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Vogel v. Go Daddy Group, Inc.

United States District Court, District of Columbia

July 19, 2017

JASON VOGEL, Plaintiff,
v.
GO DADDY GROUP, INC., et al., Defendants.

          MEMORANDUM OPINION

          AMIT P. MEHTA UNITED STATES DISTRICT JUDGE.

         Before the court is Plaintiff Jason Vogel's motion for leave to amend his complaint. Plaintiff wishes to voluntarily dismiss Defendant Go Daddy Group, Inc., and to add facts that he contends suffice to establish the court's subject matter jurisdiction in a lawsuit continuing only against four unnamed “Doe” defendants. Prospective Amicus Freedman Taitelman LLP, a Los Angeles-based law firm, received a subpoena from Plaintiff as part of Plaintiff's efforts at early, jurisdictional discovery. It argues in proposed amicus briefs that it need not comply with that subpoena because this court lacks jurisdiction over Plaintiff's lawsuit.

         For the reasons that follow, the court concludes allowing Plaintiff leave to amend would be futile because his proposed amended complaint does not plausibly allege that this court has subject matter jurisdiction. Accordingly, the court denies Plaintiff leave to amend, denies as moot Freedman Taitelman LLP's motions for leave to file as amicus curiae, and dismisses the case.

         I. BACKGROUND

         Plaintiff filed suit in this court on August 5, 2016, seeking relief under state law against The Go Daddy Group, Inc. (“GoDaddy”), and four unnamed defendants (“the Doe Defendants”). See Compl., ECF No. 1 [hereinafter Compl.]. According to Plaintiff's Complaint, Plaintiff is a citizen of California who owns and manages real estate in Washington, D.C., New Mexico, and California. Id. ¶ 1. In early 2016, the four Doe Defendants purportedly created a website called “www.TheRealJasonVogel.com, ” hosted by GoDaddy, on which they anonymously posted tortious and defamatory statements about Plaintiff, including accusing him “of being a ‘penny-pinching' ‘slum-lord'” who evicted his tenants without cause. See Id. ¶¶ 3, 9-10, 14-16. Additionally, on or about July 1, 2016, the Doe Defendants allegedly distributed flyers in Plaintiff's neighborhood that contained a photograph of Plaintiff and “a large heading reading ‘I want to rip you off'” and directed the reader to “www.TheRealJasonVogel.com.” Id. ¶¶ 18-19. These accusations also appeared on Twitter and Facebook, in addition to accusations that Plaintiff did not maintain or improve his properties. See Id. ¶¶ 3-6, 21-23. Plaintiff seeks relief against the Doe Defendants for defamation, tortious interference with business relations, false light, intentional infliction of emotional distress, and trespass. See Id. ¶¶ 26-53. Additionally, Plaintiff seeks preliminary and permanent injunctions against All Defendants that require them to remove the online statements, retract those prior statements, and prevent the Doe Defendants from posting new defamatory statements online or disseminating defamatory fliers. See Id. at 9-10. Plaintiff claims $1 million in damages. Id. at 9.

         This court extended the deadline by which Plaintiff had to serve All Defendants and permitted Plaintiff to seek limited early discovery. The Complaint maintained that the court had subject matter jurisdiction over the case under the diversity statute, 28 U.S.C. § 1332(a), because Plaintiff is a resident of California and GoDaddy is incorporated in Delaware and headquartered in Arizona. See Id. ¶¶ 1, 2, 8. Although Plaintiff could not list the Doe Defendants' places of citizenship at the time he filed the Complaint, the Complaint states that Plaintiff “intends to seek immediate discovery from Defendant website host GoDaddy, and also from non-defendants www.Facebook.com, and www.Twitter.com to determine the identity of” each Doe Defendant. Compl. ¶¶ 3-6. The court granted Plaintiffs' three motions for extension of time and provided Plaintiff the opportunity to conduct early discovery to learn the Doe Defendants' identities. See Order, ECF No. 8; Order, ECF No. 6; Minute Order, Nov. 4, 2016.

         Plaintiff's early discovery efforts prompted the present inquiry into whether the court has jurisdiction to hear this case. After receiving a subpoena from Plaintiff, the law firm of Freedman Taitelman LLP (“Prospective Amicus”) filed a motion for leave to proceed as amicus curiae, opposing the court's continued extensions of time for Plaintiff to serve the Doe Defendants on the ground that the court lacks jurisdiction over the case. Prospective Amicus's brief asserts that this court lacks subject matter jurisdiction because Plaintiff's Complaint does not allege complete diversity amongst the parties; GoDaddy purportedly is immune from suit, and diversity jurisdiction does not exist when the only remaining defendants are the unnamed Doe Defendants. See Mot. for Leave to File as Amicus Curiae, ECF No. 9, Proposed Amicus Br., ECF No. 9-2, at 4-6. Even if complete diversity exists, the brief concludes, the court lacks personal jurisdiction over the Doe Defendants based on the limited factual allegations in the Complaint. Id. at 6-8.

