Dore v. New Sensations Incorporated et al
Filing
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Judge F. Dennis Saylor, IV: AMENDED MEMORANDUM AND ORDER ON PLAINTIFF'S 29 MOTION TO AMEND AND DEFENDANTS' 31 MOTIONS TO DISMISS AND TO 33 STRIKE.(Cicolini, Pietro)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
JAMES DORE,
)
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Plaintiff,
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)
Civil Action No.
v.
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13-10315-FDS
)
NEW SENSATIONS INCORPORATED,
)
)
et al.,
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Defendants.
)
_______________________________________)
AMENDED MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO AMEND
AND DEFENDANTS' MOTIONS TO DISMISS AND TO STRIKE
SAYLOR, J.
This is an action arising out of a prior lawsuit in this Court for copyright infringement.
Plaintiff James Dore one of many anonymous “Doe” defendants who were the target of
copyright infringement actions filed in this court by adult film producers, one of whom, New
Sensations, Inc., is a defendant here. Plaintiff has also sued Copyright Enforcement Group,
LLC, and Marvin Cable, who was counsel in the first action. The complaint essentially alleges
that the lawsuit brought against him was initiated in bad faith, harmed his reputation, and formed
the basis for attempted extortion.
Defendants have moved to dismiss the action pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff has moved for leave to file an amended complaint and (without waiting for resolution of
that motion) an amended complaint. In turn, defendants have filed a motion to strike the
amended complaint or, in the alternative, for an extension of time in which to file an answer. For
the reasons set forth below, (1) defendants’ motions to dismiss will be granted as to the RICO
claims; (2) plaintiff’s motion to amend the complaint and defendants’ motion to strike the
amended complaint will be held in abeyance pending resolution of jurisdictional issues; and (3)
plaintiff will be ordered to show cause why the action should not be dismissed.
I.
Background
The facts are presented as stated in the complaint, unless otherwise noted.
A.
Parties
Plaintiff James Dore is a resident of Haverill, Massachusetts.
Defendant New Sensations, Inc., (“NSI”) is an adult film production company located in
Chatsworth, California.
Defendant Copyright Enforcement Group, LLC, (“CEG”) is a litigation services
company located in Beverly Hills, California.
Defendant Marvin Cable is an attorney whose office is located in Northampton,
Massachusetts, and who represents NSI and CEG. The complaint alleges in general terms that the
case “involves defendants who are not residents of the same state as the plaintiff.” (Compl. ¶ 7).
It is unclear where Cable is domiciled; he has submitted no evidence concerning his state of
residence.
B.
Prior Litigation
In 2012, NSI, represented by Cable, commenced a copyright enforcement action against
numerous unnamed “Doe” defendants, identified solely by their Internet Service Provider (“ISP”)
numbers. CEG provided expert testimony and evidence for the suit. (NSI/Cable Mot. Dismiss at
3). NSI contended that defendants infringed its copyright by reproducing or distributing one of
its films by means of a peer-to-peer network, BitTorrent. Dore was one of the “Doe” defendants.
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He alleges that NSI attempted to obtain a $3,500 settlement payment from him, and that he
incurred $1,000 in litigation fees. Dore contends that the suit was baseless and an attempt to
force defendants to agree to monetary settlements. The case was dismissed in December 2012.
Cf. New Sensations, Inc. v. Does, 2012 U.S. Dist. LEXIS 157504 (D. Mass. Nov. 2, 2012); New
Sensations, Inc. v. Doe, 2012 U.S. Dist. LEXIS 159595, 2012 WL 5464349 (D. Mass. Nov. 5,
2012).
C.
Claims
The complaint asserts claims against all defendants for violations of the Racketeering
Influenced and Corrupt Organizations Act (“RICO”) and so-called “Copyright Trolling.” Against
Cable, it asserts claims of defamation, “filing false and malicious litigation,” and fraudulent
misrepresentation. Against NSI, it asserts claims for abuse of process or malicious prosecution,
attempted extortion, and defamation. Against CEG, it asserts claims for inducement or barratry,
conspiracy or aiding false and malicious litigation, and fraudulent misrepresentation.
