Re: 3/18/05 - [UCSY] "Case Closed" Order: Universal Communicat, et al v. Turner Broadcasting, et al
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 05-20047-CIV-JORDAN
UNIVERSAL COMMUNICATION
SYSTEMS, INC., et al.,
Plaintiffs
vs.
TURNER BROADCASTING SYSTEM,
INC.,etal.,
Defendants )
CLOSED CIVIL CASE
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ORDER OF DISMISSAL
For the reasons which follow, the plaintiffs’ motion for default against “John Doe 1” and “John Doe 2” [D.E. 24] is DENIED, and the amended complaint is DISMISSED FOR LACK OF SUBJECT- MATTER JURISDICTION, and alternatively DISMISSED for failure to state a claim upon which relief can be granted.
LACK OF DIVERSITY
According to the amended complaint, there are only two state-law claims for libel: one against the John Doe defendants and one against the so-called media defendants. Accordingly, federal jurisdiction is premised solely on diversity of citizenship.
Even if naming John Doe defendants were proper in diversity cases originally filed in federal court — and apparently it is not, as explained below — and assuming that service could be properly effected through the Secretary of State on John Doe defendants not identified by name in the complaint,[1] the plaintiffs have cited no authority for the proposition that a default may be entered against a John Doe defendant. There are obvious problems with such a default, starting with the impossibility of figuring out who the judgment is against and who will be bound by it in the future. For example, in their amended complaint, the plaintiffs state that they believe that Mr. Villasenor is “John Doe 1” and “John Doe 2.” But what if it turns out that the plaintiffs were wrong, and that a different person is “John Doe 1” and “John Doe 2”? What happens to the default? Is it set aside? Do the plaintiffs have to start the litigation over as to them? These are but a few of the questions that the plaintiffs have failed to address.
[1] It is unclear to me how the Secretary of State could properly be served on behalf of two screen names — “woltblitzzerO” and “royal_octavo” — which appear on a message board of a website, without any indication of who operates or uses those screen names. The plaintiffs have not offered any support for their theory (or assumption) that substituted service on the Secretary of State is permitted for John Doe defendants whose identities are unknown. Although the amended complaint alleges that the John Doe defendants are believed to be Roberto Villasenor, Jr., Mr. Villasenor is not named as a defendant and has not been served.
The plaintiffs’ motion for default also raises a jurisdictional problem, which I am bound to address even though not raised by the parties. In diversity cases originally filed in federal court, most federal courts have held that the naming John Doe defendants is improper, particularly when the complaint does not specify the citizenship of such defendants. See, e.g., Howell v. Tribune Ent. Co., 106 F.3d 215, 218 (7th Cir. 1997); Craig v. United States, 413 F.2d 854, 856 (9th Cir. 1969); Meng v. Schwartz, 305 F.Supp.2d49, 55(D.D.C. 2004); 14 Wright, Miller, & Cooper, Federal Practice and Procedure § 3642, at 203-05 (3d ed. & 2004 Supp.). The amended complaint alleges only that “John Doe 1” and “John Doe 2” are “not currently residents” of Florida, and that they are residents of the United States. See Amended Complaint at ¶ 6.[2] Those allegations fail to establish that “John Doe 1” and “John Doe 2” are diverse to the plaintiffs, as binding precedent in this circuit teaches that allegations of mere residency are insufficient to establish citizenship for diversity purposes. See Nihimatsu Const. Co. v. Houston Nat. Bank, 515 F.2d 1200, 1205 n.3 (5th Cir. 1975); Delome v. Union Barge Co., 444 F.2d 225, 233 (5th Cir. 1971). This means that there is no complete diversity, and hence no subject-matter jurisdiction under 28 U.S.C. § 1332. The amended complaint is therefore dismissed without prejudice. See Fed. R. Civ. P. 12(b)(1).
In case the plaintiffs filed a second amended complaint omitting the John Doe defendants, I address the media defendants’ motion to dismiss [D.E. 17], and grant it.
[2] The plaintiffs do not allege where in the United States the John Doe defendants reside.
FAILURE TO STATE A CLAIM
The sole claim by the plaintiffs — Universal Communication Systems, Inc. and its chief executive officer, Michael Zwebner — against the media defendants — Turner Broadcasting System, Inc., Cable News Network, Inc., and Wolf Blitzer— is a claim for defamation under Florida law. As explained below, there is no allegation that the media defendants published any defamatory statements, and that is fatal to the claim.
The Rule 12(b)(6) standard is a familiar one. I must accept the factual allegations in the amended complaint as true, and must view those allegations in the light most favorable to the plaintiffs. Dismissal is appropriate only if there is no set of facts that the plaintiffs could prove that would entitle them to relief. See, e.g., Simmons v. Sonyika, 394 F.3d 1335, 1338 (11th Cir. 2004).
