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May 24, 2004.

Michael Lewittes, plaintiff, -against- Jamie Cohen, Joshua Blume, and Marilyn Blume Defendants

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


Defendants bring this motion seeking dismissal of the complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the purposes of a Rule 12(b)(6) motion, all well-pleaded factual allegations contained in the complaint must be treated as true by the Court, Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994), and all reasonable inferences must be made in the plaintiff's favor. Gant v. Wallingford Board of Education, 69 F.3d 669, 673 (2d Cir. 1995). The Court must not dismiss the action "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." Conely v. Gibson, 355 U.S. 41, 45-46 (1957); Frasier v. G.E. Co., 930 F.2d 1004, 1007 (2d Cir. 1991). However, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss," 2 Moore's Federal Practice § 12.34[1][b] (3d ed. 2001); Electronics Communications Corp. v. Toshiba America Consumer Products, Inc., 129 F.3d 240, 243 (2d Cir. 1997). In accordance with this well-established legal standard, the Court will accept as true, for the purposes of this motion, the account of the facts presented in plaintiff's Third Amended Complaint.

For reasons set forth below, defendants' motion is granted in-part and denied in-part.


  According to the Third Amended Complaint (the "Complaint"), plaintiff, Michael Lewittes, is a journalist and editor who specializes in celebrity reporting, a screenwriter, and a commentator who frequently appears on national television programs. Defendant Marilyn Blume, formerly known as Marilyn Lewittes, was once married to plaintiff's brother, David Lewittes. Defendant Joshua Blume, also known as Jamie Cohen, is Marilyn Blume's brother. In March 2000, Marilyn Blume was in the midst of divorce proceedings against David Lewittes, who is not a party to the present action.

  On or about March 30, 2000, Marilyn Blume, with the aid and support of Joshua Blume, registered the domain named "" and created a website lodged at that location.*fn1 When accessed, one incarnation*fn2 of this website promised to provide details, including documents and subjective accounts, relating to the divorce proceedings involving Marilyn Blume and David Lewittes. While the website was, apparently, never completed, one page that was available at the site featured a title in bold and large font text reading "the story will be told," accompanied by a statement in smaller font reading "ask the doorman . . . and that closeted editor of a certain paper" (ellipsis in original). In addition, this same page displayed a statement reading "soon to be a major motion picture . . ." (ellipsis in original). The page also contained links labeled "women," "Jewish," and "and one more," none if which, it seems, was active. A later version of the site,*fn3 created on or about June 24, 2002, claimed, simply, that the site was "currently under development," invited "comments," and incorporated links labeled "cnn," "ny1," and "post."

  In mid-June 2002, plaintiff made inquiries at, a registrar of domain names, to ascertain who had registered the domain "" At that time, the registration information on-file with did not contain accurate or reliable contact information for either Joshua Blume or Marilyn Blume.*fn4

  The original complaint in this case, making claims for unfair competition, dilution, and trademark infringement, was filed against John Doe and Jane Doe on January 9, 2003. A First Amended Complaint, making identical claims, was filed on January 27, 2003, naming Jamie Cohen as the sole defendant. A Second Amended Complaint, based on the same claims, was filed and served on February 6, 2003, naming Jamie Cohen and Joshua Blume as defendants.

  After the Second Amended Complaint was filed, plaintiff's counsel interviewed Joshua Blume and confirmed that Jamie Cohen is a pseudonym used by Joshua Blume, a fact that defendants acknowledge. Counsel was also informed by Joshua Blume that he constructed the website at the request and direction of Marilyn Blume. Based on this information, plaintiff filed and served a Third Amended Complaint on October 2, 2003, adding counts for defamation and naming Jamie Cohen, Joshua Blume, and Marilyn Blume as defendants.


  Leave to file Amended Complaint

  The Court will address first plaintiff's application to file his Third Amended Complaint nunc pro tunc. Federal Rule of Civil Procedure 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." As is indicated by the title "Third Amended Complaint," Plaintiff exercised his one free amendment prior to the present proposed amendment. Therefore, despite the fact that the Third Amended Complaint was filed and served before defendants filed their Answer, the amendments therein can be made only "by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a).

  Defendants oppose the motion to amend. Consistent with this position, no written consent to the amendment has been provided to the Court. It falls, then, on plaintiff to move the Court for permission to amend. Plaintiff has so moved. The Court is directed that leave to file amendments "shall be freely given when justice so requires." Fed.R. Civ. P. 15(a).

  The Court takes note of four critical facts in evaluating the motion to amend. First, the proposed amendments serve, primarily, to add Joshua Blume and Marilyn Blume as named defendants, as final replacements of the originally named John and Jane Doe, and to add a claim for defamation. Second, defendants acknowledge that the additions made by the Third Amended Complaint "relate back" to the original complaint. Defendants' Reply Memorandum (the "Reply") at 6, note 4. Third, and consistent with this position, defendants' Answer, filed ...

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