McMann v. Doe

• Decision Date: 31 October 2006
• Docket Number: Civil Action No. 06-11825-JLT.
• Citation: 460 F.Supp.2d 259
• Parties: Paul McMANN, Plaintiff, v. John DOE, Defendant.
• Court: U.S. District Court — District of Massachusetts

460 F.Supp.2d 259

Paul McMANN, Plaintiff, v. John DOE, Defendant.

Civil Action No. 06-11825-JLT.

United States District Court, D. Massachusetts.

October 31, 2006.

COPYRIGHT MATERIAL OMITTED

Perry A. Henderson, Looney & Grossman, LLP, Boston, MA, for Plaintiff.

MEMORANDUM

TAURO, District Judge.

Background

Plaintiff Paul McMann is a real estate developer and resident of Massachusetts.¹ Some unknown person has created a website at http://www.paulmcmann.com. This website contained a portrait photograph of Mr. McMann, the statement that he "turned lives upside down," and a suggestion to "be afraid, be very afraid."² The website announces it will soon be updated with specific evidence of Plaintiff McMann's alleged misdealings.³

The domain name of this website was registered⁴ through GoDaddy.com.⁵ Go-Daddy.com's public records⁶ indicate that the domain is registered to a company called Domains by Proxy, Inc.⁷ This company regularly serves as an intermediary in the registration process, thereby allowing for the anonymity of the true registrant.⁸ Whoever created the website deliberately shielded their identity by enlisting the help of Domains by Proxy, Inc.

On October 10, 2006, Plaintiff filed the instant suit alleging that the unknown party operating the website, hereinafter John Doe⁹, violated his "statutory right of privacy," infringed his "common law right to privacy" including common-law copyright, and committed defamation.¹⁰ Plaintiff alleged that he has asked GoDaddy.com and Domains by Proxy, Inc., to reveal John Doe and that they had refused or not responded.¹¹ With the Complaint, Plaintiff filed an ex-parte motion seeking leave to subpoena these companies, thus compelling them to reveal John Doe's true name. With John Doe's true name, the plaintiff could amend his complaint, serve legal process upon the actual operator of the site, and seek monetary and injunctive remedies.

This court denied that motion. Plaintiff cited no law and no justification authorizing this court to allow this subpoena power. Furthermore, Plaintiff submitted no sworn affidavit in support of that motion. On October 13, 2006, Plaintiff resubmitted his motion with an affidavit swearing to the harm he had suffered and the measures he had already taken to reveal John Doe's name. The court now considers Plaintiffs Amended Ex Parte Motion For Leave To Subpoena Domains by Proxy, Inc., and GoDaddy.com, Inc.

Discussion

This case presents many novel issues. So far, this case has but one party, Plaintiff Paul McMann. The Complaint alleges violations of state law, and the present motion seeks a subpoena that would compromise a speaker's anonymity. This court must consider jurisdictional, procedural, and substantive questions. As a general rule, anonymous speakers should not be able to use the internet to freely defame individuals.¹² But, in this case, there are problems that compel this court to deny relief to the plaintiff.

This type of ex parte John Doe suit is commonly used to secure subpoenas in cases alleging violations of federal copyright law.¹³ Jurisdiction for these suits is predicated on a federal question. Additionally, the procedure for these suits is specifically set forth in the Digitial Milleniurn Copyright Act.¹⁴ This statute unleashes subpoena power after a plaintiff demonstrates to the court that the rights-holder sent an alleged infringer notice of the violation.

The instant suit does not allege a violation of federal copyright law but, instead, asserts state claims¹⁵ It is unclear then what standard should apply, and Plaintiff has not directed the court to any authority specifying a standard. In the absence of clear guidance, this court will inquire into the standard in three steps, considering first whether there is jurisdiction, then addressing the procedural foundation for allowing a subpoena, and then the constitutional and substantive ramifications of such an action.

Jurisdiction

Any federal court should address the issue of subject matter jurisdiction sua sponte.¹⁶ It is axiomatic that the federal courts can only hear cases where there is a federal question¹⁷ or where there is complete diversity of state citizenship between the opposing parties.¹⁸ Plaintiffs Complaint lists no federal claims and asserts jurisdiction based on diversity of citizenship.¹⁹ The Complaint lists the address of Domains by Proxy, Inc., an Arizona company. The fact that Plaintiff seeks leave to subpoena Domains by Proxy, Inc., does not, however, make them a party to the case. They have not been subject to formal service of process and have not been given an opportunity to respond to the motion. The diversity of citizenship between McMann and Domains by Proxy, Inc., therefore, is not controlling.

