Nicosia v. De Rooy

• Decision Date: 07 July 1999
• Docket Number: No. C98-3029 MMC.,C98-3029 MMC.
• Citation: 72 F.Supp.2d 1093
• Parties: Gerald NICOSIA, Plaintiff, v. Diane De ROOY, Defendant.
• Court: U.S. District Court — Northern District of California

72 F.Supp.2d 1093

Gerald NICOSIA, Plaintiff, v. Diane De ROOY, Defendant.

No. C98-3029 MMC.

United States District Court, N.D. California.

July 7, 1999.

COPYRIGHT MATERIAL OMITTED

Roger R. Myers, Joshua Koltun, Steinhart & Falconer, San Francisco, CA, for defendant Diane De Rooy.

David A. DeGroot, San Francisco, CA, for plaintiff Gerald Nicosia.

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO DISMISS; GRANTING DEFENDANT'S MOTION TO STRIKE

CHESNEY, District Judge.

INTRODUCTION

Before the Court are the motions of defendant Diane De Rooy ("De Rooy") (1) to dismiss, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction; (2) to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim; and (3) to strike, pursuant to California Code of Civil Procedure § 425.16. The Court, having considered the papers filed in support of and in opposition to the motion, and the arguments of counsel presented at the hearing on February 19, 1999, rules as follows:

BACKGROUND

Plaintiff Gerald Nicosia ("Nicosia"), a California resident, brings the instant action for slander and libel in connection with statements De Rooy published about Nicosia on her web-site. According to the Complaint, De Rooy has called Nicosia a killer, an embezzler, a criminal, a fraud, a perjurer, and a liar, and, in particular, De Rooy has stated:

Gerald Nicosia is to the Beats (and Jan) what Charles Manson was to the hippies. Virtually everyone I've interviewed over the 17 months, including disinterested third parties, has said the same thing: Gerald Nicosia killed Jan Kerouac. [Comp., ¶ 36; Request for Judicial Notice ("RJN"), Ex. K].

[Nicosia used a Kerouac seminar] as a publicity stunt, in an effort to keep the public from noticing his embezzlement of at least $33,000 from Jan Kerouac's heirs. [Comp., ¶ 34; RJN, Ex G at 7]. When I began my research 18 months ago, I had no idea I would discover that Gerry Nicosia's [sic] is a self-serving fraud and criminal. [Comp. ¶ 35; RJN, Ex G at 9].

[Joe Grant] is the foremost accomplice of Gerald Nicosia, who for years has been illegally trying to gain ownership of the papers and marketable image of Jack Kerouac. [Comp., ¶ 45; RJN Ex. G at 7].

I thought [Nicosia] was maybe mentally unstable, from the stress of his crusade, perhaps. But I had to cross a line at some point into believing he was simply, deliberately, lying, including perjuring himself in court documents I'd gotten copies of. [Comp., ¶ 37; RJN, Ex. E]. I have personal knowledge of the underhanded and deceitful practices of these two men. Although there is no controversy around the Jack Kerouac Estate, and his papers are in no danger whatsoever, Joe Grant and Gerald Nicosia persist in telling these lies because they are embittered believers in their own publicity. [Comp., ¶ 46; RJN Ex. G at 7]. TWO YEARS AFTER THE DEATH OF JAN KEROUAC, her name is still at the center of controversy. Her heirs are still besieged by a self-celebrating writer with dubious credentials, who is living off the proceeds of her persona. Jan is dead, but she is far from being laid to rest. Many people have unpublished points of view relating to Jan Kerouac's unfortunate association with Gerald Nicosia. These viewpoints clearly reveal a man with Napoleonic aspirations to conquer the literary kingdom; a man who believes he is more ethical than most people; a man who refuses to admit his own desires for money and fame; a man who has alienated, betrayed, or lied to everyone in the Beat community. [Comp., ¶ 44; RJN, Ex. F at 2].

[Nicosia] is far less well known for his biography of Jack Kerouac than he is for his role, many believe, as the Svengali who manipulated Kerouac's daughter, Jan. Two years after the death of Jan Kerouac, hardly a week goes by when Nicosia doesn't invoke the dead woman's name to shore up a sagging writing career. [Comp., ¶ 42; RJN, Ex. F at 5]. Many people have unpublished points of view relating to Jan Kerouac's unfortunate association with Gerald Nicosia. These viewpoints clearly reveal a man with Napoleonic aspirations to conquer the literary kingdom[.] [Comp., ¶ 44; RJN, Ex. F at 2].

