Doe v. Peterson

• Decision Date: 24 March 2011
• Docket Number: Case No. 2:09–cv–13138–PDB–PJK.
• Citation: Doe v. Peterson, 784 F.Supp.2d 831 (E.D. Mich. 2011)
• Parties: Jane DOE, Plaintiff,v.Erik PETERSON and Lee Peterson, individually and d/b/a American Digicom, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

784 F.Supp.2d 831

Jane DOE, Plaintiff,

v.Erik PETERSON and Lee Peterson, individually and d/b/a American Digicom, Defendants.

Case No. 2:09–cv–13138–PDB–PJK.

United States District Court, E.D. Michigan, Southern Division.

March 24, 2011.

Jason J. Thomas, Jeffrey T. Stewart, Seikaly & Stewart, PC, Farmington Hills, MI, for Plaintiff.Allan S. Rubin, John C. Signorino, III, Lawrence B. Shulman, Jackson Lewis LLP, Southfield, MI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

PAUL D. BORMAN, District Judge.

This case comes before the Court on Defendants' motion for summary judgment. (Dkt. No. 59.) Plaintiff has filed a response.¹ (Dkt. No. 63.) Defendants have not filed a reply. Oral arguments were heard on Monday, February 28, 2011 at 2:00 p.m. For the following reasons, the Court GRANTS Defendants' motion for summary judgment with respect to Plaintiff's invasion of privacy claims—intrusion upon seclusion and public disclosure of private facts—but otherwise DENIES the motion because Plaintiff has standing to bring a civil suit against Defendants under 18 U.S.C. 2252(f), and genuine issues of material fact exist regarding whether Defendant Erik Peterson continued to post sexually explicit pictures of Plaintiff when he knew or was deliberately indifferent to the fact that she was a minor in them, whether such actions were sufficiently outrageous to support a claim of intentional infliction of emotional distress, and whether Erik's decision to register his adult websites under American Digicom was within the scope of the partnership agreement with his father Lee Peterson.

I. Background

This case concerns a series of nude and explicit photographs of the Plaintiff. ² The photos were allegedly taken in May 2007, four months before Plaintiff turned eighteen. (Defs.' Br. in Supp. Mot. for Summ. J. 1.) Plaintiff took the photos at the request of M.G., her then-boyfriend who allegedly was in the Army and eighteen years old at the time. (Sealed Ex. 2, Pl.'s Dep. 39–41, Apr. 9, 2010.) Using a self-timer on her digital camera, Plaintiff took several sexually explicit photos of herself. (Defs.' Br. 1.) She then uploaded the pictures to her father's computer, transmitted them to an online photo website, and sent them to her boyfriend over the internet via the social-networking site MySpace. ( Id.) Plaintiff claims that she immediately deleted or destroyed all copies of the photos after they were sent. (Pl.'s Resp. 3.) Plaintiff intended the photos to remain private between her and her then-boyfriend. ( Id.)

Sometime in December of 2008, Plaintiff was informed that the photographs were posted on a website called “Imagebeaver.com.” (Defs.' Br. 1.) Plaintiff contacted the website, told them she was sixteen years old in the pictures (in fact, she was seventeen), and demanded that they take them down. ( Id.; Ex. G, Imagebeaver emails.) A representative from Imagebeaver.com emailed Plaintiff back within two days and informed her that they had been taken down. ( Id.) Sometime around March 30, 2009, someone using the internet moniker “Creepy Pat” posted twelve photos of Plaintiff on the website “Submityourex.com.” ( Id. at 2.) Defendants have no connection with either of these two websites.

In April of 2009, an unknown person sent nude photos of the Plaintiff to Defendant Erik Peterson's (“Erik”) website “exgfpics.com.” ³ ( Id.) The website encourages men to submit nude photos of their “ex-girlfriends, ex-wives, current girlfriend or wife, or any female showing her stuff.” (Pl.'s Resp. 2.) The website has a posted list of “submission rules.” (Pl.'s Resp. Ex. 7.) One of these rules is that the “models” appearing in the pictures must be 18 years or older. ( Id.) Erik admitted that he has no way of knowing whether people follow that rule, and that the only additional safeguard he has against posting pictures of minors is that he judges to see whether they could pass for 18. (Dkt. No. 60 Ex. 1, Dep. of Erik Peterson 143:7–9; 168:5–24, May 4, 2010.) He further admitted that he does not comply with the record-keeping provisions of 18 U.S.C. § 2257, which require pornographic displayers to verify and record the age of the people appearing in their materials. ( Id. at 180:22–181:14.) Another “rule” imposed by Defendants' site requests the person submitting the photo to provide a short description. The rules go on to state that “I will make up a story if you do not include your own.” ( Id.) The pictures at issue in this case were accompanied by a narrative that Erik made up to describe them.

