Lostutter v. Olsen

• Decision Date: 24 August 2017
• Docket Number: 1:16-cv-1098
• Court: U.S. District Court — Middle District of North Carolina
• Parties: DERIC JAMES LOSTUTTER, Plaintiff, v. THOMAS OLSEN; ALEXANDRIA GODDARD; and MICHELLE MCKEE, Defendants.

DERIC JAMES LOSTUTTER, Plaintiff, v. THOMAS OLSEN; ALEXANDRIA GODDARD; and MICHELLE MCKEE, Defendants.

1:16-cv-1098

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

August 24, 2017

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, District Judge.

Deric James Lostutter, proceeding pro se, claims that Defendants, all residents of different States, defamed him, principally through their use of the unauthorized eponymous website www.DericLostutter.org. In this court, the parties have engaged in a nearly non-stop campaign of motions and filings, of which the following require resolution: Defendants' motion to dismiss and motion for gatekeeper order (Doc. 13); Lostutter's motion for preliminary injunction or temporary restraining order (Doc. 16); Defendants' motion to strike several of Lostutter's "notices of filing" (Doc. 26); Lostutter's motion to strike Defendants' motion to dismiss (Doc. 29); Lostutter's motion for extension of time to serve Defendant Alexandria Goddard (Doc. 32); Lostutter's motion for contempt or in the alternative for the issuance of a warrant for arrest (Doc. 35); Defendant Michelle McKee's motion for attorneys' fees (Doc. 48); and Defendants' counsel's motion to withdraw (Doc. 50).

Lostutter has recently voluntarily dismissed the action against Defendant McKee (Doc. 45), so the motions are moot as to her. For the reasons that follow, the court finds that Defendant Thomas Olsen has not been properly served with process, and the action will be dismissed without prejudice as to him. As to the remaining action against Defendant Goddard, the court grants her motion to dismiss for failure to state a claim as to all of Lostutter's claims except those for libel per se and libel per quod. The remainder of the parties' motions will be denied.

I. BACKGROUND

The allegations of the complaint are difficult to follow and presume knowledge of events it does not fully describe. As best as can be ascertained and viewed in the light most favorable to Lostutter, the complaint alleges the following:

Lostutter styles himself as a women's rights advocate who, through his cyber-technology skills, exposes wrongdoing. Among his actions was the use of his computer skills to unearth technical information related to the prosecution of two high school football players accused of raping a 16-year-old in Steubenville, Ohio, and school administrators who covered it up. His activities were featured in the media, most notably in Rolling Stone Magazine and on CNN. (Doc. 1 ¶ 10.) As a consequence of his covert computeractions, he was charged with felony crimes and was ultimately convicted and sentenced to federal prison, where he presently resides. When not in prison, Lostutter resides in Forsyth County, North Carolina. (Id. ¶ 4.)

Lostutter claims that Defendants, who reside in various States, have engaged in a scheme to defame him. Defendant Olsen is a resident of Escambia County, Florida, and a member of the internet "hacking activist group, 'Anonymous.'" (Id. ¶ 5.) Defendant Goddard is a resident of Franklin County, Ohio, and is an online blogger and the founder of Xander Business Group. (Id. ¶ 6.) McKee, whom Lostutter recently dismissed from the action, is a resident of Pierce County, Washington. (Id. ¶ 7.)

Defendants' alleged defamation campaign traces its start to April 2015, when Olsen created a website entitled DericLostutter.org in an effort to post negative information about Lostutter and to confuse the public over Lostutter's actual website, DericLostutter.com. According to Lostutter, Olsen has resisted his request and efforts to remove the site. Defendants have used DericLostutter.org to upload "pornographic content" relating to Lostutter for the purpose of harassing, degrading, and embarrassing him. (Id. ¶ 14.)

On May 9, 2016, Defendants "hatched a plot to falsely label the Plaintiff threatening, including false threats of rape and violence . . . using what appears to be Facebook Message generatorsto imitate Plaintiff['s] Facebook page, typing ridiculous threats, encouraging the readers of the blog to send the fabrications to Plaintiff's local police department and the F.B.I. in an attempt to have Plaintiff arrested and damage the Plaintiff's good name." (Id. ¶ 15.) An article about Lostutter was linked to the webpage as "deric-threatens-to-rape-and-film-stab-a-girl-threatens-her-kid." (Id.) Defendants also "targeted" Lostutter's Kernersville, North Carolina business, known as TechAssist, resulting in a "catastrophic loss of clientele and forcing Plaintiff to close the doors." (Id. ¶ 16.) (It appears that Lostutter's business was a brick-and-mortar store located in Kernersville, North Carolina. (Doc. 1 ¶ 16.)) Defendants posted false accusations that Lostutter kept clients' electronic devices he was servicing. (Id. ¶ 17.) Lostutter claims a "projected" loss of "$80,000 in revenue for the fiscal year of 2016." (Id. ¶ 18.)

