Roe v. Bernabei & Wachtel PLLC

• Citation: 85 F.Supp.3d 89
• Decision Date: 26 March 2015
• Docket Number: Civil Action No. 14–cv–01285 TSC
• Parties: Jane Roe, Plaintiff, v. Bernabei & Wachtel PLLC, et al., Defendants.
• Court: United States District Courts. United States District Court (Columbia)

85 F.Supp.3d 89

Jane Roe, Plaintiff

v.Bernabei & Wachtel PLLC, et al., Defendants.

Civil Action No. 14–cv–01285 TSC

United States District Court, District of Columbia.

Signed March 26, 2015

Eric James Menhart, Lexero Law Firm, Washington, DC, for Plaintiff.

Laura Nachowitz Steel, Wilson Elser Moskowitz Edelman & Dicker, LLP, Alan Robert Kabat, Bernabei & Wachtel, PLLC, Washington, DC, for Defendant.

MEMORANDUM OPINION

Tanya S. Chutkan, District Judge

Plaintiff, who is proceeding under a pseudonym without leave of the Court, was the victim of sexual harassment by her supervisor at Phoenix Satellite Television (U.S.) Inc. She was able to capture one of the instances of harassment on video, a recording which she shared with certain individuals in connection with an EEOC sexual harassment claim. That video ultimately became public as a result of her coworkers' Title VII claims against Phoenix. Plaintiff filed this suit against one coworker, Meixing Ren, the lawyer representing her coworkers in their Title VII claims, Lynne Bernabei, and Bernabei's law firm, Bernabei & Wachtel PLLC (“B & W”), for copyright infringement, a RICO violation, and a violation of the Computer Fraud and Abuse Act (the latter against Ren only). Currently before the Court are Defendants' motions to dismiss the Complaint and Plaintiff's belated motion for leave to proceed under a pseudonym. For the reasons set forth below, the Court GRANTS in part and DENIES in part the motions to dismiss and DENIES the motion for leave to proceed under a pseudonym.

I. BACKGROUND

Plaintiff is a journalist who began her career with Phoenix in 2011. (Compl.¶ 18). She was sexually harassed by a supervisor on or about September 6, 2012, and managed to record the interaction—in which the supervisor aggressively moved towards her and touched her inappropriately—using her iPhone's video camera, which was hidden in her purse. (Id .¶¶ 1920). The resulting video was one minute and fifty-three seconds long. (Id .¶ 24). Plaintiff applied for and received a copyright registration of the video in October 2013. (Id. ¶ 25; Ex. 2).

Following the September 2012 incident, Plaintiff considered bringing a sexual harassment claim, although she had no interest in publicly disclosing the video. (Id. ¶ 27). Concerned that the video was valuable and not backed up, she attempted to email the video to herself but was unsuccessful. (Id. ¶ 28). On September 11, 2012 she contacted several coworkers, including Ren, to discuss her options. (Id. ¶ 29). She showed the video to Ren and then subsequently met with Ren and a third co-worker offsite. (Id .¶¶ 30–31). During the meeting Ren suggested Plaintiff email him a copy of the video, expressing concerns about preserving the evidence and stating that the file would be used for backup purposes only. (Id .¶ 32). Although Plaintiff agreed, she had trouble transmitting the file both via email and text due to its size. (Id .¶¶ 33–34). Plaintiff stayed at Ren's home from September 12, 2012 to September 16, 2012, and before she left she agreed to allow Ren—who again had expressed concerns about preserving the video—to back up the video onto his computer. (Id .¶¶ 35–36).

Subsequently, Plaintiff retained counsel and filed an EEOC Complaint. She showed the video to the EEOC but did not provide them with a copy. (Id. at ¶ 38). She ultimately settled her claims against Phoenix, and did not “use, share, display or publicly release the video for any purpose after her case was settled.” (Id .¶ 38–40). She never showed it to Phoenix or any family members, but kept the video as a “means of last resort” should she need to prove the truth of her allegations. (Id. ¶ 39). Plaintiff does not allege that she had any intention of marketing the video, but alleges that had she sought to market it, the fair market value would likely have exceeded $10,000. (Id. ¶ 40).