In May 2009, Plaintiff's sister informed her that people at her school were talking about the pictures of Plaintiff on “the ex-girlfriend website.” (Pl.'s Dep. 82:12–24.) Upon seeing the images, Plaintiff called M.G. who told her he would figure out who posted the pictures. ( Id. at 83:8–22.) M.G. informed Plaintiff that he was unable to discover who sent them, but had emailed the website telling them they needed to take the pictures down but they had not responded. ( Id.) Over the next couple of days, M.G. continued to update Plaintiff about the situation, informing her there still had been no response.

By mid-June, Plaintiff decided to take matters into her own hands and emailed “exgfpics.com” herself. (Pl.'s Resp. 4.) The only contact information available on the website was two email address “webmaster@ exgfpics. com” and “admin@ exgfpics. com.” On June 11, 2009, Plaintiff sent an email to the webmaster address. ( Id.; Ex. 12.) After not hearing back, and because her pictures had not been removed, Plaintiff sent another email on June 13, 2009, this time to the admin address. ( Id.) In the emails, Plaintiff informed the reader that the pictures were taken when she was a minor, that they had been submitted without her consent, and demanded that they be removed immediately. ( Id.)

Erik claims he never saw the emails; the pictures remained up on his website. (Defs.' Br. 2–3.) On August 14, 2009 Plaintiff's Complaint was served on Defendant Lee Peterson (“Lee”), Erik's father. (Pl.'s Br. 14; Ex. 13.) Three days later, on August 17, it was served on Erik. ( Id.) The photos were taken down the next day, on August 18, 2009. (Pl.'s Br. 14.) Although Erik runs his adult websites alone, Lee was named as a defendant because in 2004 Erik and Lee formed a partnership, American Digicom, to sell 9/11 paraphernalia online. (E. Peterson Dep. 72:22–73:10.) Lee's participation in American Digicom is significant because American Digicom is the Registrant for exgfpics.com.⁴ ( Id. at 125:15; Pl.'s Resp. Ex. 3.) Erik originally registered exgfpics.com in his own name, but changed it in 2004 to American Digicom when he started moving into non-adult websites as well. He did this so that when someone looked up one of his non-adult websites they would not see a connection to the pornographic sites. (E. Peterson Dep. 62:20–63:6.)

Despite the fact that Erik named American Digicom as the Registrant for his adult websites, Lee allegedly has no further connection with them. (Defs.' Br. 3.) In fact, Lee alleges that he did not even know the name of his son's websites until he was served with Plaintiff's Complaint. (Defs.' Br. Ex. C, Deposition of Lee Peterson 22:3–4, May 4, 2010.) All of the proceeds from Erik's adult websites go into one account, of which Erik is the sole signator. (E. Peterson Dep. 93:11–16.)

Lee testified that he intended to form a partnership with his son to sell 9/11 shirts and that they created American Digicom to serve that end. (L. Peterson Dep. 11–12.) Erik handled all of the computer aspects of the company, including receiving orders and relaying them to Lee, while Lee was in charge of packaging and shipping orders. ( Id. at 12–13.) Lee, however, admitted that he never instructed Erik that there were limitations on what he could do with American Digicom, and agreed that Erik was “free to do with American Digicom what he wishes.” ( Id. at 12:25–13:9.)

When Lee was served with Plaintiff's Complaint on August 14, 2010, he called Erik to ask him what was going on. (E. Peterson Dep. 236:13–15.) Erik testified that although his dad explained to him what was in the Complaint, he was unable to take Plaintiff's pictures down that day because he was unable to identify what images needed to be removed based on his father's description. ( Id. at 236:20–23.) When asked why he did not go over to his parent's house to read the Complaint, a twenty-minute car ride away, Erik stated that his father told him someone was coming to serve him with the Complaint later that day. ( Id. at 237:8–10.) As a result, the pictures were not taken down until August 18, 2010, the day after Erik was served, following this Court's issuance of a TRO. ( Id. at 237:16–238:6.)

Plaintiff's Complaint alleges that Defendants violated 18 U.S.C. § 2252A(a)(2), which prohibits anyone from knowingly receiving or distributing child pornography. Plaintiff brings her claim under 18 U.S.C. § 2252A(f) which provides that “[a]ny person aggrieved by reason of the conduct prohibited under subsection (a) or (b) or section 1466A may commence a civil action for the relief set forth in paragraph (2).” Paragraph (2) allows for recovery of injunctive relief, compensatory and punitive damages, as well as costs and reasonable fees for attorneys and expert witnesses. § 2252A(f)(2). Plaintiff also brings a number of state common law claims including: intrusion upon seclusion, public disclosure of private facts, intentional infliction of emotional distress, and negligence.

II. Standard of Review

Summary judgment is only appropriate if there are no genuine issues of material facts and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when there is “sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., ...