Austin Gutter King Corporation, Inc. et al v. Google, Inc. et al

Filing 1

COMPLAINT ( Filing fee $ 350 receipt number 0542-4479823), filed by Austin Gutter King Corporation, Inc., Gary Kulp. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit)(Lee, Jennifer)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
AUSTIN GUTTER KING
CORPORATION, INC. and
GARY KULP
Plaintiffs,

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v.
GOOGLE, INC. and
“NORMA” DOE
Defendants.

CASE NO. 1:12-CV-319

PLAINTIFFS’ ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs Austin Gutter King Corporation, Inc. and Gary Kulp, through their attorneys,
Timothy Cornell, David Dunham and Jennifer Tatum Lee, for its Complaint, pursuant to Rule
27(a) of the Federal Rules of Civil Procedure, for an order for pre-case discovery from Defendant
Google, Inc., in an action to be commenced against Defendant “Norma” Doe, states and alleges as
follows:
I.
1.

PARTIES

Plaintiff Austin Gutter King is an independent business headquartered in Austin, Texas

whose address is 8760 Research Blvd, #138, Austin, TX 78758, and wholly owned by Gary Kulp.
2.

Plaintiff Gary Kulp is an individual who resides in Austin, Texas.

3.

Defendant Google, Inc. is a multinational conglomerate and one of the largest corporations

in the world. It is headquartered at 1600 Amphitheatre Parkway, Mountain View California,
94043, and can be served through its registered agent Corporation Service Company d/b/a CSC
Lawyers Incorporating Service, at 211 E. 7th Street, Suite 620, Austin, TX 78701-3218.

4.

“Norma” Doe is the person or persons who, in the guise of “Norma Lee,” posted the review

discussed above on November 28, 2011. The identity and location of “Norma” Doe is unknown.
On November 27, 2011, the same “Norma Lee” appears to have published a similarly defamatory
review of a company based in Wisconsin.
II.
5.

JURISDICTION AND VENUE

The Court also has jurisdiction over claims and potential claims in this matter under 28

U.S.C. §§ 1332 and 1337(d) (diversity), in that this is a case with multiple defendants who are
citizens of a state different from that of the Plaintiff in which the amount in controversy exceeds
the sum of $75,000, exclusive of interest.
6.

Venue is appropriate under 15 U.S.C. § 1711 because the defendants’ actions had the

intended effect of causing injury to citizens throughout the United States, including those in this
district.
III.
7.

INTERSTATE TRADE AND COMMERCE

The business activities of the Defendants were within the flow of, and substantially

affected, trade and commerce.
8.

During the period of liability, Defendants transacted business in multiple states in a

continuous and uninterrupted flow of interstate commerce throughout the United States.
IV.
9.

NATURE OF THE ACTION

This action is initiated to facilitate a limited deposition subpoena before action, directed at

Google, Inc., to compel the identification of Defendant “Norma” Doe, one or more anonymous
online commenters who have engaged in mischief and libel against the Plaintiff but are currently
unidentified.
10.

Google, Inc. and its subsidiaries are the host of Google Places, a feature of Google that

Plaintiffs’ Original Complaint

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identifies and posts descriptions of businesses, pinpoints them on the Google Maps feature and
provides an opportunity for the public to comment on the quality of the business’s services or
products.
11.

The commenters are self-identified but must submit to Google their email addresses and, on

information and belief, Google records the IP addresses of each commenter.
12.

These posts, through the hosting services of Google, reach an audience throughout Austin,

Texas, the rest of the country and the entire world.
13.

On November 28, 2011, a customer who identified herself as “Norma Lee” provided

Google Places with the following review of Austin Gutter King:
Falsified Customer Reviews We are a small firm that conducts research
into fraudulent customer reviews posted by shady businesses. Whereas it
seems that Austin Gutter King is not necessarily a "shady business" it
DOES appear that they find it necessary to post fake customer reviews.
While researching the source of numerous online posts related to this
merchant we found that a high percentage of the postings source back to
the same block of network addresses. Therefore, it is HIGHLY unlikely
that many of the customer service reviews you find posted about this
merchant are legitimate. Caveat Emptor....
14.