The proposed amended complaint adds claims against Cable for abuse of process,
attempted extortion, and “intentional infliction of harm,” and claims against NSI for “intentional
infliction of harm” and violation of Mass. Gen. L. ch. 93A. The amended complaint restyles the
false and malicious litigation claim against Cable as a claim for malicious prosecution.
D.
Procedural Background
On February 8, 2013, plaintiff filed this action pro se. Defendants Cable and NSI moved
to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) on June 5, 2013, and defendant CEG separately
moved on August 12, 2013.
On August 1, 2013, plaintiff moved to subpoena a non-party witness, to produce and
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preserve evidence, and to disqualify Cable as counsel. Plaintiff further moved, on August 7, to
amend his complaint,1 and he filed an amended complaint on August 21, 2013. Defendants have
moved to strike the motion to disqualify and the amended complaint.
II.
Legal Standard
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and
give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir.
1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its
face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must
be enough to raise a right to relief above the speculative level, . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if the facts as alleged do not
“possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm.,
LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).
A document filed by a pro se party “is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)) (internal quotation marks omitted). See also Fed. R. Civ. P. 8(e) (“Pleadings
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Although plaintiff titled the document “Notice of Intent to File Amended Complaint,” the Court reads this
as a motion for leave to file, because plaintiff “request[s]” permission to file an amended complaint. (ECF No. 29).
The Court will not dismiss a pro se motion merely because it does not comply with the formal requirements of a
motion. (Cf. Defs.’s Opp. Am. Compl. at 6).
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must be construed so as to do justice.”).
III.
Analysis
A.
Motion for Leave to Amend and Motion to Strike Amended Complaint
Fed. R. Civ. P. 15(a)(1) grants a plaintiff the right to amend the complaint within 21 days
of “service of a responsive pleading” or “service of a motion under Rule 12(b), (e), or (f). Fed. R.
Civ. P. 15(a)(2) provides that leave to amend pleadings should be “freely given . . . when justice
so requires.” Nonetheless, amendment may be denied for reasons such as “undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Amendment would be futile when the complaint as amended still would not survive a motion to
dismiss. See Adorno v. Crowley Towing and Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006).
Defendants here contend that plaintiff is not entitled to file an amended complaint as a
matter of course and that the proposed amendment is futile. While Cable and NSI filed a motion
to dismiss on June 3, 2013, CEG filed its motion to dismiss—its first responsive pleading—on
August 12, 2013. Therefore, plaintiff had a right within 21 days to amend his complaint, at least
with respect to those allegations concerning CEG. However, even reading plaintiff’s pro se
filings liberally, neither his initial complaint nor his amended complaint can survive a motion to
dismiss as to the federal claims, as detailed below. That, in turn, raises questions as to the Court’s
jurisdiction over the remaining claims (under either the original complaint or the amended
complaint), which all arise under state law. Accordingly, plaintiff’s motion for leave to amend
and defendants’ motion to strike plaintiff’s amended complaint will be held in abeyance while the
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jurisdictional issues are resolved.
B.
Motions to Dismiss
Plaintiff contends that this Court has subject-matter jurisdiction because the complaint
asserts a federal claim under RICO, 18 U.S.C. § 1964(a). RICO provides a civil cause of action
to “[a]ny person injured in his business or property by reason of a violation of section 1962.” 18
U.S.C. § 1964(c). That is, “a plaintiff has standing if, and can only recover to the extent that, he
has been injured in his business or property . . . .” Moore v. Eli Lilly & Co., 626 F. Supp. 365,
367 (D. Mass. 1986) (citing Sedima S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). See
also Van Schaick v. Church of Scientology of California, Inc., 535 F. Supp. 1125, 1137 (D. Mass.
1982) (noting the “proper applications of § 1964(c) to situations in which a defendant’s
racketeering caused injury to plaintiff in a business activity”).
Here, plaintiff contends that he did not suffer injury to his business or property, but rather
litigation costs. (Compl. ¶¶ 60, 91, 117). In the amended complaint, plaintiff acknowledges that
litigation expenses “are not able to be considered damages under RICO” but requests injunctive
relief. (Am. Compl. ¶¶ 161, 226, 334). Plaintiff also contends that he suffered stress,
embarrassment, and psychological harm. (See Compl. ¶¶ 178-79; Am. Compl. ¶¶ 365-75). None
of these harms were to plaintiff’s business, nor to his property. See Allum v. BankAmerica Corp.,
156 F.3d 1235 (9th Cir. 1998) (holding that emotional and physical distress, lost income,
litigation expenses related to prosecuting and defending lawsuits, wrongful termination, and libel
are not injuries to “business or property” under RICO). Accordingly, as to the RICO claims, the
complaint fails to state a claim upon which relief can be granted.
