Naffe v. Frey

Citation789 F.3d 1030
Decision Date15 June 2015
Docket NumberNo. 13–55666.,13–55666.
PartiesNadia NAFFE, an individual, Plaintiff–Appellant, v. John Patrick FREY, an individual; County of Los Angeles, a municipal entity, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Eugene G. Iredale (argued) and Grace Jun, Iredale and Yoo, APC, San Diego, CA, for PlaintiffAppellant.

Ronald D. Coleman (argued), Archer & Greiner PC, Hackensack, New Jersey; Kenneth P. White, Brown, White & Newhouse LLP, Los Angeles, CA, for DefendantAppellee John Patrick Frey.

Paul B. Beach (argued) and John W. Nam, Lawrence Beach Allen & Choi, PC, Glendale, CA, for DefendantAppellee County of Los Angeles.

Eugene Volokh, UCLA School of Law, Los Angeles, CA, for Amicus Curiae Digital Media Law Project.

Appeal from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding. D.C. No. 2:12–cv–08443–GW–MRW.

Before: A. WALLACE TASHIMA, RICHARD C. TALLMAN, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

TALLMAN, Circuit Judge:

Plaintiff Nadia Naffe appeals the district court's dismissal of her 42 U.S.C. § 1983 claim and six related state law causes of action. Her appeal requires us to resolve two issues. First, we must decide whether the factual allegations in Naffe's complaint are sufficient to support her claim that Defendant John Patrick Frey—a Los Angeles County Deputy District Attorney—acted under color of state law for the purposes of § 1983 when he published derogatory statements about Naffe on his personal Internet blog and on Twitter. Second, we must determine if the district court erred when it required Naffe to establish by a preponderance of the evidence the amount in controversy for showing federal diversity jurisdiction.

First, we hold that Naffe has not supported adequately her claim that Frey acted under color of state law for the purposes of § 1983. Rather, the factual allegations—taken as true—compel the conclusion that Frey did not act under color of state law when he blogged and Tweeted about Naffe because he did so for purely personal reasons, and the communications were unrelated to his work as a county prosecutor. Second, we conclude that the district court applied an incorrect standard to evaluate the amount in controversy and, as a result, improperly dismissed Naffe's state law claims. We therefore affirm in part, reverse in part, and remand.

I

“Because this is an appeal from the dismissal of an action pursuant to Federal Rule of Civil Procedure 12(b)(6), we accept as true the facts alleged in the complaint.” Lee v. City of Los Angeles, 250 F.3d 668, 677 (9th Cir.2001) (citation omitted) (internal quotation marks and brackets omitted). Naffe alleges the following facts.

Naffe and Frey are conservative political activists. By day, Frey is a criminal prosecutor in Los Angeles County assigned to the gang unit. By night, he maintains a blog, Patterico's Pontifications (patterico.com), and a Twitter handle, @Patterico. On both, he writes and comments about—among other things—conservative politics, liberal media bias, and criminal law. Although he frequently references his position as a Deputy District Attorney in his posts and Tweets, his blog contains the following message: “The statements made on this web site reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author's employer.” Frey's Twitter page displays a similar disclaimer.

Like Frey, Naffe is a well-known political activist. She is also a former friend and colleague of James O'Keefe, a conservative politico who claims to “specializ[e] in producing undercover videos that style themselves as ‘exposés' of liberal political misdeeds.” Naffe admits to assisting O'Keefe with at least one of his “sting operations,” a 2010 plot to wiretap Representative Maxine Waters's congressional district office, which is located in Los Angeles. Around that time, O'Keefe checked his email on Naffe's smart phone. He did not log out of the email application, and as a result, Naffe maintained access to O'Keefe's account and the emails therein. Naffe and O'Keefe had a falling out in mid–2011 when Naffe accused O'Keefe of sexually assaulting her in a New Jersey barn.

Thereafter, Frey (who was also a friend of O'Keefe) wrote eight unfavorable articles about Naffe that he posted to his blog. He also Tweeted several dozen threatening and harassing statements about Naffe. In these blog posts and Tweets, Frey accused Naffe of lying about the barn incident and filing frivolous lawsuits against O'Keefe. He also called Naffe a liar, illiterate, callous, self-absorbed, despicable, a smear artist, dishonest, and absurd. Finally, in one Tweet he insinuated that Naffe broke the law when she accessed O'Keefe's emails: “@NadiaNaffe My First task is learning what criminal statutes, if any, you have admitted violating.”