On December 15, 2015, Defendants engaged in a campaign to label Lostutter a "rapist." (Id. ¶ 21.) They posted an article on the DericLostutter.org website located at http://DericLostutter.org/blog/2015/12/15/when-the-kitchen-gets-hot-just-make-rape-threats/, which allegedly details a false account of Lostutter sexually assaulting a former girlfriend. (Id. ¶ 21.)

After Defendants accused Lostutter of seeking to profit from the stillborn death of his daughter in January 2016, Lostuttersought and obtained ex parte protection orders from a North Carolina State court against Defendants Olsen and McKee. (Id. ¶¶ 22-24.) Thereafter, McKee allegedly provided false information about Lostutter (including allegations of "grifting"¹) to the local district attorney in Forsyth County, North Carolina, in connection with Lostutter's proceedings against her. (Id. ¶¶ 30-31.)

Without offering supporting factual explanation, the complaint alleges that Defendants have charged that "Plaintiff is a scam artist" and is "ripping people off and embezzling donations." (Id. ¶ 35.) Defendants Goddard and McKee have also allegedly "repeatedly faxed/emailed/mailed multiple authorities and solicited help of other people to maliciously prosecute the Plaintiff." (Id. ¶¶ 42, 43.) Defendant Olsen has allegedly threatened violence against Lostutter, and all three Defendants have "repeatedly retaliated against Plaintiff." (Id. ¶ 45.) Defendant Goddard has "sexually harassed" Lostutter on Twitter. (Id. ¶ 46.)

Lostutter brings six claims in his complaint: negligence per se - cyber stalking-harassment (count 1); negligence per se - cyber stalking - false statement (count 2); cyber stalking - false statement - threatening language (count 3); false designation oforigin in violation of North Carolina law, citing "U.S.C. § 1125" (count 4); libel per se (count 5); and libel per quod (count 6). Lostutter seeks $1 million in damages, which includes "future damages," payment of "reputation management services" to restore his reputation, the removal of all disparaging content from the internet involving him, and various injunctive relief. In addition, Lostutter has moved for a temporary restraining order and/or preliminary injunction. (Doc. 16.)

Defendants move to dismiss on several grounds, but since Lostutter has dismissed Defendant McKee, the allegations as to only Defendants Olsen and Goddard remain. These Defendants argue that dismissal is warranted for lack of subject matter jurisdiction as to the amount in controversy; lack of personal jurisdiction (both general and specific) over them; improper service; and failure to state a claim upon which relief can be granted. They also seek entry of a "gatekeeper" order to prevent further lawsuits by Lostutter. (Doc. 13.) Lostutter has filed a response but addresses only the personal jurisdiction and service of process issues, and he opposes the entry of a gatekeeping order. (Docs. 18, 19.)

II. ANALYSIS

A. Subject Matter Jurisdiction

Defendants argue that Lostutter has not met the amount-in-controversy requirement for diversity jurisdiction and thus thatthis court lacks subject matter jurisdiction over the action. (Doc. 14 at 10-11.) Because subject matter jurisdiction serves as a limitation on the court's power, the court addresses that argument first. ESAB Grp., Inc. v. Arrowood Indem. Co., No. 4:09-CV-1701-JMC-TER, 2011 WL 13176143, at *3 (D.S.C. Feb. 23, 2011) ("Because ESAB challenges this Court's subject-matter jurisdiction, the Court must address that issue prior to reaching ZIP's personal jurisdiction and forum non conveniens arguments."); see also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998) ("The requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception.'" (citing Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884))).

The party seeking to invoke the court's jurisdiction bears the burden of establishing the court's subject matter jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936). For diversity jurisdiction, the amount in controversy must exceed $75,000. 28 U.S.C. § 1332(a). Courts apply the "legal certainty" test in determining whether the amount in controversy requirement is met. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). "[T]he court should look to the face of the complaint itself to determine whether it is a legal certainty that plaintiff's claims do not reach the requiredamount." Shanaghan v. Cahill, 58 F.3d 106, 112 (4th Cir. 1995). "Unless the claim for an amount over the jurisdictional prerequisite is made in bad faith, or unless it is plain from the complaint that an amount less than the jurisdictional amount is all that is at issue, the district court has jurisdiction over the case." Id.; Lunsford v. Cemex, Inc., 733 F. Supp. 2d 652, 657 (M.D.N.C. 2010) ("The amount claimed in the complaint controls when assessing the amount in controversy,...