Scott v. Moon et al, No. 2:2019cv00005 - Document 6 (W.D. Va. 2019)
Court Description: OPINION allowing action be filed without prepayment of fees and costs; Complaint dismissed. Signed by Judge James P. Jones on 01/24/2019. (ar)
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CLERK' : OFtK E U.S.DIST.COURT ATABINGDON, VA FILED 1AN 2i 2215 IN THE UNITED STATESDISTRICT COUJW FOR TH E W ESTEM DISTRICT O F VIR GINTA B IG STO N E G A P D IV ISIO N JU O LEY CLERK BY: D M ELINPA SCOTT, Plaintiff, casexo.2:19cv.8 O PIN IO N JO SH U A M O O N ,ET A L ., B y: Jam es P.Jones United StatesDistrictJudge D efendants. Pro se litigant M elinda Scptt has subm itted an application to file a civil action w ithoutprepaying fees or costs. ln her proposed action based on diversity . J'urisdiction,Scottbrings claims ofinvasion ofprtvacy and defamation against Joshua M oon,who operates an internet forum , and Brian Zaiger,who OW CIS a <:w iki.,,1 W hile 1 w ' illpermitthe filing ofthe action withoutprepaym ent of fees and costs,I willdismiss itpursuant to 28 U.S.C. j 1915(e)(2)(B)(ii) because Scott's allegations failto state a claim on which relief m ay be granted,for the reasonsdiscussed below 2 . Scott v. Moon et al Doc. 6 1A W ikiis aw ebsitethatusers can collaboratively m odify. 2 This is Scott's second complaint arising from statem ents and im ages on these w ebsites. 1 dism issed the tirst for failure to state a claim upon w hich relief m ay be granted.Scottv.Carlson,CaseNo.2:18CV00047,2018W L 6537145,at#1(W .D.Va. Dec.12,2018),Appealdocketed,No.19-1011(4thCir;Jan.3,2019). Dockets.Justia.com 1. Scott's Com plaintallegesthe follow ing facts: JoshuaM oon ownsLolcow,LLC (($Lo1cow''),acom oration thatnmsKiwi Farm s,an internet forum . Scottasserts thatbetw een M arch 2017 and D ecem ber 2018,Lolcow and M oon published on KiwiFarm s articlesand a video containing hernam e and photos ofher. N eitherM oon nor Lolcow asked forperm ission to use her nam e orphoto,and M oon refused Scott's rèquestthat he rem ove them from K iw iFarm s. Scottalso alleges that on M arch 14,2017,M oon published on K iw i Fanus an article containing private facts about her upcom ing m arriage, her spouse's prior legal problem s and incarceration,and a protective order she had obtained against a N ew Y ork resident. She also alleges that M oon operates on K iw i Farm s under the user nam e ççN u11,'' and using this nam e, he published statem ents that Scott is Ssthe dum best person, possibly ever,'' dtreally fucking stupid ''a ççm orony''a Sislutwhore,''that she w rites like she uses tçcrayola m agic marker,''and she hasllhaldjlikea dozen husbandsby age 30.'' Compl.! c (xiii). Scott asserts that M oon uses the articles about her on Kiw i Farm s to attract subscribers and followers to the forunA, and he earns m oney from the forum 's operations. Brian Zaiger ow ns Encyclopedia D ram atica, a w ebsite that its users can collaboratively m odify. Scottalleges that on July 13,2017,Zaiger published on - 2- Encyclopedia Dram atica an article containing hernam e and photo. Zaigerdid not have Scott's perm ission to use hernam e and photo,and w hen she requested thathe rem ove them from Encyclopedia Dram atica,he denied being affiliated w ith the website. Scott asserts that Zaiger used her nam e and photo for personal gain because EncyclopediaDram aticam akesm oney from advertising and donations. ln the sam e article,Zaiger also published false statem ents that Scotthad comm itted sexual ads with a form er landlord;Performed sexual acts Sdfor renti''has ççfour baby daddiesi'' is 1ça former prostitute,'' and (ia horney jewess'' ççwith loose moralsy''and Ssincestuous'' Compl.!g (xixl--txx). Scott states that both M oon and Zaiger's publications have caused her substantial em otional distress. She also alleges that they have harm ed her reputation,and in