The post at issue may be found at:

<http://maps.google.com/maps/place?cid=12609984669235590887&hl=en>
15.

The post is false, fraudulent and defamatory. It is directed at Austin Gutter King and

asserts as fact numerous falsehoods that have damaged Austin Gutter King.
16.

The post falsely identifies Gary Kulp as the author of the supposedly fraudulent posts.

17.

Contrary to “Norma Lee’s” assertions, Austin Gutter King has never posted falsified

customer reviews. On information and belief, “Norma Lee” does not belong to a small firm, and
the description of the fictional business implies that Austin Gutter King creates “fraudulent
customer reviews” and could be a “shady business.” On information and belief, “Norma Lee” had

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no means of sourcing the online posts short of a court order, and could not have found a high
percentage of postings sourcing back to the same block of network addresses. “Norma Lee” had
no data from which to conclude that it is highly unlikely that the reviews are legitimate. These
statements are false and defamatory.
18.

These statements constitute the publication and/or broadcast of written statements about

another which accuses Austin Gutter King of crimes, immoral acts, inability to perform his
profession, or lack of integrity or professionalism in business.
19.

These comments were intended to do more than voice personal opinion. Rather, they were

intended to harm the professional image of Austin Gutter King through the use of fictional people
and facts asserted as being real.
20.

The post at issue here has caused specific impact and harm to Austin Gutter King in its

business reach within a 100 mile radius of Austin. Thus, the impact of the post has harmed Austin
Gutter King within this judicial district.
21.

The post violates Google’s Review Content Policy. The policy states, in part:
Off-topic reviews: Reviews should describe your personal, first-hand
experience with a specific place. Don’t post reviews based on someone
else’s experience, or that are not about the specific place you are
reviewing. Reviews are not a forum for personal rants or crusades. Don’t
use reviews to report incorrect information about a place[.] [ital..
supplied]

22.

This defamatory comment has harmed and continues to harm Austin Gutter King’s

reputation and directly influences the success of Austin Gutter King’s business engagements and
relationships with its employees.
23.

Austin Gutter King expects to be a party plaintiff in an action for libel, defamation and

tortious interference claims against “Norma” Doe.

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24.

The facts to be established by this action are the identities and location of “Norma Lee” so

as to permit Austin Gutter King amend this lawsuit to include the true identities and effectuate
service of process on the appropriate defendant or defendants.
25.

This information lies exclusively with Google, and there is substantial risk that this

information could be lost or deleted from its records, servers or back-up systems if it does not
comply promptly with the proposed narrowly-tailored discovery.
26.

Delay of identification could also threaten the expiration of certain statutes of limitations.

27.

Consequently, Austin Gutter King must depose, either orally or through written questions,

the custodian of records, domain administrator or appropriate representative at Google who can
identify “Norma Lee.”
28.

A copy of the proposed subpoena to Google is attached with this Complaint as Exhibit A.
V.

29.

PRAYER

WHEREFORE, the Plaintiff prays that this Court:
(a) Enter the requested order issuing a deposition subpoena to Google to take the deposition
upon oral or written examination of the appropriate representatives of Google in order to
perpetuate their testimony and provide the otherwise unobtainable information requested
so that the Plaintiff may assert its rights against the appropriate defendant or defendants;
and
(b) Award such other relief as this Court deems just and proper.

April 10, 2012

Respectfully submitted,
TAYLOR DUNHAM LLP
301 Congress Ave., Suite 1050
Austin, Texas 78701
512.473.2257 Telephone
512.478.4409 Facsimile
By:

Plaintiffs’ Original Complaint

/s/ Jennifer Tatum Lee____
Page 5

David E. Dunham
State Bar No. 06227700
Jennifer Tatum Lee
State Bar No. 24046950

PERRY, KRUMSIEK & JACK LLP
101 Arch Street
Boston, MA 02110
617.720.4300 Telephone
Timothy Cornell (Pro Hac Vice Application
pending)
BBO# 654412
ATTORNEYS FOR PLAINTIFFS

Plaintiffs’ Original Complaint

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