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HAMMER v. TRENDL

January 18, 2003

JEFFREY HAMMER, PLAINTIFF,
v.
ANTHONY L. TRENDL, DEFENDANT.



The opinion of the court was delivered by: Arthur D. Spatt, United States District Judge

MEMORANDUM OF DECISION AND ORDER
Jeffrey Hammer ("Hammer" or the "plaintiff"), proceeding pro se, filed this action against Anthony L. Trendl ("Trendl" or the "defendant") alleging that Trendl posted on an Internet website Amazon.com several unfavorable reviews of books written by the plaintiff in violation of federal copyright and state defamation laws. Presently before the Court are (1) Hammer's objections to the Report and Recommendation dated October 10, 2002 issued by United States Magistrate Judge Michael L. Orenstein; (2) the defendant's motion to dismiss the complaint for lack of personal jurisdiction and failure to state a claim; (3) Hammer's motion for reconsideration of the Court's January 3, 2003 Order denying his motion for a default judgment; (4) Hammer's motion to have the defendant and David Zapolsky, an attorney at Amazon.com, arrested; (5) Hammer's motion to compel the defendant's counsel to disclose who is paying her legal fees; and (6) Hammer's motion for an order directing the defendant to pay for various postage. The Court notes that Hammer has filed more than 50 motions in this case in the form of formal motions and letter motions mostly repeating the same requests.

I. BACKGROUND

A. Factual Background

Hammer is a self-published author of several books, including Mind Reading in Written Form!: The Magic, Power, and Secrets of Handwriting Revealed! and An Advanced Guide to "Basic Hypnosis". According to the plaintiff, the defendant has posted numerous book reviews on an Internet website maintained by book retailer Amazon.com and is considered to be an Amazon.com "top 500 reviewer."

Hammer claims that the defendant posted several unfavorable reviews of the plaintiff's books on Amazon.com. In the reviews, the defendant (1) compared the plaintiff's book on hypnosis to "the dust under [the defendant's] couch;" (2) questioned the plaintiff's "spelling, grammar and teaching on the subject" of hypnosis; (3) entitled the book reviews as a "Shallow Look at Hypnosis" and a "Disappointing Look at Graphology;" and (4) failed to recommend the plaintiff's books.

Hammer claims that as a result of the reviews he has suffered an economic loss due to a decrease in sales of his books. In addition, he claims that these reviews have "ruined his reputation" and subjected him to "public humiliation." According to the plaintiff, the defendant is "targeting [him] and his books out of over 2.2 million products on Amazon.com to prevent [the plaintiff] from selling [his] books."

On April 23, 2002, the plaintiff commenced this action alleging that the defendant is in violation of federal copyright and state defamation laws. On September 4, 2002, the defendant filed a motion to dismiss the complaint for lack of personal jurisdiction and failure to state a claim pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").

B. Procedural History

On August 16, 2002, the plaintiff filed a motion for a temporary restraining order seeking to: (1) enjoin the defendant from posting any additional unfavorable reviews of his books on the Internet; (2) enjoin Amazon.com from removing his books from its website; and (3) directing Amazon.com to remove the defendant's unfavorable reviews of his books. On August 22, 2002, this Court referred the motion to Judge Orenstein to hold a hearing and to prepare a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Judge Orenstein did not conduct a hearing, but issued a Report and Recommendation dated October 10, 2002 finding that, (1) a temporary restraining order prohibiting the defendant from publishing any further reviews of the plaintiff's books in this case would be an impermissible prior restraint on expression; (2) the plaintiff failed to establish any irreparable injury; (3) the plaintiff failed to state a claim for defamation or copyright infringement; and (4) because Amazon.com was not a party named in this action, it could not be enjoined.

Hammer filed a series of objections to Judge Orenstein's Report, and on October 25, 2002, the Court directed the plaintiff to consolidate all of his objections in one motion. The plaintiff asserts, among other things, that, (1) Judge Orenstein failed to conduct a hearing before issuing his Report; (2) a temporary restraining order is warranted in this action; and (3) because Amazon.com provided the defendant with an attorney in this case and "is acting in concert" with the defendant, it is a party to this case and should therefore be enjoined. The plaintiff also requests that this Court alert the United States Attorney General's Office that the defendant is engaging in "internet fraud" and issue an order to have the defendant arrested.

II. DISCUSSION

A. Objections to Report and Recommendation

At the outset, the Court notes that "`there is no hard and fast rule in this circuit that oral testimony must be taken on a motion for a preliminary injunction or that the court can in no circumstances dispose of the motion on the papers before it.'" Maryland Casualty Co. v. Realty Advisory Board on Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997) (quoting Redac Project 6426, Inc. v. Allstate Ins. Co., 402 F.2d 789, 790 (2d Cir. 1986)). A court may decide a motion for a preliminary injunction without a hearing where material facts are not in dispute. Id. Although the plaintiff vehemently argues that the Judge Orenstein was required to a hold a hearing, he has failed to identify ...


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