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Each of the remaining claims are based on state law or are not valid claims.2 The lack of a
claim under federal law raises the question of the Court’s jurisdiction. Federal courts are courts
of limited jurisdiction, “and the requirement of subject matter jurisdiction ‘functions as a
restriction on federal power.’” Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005) (quoting
Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)). If a
federal court determines “at any time that it lacks subject matter jurisdiction, the court must
dismiss the action.” Fed. R. Civ. P. 12(h)(3).
It does not appear likely that there is diversity of citizenship. See 28 U.S.C. § 1332. The
complaint alleges, but only in general terms, that plaintiff and defendants are not citizens of the
same state. (Compl. ¶ 7; Am. Compl. ¶ 8). It is undisputed that plaintiff is a citizen of
Massachusetts. It is unclear, however, where defendant Cable is domiciled. The complaint lists
Cable’s business address, rather than his domicile. See Bank One, Texas, N.A. v. Montle, 964
F.2d 48, 49 (1st Cir. 1992). And that business address is in Northampton, Massachusetts. It
therefore seems likely that Cable resides in Massachusetts. And because “[t]he existence of
subject matter jurisdiction ‘is never presumed,’” Fafel, 399 F.3d at 410 (quoting Viqueira v. First
Bank, 140 F.3d 12, 16 (1st Cir. 1998)), the court will not presume that there is diversity of
citizenship.3
If diversity is lacking, jurisdiction over the remaining claims would be based solely on the
2
For example, the complaint asserts claims for “copyright trolling,” or in the Amended Complaint,
“copyright abuse.” Federal law recognizes a claim of “copyright infringement,” 17 U.S.C. § 501, but not “copyright
trolling” or “copyright abuse.”
3
Diversity jurisdiction also requires that the amount in controversy exceed $75,000. 28 U.S.C. § 1332(a).
The complaint seeks huge damages, well exceeding $75,000; for present purposes, the Court will assume that the
amount-in-controversy requirement has been satisfied.
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Court’s supplemental jurisdiction, 28 U.S.C. § 1367. The supplemental jurisdiction statute
provides, among other things, that “[t]he district courts may decline to exercise supplemental
jurisdiction . . . if—(3) the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367. See Uphoff Figueroa v. Alejandro, 597 F.3d 423, 431 n.10 (1st
Cir. 2010) (“[A] district court has discretion to decline to exercise supplemental jurisdiction after
dismissing ‘all claims over which it ha[d] original jurisdiction.’”); Delgado v. Pawtucket Police
Dep’t, 668 F.3d 42, 48 (1st Cir. 2012) (“In determining whether to retain jurisdiction on such an
occasion, the court must take into account considerations of judicial economy, convenience,
fairness to the litigants, and comity.”); Rojas-Velazquez v. Figueroa-Sancha, 676 F.3d 206, 213
(1st Cir. 2012) (upholding district court’s decision not to exercise supplemental jurisdiction over
pendent claims because the only federal claims were properly dismissed). This case is still in its
beginning stages, and the Court sees no reason to exercise jurisdiction over state law claims in
this matter, absent diversity.
The jurisdictional issue therefore comes down to the existence of diversity jurisdiction.
At a minimum, plaintiff must establish that Cable is not a citizen of Massachusetts, or such
jurisdiction is lacking. Accordingly, the Court will require plaintiff to show cause, within 21 days
of this order, why this action should not be dismissed without prejudice for lack of subject-matter
jurisdiction.
IV.
Conclusion
For the foregoing reasons:
(1) defendants’ motions to dismiss are granted as to any claims asserted under RICO, 18
U.S.C. § 1964(a), and otherwise denied without prejudice; and
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(2) plaintiff is directed to show cause in writing within 21 days why this action should not
be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c).
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: October 31, 2013
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