supportshe states thatother users on Kiw iFarm s have echoed the statem entsM oon allegedly published. Scottalso statesthatherneighborshave criticized her because of the inform ation on Kiwi Farm s and Encyclopedia Dramatica,callinghera (tl-lebrew pagan''andherspouseadtpedophile.'' Compl.! ()(lllclciil--tlllllciii). Scott's C om plaint asserts claim s of appropriation of nam e and likeness, publication ofprivate facts,and defam ation againstM oon. Italso asserts claim s of appropriation of nam e 4nd likenejs, false light publication,publication of private - 3- facts, and defamation against Zaiger. Scott seeks an injunction ordering the rem ovalofthe contentdescribed above and m onetary dam ages. l1. Federal pleading standards require that a com plaint contain a iishort and Plain statementoftheclaim showingthatthepleaberisentitledtorelief.''Fed.R. Civ.P.8(a)(2). ln evaluating a complaint,the courtacceptsastrue a11well-pled facts and construes those facts in the lightm ostfavorable to the plaintiff. Nem et Chevrolet,Ltd.v.Consumeraffairs.com,Inc.,591 F.3d 250,255 (4th Cir.2009). However,Gtltjhreadbarerecitalsofthe elementsofa cause ofaction,supportedby m ere concluyory statem ents,do notsuffce.''Ashcroftv.Iqbal,556 U.S.662,678 . (2009). A documentfled pro se isto be liberally constm ed,Estelle v.Gamble, 429 U.S.97,106 (1976),butthe ççcourtisnotrequired to recognize tobscure or extravagantclaim s defying them ostconcerted effortsto unp velthem ,'''Weller v. Dep 'tofsoc.Servs.,901F.2d387,391(4th Cir.1990)(quotingBeaudettv.City of Hampton,775F.2d 1274,1277 (4ih Cir.1985)). Scott's allegations againstboth M oon and Zaiger require consideration of thefederalCommunicationsDecency Act((dCDA'').TheCDA barsactionsdçunder any Stateorlocallaw thatisinconsistentwiththetermsofj230,''which prohibits - 4- holding providersofinteractive com puterservices3responsible asthepublishersor speakers of any inform ation thatw as created or developed by other inform ation content providers.4 NemetChevrolet,Ltd,591 F.3d at254 (internalquotation marks and citation omitted). Thus,the CDA establishes &da general rule that providers of interactive com puter services are liable only for speech that is properly attributable to them .'' 11 They m ay not be held liable for m erely enabling inform ation created ordeveloped by othersto beposted online.fJ. h B oth K iw i Farm s, an intem et forum , and Encyclopedia D ram atica,a w iki, are interactive com puter services. M oon and Zaiger,astheirow ners,are providers of interactive computer services. See Klayman v.Zuckerberg,753 F.3d 1354, 1357-58 (D.C. Cir..2014) (tinding that M ark Zuckerberg, as the founder of Facebook,lnc.,isaproviderofan interactivecomputerservice). Thus,M oon and Zaiger can only be held liable for the speech on K iw i Farm s and Encyclopedia D ram atica thatisproperly attributable to them . Alm osta11ofScott's allegations againstM oon and Zaiger failto state facts suffcient to attribute the content at issue to them . A lthough Scott asserts that 3 An interactive computer service is çdany inform ation service, system ,or access software provider that provides or enables com puter access by m ultiple users to a computerserver.''47 U.S.C.j230(9(2). 4 A n inform ation contentprovider is çsany person or entity that is responsible, in whole or in part, for the creation or developm ent of information provided through the Intemetorany otherinteractivecomputerservice.''47U.S.C.j230(9(3). - 5- M oon and Zaiger published the statem ents,this m erely recites an elem entof the cause of action w ithout further factual support. See Nemet Chevrolet,Ltd,591 F.3d at258 (finding allegationsthatthe interactive computer service Sdrevisledl'' and (çredraftgedj''contentthreadbare and conclusory and insufficientto attribute the contentto it). Exceptfor her allegation ofdefamation againstM