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Tan v. Doe

United States District Court, S.D. New York

May 5, 2014

JOHN DOE, Defendant.


ANDREW L. CARTER, Jr., District Judge.

Plaintiffs are a married couple residing in the state of New York. Plaintiff Tan is a graduate of St. John's University Law School and a marketing and public relationse) (ecutive. PlaintiffMiah is a co-founder of a digital music company called UrFilez. In March 2012, a business dispute arose between Miah and co-founder and litigation ensued. The parties reached a settlement in December 2012. In August 2012, however, Plaintiffs allege that several derogatory posts began to appear on various blogs about them, including one containing their wedding photo, which accused them of fraudulent and unethical conduct, including siphoning money out of UrFilez. Plaintiffs allege the blogs have spread to other social media websites over the past several months, with resulting damage to both of their professional and personal reputations.

Plaintiffs have filed here a pro se complaint against the John Doe Defendant they believe is responsible for this. The complaint asserts claims of copyright infringement, violations of the Computer Fraud and Abuse Act, defamation, tortuous interference, and false light. Plaintiffs have also filed an ex parte application to the Court seeking a subpoena directing several nonparties, including Google, Microsoft, Twitter, and Facebook, to assist them in identifying the John Doe, as well as a temporary restraining order directing these companies to remove the derogatory statements from their website. For the reasons stated below, the Court dismisses the federal law claims for failure to state a claim and the state law claims for lack of subject matter jurisdiction. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d. Cir. 2000) ("district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee" because of the "need for inherent authority to dismiss such actions quickly in order to preserve scarce judicial resources") The Court's dismissal is without prejudice and with leave to the Plaintiffs to replead within 30 days.[1]

I. Federal Law Claims

A. Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act is a criminal statute that prohibits, among other things, "intentionally access[ing] a protected computer, without authorization, " and "recklessly caus[ing] damage" or "caus[ing] damage and loss" as a result of the subject conduct. See 18 U.S.C. § 1030(a)(5)(B)-(C). The statute provides for a civil private right of action in certain cases, including where there is "loss to 1 or more persons during any 10-year period... aggregating at least $5, 000 in value." See 10 U.S.C. § 1030(g), (c)(4)(A)(i)(I). Plaintiffs assert a claim under these provisions alleging the Defendant "accessed Tan's personal pictures on her personal Facebook account, and knowingly used her private wedding pictures in the negative blog post without her authorization." Compl. ¶ 59, 60.

The Court holds that the complaint fails to state a claim under the CFAA for at least three reasons. First, the complaint fails to allege that a "computer, " let alone a "protected" one was either accessed or damaged as a result of the conduct alleged. See 18 U.S.C. § 1030(a)(5)(A)(B); see also Compl. ¶ 59 (alleging in a conclusory manner that Defendant caused damage to Plaintiffs' "protected computer system"). The CFAA defines "protected computer" to include a "computer... which is used in interstate or foreign commerce or communication." 18 U.S.C. 1030(e)(2)(B). In order to satisfy this element a Plaintiff must plead facts that give rise to a plausible inference of substantial use of the computer for ends related to interstate commerce. See, e.g., Quantlab Techs. Ltd., (BVI) v. Godlevsky, 719 F.Supp.2d 766, 775-76 (S.D. Tex. 2010) (collecting cases and holding that complaint that had alleged that computer was used for trading on financial markets around the world satisfied threshold). The complaint in this case pleads no such facts.

Second, even assuming arguendo that Defendant's access of the wedding photo through Facebook qualifies as unauthorized access of a protected computer, the CFAA claim is also deficient because it does not adequately allege that such access resulted in damage to the computer. Downloading and circulating even confidential information from a computer is not enough to cause damage to a computer within the meaning of the statute, as there must be some "destruction or the impairment to the integrity of the underlying data." Del Monte Fresh Produce, NA., Inc. v. Chiquita Brands Int'l Inc., 616 F.Supp.2d 805, 811 (N.D. Ill. 2009). Plaintiffs CFAA claim fails in this regard because it does not allege that the wedding photo was destroyed or impaired.

