United States District Court, D. Arizona
Deluxe Marketing, Inc. and Jeremy Larson, Plaintiffs,
deluxemarketingincscam.wordpress.com, et al., Defendants.
STEVEN P. LOGAN, District Judge.
Before the Court are Plaintiffs' Motion to Extend Deadline for Service of Process (Doc. 14) and Motion for Leave to Conduct Discovery (Doc. 15). For the reasons that follow, both will be denied and this action will be dismissed.
Plaintiff Deluxe Marketing, Inc., a marketing campaign services provider, and Plaintiff Jeremy Larson, its Chief Executive Officer, filed a Complaint on October 21, 2013. (Doc. 1.) Plaintiffs bring an action for defamation, cybersquatting, and declaratory judgment against John Does 1-10 ("Doe Defendants"). Plaintiffs allege that between November 2012 and August 2013, they were the targets of false, defamatory, and damaging reports posted by unknown individuals on various internet sites such as ripoffreport.com and pissedoffedconsumer.com. Plaintiffs further allege that Doe Defendants 9 and 10 created and used "deluxemarketinginctimewarner.blogspot.com" and "deluxemarketingincscam.wordpress.com" to gain commercial advantage over Deluxe Marketing.
II. Motion to Compel
Plaintiffs move "for an order authorizing Plaintiffs to conduct early discovery for the purpose of identifying Defendants John Does 1-10." (Doc. 15 at 1.) Plaintiffs aver that they have an outstanding subpoena that will disclose the internet protocol ("IP") addresses associated with the anonymous individuals who posted the defamatory content. (Doc. 15 at 2.) Once they obtain the IP addresses from the subpoenaed party, Plaintiffs maintain that they should be afforded an opportunity to seek discovery from the affiliated internet service provider ("ISP") to obtain the identity of the associated subscribers. ( Id. )
Under Rule 26(d)(1) of the Federal Rules of Civil Procedure, the court may authorize discovery prior to a Rule 26(f) conference upon a showing of "good cause." In determining whether there is good cause to allow expedited discovery to identify anonymous defendants, the court may consider whether the plaintiff:
(1) can identify the missing party with sufficient specificity that the Court can determine that defendant is a real person or entity who could be sued in federal court; (2) has identified all previous steps taken to locate the elusive defendant; (3) suit against the defendant could withstand a motion to dismiss; and (4) has demonstrated that there is a reasonable likelihood of being able to identify the defendant through the requested discovery, thus allowing for service of process.
Riding Films, Inc. v. John Does I-CCL, 2013 WL 2152552 (D. Ariz. May 16, 2013) (internal citations omitted). See also Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (finding a plaintiff "should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.") (citing Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (quotation and citation marks omitted). Plaintiffs have failed to meet this standard.
Even if Plaintiffs obtain IP addresses, they do not show that there is a reasonable likelihood that they will uncover the identities of Doe Defendants from the ISP providers. "Multiple people may, and often do, use a single ISP subscription-family members, roommates, guests, or other individuals (unknown to the subscriber) who access the internet using any unprotected wireless signals they can find." Hard Drive Productions, Inc. v. Does 1-90, 2012 WL 1094653 (N.D. Cal. March 30, 2012). As Plaintiffs concede in their motion, "merely knowing the name of the subscriber can, at times, be insufficient information to discover who should be named as defendants in the matter. If this occurs, Plaintiffs may need to issue interrogatories or take the depositions of the subscribers for the limited purpose of discovering who had access to the subscriber's connection and ultimately, the identities of the Doe Defendants." (Doc. 15 at 2-3.) However, Plaintiffs offer nothing to demonstrate that the individuals who posted the defamatory content and the ISP subscribers associated with the forthcoming IP addresses will likely be the same individuals. The Court recognizes that absent early discovery, Plaintiff likely cannot pursue its claims. However, Plaintiffs are not entitled to take discovery to uncover Doe Defendants' identities when it is not even clear that the requested discovery will actually result in identifying them. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 685-86 (2009) (discovery should not be permitted to discover facts supporting claims).
Further, it is doubtful that the complaint would withstand a motion to dismiss. With regard to Doe Defendants 9 and 10 and their alleged affiliated domains,  Plaintiffs fail to sufficiently allege claims for cybersquatting under the Anticybersquatting Consumer Protection Act ("ACPA"). See Fed.R.Civ.P. 12(b)(6). The ACPA states that
[a] person shall be liable in a civil action by the owner of a mark... if, without regard to the goods or services of the parties, that person (i) has a bad faith intent to profit from that mark...; and (ii) registers, traffics in, or uses a domain name... that is confusingly similar to another's mark or dilutes another's famous mark.
15 U.S.C. § 1125(d)(1)(A). Plaintiffs essentially allege that Doe Defendants used internet sites to defame the business practices of Plaintiffs in order to gain a commercial advantage over consumers. Plaintiffs do not state sufficient facts to allege bad faith intent. "The use of a domain name to engage in criticism or commentary even where done for profit does not alone evidence a bad faith intent to profit, " and "constitutes a bona fide noncommercial or fair use" under the ACPA. Lamparello v. Falwell, 420 F.3d 309, 320 (9th Cir. 2005) (internal citations and brackets omitted). See also 15 U.S.C. § 1125(d)(1)(B)(i) (listing nine non-exhaustive factors to consider when determining whether a defendant had a bad faith intent to profit from use of a mark). Furthermore, to the extent the domains are alleged to be used as a venue to criticize Plaintiffs' business, the complaint fails to state an existence of confusion over the source of the domain. While there may be potential for initial, temporary confusion stemming from the domain names, "[s]uch fleeting confusion is not sufficient to establish a likelihood of confusion." Aviva USA Corp. v. Vazirani, 902 F.Supp.2d 1246, 1267 (D. Ariz. Oct. 2, 2012)
The action is equally vulnerable to dismissal on jurisdictional grounds. See Fed.R.Civ.P. 12(b)(2). Plaintiffs appear to assert specific personal jurisdiction over Doe Defendants based on the acts that gave rise to this lawsuit. See 28 U.S.C. § 1391(b); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 fnt. 15 (1985) (noting there are two types of personal jurisdiction, general and specific). Plaintiffs allege "Defendants intentionally directed activities towards the State of Arizona including but not limited to posting comments on a website owned and operated by an Arizona company." (Doc. 1 at ¶ 8.) As a general matter, Doe Defendants posting of defamatory comments on a nonparty internet site whose owner is located in this forum "does not qualify as purposeful activity invoking the benefits and protections of Arizona." Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 420 (9th Cir. 1997). Rather, Doe Defendants must have aimed their intentional tort at the forum state. See Walden v. Fiore, __U.S. __, 134 S.Ct. 1115, 1121-23 (2014) ("A forum State's exercise of jurisdiction over an out-of-state intentional tortfeasor must be based on intentional conduct by the defendant that creates the necessary contacts with the forum."); Calder v. Jones, 465 U.S. 783, 789-90 (1984); Pebble Beach Co. v. Caddy, 453 F.3d 1151 (9th Cir. 2006). Here, the complaint specifically alleges that Doe Defendants posted libelous internet material "in a purposeful attempt to damage Plaintiffs' good names, reputations, and business." (Doc. 1 at ¶ 157.) Deluxe Marketing is alleged to be incorporated in Nevada and doing business in California (Doc. 1 at ¶ 1-2), and the complaint's various allegations specifically suggest that the postings were aimed at those forums ( see e.g., Doc. 1 at ¶¶ 29, 98, ...