Tuteur, M.D. v. Crosley-Corcoran
Filing
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Judge Richard G. Stearns: ORDER entered entered 12 Motion to Dismiss for Lack of Jurisdiction (Zierk, Marsha)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-10159-RGS
AMY TUTEUR, M.D.
v.
GINA CROSLEY-CORCORAN
MEMORANDUM AND ORDER
ON DEFENDANT’S MOTION TO DISMISS
PURSUANT TO FED. R. Civ. P. 12(b)(2)
April 10, 2013
STEARNS, D.J.
This action arises out of an escalating polemic between two bloggers who have
diametrically opposed views on the safety and virtues of home birthing. Plaintiff Amy
Tuteur, a resident of Massachusetts, is a former physician and critic of midwifery.
Tuteur authors several blogs, including The Skeptical OB. Defendant Gina CrosleyCorcoran, who lives in Illinois, is a midwife (doula) and author of the blog
TheFeministBreeder. After a particularly acrimonious and personal internet exchange,
on December 13, 2012, Crosley-Corcoran posted a photograph of herself on her blog
site making a graphic gesture with her middle finger that is often associated with an
unrealized ambition of French soldiers at the Battle of Agincourt. The photo’s caption
informed the reader that Crosley-Corcoran was giving Tuteur “something else to go
back to her blog and obsess about.” Tuteur copied the photo and posted it on The
Skeptical OB without Crosley-Corcoran’s permission. Crosley-Corcoran responded
with a cease and desist letter to Tuteur alleging copyright infringement. She also sent
Tuteur’s website provider, BlueHost (a company whose servers are based in Utah), a
“takedown notice” pursuant to the Digital Millennium Copyright Act (DMCA), 17
U.S.C. § 512(c)(3). Crosley-Corcoran’s counsel made several attempts to resolve the
matter more or less amicably. These efforts, however, came to naught when Tuteur
preemptively filed this lawsuit alleging abuse of the DMCA by Crosley-Corcoran.
In her two-count Complaint, Tuteur accuses Crosley-Corcoran of making a
material misrepresentation of infringing activity, in violation of 17 U.S.C. § 512(f), and
of tortiously interfering with an advantageous contractual relationship enjoyed by
Tuteur. Both Counts are premised on the takedown notice sent by Crosley-Corcoran
to BlueHost. Crosley-Corcoran, for her part, moves to dismiss the Complaint pursuant
to Fed. R. Civ. P. 12(b)(2). She maintains that as an Illinois resident whose connection
to Massachusetts is only by virtue of the ubiquitous access that readers like Tuteur have
to her blog over the world wide web, she lacks the “minimum contacts” necessary to
subject herself to in personam jurisdiction in this forum.1
1
“The proper exercise of specific in personam jurisdiction hinges on satisfaction
of two requirements: first, that the forum in which the federal district court sits has a
2
As a rule, a court will determine whether Article III jurisdiction exists before
reaching the merits of a plaintiff’s claim. Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 88-89 (1998). But if the merits can be readily resolved in favor of the party
challenging jurisdiction, complex jurisdictional questions can be avoided. Norton v.
Mathews, 427 U.S. 524, 530-532 (1976). This is such a case. The core question – one
that the First Circuit has not fully addressed – is whether ownership of an active,
interactive, or passive website maintained by a service provider based outside of
Massachusetts but which Massachusetts residents can access over the Internet satisfies
long-arm statute that purports to grant jurisdiction over the defendant; and second, that
the exercise of jurisdiction pursuant to that statute comports with the strictures of the
[Due Process Clause of the] Constitution.” Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.
1994). Under the Massachusetts Long-Arm-Statute, “[a] court may exercise personal
jurisdiction over a person, who acts directly or by an agent, as to a cause of action in
law or equity arising from the person’s (a) transacting any business in this
commonwealth; . . . [or] (c) causing tortious injury by an act or omission in this
commonwealth.” Mass. Gen. Laws ch. 223A, §§ 3 (a) and (c). The Fourteenth
Amendment’s concern for fundamental fairness is expressed by the requirement that
there be certain “minimum contacts” between the defendant and the forum state to
establish specific jurisdiction. The test is in three parts. “First, the claim underlying
the litigation must directly arise out of, or relate to, the defendant’s forum-state
activities. Second, the defendant’s in-state contacts must represent a purposeful
availment of the privilege of conducting activities in the forum state, thereby invoking
the benefits and protections of that state’s laws and making the defendant’s involuntary
presence before the state’s court foreseeable. Third, the exercise of jurisdiction must,
in light of the Gestalt factors, be reasonable.” United Elec. Workers v. 163 Pleasant
St. Corp., 960 F.2d 1080, 1089 (1st Cir. 1992).