The amended complaint alleges that Lycos, Inc. — which is not named as a defendant in this suit but has been sued by the plaintiffs in another action — operates the “Quote.com” financial website, which provides, among things, commercial and financial information and stock quotes for companies whose securities are publicly traded. “Quote.com” in turn provides a link to a Lycos sponsored- message board called “Raging Bull,” which has separate message boards for individual companies. The John Doe defendants, using the screen names “wolfblitzzer0” and “royal_octavo,” posted false and defamatory statements about Universal and Mr. Zwebner on the message board for Universal on “Raging Bull.” According to the exhibits attached to the amended complaint, these defamatory statements — which were meant, in part, to manipulate and depress the stock price of Universal so that the John Doe defendants could profit — were posted from December 31, 2004, to January 5, 2005, and are continuing.
The plaintiffs do not allege that the media defendants published the defamatory statements or that they were responsible for their posting. Instead, the plaintiffs allege that on January 5-6, 2005, they informed the media defendants of the defamatory statements posted by the John Doe defendants on “Raging Bull,” and demanded that the media defendants take “remedial action” against the John Doe defendants. The plaintiffs’ demand was based on their belief that the defamatory postings were being attributed to CNN personality Wolf Blitzer, and that the media defendants owned exclusive rights to the Wolf Blitzer or “Wolf Blitzer Reports” names. The plaintiffs informed the media defendants that if they did not take action — such as bringing pressure on Lycos to “exercise responsible internet community citizenship” and deny access to individuals who were abusing their web sites — they would be seen as condoning the defamatory statements, and would be sued.
The defamation claim against the media defendants is based on the theory that they have an affirmative obligation to police the unauthorized use of the Wolf Blitzer name, including any “confusingly similar variants. . . by third parties in a manner that is deceptive or misleading of the public.” According to the amended complaint, the screen name “wolfblitzzerO” implies that the media defendants “have sponsored or are associated with” the third party using that screen name. By not taking any remedial action, the plaintiffs allege, the media defendants have acquiesced in, and approved, the defamatory statements, and have adopted those statements their own.
Under Florida law, there are four elements to a defamation claim: (1) the defendant published a false statement (with fault amounting to at least negligence) (2) about the plaintiff(s) (3) to a third party (4) which caused injury or damage to the plaintiff(s). See, e.g., Bass v. Rivera, 826 So.2d 534, 535 (Fla. 2d DCA 2002); Mile Marker, Inc. v. Petersen Publishing, LLC, 811 So.2d 841, 845 (Fla. 4th DCA 2002); Valencia v. Citibank Int’l.,728 So.2d 330, 330 (Fla. 3d DCA 1999). The plaintiffs have not alleged, however, that the media defendants published or posted the defamatory statements at issue. Indeed, they acknowledge that the media defendants were not involved in any way in the actual posting of those statements. Because the media defendants were not publishers of the defamatory statements, the plaintiffs cannot sue them for defamation under Florida law.
To the extent that the plaintiffs base their claim on some alleged obligation or duty on the part of the media defendants with respect to defamatory statements by others, the contention fails. A person is liable for defamation if he “intentionally and unreasonably fails to remove defamatory material that he knows to be exhibited on land or chattels in his possession or under his control [.]” Restatement (Second) of Torts § 577(2) (emphasis added). See Doe v. America Online, Inc., 783 So.2d 1010, 1013 n.6 (Fla. 2001) (looking to Restatement on issue of liability for defamation). Because the “duty arises only when the defendant knows that the defamatory matter is being exhibited on his land or chattels,” id. at comment p, and because the media defendants do not own, or have control over, Lycos or the “Raging Bull” message board, § 577(2) of the Restatement does not provide a basis for liability for defamation. See, e.g., Dominick v. Sears, Roebuck & Co., 741 S.W.2d 290, 294 (Mo. App. 1987) (department store had no duty to remove unfavorable credit rating from report of a third party — a credit reporting agency — and therefore was not liable for defamation).
There is also no basis for liability under the law of agency. “One is liable for defamation by a third person whom as his servant, agent, or otherwise he directs or procures to publish defamatory matter.” Restatement (Second) of Torts, § 577, comment f. There is no allegation in the amended complaint that the media defendants ordered, directed, procured, or asked the John Doe defendants to post the defamatory statements.
Finally, I reject the plaintiffs’ argument that the media defendants can be liable for defamation because they did not police the use of the Wolf Blitzer name, and thereby breached their obligations to the public and the plaintiffs. The federal courts have indicated that a trademark owner’s failure to control, police, or enforce a trademark does not subject the owner to affirmative liability in tort, unless the owner has “voluntarily licensed its trademark or had significant involvement in the design, manufacture of the other company’s product.” Kealoha v. E.I. Dupont de Nemours & Co., Inc., 82 F.3d 894, 902-03 (9th Cir. 1996) (citing cases). There are no allegations in the amended complaint which would permit liability for defamation with respect to the media defendants.
CONCLUSION
The amended complaint is dismissed without prejudice for lack of subject-matter jurisdiction, and alternatively dismissed without prejudice for failure to state a claim. If the plaintiffs wish to file an amended complaint, it is due by April 4, 2005. For now, this case is closed, and all pending motions — with the exception of the media defendants’ motion for Rule 11 sanctions — are DENIED AS MOOT. I will wait to see if the plaintiffs file a second amended complaint before addressing the pending Rule 11 motion.
DONE and ORDERED in chambers in Miami, Florida, this day of March, 2005.
Adalberto Jordan
United States District Judge
Copy to: Magistrate Judge Brown and all counsel of record |