Plaintiff's coworkers, including Ren, retained Bernabei and B & W in October 2012 and sued Phoenix in this court in July 2013 (the “Ren Suit”). (Compl.¶ 41). Plaintiff alleges that in connection with the Ren Suit, Defendants mounted an aggressive out-of-court public relations campaign against Phoenix that included releasing copies of the video to members of the press. This resulted in numerous media stories about the harassment at Phoenix, some of which referenced the video or made the video publicly available in whole or in part. (Id .¶¶ 42–57). Plaintiff alleges on information and belief that Ren provided the video to Bernabei and B & W. (Id. ¶ 58). Plaintiff learned the video had been released when she was contacted by friends and family asking about her connection to the video. (Id. ¶ 60).

Plaintiff's Complaint alleges four causes of action: In Count I, she alleges direct copyright infringement under 17 U.S.C. §§ 101 et seq. (the “Copyright Act”) against all Defendants and seeks both damages and injunctive relief. (Compl.¶¶ 70–75). Count II alleges contributory copyright infringement and seeks damages and injunctive relief against all defendants. (Id .¶¶ 76–79). Count III asserts RICO violations against all defendants. (Id. ¶¶ 8194). Finally, Count IV seeks damages and injunctive relief against Ren under the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, for his actions in obtaining the video from Plaintiff's iPhone. (Id. ¶¶ 95–104).

All Defendants have moved to dismiss the Complaint. Bernabei and B & W argue that Counts I and II fail as a matter of law because there is no basis for asserting copyright protection over the video and, even if the video was subject to copyright protection, there is no infringement based on the fair use doctrine. (Bernabei Mem. 7).¹ Because the RICO claim is based on the predicate act of criminal copyright infringement, the failure of the copyright claim would necessarily defeat Plaintiff's RICO claim, which Bernabei and B & W argue fails on additional independent grounds. Specifically, Bernabei and B & W argue that Plaintiff lacks standing to assert a RICO violation and has otherwise failed to plead a viable RICO claim.

Ren argues that Plaintiff fails to state a claim on which relief can be granted as to the CFAA claim (Ren Mem. 10–18) and argues that the Court lacks subject matter jurisdiction over the Complaint in light of Plaintiff's failure to obtain permission to proceed under a pseudonym, permission he argues should not be granted under the facts of the case. (Id. 4–9). In response to this argument, Plaintiff has belatedly moved for leave to proceed under a pseudonym (“Pl.Mot”).

II. LEGAL STANDARD

“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) (internal quotation marks and citation omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citation omitted). Although a plaintiff may survive a Rule 12(b)(6) motion even where “recovery is very remote and unlikely,” the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted). The Court need not accept as true conclusory allegations or those which merely recite the elements of a cause of action. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). In resolving a Rule 12(b)(6) motion, the Court may consider “only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the Court] may take judicial notice.” E.E.O.C. v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997).²

III. ANALYSIS

A. Plaintiff's Motion for Leave to Proceed Under a Pseudonym

Ren argues that the Court must dismiss the action pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because Plaintiff never obtained (or sought) leave to proceed under a pseudonym. (Ren Mem. 4). Although the District of Columbia Circuit Court has not yet addressed this issue, Ren cites cases from several other circuits in which courts held that “the failure of a plaintiff to seek leave to proceed under a pseudonym at the time the federal complaint is filed precludes the district court from exercising subject matter jurisdiction.” (Id .5) (citing W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir.2001) (“When a party wishes to file a case anonymously or under a pseudonym, it must first petition the district court for permission to do so.”) and Citizens for a Strong Ohio v. Marsh, 123 Fed. Appx. 630, 637 (6th Cir.2005) (“Failure to seek permission to proceed under a pseudonym is fatal to an anonymous plaintiff's case....”)). Ren argues that because Plaintiff did not timely move for leave to proceed under a pseudonym, this Court does not know who the Plaintiff is, and thus this Court cannot exercise subject matter jurisdiction. (Ren Mem. 6).

By her motion, Plaintiff appears to concede that she must obtain leave from the Court to proceed anonymously (Pl. Ren Opp'n 2–3), and argues in her motion to do so that the Court should grant that permission in order to protect against further invasions of her privacy. (Pl.Mot. 2). Plaintiff asserts that anonymity is called for because sexual harassment is a matter of a “sensitive and highly personal nature.” (Id .passim ). Plaintiff does not allege that she will be subjected to retaliation or that publication of her name will harm any third parties, but that she hopes to avoid creating “yet another record of an association of [her] name with the video of her sexual assault.” (Id. at 2).

“It is within the discretion of the district court to grant the ‘rare dispensation’ of anonymity.” U.S. v. Microsoft Corp., 56...