oon,Scott does notprovide any evidence m aking itplausible thatM oon and Zaiger created the content at issue them selves, and thus they cannot'be held liable for it. Accordingly,1 find thatScott's allegations of appropriation ofnam e and likeness and publication of private facts against M oon, and appropriation of nalhe and likeness; false light publication, publication of private facts, and defam ation againstZaiger,failto state claim supon which reliefm ay begranted. H ow ever,I find that Scott's assertion that M oon published on K iw iFarm s allegedly defam atory statem ents contains additional factual support suffcient to attribute the content atissue to him at this stage. Scottalleges thatM oon posts contenton K iw iFarm sunderthe usernam e $çNu11,''and M oon has confrm ed that his usernam e is $GN u11.'' She alleges thatN ull posted thç allegedly defam atory statem ents on K iw i Farm s. 1 find that these allegations m ake it plausible that M oon created these statem ents him self,and thus M oon m ay be held liable for them . A ccordingly,Iturn to w hether Scott's C om plaint states a claim w ith respect to M oon's allegedly defam atory statem ents. - 6- To be actionable as defam ation,a statem entm ustbe one offactratherthan opinion. From v.Tallahqssee Democrat,Inc.,400 So.2d 52,56 (F1a.Dist.Ct. A pp. 1981).5 Likew ise,statem ents of rhetoricalhyperbole are not actionable as defam ation. Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1378-79 (S. D.Fla. 2006). Loose,sgurative,orhyperbolic language isrhetoricalhyperbole. 1d.at 1378. dsA lthough rhetorically hyperbolic statem entsm ay atfirstblush appearto be factual,they cannot reasonably be intep reted as stating actual facts about their target.'' 1d. at 1378-79 (internal quotation marks and citation omitted). D eterm ining whether a statem ent is one of fact or of opinion or rhetorical hyperbole is a question of1aw and thusismade by the courtratherthan ajury. From ,400 So.2d at56. M oon's allegedly defam atory statem ents - that Scott is ççthe dum best Person,possibly ever,''dsreally fucking stupid,''a Sçm oron,''a Ssslutwhore,''thatshe writes like she uses lscrayola magic marker,''and she has Sçhaldj like a dozen husbands by age 30''- are rhetorical hyperbole rather than assertions of fact. Compl.! c (xiii). A 11 of these statem ents are loose,hyperbolic,and based in l 5 In this diversity action, Virginia's choice-of-law rules govern. See Klaxon Co. v.StentorElec.Mfg.Co.,313U.S.487,496(1941).Intortactions,Virginiaappliesthe 1aw oftheplaceofthewrong,M cM illan v.M cM illan,253 S.E.2d 662,663 (Va.1979), which isthe place ofpublication in defam ation actions,see Wiestv.E-Fense,Inc.,356 F. Supp.2d 604,608 (E.D.Va.2005) (applying Virginia law after determining thatthe statementsatissue werepublished on a website controlled from a location in Virginia). H ere, Scott alleges that M oon published the statem ents at issue on a w ebsite that he controlsfrom Florida. A ccordingly,Florida 1aw appliesto Scott'sclaim s againstM oon. - 7- opinion. Thus,though they m ay be insulting and offensive,they are notactionable asdefam ation. Accordingly,Scott'sallegation ofdefam ation againstM oon failsto statea claim upon which reliefm ay be granted. 111. For the foregoing reasons, 1 w ill allow the fling of the action w ithout prepaym entof feesand costs,but1willdism issthe Com plaint. A separate Order w illbe entered forthw ith 6 . D A TED : January 24,2019 Unite StatesD is ctJudge 6 In addition, there is a question in this case asto w hether the courthaspersonal jurisdiction over the out-of-state defendants. See Young v.New Haven Advocate,315 F.3d 256, 263 (4th Cir.2002) (requiring for personaljurisdiction over out-of-state intemetpublishertheshowing ofan intenttotargetandfocuson in-statereaders). - 8-
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