This court must then decide if it has authority to exercise jurisdiction over state claims in a case with only one party. In the Complaint, Paul McMann acknowledges that John Doe's residency is unknown. Of course, at this point Plaintiff could not be expected to know John Doe's identity. While this court is sympathetic to Plaintiffs situation, there is a very troubling possibility that the court could order John Doe unmasked, simply to discover that John Doe is a Massachusetts resident, that there was no diversity, and that the court acted without subject matter jurisdiction.

Because of this risk that jurisdictional authority could suddenly disappear, many courts are wary of entertaining John Doe diversity suits.²⁰ The First Circuit Court of Appeals has not ruled on the issue.²¹ In 1987, the Ninth Circuit Court of Appeals ruled that the presence of John Doe defendants precluded removing diversity cases from state to federal court.²² In 1988, Congress amended the removal statute, 28 U.S.C. § 1441, by declaring that the presence of defendants sued under fictitious names does not defeat removal jurisdiction.²³ This amendment does not resolve the problem in the present case, which is before the court on original diversity jurisdiction, under 28 U.S.C. § 1332. Since the 1988 amendment, some district courts allow John Doe cases in federal court on original diversity jurisdietion.²⁴ These courts reason that it would be unfair to apply different standards under § 1332 and § 1441.²⁵ On the other hand, one district court concluded that Congress's amendment of § 1441, and not of § 1332, indicated a legislative intent that the amendment not apply in original jurisdiction cases."²⁶

This court adopts the reasoning of the latter case. It is Congress's task to grant jurisdiction to the district courts, and it is proper to presume that Congress understood the consequences of its legislation. Congress's 1988 amendment simply allows cases to be removed to federal court where, because of the unknown party, there would possibly be only partial diversity. Reading amended language of § 1441 into § 1332 would accomplish the much broader result of allowing a case with only one party and only state claims to proceed initially in federal court.

This court finds that it has no subject matter jurisdiction over the Complaint and orders it dismissed without prejudice.

Procedural issues

Normally, a ruling that no jurisdiction exists would end the inquiry²⁷ Nonetheless, considering the novelty of the jurisdictional issues, and in an abundance of caution, this court will lay out an alternative basis for its decision.

As a procedural matter, Plaintiffs motion is appropriate. A subpoena is a discovery tool.²⁸ Taken at its most basic, Plaintiff's motion is a request for leave to commence discovery. On its face, Rule 26(d) precludes discovery from commencing before the parties hold their initial meeting:

Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E), or when authorized under these rules or by order or agreement of the parties, a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).

Thus, the bar on pre-conference discovery may be lifted by court order. Another federal district court, considering an ex parte motion for leave to subpoena in an internet defamation case, interpreted Ninth Circuit precedent to apply a good cause standard.²⁹ The factors that courts typically weigh in this good cause inquiry include the purpose for the discovery, the ability of the discovery to preclude demonstrated irreparable harm, the plaintiff s likelihood of success on the merits, the burden of discovery on the defendant, and the degree of prematurity.³⁰ Because this is an ex parte motion, this court specifically required Plaintiff show by sworn affidavit that irreparable harm will result from a failure to commence discovery, and that a reasonable attempt to identify the other party was made.³¹

In this case, the discovery is essential. Without the ability to issue a subpoena, John Doe's true name would remain unknown, this suit could not proceed, and Plaintiff McMann could receive no remedy. In his sworn affidavit, Plaintiff McMann asserts that he is losing business, has trouble with financing, and is suffering irreparable reputational harm because of this website.³² By allowing this case to proceed, discovery could reveal John Doe, allow justice to be done, and end this alleged harm. Furthermore, this motion must be considered ex parte because John Doe is not known. The sole purpose of the motion is to determine his identity. Plaintiff swears that he has contacted the corporations that possess this identity information and they have either not responded or refused to proceed without a court order.³³

In summary, a showing of irreparable harm and a need to proceed ex parte would move this court to find that leave to file early subpoenas is procedurally proper.

Constitutional concerns

Speech on the internet receives First Amendment protection.³⁴ First Amendment protection includes protection of anonymous speech.³⁵ At the same time, there is no right to freely defame others.³⁶ This court...