Munari et al v. Freeman et al, No. 2:2016cv00083 - Document 14 (D. Nev. 2016)

Court Description: ORDER Denying 5 Motion to Quash Plaintiffs' Subpoena. Signed by Magistrate Judge Cam Ferenbach on 04/19/2016. (Copies have been distributed pursuant to the NEF - NEV)
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Munari et al v. Freeman et al Doc. 14 UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 *** 3 GENO MUNARI and PENNY MUNARI, 4 Case No. 2:16–cv–83–RFB–VCF Plaintiffs, 5 vs. ORDER 6 BENJAMIN FREEMAN; et.al., MOTION TO QUASH PLAINTIFFS’ SUBPOENA (DOC. #5) 7 Defendants. 8 9 This matter involves Plaintiffs Geno and Penny Munari’s (hereafter “the Munaris”) civil action 10 against the Defendants. Before the court are movant 1 John Doe’s motion to quash Plaintiffs’ subpoena 11 (Doc. #5), the Munari’s response (Doc. #8), and John Doe’s reply (Doc. #9). The court held a hearing at 12 3:00 p.m. on April 15, 2016. For the reasons stated below, John Doe’s motion to quash is denied. 13 I. Background 14 On January 14, 2016, the Munaris sued the Defendants. The Munaris allege that the Defendants 15 16 17 unlawfully registered, owned, and attempted to sell four domain names. (Doc. #1). The four domains names at issue are: (1) genomunari.com; (2) genomunari.net; (3) genomunari.info; and (4) 18 pennymunari.com. (Doc. #8-5). The Munaris now own the four domain names at issue. (Id. at 2). 19 When Geno Munari visited the websites associated with each of the four domain names at issue, he 20 found that each websites contained no information about himself or his wife. (Id.). The four websites 21 simply displayed a generic GoDaddy.com webpage. (Id.). 22 23 24 1 25 John Doe states that he is a non-party to this action. (Doc. #5) (stating the he is the “anonymous registrant of the domain names at issue.”). For the sake of consistency, the court will refer to John Doe as a non-party. 1 Dockets.Justia.com In January 2016, Geno Munari received a series of emails from “Ben Freeman,” 2 a “private 1 2 domain consultant,” who offered to sell the Munaris the four domain names at issue. (Id.). “Freeman” 3 urged the Munaris to purchase the four domain names. (Id.). “Freeman” stated that if the Munaris did 4 not purchase the four domain names at issue, he would sell them to an anonymous individual who 5 allegedly wished to “put [the Munaris] dirty laundry online.” (Doc. #8-3). 6 On January 29, 2016, the Munaris served non-parties Domains By Proxy and Google with 7 subpoenas. The Munaris sought information about the then registered owners of the four domain names 8 at issues as well as information about “Ben Freeman.” (Doc. #8). 9 10 On February 1, 2016, “Bob” called the Munaris’ counsel and stated that he was the registered owner of the four domain names at issue. (Id.). “Bob” offered to transfer the Munaris the four domain 11 names at issue in exchange for $1,200 per domain name and the withdrawal of the Munaris’ subpoenas. 12 (Id.). The Munaris declined “Bob’s” offer. (Id.). “Bob’s” counsel later offered to settle this lawsuit in 13 14 15 exchange for withdrawal of the Munaris’ subpoenas. (Id.). The Munaris declined counsel’s offer to settle. (Id.). Non-party John Doe now moves to quash the subpoenas served on Domains By Proxy. 3 John 16 17 Doe argues that the subpoena served on Domains By Proxy does not comply with the Federal Rules of 18 Civil Procedure and infringes on John Doe’s First Amendment right to speak anonymously. 19 /// /// /// 20 /// /// /// 21 22 23 24 25 2 The Munaris allege that “Ben Freeman” is not the real name of the individual who attempted to sell them the four domain names at issue. (Doc. #8). The Munaris also allege “Ben Freeman,” “Bob,” and movant John Doe are the same individual. (Id.). 3 In his reply, John Doe asks the court to quash the subpoena served on Google. (Doc. #9 at 5 n. 1). As John Doe’s request to quash the subpoena served on Google was raised for the first time in his reply, the court will not consider John Doe’s request to quash the subpoena served on Google. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“the district court need not consider arguments raised for the first time in a reply brief.) 2 II. Discussion 1 The parties present two issues: (1) whether the Munaris’ subpoena to Domains By Proxy should 2 3 be quashed due the Munaris’ failure to comply with the Federal Rules of Civil Procedure and (2) 4 whether the Munaris’ subpoena to Domains By Proxy should be quashed on First Amendment grounds. 