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January 24, 2002


The opinion of the court was delivered by: Carter, District Judge.


Defendant The New York Times Company (the "New York Times" or the "Times") moves to dismiss the complaint of plaintiff Jonathan Tasini with prejudice for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), F.R.Civ.P. and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), F.R.Civ.P.


Tasini, a freelance writer, was a plaintiff in another action, New York Times Company, Inc. v. Tasini, ___ U.S. ___, 121 S.Ct. 2381 (2001) ("Tasini I"), which frames the contours of this dispute. In Tasini I, the United States Supreme Court held that the New York Times and other defendants had infringed copyrights held by Tasini and other freelance writers by placing articles, originally written by these writers for print publication in the New York Times and elsewhere, in electronic databases such as LEXIS/NEXIS. Tasini I has subsequently been remanded to Judge Richard Casey of this court for a determination of the damages suffered by Tasini and the other writers as a result of the copyright infringements committed by the New York Times and other defendants.*fn1

After the decision in Tasini I, the New York Times posted a notice on its website stating that any freelance writer's work affected by the Tasini I decision would be removed from the electronic databases unless the writer executed a release of all claims arising out of the New York Times' infringement in connection with that work. (Cplt. ¶ 9.) To that end, the notice contains a document (the "Release Agreement" or "Restoration Request") pursuant to which freelance writers can release their claims for compensation. Id. The New York Times has also notified freelance writers about the Release Agreement through printed ads in its daily newspaper. (Cplt. ¶ 11.) All told, the New York Times intends to remove each of the affected articles, numbering approximately 115,000, sometime in the near future and has, according to Tasini, adopted the position that it will not obtain, use, or publish the work of any freelance writer who does not first sign the Release Agreement or a document reflecting the same substantive terms and conditions. (Cplt. ¶¶ 10, 12.)

Tasini alleges that the Release Agreement is unlawful and unenforceable. (Cplt. ¶ 20.) Specifically, Tasini contends that the Release Agreement confronts freelance writers with a "Hobson's choice" by forcing them to choose between two options, whether to press for compensation or to forego it in favor of keeping their articles in the electronic databases, at a time when the writers have limited information due to the fact that damages in Tasini I have not yet been determined. (Cplt. ¶ 15-17.)

Tasini also asserts four causes of action in which he accuses the New York Times of: (1) interfering with the ability of freelance writers to obtain relief from the infringement of their copyrights (Cplt. ¶ 29-34.); (2) unconscionability and duress with respect to the Release Agreement (Cplt. ¶ 36-43.); (3) providing releases in the Release Agreement that are void (Cplt. ¶ 44-45.); and (4) breaching the implied covenant of good faith and fair dealing in connection with prior agreements executed by the New York Times (Cplt. ¶ 46-51.). Accordingly, Tasini seeks, inter alia, a declaratory judgment, pursuant to 28 U.S.C. § 2201, that the Release Agreement is unlawful and unenforceable, and an order that the New York Times may no longer require writers to choose between the two options it has presented to them. (Cplt. ¶¶ 21, 22.)


(1) Standard for Dismissal Under Rule 12(b)(1), F.R. Civ. P.

The court properly dismisses a case for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The burden is on the plaintiff asserting jurisdiction to prove by a preponderance of the evidence that jurisdiction is proper. See Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994); Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) When confronted with a Rule 12(b)(1) motion, a court must distinguish between two types of challenges to subject matter jurisdiction. A facial challenge contests the sufficiency of the pleadings. See Sniado v. Bank Austria AG, No. 00 Civ. 9123, 2001 WL 812236, at *1 (S.D.N.Y. Jul. 18, 2001) (Schwartz, J.); see also Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 887 n. 15 (2d Cir. 1996) (a facial attack "challenges the sufficiency of the jurisdictional facts alleged, not the facts themselves"). A factual attack, by contrast, "challenge[s] whether sufficient facts exist for the court to determine that it has jurisdiction to hear the plaintiff['s] claims." Greater New York Hospital Assoc. v. United States, No. 98 Civ. 2741, 1999 WL 1021561, at *4 (S.D.N Y Nov. 9, 1999) (Carter, J.). While a court must accept as true all the material allegations of the complaint in a facial attack, see Sniado, 2001 WL 812236, at *1, in a factual challenge, by contrast, "no presumptive truthfulness attaches to the complaint's jurisdictional allegations; rather, the burden is on the plaintiff to satisfy the Court, as fact-finder, of the jurisdictional facts." Guadagno v. Wallack Ader Levithan Assoc., 932 F. Supp. 94, 95 (S.D.N.Y. 1996) (Rakoff, J.), aff'd, 125 F.3d 844 (2d Cir. 1997) (citations omitted); see also Broad v. DKP Corp., No. 97 Civ. 2029, 1998 WL 516113, at *3 (S.D.N.Y. Aug. 19, 1998) (Preska, J.), aff'd, 182 F.3d 898 (1999) (citing Guadagno).

The Times' motion constitutes a factual challenge. The New York Times does not argue that, accepting all of the allegations of the complaint as true, subject matter jurisdiction is wanting. Rather, it takes issue with the allegations themselves, arguing that many could not possibly be true. Specifically, Tasini's contention that he is among the group of writers injured by the Restoration Request website is disputed. (Def.'s Rep. Mem. of Law in Supp. of Motion to Dismiss at 3-4.) This alone is enough to transform the New York Times' challenge to subject matter jurisdiction into a factual one.

Since a factual jurisdictional challenge is involved, the court is permitted to refer to evidence extrinsic to the pleadings. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); see also Greater New York Hospital, 1999 WL 1021561, at *4 ("[i]n reviewing a factual challenge to subject matter jurisdiction, the court may rely on the plaintiff's complaint, as well as look to extrinsic evidence"). Accordingly, the court may decide the motion on the basis of affidavits or it may conduct an evidentiary hearing. See Guadagno, 932 F. Supp. at 95.*fn2

(2) Defendant's Motion to Dismiss for Lack of Subject ...

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