Trustees of Boston Univ. V. Asm Communications
| Decision Date | 04 December 1998 |
| Docket Number | No. CIV.A. 97-12365-PBS.,CIV.A. 97-12365-PBS. |
| Citation | 33 F.Supp.2d 66 |
| Parties | TRUSTEES OF BOSTON UNIVERSITY, Plaintiff, v. ASM COMMUNICATIONS, INC. d/b/a A1 Termpaper; Barton Lowe d/b/a Research Assistance; Rebecca Lane d/b/a Term Paper Warehouse and High Performance Papers; the Paper Store Enterprises, Inc. d/b/a the Paper Store, Thousands of Papers and Prestigious Papers; and Harold King d/b/a Paper Shack and Paper Sure, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Robert B. Smith, Office of General Counsel, Boston, MA, for Trustees of Boston University.
Abe Korn, Brooklyn, NY, pro se.
Compu-Type, Jersey City, NJ, pro se.
Harvey A. Schwartz, Siobhan M. Sweeney, Schwartz, Shaw & Griffith, Boston, MA, for ASM Communications.
Robert S. Besser, Besser & Chapin, Pacific Palisades, CA, Robert S. Bresser, Pacific Palisades, CA, for Research Assistance, Cynthia Stone, Peter Revson.
Corey C. Shaw, Law Office of Corey C. Shaw, Boston, MA, Kenneth H. Berkland, Jr., Boston, MA, Harvey A. Schwartz, Siobhan
M. Sweeney, Schwartz, Shaw & Griffith, Boston, MA, for paper Store Enterprises, Inc.
Harold King, Shreveport, LA, Harold King, Comstock Park, MI, pro se.
Harold King, Shreveport, LA, Harold King, Comstock Park, MI, for Will Cane.
Christopher T. Lilly, Bernkopf, Goodman & Baseman, Boston, MA, for Mark Tweito, Michael von Plato, Barton Lowe, Andrew Greenstein.
John R. Hitt, Atty. General's Office, Government Bureau, Boston, MA, for Commonwealth of Mass.
This action arises out of the defendants' sale of term papers and other research materials to college students via the Internet, telephone, and electronic and United States mail. Plaintiff Boston University ("BU") claims that the defendants are online "term paper mills" that know or should know that Massachusetts students purchase papers from them for submission as their own work in fulfillment of course and, ultimately, degree requirements. BU's amended complaint alleges violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962 (Count I), of Mass. Gen. L. ch. 271, § 50, which prohibits the sale of term papers and research materials for submission for academic credit as the original work of another (Count II), and of Mass. Gen. L. ch. 93A, § 11 (Count IV).1 BU seeks compensatory and punitive damages, as well as declaratory and injunctive relief.
Defendants ASM Communications, Inc. ("ASM"), Research Assistance, The Paper Store Enterprises, Inc. ("Paper Store"), and Harold King move to dismiss all counts pursuant to Fed.R.Civ.P. 12(b)(6). They argue, among other things, that (1) the RICO claim fails because BU has not alleged a separate RICO enterprise; (2) there is no private right of action under Mass. Gen. L. ch. 271, § 50; (3) BU was not engaged in trade or commerce and therefore Mass. Gen. L. ch. 93A, § 11, is inapplicable; and (4) the other state law claims fail as a matter of law. BU alleges federal question and diversity jurisdiction.
On July 1, 1998, a hearing was held on the motions to dismiss the First Amended Complaint. On July 24, 1998, BU filed a motion to amend the complaint a second time. BU's proposed Second Amended Complaint dropped three parties (ASM Communications, Inc., The Paper Store Enterprises, Inc., and Rebecca Lane d/b/a Term Paper Warehouse and High Performance Papers) and added two individual parties (Michael von Plato and Andrew Greenstein). It also added a count asserting a common law claim for aiding and abetting fraud, and it proposed various amendments to cure pleading flaws pointed out by the motions to dismiss. With respect to the dropping and adding of parties, BU claimed that the amendment "simply clarified" the named defendants. Defendants opposed the amendment as untimely and prejudicial. On August 13, 1998, this Court allowed BU to add the common law claim of aiding and abetting fraud but denied the remainder of the motion to amend without prejudice.2 BU has never renewed the motion to amend.
After hearing, the Court ALLOWS defendants' motions to dismiss the First Amended Complaint with respect to Counts I, II, and IV. Pursuant to 28 U.S.C. § 1367(c), the remaining counts are dismissed without prejudice because BU has alleged insufficient damages to meet the $75,000-per-defendant jurisdictional hurdle.
For purposes of a motion to dismiss for failure to state a claim, the Court takes as true "the well-pleaded facts as they appear in the complaint, extending [the] plaintiff every reasonable inference in his favor." Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.1992) (citing Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990)). A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
The alleged facts in the First Amended Complaint are as follows.
Defendants are individuals and corporations engaged in the business of acquiring, preparing, and selling term papers, reports, themes, and theses on a wide range of topics. Targeting high school and college student populations, they advertise their services through campus fliers, college-market magazines, and the Internet, reaching students in Massachusetts, nationwide, and beyond. Purchasers generally can place orders online or over the telephone and can receive the papers by electronic or U.S. mail. The defendants constitute only a handful of the numerous persons and entities currently promoting their businesses and supplying term papers through these media.