5 1. 6 The Munaris’ Subpoena on Domains By Proxy Will Not Be Quashed on Procedural Grounds “A party may not seek discovery from an source before the parties have conferred as required by 7 Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when 8 authorized by these rules, by stipulation, or by court order.” FED. R. CIV. P. 26(d)(1). Early discovery is 9 10 permitted “when the [Doe] defendants are persons who have allegedly engaged in wrongful conduct through internet communications or activities, and their identities are unknown to the plaintiff, except 11 for the internet protocol (“IP”) addresses assigned to them.” Liberty Media Holdings, LLC v. Swarm of 12 November 15 to December 9, 2010, Case No. 2:11-cv-637-RLH-GWF, 2011 WL 1768746 at* 2 (D. 13 14 15 Nev. May 9, 2011) (permitting plaintiff to serve early subpoenas to non-party internet providers in order to identify Doe Defendants). 16 The Munaris’ subpoenas to Domains By Proxy will not be quashed for the Munais’ non- 17 compliance with the Federal Rules of Civil Procedure. The Munaris may serve early subpoenas on non- 18 parties in order to identify unknown defendants. Id. The proper procedure for the issuance of a pre- 19 Rule 26(f) conference subpoena would have been for the Munaris to obtain a court order that permitted 20 service of the subpoena. See id. The Munaris then should have served the non-party with a subpoena as 21 22 well as with a copy of the court’s order. See id. Here, the Munaris served the subpoenas Domains By Proxy without a court order. John Doe 23 argues that the Munaris’ subpoena should be quashed since the Munaris served their subpoena before 24 the Rule 26(f) conference and without a court order. John Doe’s argument is unpersuasive. In this 25 3 instance, the court’s interest in a “just, speedy, and inexpensive” resolution of this issue overrides the 1 2 Munaris’ failure to follow proper procedure. See FED. R. CIV. P. 1. If the Munaris had moved for a 3 court order that authorized service of their subpoena to Domains By Proxy, the court would have entered 4 such an order. Discovery would be delayed and the cost of litigation increased, if the Munaris’ 5 subpoena to Domains By Proxy were quashed now. The Munaris’ subpoena to Domains By Proxy will 6 not be quashed for non-compliance with the Federal Rules of Civil Procedure. 7 2. 8 The Munaris’ Subpoena to Domains By Proxy Will Not be Quashed on First Amendment Grounds 9 i. 10 John Doe’s Registration of the Four Domain Names at Issue is Not Protected By the First Amendment 11 “[I]t is the obligation of the person desiring to engage in assertedly expressive conduct to 12 demonstrate the First Amendment even applies.” Clark v. Cmty. For Creative Non-Violence, 468 U.S. 13 14 15 288, 293 n. 5 (1984). The registration of a domain name that consists entirely of a plaintiff’s name, “clearly does not 16 implicate the Defendant’s First Amendment rights.” See Randazza v. Cox, 920 F.Supp. 2d 1151, 1159 17 (D. Nev. 2013) (holding that a preliminary injunction that prevented a defendant from registering 18 domain names with the plaintiff’s full name did not implicate the defendant’s First Amendment rights). 19 20 21 22 John Doe’s registration of the four domain names at issue does not implicate his First Amendment rights. When a defendant is prevented from registering domain names that consist entirely of a plaintiff’s name, the defendant’s First Amendment rights are not implicated. See id. On these facts, the court will not deviate from district precedent. 23 /// /// /// 24 25 4 ii. The Four Munari Domain Names Are Not “Speech” Protected by the First 1 Amendment 2 3 “‘[D]omain names … per se are neither automatically entitled to nor excluded from the 4 protections of the First Amendment, and the appropriate inquiry is one that fully addresses particular 5 circumstances presented with respect to each domain name.’” Bosley Medical Institute, Inc. v. Kremer, 6 403 F.3d 672, 682 (9th Cir. 2005) (quoting Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 7 585-86 (2d Cir. 2000)). 