Tuteur v. Crosley-Corcoran

• Decision Date: 10 September 2013
• Docket Number: Civil Action No. 13–10159–RGS.
• Citation: 961 F.Supp.2d 333
• Parties: Amy TUTEUR, M.D. v. Gina CROSLEY–CORCORAN.
• Court: U.S. District Court — District of Massachusetts

961 F.Supp.2d 333

Amy TUTEUR, M.D.

v.Gina CROSLEY–CORCORAN.

Civil Action No. 13–10159–RGS.

United States District Court, D. Massachusetts.

Sept. 10, 2013.

Christopher T. Bavitz, Harvard Law School Cyberlaw Clinic Berkman Center for Internet & Society, Cambridge, MA, for Electronic Frontier Foundation (Amicus).

Russell Beck, Stephen D. Riden, Beck Reed Riden, LLP, Boston, MA, for Amy Tuteur, M.D. and Digital Media Law Project Berkman Center for Internet & Society (Amicus).

Jonathan H. Blavin, Munger, Tollesk & Olson, LLP, Los Angeles, CA, Daniel J. Cloherty, Collora LLP, Boston, MA, for Motion Picture Association of America, Inc. (Amicus).

Thomas M. Ciampa, Evan M. Fray–Witzer, Ciampa Fray–Witzer, LLP, Boston, MA, for Gina Crosley–Corcoran.

MEMORANDUM AND ORDER ON SHOW CAUSE RESPONSE AND DEFENDANT'S MOTION TO DISMISS

RICHARD G. STEARNS, District Judge.

The choice of birthing techniques is not the most obvious subject for a war of polemics. But the wisdom of midwifery triggered a ferocious battle of the blogs culminating in this lawsuit pitting Amy Tuteur, a resident of Massachusetts, and former physician, against defendant Gina Crosley–Corcoran, a doula (midwife), and resident of Illinois. Tuteur, who authors several blogs, including The Skeptical OB,¹ is a scathing critic of home birthing, while Crosley–Corcoran, the author of the blog TheFeministBreeder, is a proponent of “natural” birth.

After a particularly bitter internet exchange with Tuteur on December 13, 2012, Crosley–Corcoran posted a photograph of herself on her blog in a graphic hand pose ( digitus impudicus ) underscored with a caption informing readers that she was giving Tuteur “something else to go back to her blog and obsess about.” Rising to the bait, Tuteur copied the photo and posted it on The Skeptical OB, without Crosley–Corcoran's explicit permission.

On December 16, 2012, Kim Bilbrey, an attorney for Crosley–Corcoran, sent a cease-and-desist notice by email to Tuteur alleging copyright infringement and demanding that Tuteur remove Crosley–Corcoran's photo from her blog.² According to Bilbrey, she sent the notice by email because she “had no physical address for Ms. Tuteur, only an email address. [She] did not know that Ms. Tuteur was located in Massachusetts.” Bilbrey Aff. ¶ 6—Dkt. # 13–11. Bilbrey also sent BlueHost, Tuteur's web server in Provo, Utah, a “takedown notice” pursuant to the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c)(3). On December 17, 2012, BlueHost warned Tuteur that “[f]ailure to eliminate or disable access to such alleged infringing material within [48 hours] could result in suspension or termination of your website.” Compl. ¶ 37. Tuteur temporarily removed the photo, then thought better of the idea, and reposted it. On December 22, 2012, Tuteur filed a counter notice with BlueHost protesting Crosley–Corcoran's claim of copyright infringement.³ On January 18, 2013, BlueHost washed its hands of the snowballing disputation and notified Tuteur and Crosley–Corcoran that it was up to either or both of them “to pursue legal action.” ⁴ Dkt. # 39–1. Tuteur responded by shifting The Skeptical OB to a new Internet Service Provider (ISP), DaringHost, and restoring Crosley–Corcoran's photo. Crosley–Corcoran rejoined by sending DaringHost a takedown notice. DaringHost informed Tuteur of the takedowndemand on January 21, 2013. Tuteur submitted a counter notice, although she removed Crosley–Corcoran's photo from her website “to avoid further interruption of public access to The Skeptical OB.” Compl. ¶ 51.