         The court did not rule on Prospective Amicus's Motion but stayed discovery and directed Plaintiff to file a brief that addressed the court's jurisdiction. Order, ECF No. 11. Plaintiff responded to the court's Order by seeking leave to amend his Complaint. Plaintiff's proposed amendment voluntarily dismisses GoDaddy from the suit and states that each Doe Defendant “is believed to be a resident of” either Virginia, Texas, or Illinois, based on IP addresses Plaintiff uncovered during early discovery. See Pl.'s Mot. for Leave to Am. Compl., ECF No. 12 [hereinafter Pl.'s Mot. for Leave to Am.], Am. Compl., ECF No. 12-2 [hereinafter Am. Compl.], ¶¶ 3-6, 29-32.

         Prospective Amicus then filed a second motion for leave to proceed as amicus curiae, opposing Plaintiff's Motion and the continuation of the case. This Second Motion renews the arguments raised in Prospective Amicus's original Motion and contends that Plaintiff's reliance on IP addresses does not demonstrate the court has jurisdiction. See Second Mot. for Leave to File as Amicus Curiae, ECF No. 13, Second Proposed Amicus Br., ECF No. 13-1 [hereinafter Second Proposed Amicus Br.], at 3-9. Specifically, Prospective Amicus highlights that an IP address can provide evidence of an Internet user's physical location, but that data is not equivalent to evidence of “citizenship.” Id. at 4-5. Moreover, according to Prospective Amicus, the court lacks personal jurisdiction over the Doe Defendants because the IP addresses Plaintiff identified place the Doe Defendants outside the District of Columbia and Plaintiff has not alleged that they “regularly do[] or solicit[] business, engage[] in any other persistent course of conduct, or derive[] substantial revenue from goods used or consumed, or services rendered, in the District of Columbia.” Id. at 7-8 (quoting Forras v. Rauf, 812 F.3d 1102, 1106 (D.C. Cir. 2016)).

         Plaintiff responded to the Second Amicus Brief with a filing titled “Praecipe, ” which asked the court to accept a “Revised Amended Complaint.” The Revised Amended Complaint is substantially the same as the Amended Complaint, except that Plaintiff now alleges each Doe Defendant “is believed to be a citizen of” Virginia, Texas, or Illinois, based on the same IP addresses Plaintiff uncovered during early discovery. See Praecipe, ECF No. 14 [hereinafter Praecipe], Rev. Am. Compl., ECF No. 14-1 [hereinafter Rev. Am. Compl.], ¶¶ 3-6, 30-33 (emphasis added).

         II. LEGAL STANDARD

         At every stage in litigation, a federal court must determine that is has jurisdiction to hear the case before it. Nat'l Mining Ass'n v. Kempthorne, 512 F.3d 702, 706 (D.C. Cir. 2008); Brown v. Jewell, 134 F.Supp.3d 170, 176 (D.D.C. 2015). “A federal court presumptively lacks jurisdiction in a proceeding until a party demonstrates that jurisdiction exists. A party must therefore affirmatively allege in its pleadings the facts showing the existence of jurisdiction, and the court must scrupulously observe the precise jurisdictional limits prescribed by Congress.” Commodity Futures Trading Comm'n v. Nahas, 738 F.2d 487, 492 n.9 (D.C. Cir. 1984); accord Loughlin v. United States, 393 F.3d 155, 172 (D.C. Cir. 2004).

         Subject matter jurisdiction exists if the parties in the litigation are citizens of different states and the amount in controversy exceeds $75, 000. 28 U.S.C. § 1332(a); Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806). A party is a citizen of the place where he or she is domiciled. Prakash v. Am. Univ., 727 F.2d 1174, 1180 (D.C. Cir. 1984). Domicile, in turn, “is determined by two factors: physical presence in a state, and intent to remain there for an unspecified or indefinite period of time.” Id. A suit invoking a federal court's diversity jurisdiction cannot be brought solely against Doe defendants because their place of citizenship is not known. See Sinclair v. TubeSockTedD, 596 F.Supp.2d 128, 132-33 (D.D.C. 2009); Meng v. Schwartz, 305 F.Supp.2d 49, 55 (D.D.C. 2004); see also Howell by Goerdt v. Tribute Ent. Co., 106 F.3d 215, 218 (7th Cir. 1997).

         A plaintiff may amend his complaint to fix a deficiency that goes to whether the court has jurisdiction. 28 U.S.C. § 1653; Johnson v. Panetta, 953 F.Supp.2d 244, 248 (D.D.C. 2013). Under Rule 15 of the Federal Rules of Civil Procedure, the plaintiff may amend his complaint once, as of right, within 21 days of when the opposing party serves its responsive pleading. Fed.R.Civ.P. 15(a)(1)(B). Otherwise, the plaintiff may amend his complaint with the opposing party's written consent or leave of ...


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