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the purposeful availment test.2 See Cossaboon v. Maine Med. Ctr., 600 F.3d 25, 35
(1st Cir. 2010) (the mere fact that a web site is interactive is not sufficient to confer
jurisdiction as such a rule would eviscerate the limits on personal jurisdiction – one has
2
In her Opposition to Crosley-Corcoran’s motion to dismiss, Tuteur relies on
Calder v. Jones, 465 U.S. 783 (1984). In Calder, an editor and a writer for the
National Enquirer, both of whom were residents of Florida, were sued in California for
libeling Shirley Jones, a California actress. Id. at 789-790. The offending article
involved Jones’s California activities. The story was drawn from California sources,
and the brunt of the harm, in terms of emotional distress and injury to Jones’s
professional reputation, was felt in California. In upholding the exercise of personal
jurisdiction over the two defendants, the Supreme Court pointed to the fact that the
National Enquirer had its largest circulation – over 600,000 copies – in California. Id.
“[J]urisdiction properly could be asserted over the reporters because the defendants had
aimed an act at the forum state, knew the act would likely have a devastating effect,
and knew the injury would be felt in the forum state, where Jones lived and worked
‘and in which the National Enquirer ha[d] its largest circulation.’” Id. at 790. See also
Noonan v. Winston, 135 F.3d 85, 90 (1st Cir. 1998) (“Just as widespread circulation
of a publication indicates deliberate action, thin distribution may indicate a lack of
purposeful contact.”). The so-called “effects” test derived from Calder provides that
“a defendant’s tortious acts can serve as a source of personal jurisdiction only where
the plaintiff makes a prima facie showing that the defendant’s acts (1) were intentional,
(2) were uniquely or expressly aimed at the forum state, and (3) caused harm, the brunt
of which was suffered - and which the defendant knew was likely to be suffered - [in
the forum state].” Johnson v. Arden, 614 F.3d 785, 795-796 (8th Cir. 2010), quoting
Lindgren v. GDT, LLC, 312 F. Supp. 2d 1125, 1132 (S.D. Iowa 2004). It would seem
unlikely that Tuteur could satisfy the three elements of the Calder test, particularly the
second.
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to look to the extent to which the interactive features are actually used to conduct
commercial activities).
Putting aside the thorny issue of internet-based personal jurisdiction, in
reviewing the exhibits attached to the pleadings, the court seriously questions whether
Tuteur has stated a viable cause of action against Crosley-Corcoran. The takedown
notice at issue appears to conform to the letter of the requirements of section 512(c)(3)
the DMCA. In it, Crosley-Corcoran states accurately that her likeness has been copied
without her express authorization and published by Tuteur without permission on her
SkepticalOB website. See Compl. Ex. 11. It is true that if the tables were reversed,
and this was a lawsuit brought by Crosley-Corcoran against Tuteur for copyright
infringement, Tuteur would have a plausible, and even dispositive fair use affirmative
defense, see Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994), or as she
suggests at one point, a defense of implied license, see Estate of Hevia v. Portrio
Corp., 602 F.3d 34, 40-42 (1st Cir. 2010). But there is no requirement in the DMCA
that a notice-giver inform the service provider of an infringer’s possible affirmative
defenses, only that she affirm her good faith belief (as appears to be the case here) that
the copyrighted material is being used without her (or her agent’s) permission. Seen
in this light, there is no material misrepresentation by Crosley-Corcoran of
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infringement, as a viable cause of action under section 512(f)(1) would require.3
Tuteur’s tortious interference claim would also seem vulnerable on similar
grounds. The Complaint alleges that Crosley-Corcoran by causing BlueHost to remove
her photograph from Tuteur’s blog site “[was] acting with improper motive and/or
improper means in causing harm to Dr. Amy [Tuteur] and preventing her exercise of
contractual rights.” Compl. ¶ 78. See also United Truck Leasing Corp. v. Ronald D.
Geltman, 406 Mass. 811, 816 (1990) (adopting Restatement (Second) of Torts § 766
(1977)). Here, there would seem nothing improper about the purpose of CrosleyCorcoran’s takedown notice, which was to stop what she believed was an infringement
of her copyrighted likeness, while the means that she chose, sending a the notice to the
service provider, was one explicitly authorized by the statute.
A district court may, on its own initiative, note the apparent inadequacy of a
complaint and enter a dismissal on the merits. It will do so, however, only after giving
a plaintiff notice and the opportunity to address the complaint’s perceived deficiencies.
See Wyatt v. City of Boston, 35 F.3d 13, 14-15 (1st Cir. 1994); see also Chute v.
Walker, 281 F.3d 314, 319 (1st Cir. 2002). Consistent with these strictures, the court
3
The MDCA provides a procedure for counter-notification where an accused
infringer believes that a mistake has been made by the provider in removing disputed
material. See 17 U.S.C. § 512(g).
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will give Tuteur twenty-one (21) days from the date of this decision to show cause why
the Complaint should not be dismissed on the merits and/or on jurisdictional grounds.
SO ORDERED.
/s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE
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