Finally, Plaintiffs also fail to plead the type of loss contemplated by the statute. Plaintiffs do not allege that they need to "restore[]... data, [a] program, [a] system, or information to its condition prior to" the Defendant's conduct. 18 U.S.C. § 1030(e)(11); see also Finkv. Time Warner Cable, 810 F.Supp.2d 633, 641 (S.D.N.Y. 2011). While the complaint alleges that the "aggregate losses resulting from [the Defendant's conduct] exceeds at least $10, 000 in value, " the specific allegations of loss in the complaint are the types of loss that are not cognizable under the statute. Compare Compl. ¶ 22 ("[Plaintiffs] reputation has been severely harmed and [Plaintiffs] have lost millions in potential business opportunities") with Nexan Wires S.A. v. Sark-USA, Inc., 319 F.Supp.2d 468, 475, 478 (S.D.N.Y. 2004) ("loss" under the CFAA is limited to the "cost of investigating or remedying damage to a computer, or cost incurred because the computer's service was interrupted" and in particular did not extend to "travel costs of senior executives" or lost revenue unrelated to interruption of computer service). Accordingly, Plaintiffs' CFAA claim must be dismissed.

B. Copyright Infringement

To establish a claim for copyright infringement, a Plaintiff must allege "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Arista Records LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). Additionally, copyright registration is a precondition to a copyright infringement claim, unless the holder has attempted to register the work and registration was refused. See 17 U.S.C. § 411(a) ("[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."); Accurate Grading Quality Assurance, Inc. v. Thorpe, 2013 WL 1234836, at *7 (S.D.N.Y. Mar. 26, 2013) ("Because Plaintiffs' complaint does not adequately allege they have satisfied this precondition to filing a claim, ' their claim is necessarily barred and must be dismissed.") (citation omitted). In this case, however, the complaint alleges only that Plaintiffs "are the copyright owners of their wedding photograph." Compl. ¶ 62. Thus, given that it fails to allege that Plaintiffs' possess a legally valid copyright, or that they have satisfied the registration or attempted registration precondition to a copyright infringement claim, the claim must be dismissed.

C. State-Law Claims

"Federal courts are courts of limited jurisdiction, possessing only that power authorized by Constitution and statute." Gunn v. Minton, 133 S.Ct. 1059, 1064 (2013) (internal quotation marks omitted). As such, a court "may examine subject matter jurisdiction, sua sponte, at any stage of the proceeding." Adams v. Suozzi, 433 F.3d 220, 224 (2d Cir. 2005); see also HICA Educ. Loan Corp. v. Meyer, No. 12-cv-4248, 2014 WL 1694928, at *2 (S.D.N.Y April 23, 2014) (dismissing pro se complaint sua sponte because of lack of subject matter jurisdiction). This is true here notwithstanding the fact Plaintiffs have brought a claim against a John Doe Defendant. See Sinclair v. TubeSocktedd, 596 F.Supp.2d 128, 132-33 (D.D.C. 2009) ("The law is clear... that a diversity action cannot be brought against Doe defendants in hopes of later discovering that the requisite [subject matter jurisdiction] actually exists.").

There are two principal bases of federal court jurisdiction: diversity jurisdiction, and federal question jurisdiction. As Plaintiffs' state law claims neither "arise under" any federal law, nor present a "contested and substantial federal question, " so as to give rise to federal questionjurisdiction, see, e.g., HICA Educ., at 2014 WL 1694928, at *2 (citing Grable & Sons Metal Products, Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005)), jurisdiction here could only be premised on diversity, which exists where the opposing parties are citizens of different states and the amount in controversy exceeds $75, 000. See 28 U.S.C. § 1332(a)(1).[2]Such diversity jurisdiction is lacking in this case because, while the complaint seeks more than $75, 000, it does not contain any allegations that would allow the Court to plausibly infer that the John Doe Defendant is, unlike Plaintiffs, not a resident of the state of New York. See, e.g., Van Dyke v. Partners ofDebevoise & Plimpton LLP, No. 12-cv-8354, 2013 WL 5375542, at *7 (S.D.N.Y. Sept. 24, 2013) (dismissing pro se complaint because of failure to plead allegations that would allow court to plausibly infer the satisfaction of the amount in controversy requirement); see also Sinclair, 596 F.Supp.2d at 134 ("Federal jurisdiction ...

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