Nicosia appears to be so serious about being Jack Kerouac that he's even made application to trademark his name for use, nationally and internationally, in labeling `Clothing, Games, Toys & Sports Goods' (U.S. Patent & Trademark Office, Serial No. 75-451,862 filed March 17, 1998). Taking his admitted enmeshment and confessed transformation to its next logical level, Gerald Nicosia is Jack Kerouac, and he's here to get his stuff back. [Comp. ¶ 43; RJN, Ex. F at 6].

Nicosia also alleges that De Rooy implied that he had forged a letter from Jan Kerouac (Comp., ¶ 51; RJN Ex. F at 10) and accused Nicosia of delivering a "heartless" speech about Jan at her memorial service. (Comp., ¶ 52; RJN Ex. F at 20).

DISCUSSION

I. Motion to Dismiss for Lack of Personal Jurisdiction

De Rooy moves to dismiss, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction.

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss the complaint on the grounds that the court lacks jurisdiction over the defendant. In opposing a motion to dismiss for lack of personal jurisdiction, the plaintiff must present a prima facie case that personal jurisdiction exists over the defendants. See United States v. Ziegler Bolt and Parts Co., 111 F.3d 878, 880 (Fed.Cir.1997).

In determining whether the plaintiff has presented a prima facie case, the Court must assume the truth of "well pled" allegations in the complaint that are not contradicted. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir.1995). The Court need not, however, assume the truth of conclusory allegations. Id. Once the defendant has contradicted allegations contained in the complaint, plaintiff may not rest on the pleadings, and must present admissible evidence to support the court's exercise of personal jurisdiction. Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1284 (9th Cir.1977) (citing Taylor v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir. 1967)). The plaintiff must produce admissible evidence which, if believed, would be sufficient to establish the existence of personal jurisdiction. WNS, Inc. v. Farrow, 884 F.2d 200, 203-204 (5th Cir.1989). The court is required to resolve disputed facts in the light most favorable to the plaintiff. Dakota Industr., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).

B. Analysis

In order to establish personal jurisdiction over defendants, plaintiffs must first show that the forum state's jurisdictional statute confers personal jurisdiction over defendants, and that the exercise of such jurisdiction "accords with federal constitutional principles of due process." Federal Deposit Inc. Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1441 (9th Cir.1987). California's "long-arm" statute extends jurisdiction to the maximum extent permitted by due process. (See Cal. Civ. Proc. § 410.10). Accordingly, the jurisdictional inquiries under state law and constitutional due process principles can be conducted simultaneously. Pacific Atl. Trading Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir.1985).

Nicosia argues that De Rooy is subject to specific jurisdiction in California. In the Ninth Circuit, a three-part test is applied to determine whether specific jurisdiction may be exercised over a defendant consistent with due process principles:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws[;] (2)[t]he claim must be one which arises out of or results from the defendant's forum-related activities[; and ](3)[e]xercise of jurisdiction must be reasonable.

Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th Cir.1995) (citations omitted). For personal jurisdiction over the defendant to comply with due process, all of these requirements must be met. Id.

1. Purposeful Availment

"`Purposeful availment' requires that the defendant engage in some form of affirmative conduct allowing or promoting the transaction of business within the forum state." American Red Cross, 112 F.3d at 1051. "A defendant has purposefully availed himself of the benefits of a forum if he has deliberately `engaged in significant activities within a State or has created continuing obligations' between himself and the residents of the forum." Gray & Co. v. Firstenberg Machinery Co., Inc., 913 F.2d 758, 760 (9th Cir.1990) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985)). Thus, "[i]solated contacts, an attenuated affiliation, or the unilateral activity of another party in the forum state is insufficient." Advideo, Inc. v. Kimel Broadcast Group, Inc., 727 F.Supp. 1337, 1340 (N.D.Cal.1989).

Purposeful availment is not satisfied by merely creating a web-site accessible by residents of the forum state. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir.1997) ("Creating a[web]-site, like placing a product into the steam of commerce, may be felt nationwide — or even worldwide — but, without more, it is not an act purposefully directed toward the forum state."). There has to be "`something more' [than a web-site] to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state." Panavision International, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir.1998) quoting Cybersell, 130 F.3d at 418.¹ The requirement of "something more" applies equally to defamation cases involving more traditional forms of publication, like newspapers...