8 9 10 “Although domain names do have a functional purpose, whether the mix of functionality and expression is ‘sufficiently imbued with the elements of communication’ depends on the domain name in question, the intentions of the registrant, the contents of the website, and the technical protocols that 11 govern the [domain name system.]” Name.Space, Inc., 202 F.3d at 586 (holding that hypothetical 12 domain names such as “.jones_for_president” and “.smith_for_senate” would be protected by the First 13 14 15 Amendment”). The four domain names at issue contain insufficient expression to constitute “speech” protected 16 by the First Amendment. John Doe correctly states that domain names are not per se excluded from 17 First Amendment protection. Kremer, 403 F.3d at 672. This rule does not mean that all domain names 18 are protected by the First Amendment. See id. Whether a particular domain name is protected is a fact- 19 specific inquiry. Name.Space, Inc., 202 F.3d at 585. Here, the four domain names are devoid of 20 expressive content. The four domain names at issue do not express any opinion about the Munaris. At 21 22 most, they indicate that the domain names are owned by the Munaris. Panavision Intern., L.P. v. Toeppen, 141 F.3d 1316, 1327 (9th Cir. 1998) (a primary purpose of internet domain names is to 23 identify the owner of the domain name). As the four domain names at issues do not express any opinion 24 25 5 about the Munaris or any other subject, they do not constitute “speech” protected by the First 1 2 Amendment. iii. 3 This Action 4 5 John Doe’s First Amendment Right to Speak Anonymously is Not Implicated in “It is well established that the First Amendment protects the right to anonymous speech.” Art of 6 Living v. Does 1-10, Case No. 10-5022, 2011 WL 5444622 at* 3 (N.D. Cal. Nov. 9, 2011) (citing 7 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995)). “However, the right to anonymity is 8 not absolute.” Id. “Where anonymous speech is alleged to be unlawful, the speaker’s right to remain 9 10 anonymous may give way to a plaintiff’s need to discover the speaker’s identity in order to pursue its claim.” Id. 11 “The court must weigh the rights of the harmed party to expose an anonymous online speaker 12 against the anonymous speaker’s First Amendment right of free speech.” Fodor v. Doe, Case No. 3:1013 14 15 cv-798-RCJ-VPC, 2011 WL WL 1629572 at* 3 (D. Nev. April 27, 2011). “There are four different standards court use in online defamation cases: (1) the motion to dismiss or the good faith standard; (2) 16 the prima facie standard; (3) somewhere between the good faith and prima facie standards; (4) the 17 summary judgment standard.” Id. (citations omitted). “Although the Ninth Circuit examined these four 18 approaches to anonymous online speech, it did not adopt a single standard to guide lower courts.” Id. 19 John Doe’s First Amendment right to speak anonymously is not implicated in this motion. At 20 21 22 the hearing, John Doe stated that he did not post any information to the websites associated with the four domain names at issue, and he had no intent to post any information to the websites when he owned the four domain names at issue. An act of “self-censorship” is a sufficient injury to confer Article III 23 standing. See Libertarian Party of Los Angeles County v. Bowen, 709 F.3d 867, 870 (9th Cir. 2013). 24 Here, John Doe lacks standing to assert a violation of his First Amendment rights. John Doe neither 25 6 spoke nor contemplated speaking on the websites associated with the four domain names at issue. 1 2 3 Without an act of speech or an act of self-censorship, John Doe cannot allege a violation of his First Amendment rights. See id. 4 John Doe’s reliance on Music Grp. Macao Commercial Offshore Ltd. v. Does, is misplaced. 82 5 F.Supp, 3d 979 (N.D. Cal. 2015). In Music Grp., the plaintiffs sued a group of unnamed defendants for 6 defamation based on allegedly defamatory statements the defendants made using anonymous Twitter 7 accounts. Id. at 982. The Music Grp. defendants’ First Amendment rights were directly implicated as 8 the plaintiffs sought to hold the defendants liable for their anonymous Twitter comments. Id. at 983. 9 10 Here, the Munaris do not assert that John Doe is liable for content or contemplated content on any website. (Doc. #1). 11 ACCORDINGLY, and for good cause shown, 12 IT IS HEREBY ORDERED that John Doe’s motion to quash the Munaris’ subpoena on Domains 13 14 15 16 By Proxy (Doc. #5) is DENIED. IT IS SO ORDERED. DATED this 19th day of April, 2016. 17 18 _________________________ CAM FERENBACH UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 7