United States District Court, District of Columbia
P. MEHTA UNITED STATES DISTRICT JUDGE.
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
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.
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
¶¶ 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.
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.
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
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,
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)).
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).
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).
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).
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 ...