Frey also posted to his blog over 200 pages of a deposition transcript from an unrelated lawsuit between Naffe and her former employer. The transcript contained substantial private information, including Naffe's social security number and her mother's maiden name. After Frey posted this information, Naffe received emails from Experian—a credit reporting agency—notifying her that unauthorized individuals made changes to her credit report and were fraudulently using her social security number.

In late 2012, Naffe filed this action against Frey, the County of Los Angeles, and several others (collectively, defendants) in federal district court. She invoked both the district court's federal question and diversity jurisdiction. Naffe's first amended complaint states seven total claims for relief—one federal claim and six state law claims. The federal claim arises under 42 U.S.C. § 1983. According to Naffe, [i]n abusing his position as a Deputy District Attorney ..., FREY acted under color of state law in his continuous harassment of PLAINTIFF via his website, blog and Twitter account. FREY'S harassment of PLAINTIFF violated her First Amendment constitutional right to petition the government for redress of grievances.” Naffe also raises the following California state law claims: public disclosure invasion of privacy, false light invasion of privacy, defamation, intentional infliction of emotional distress, negligence, and negligent supervision (against the County of Los Angeles).

Naffe alleges that she suffered more than $75,000 worth of damages as a result of Frey's conduct. Specifically, she suffered general and special damages including, “harm to PLAINTIFF'S reputation, emotional distress, expense related to medical treatment concerning health issues, including but not limited to bleeding ulcers suffered as a result of the stress and trauma caused by defendants, expense incurred in defense and repair of her credit rating, lost earnings, and other pecuniary loss, all of which are in excess of $75,000.”

In early 2013, defendants filed several motions to dismiss Naffe's state and federal claims.1 After a hearing, the district court granted defendants' dispositive motions, effectively terminating Naffe's case in federal court. The court determined that Frey did not act “under color of state law” when he blogged and Tweeted about Naffe, and so it dismissed without leave to amend Naffe's 42 U.S.C. § 1983 claim. Naffe v. Frey, Case 2:12–cv–08443–GW–MRW, slip op. at 2 (C.D.Cal. Apr. 19, 2013) (order confirming tentative ruling).

The district court dismissed Naffe's six state law claims for lack of subject matter jurisdiction. Id.; see also Fed.R.Civ.P. 12(b)(1). In a preliminary ruling on defendants' motions to dismiss, the district court expressed doubt as to whether Naffe had sufficiently established the amount in controversy required for federal diversity jurisdiction. See Naffe v. Frey, Case 2:12– cv–08443–GW–MRW, slip op. at 5–10 (C.D.Cal. Apr. 18, 2013) (tentative ruling). In response to these doubts, Naffe elaborated on her alleged injuries in a sworn declaration. See Plaintiff Nadia Naffe's Declaration in Support of Her Opposition to Defendant John Patrick Frey's Motion to Dismiss Pursuant to Rule 12(b)(1), Case 2:12–cv–08443–GW–MRW (C.D.Cal. Feb. 21, 2013) (Dkt. # 56–2) (hereinafter “Naffe Decl.”). Notwithstanding this additional offer of proof, the district court found Naffe did not sufficiently support her allegation that the amount in controversy exceeds $75,000. Naffe v. Frey, Case 2:12–cv–08443–GW–MRW, slip op. at 2 (C.D.Cal. Apr. 19, 2013) (order confirming tentative ruling). As a result, the court determined it did not have jurisdiction over Naffe's state law claims under 28 U.S.C. § 1332(a)(1), and it declined to exercise supplemental jurisdiction over those claims under 28 U.S.C. § 1367(c)(3).

Plaintiff filed a timely notice of appeal. We have jurisdiction under 28 U.S.C. § 1291.

II

We review de novo a district court's dismissal for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and a district court's dismissal for failure to state a claim, Fed.R.Civ.P. 12(b)(6). See N. Cnty. Cmty. Alliance, Inc. v. Salazar, 573 F.3d 738, 741 (9th Cir.2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation omitted) (internal quotation marks omitted).

III

Naffe first argues the district court erred when it concluded that Frey did not act under color of state law for purposes of § 1983 liability. According to Naffe, Frey threatened to prosecute her for accessing O'Keefe's emails and for her role in the plot to wiretap Representative Waters's Los Angeles office. His goal was to intimidate her into keeping silent about O'Keefe's illegal activities, including the barn incident and his various “sting operations.” In this way, argues Naffe, Frey used his state authority to violate...

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