges only that Baker "resides" in California
and OMSJ is "licensed" in California. Compl. ¶¶5-6. Therefore, the
state
of
each
plaintiff's
citizenship
is
not
clear.
More
significantly, Baker states in his affidavit that "[w]hile the true
names and capacities of defendants John Does 1-10 are unknown to me
at this time, I have tracked three of the IP [Internet Protocol]
addresses to the location of the Commonwealth of Massachusetts and
intend
to
subpoena
the
ISPs
that
issued
the
Defendants'
IP
addresses and/or take other discovery in order to learn the
identity of the account holders for the IP addresses." Baker Aff.
¶14. This assertion raises a meaningful question concerning whether
subject matter jurisdiction exists under §1332, including whether
there is any information indicating that at least one defendant is
a citizen of the same state as at least one of the plaintiffs. See
Sinclair, 596 F. Supp. 2d at 132-33; McMann, 460 F. Supp. 2d at
3
263-65.2 In addition, there is reason to question whether there is
personal jurisdiction in the District of Massachusetts over at
least the seven defendants who have not been identified as having
IP addresses in the Commonwealth. See Sinclair, 596 F. Supp. 2d at
133.
Plaintiff's request for ex parte subpoenas to discover the
identity of the putative defendants also raises procedural issues.
See McMann, 460 F. Supp. 2d at 265-66. In addition, it implicates
constitutional concerns. See id. at 266-70; Sinclair, 596 F. Supp.
2d at 131-34.3
2
The court recognizes that the Complaint alleges that the
court "has diversity jurisdiction over this action under 28 U.S.C.
§1332, because the matter in controversy arises between citizens of
different states and because the amount in controversy exceeds
$75,000." Compl. ¶11. However, Baker's statement in his affidavit
that three of the defendants' IP addresses have been "tracked" to
Massachusetts, Baker Aff. ¶14, undermines this conclusory
allegation. Generally, questions concerning the existence of
federal jurisdiction must be resolved based on evidence presented
by a plaintiff and are not determined by the adequacy of unverified
allegations in a complaint. See Lundquist v. Precision Valley
Aviation, Inc., 946 F.2d 8, 10 (1st Cir. 1991); see also
Abdel-Aleem v. OPK Biotech LLC, 665 F.3d 38, 41-42 (1st Cir. 2012);
Rodriguez v. SK & F Co., 833 F.2d 8, 9 (1st Cir. 1987).
3
The First Amendment affords protection to the identities of
anonymous speakers. See Watchtower Bible & Tract Soc'y v. Vill. of
Stratton, 536 U.S. 150, 160, 166-67 (2002); Buckley v. Am.
Constitutional Law Found., Inc., 525 U.S. 182, 199-200 (1999);
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 341-43, 357
(1995); Talley v. California, 362 U.S. 60, 64-65 (1960). Many
courts, including one in this jurisdiction, have recognized that
subpoenas and discovery requests seeking to identify anonymous
defendants who use the internet to publish writings or communicate
information raise First Amendment concerns, including potential
harassment of speakers or silencing of speech. See McMann, 460 F.
Supp. 2d at 266-70; Sinclair, 596 F. Supp. 2d at 131-34; see also
4
In view of the question concerning the court's jurisdiction,
it would be permissible to dismiss this case. See McMann, 460 F.
Supp. 2d at 270; Sinclair, 596 F. Supp. 2d at 133. However, the
court
deems
it
more
appropriate
to
deny
the
Motion
without
prejudice and to provide plaintiffs an opportunity to attempt to
meet the standards for the issuance of the requested subpoenas set
forth in McMann and Sinclair.
Accordingly, it is hereby ORDERED that:
1. Plaintiffs' Motion for Leave to Supplement Plaintiffs'
Motion for Early Discovery (Docket No. 10) is ALLOWED.
2. Plaintiffs' Emergency Ex Parte Motion for Early Discovery
(Docket No. 6) is DENIED without prejudice.
3. If plaintiffs wish to renew the Motion, they shall do so by
January 31, 2013, and address the jurisdictional, procedural, and
constitutional concerns articulated in Sinclair v. TubeSockTedD,
596 F. Supp. 2d 128, 132-34 (D.D.C. 2009) and McMann v. Doe, 460 F.
Supp. 2d 259, 263-70 (D. Mass. 2006).
4. If plaintiffs do not renew the Motion by January 31, 2013,
Doe I v. Individuals, 561 F. Supp. 2d 249, 253–56 (D. Conn. 2008);
Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1091-95 (W.D. Wash.
2001); Mobilisa, Inc. v. Doe 1, 170 P.3d 712, 717-21 (Ariz. Ct.
App. 2007); Doe No. 1 v. Cahill, 884 A.2d 451, 455–66 (Del. 2005);
Solers, Inc. v. Doe, 977 A.2d 941, 950-57 (D.C. 2009); Indep.
Newspapers, Inc. v. Brodie, 966 A.2d 432, 438-42, 449-57 (Md.
2009); Dendrite Int'l, Inc. v. Doe No. 3, 775 A.2d 756, 760–61,
765-71 (N.J. Super. Ct. App. Div. 2001).
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or obtain an extension of time to do so, this case will be
dismissed.
/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE
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