Defendants' advertisements capitalize on students' anxieties about term paper topic development, research, writing, and assignment deadlines. In 1997, for example, defendant Paper Store's website contained the following empathetic advice:
Term papers got ya down? Working on several term papers at once? You've probably got a case of the ... TERM PAPER BLUES? ? ?
If you're like most students, you probably HATE WRITING TERM PAPERS! The hardest part is the research! And then it seems impossible to figure out the thesis statement, layout, format, [sic] for citation, and bibliography style!!
All you have to do is pick up the phone and call 1-800-90-WRITE[ .] Please have details of your research topic ready when you call.
First Am. Compl. ¶ 37 (quoting Paper Store's website). Many of the ads also boast about the quality and polished appearance of the final work product, explicitly creating the expectation that the papers will earn desirable grades if submitted. Defendant Abe Korn's3 website claimed the following in 1997:
Term papers and research papers written from start to finish in all subjects for all high school and college levels. All papers are written by college professors. All term papers and other work are professionally printed on an HP LaserJet 4 Printer with 600 dpi resolution.
When my customers return for more reports they tell me that they have used my report as reference material and because of this help [they] received an excellent grade. A majority of their reports received grades that ranged from B to A+. IS IT POSSIBLE TO RECEIVE A LOWER GRADE? Yes, if the teacher does not like you or does not believe that you wrote the paper.
Id. ¶¶ 37-38 (quoting Abe Korn's website).
With enticements such as these, the defendant businesses and others like them offer students a way to complete their assignments with little, if any, effort required beyond dialing a telephone number or submitting an online order form. Many of the defendants do include disclaimers on their promotional materials warning students that the papers are for research only and are not to be submitted for course credit, see id. ¶ 35, and none of the defendants goes so far as to guarantee grades, see id. ¶¶ 38-39. However on balance, their advertisements undoubtedly encourage purchasers to turn in the term papers as their own work and at the very least reflect defendants' knowledge that many students will do so.
Concerned about the potential harm to itself and other Massachusetts colleges and universities from defendants' activities, BU organized a sting operation to investigate the nature and extent of online term paper promotion and sales. From June through October of 1997, BU representatives posed as University students and purchased a term paper from each of the defendants by telephone and/or electronic mail. These representatives made it clear to the defendants or their agents that they needed the papers for courses at the University, needed them as quickly as possible, and planned to submit them for academic credit. This information did not deter any of the defendants from agreeing to sell the requested papers. In fact, according to BU, a number of the persons with whom its representatives corresponded openly acknowledged the representatives' purpose and offered advice on how to alter the papers to avoid detection. In addition, many of the papers arrived at BU's door without any disclaimers and complete enough to be submitted virtually unmodified.
Concluding from the prevalence of online "term paper mills," and the ease of obtaining papers, that defendants have sold and continue to sell papers to college students in Massachusetts, BU filed this lawsuit. Among the injuries the University alleges to itself and its 25,000 graduate and undergraduate students from defendants' activities are interference with its educational policies and with students' commitment to academic honesty, increased expenditure of resources to police academic fraud, competitive harm to the students who do abide by the school's honor code, damage to the integrity of...
To continue reading
Request your trial
-
McClean v. Duke Univ.
...brought a UDTP claim against other university professors who allegedly misappropriated his ideas); Trustees of Bos. Univ. v. ASM Commc'ns, Inc., 33 F.Supp.2d 66, 77 (D. Mass. 1998) (evaluating a claim related to a university's investigative purchase of term papers from online "paper mills")......
-
Myfreemedicine.Com Llc v. Investors
...56, 91 (1st Cir.1995); System Management, Inc. v. Loiselle, 91 F.Supp.2d 401, 416 (D.Mass.2000); Trustees of Boston Univ. v. ASM Communications, Inc., 33 F.Supp.2d 66, 73 n. 7 (D.Mass.1998). This rule follows from the statutory requirement that a plaintiff has standing to bring a civil RICO......
-
In re Pharm. Industry Average Wholesale Price Lit., 08-1056.
...organization "is merely engaged in the customary business necessary to meet its charitable purpose," see Trs. of Boston Univ. v. ASM Commc'ns, Inc., 33 F.Supp.2d 66, 77 (D.Mass.1998). It then turned to the individualized circumstances of this case to guide its inquiry into whether the plain......
-
Hayfield v. Home Depot U.S.A., Inc.
...citing Walter v. Northeastern R. Co., 147 U.S. 370, 373 13 S.Ct. 348, 37 L.Ed. 206 (1893); Trustees of Boston University v. ASM Communications, Inc., 33 F.Supp.2d 66, 76 (D.Mass.1998) (citing Jewell); Libby v. City Nat'l Bank, 592 F.2d 504, 510 (9th Cir.1978) (The "tests for aggregating cla......
-
INTERPRETING STATE STATUTES IN FEDERAL COURT.
...should add a dash of extra hesitation in light of their position as a federal court. E.g., Trs. of Bos. Univ. v. ASM Commc'ns, Inc., 33 F. Supp. 2d 66, 75 (D. Mass. (70) See infra sub-subsection III.A.2.b. (71) E.g., Travelers Indent., 594 F.3d at 248, 250 (stating that "we are convinced" a......