While the blogs raged, Crosley–Corcoran's new counsel, Jake Marcus, reached out to Tuteur in an attempt to forge a truce. Marcus received a response from Tuteur's husband, Michael Tuteur, the Chair of the Litigation Department at Foley & Lardner LLP, a large Boston law firm. Michael Tuteur told Marcus that while he was representing his wife, she was not a client of his firm. Marcus Aff. ¶¶ 5–8—Dkt. # 13–7. Marcus stated that Crosley–Corcoran would willingly walk away from the fight if Amy Tuteur would remove her picture from the website. Marcus also proposed that the two combatants agree to abstain from any future references to one another in their blogs.⁵ Spurning the offer, Tuteur filed this lawsuit on January 25, 2013.⁶

In her two-count Complaint, Tuteur alleges that Crosley–Corcoran made a material misrepresentation of infringing activity in violation of 17 U.S.C. § 512(f). She also alleges tortious interference by Crosley–Corcoran with the advantageous contractual relationships that she enjoyed with her ISPs. Both counts hinge on the takedown notices sent by Crosley–Corcoran to BlueHost and DaringHost, notices that Tuteur alleges were animated by “improper motives and/or improper means.” Compl. ¶ 78. Crosley–Corcoran, for her part, moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(2). She maintains that as a resident of Illinois whose only connection to Massachusetts is the cease-and-desist email, she lacks the “minimum contacts” necessary to subject her to in personam jurisdiction in this forum.

On April 10, 2013, 961 F.Supp.2d 329, 2013 WL 1450930 (D.Mass.2013), the court issued an Order directing Tuteur to show cause why her Complaint should not be dismissed on the merits or on jurisdictional grounds. Tuteur filed her response on May 1, 2013. That same day, the Electronic Frontier Foundation (EFF) ⁷ and the Digital Media Law Project (DMLP) ⁸sought leave to file amici curiae briefs in partial support of Tuteur's Complaint. Shortly after Crosley–Corcoran filed a response, the Motion Picture Association of America, Inc. (MPAA), asked to file an amicus brief. Leave to file the briefs was granted. The court heard oral argument from the parties and representatives of the amici on July 1, 2013.

Jurisdiction

“On a motion to dismiss for want of personal jurisdiction, the plaintiff ultimately bears the burden of persuading the court that jurisdiction exists.” Astro–Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 8 (1st Cir.2009). However, where, as here, “the district court's disposition as to the personal jurisdiction question is based on affidavits and other written materials in the absence of an evidentiary hearing, a plaintiff need only to make a prima facie showing that [the defendant is] subject to personal jurisdiction.” Elecs. for Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed.Cir.2003); see also Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir.2008) (“Because the district court did not hold an evidentiary hearing but credited the plaintiff's evidentiary submissions, we construe the court's ruling as employing the prima facie method.”). The court, in evaluating whether a plaintiff has met her burden, “must accept the uncontroverted allegations in the plaintiff's complaint as true and resolve any factual conflicts in the affidavits in the plaintiff's favor.” Elecs. for Imaging, 340 F.3d at 1349.

Tuteur maintains that the court has specific personal jurisdiction over Crosley–Corcoran under section (a) of the Massachusetts Long–Arm Statute—the transacting business section—because: Crosley–Corcoran solicits legal fees on her blog; offers paid subscriptions to her blog; and sells items from her virtual midwifery store to customers in Massachusetts.⁹ Tuteur also more persuasively asserts jurisdiction under section (c) of the Long–Arm Statute, alleging that Crosley–Corcoran unleashed a tort—“a crusade for the express purpose of squelching [Tuteur's] speech”—the effects of which were felt by Tuteur in Massachusetts. Pl.'s Mem. at 2; see also Compl. ¶¶ 52–62. ¹⁰

“The proper exercise of specific in personam jurisdiction hinges on satisfaction of two requirements: first, that the forum in which the federal district court sits has a long-arm statute that purports to grant jurisdiction over the defendant; and second, that the exercise of jurisdiction pursuant to that statute comports with the strictures of the [Due Process Clause of the] Constitution.” Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir.1994). The Fourteenth Amendment's concern for fundamental fairness is encapsulated in the jurisdictional requirement that there be at least some “minimum contacts” between the defendant and the forum state “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

In judging minimum contacts, the Supreme Court has held that the “proper focus [is] on the relationship among the defendant, the forum, and the litigation.” Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).¹¹ The test has three parts. The so-called “effects” test derived from Calder provides that “a defendant's tortious acts can serve as a source of personal jurisdiction only where the plaintiff makes a prima facie showing that the defendant's acts (1) were intentional, (2) were uniquely or expressly aimed at the forum state, and (3) caused harm, the brunt of which was suffered—and which the defendant knew was likely to be suffered—[in the forum state].” ¹¹Johnson v. Arden, 614 F.3d 785, 796 (8th Cir.2010), quoting Lindgren v. GDT, LLC, 312 F.Supp.2d 1125, 1132 (S.D.Iowa 2004); see also Astro–Med, Inc., 591 F.3d at 10.

For policy reasons, most jurisdictions have held that cease-and-desist letters—like those sent by Crosley–Corcoran's attorneys—absent additional purposeful acts directed to the contested forum, are inadequate to establish jurisdiction. See Avocent Huntsville Corp. v. Aten Int'l Co., Ltd., 552 F.3d 1324, 1333 (Fed.Cir.2008) (for the exercise of personal jurisdiction in an action for declaratory judgment in a patent action, to comport with fair play and substantial justice there must be activities directed at the forum besides letters threatening suit); Beacon Enter., Inc....