Sunday, November 11, 2007
The Process of AutoAdmit
Dave Hoffman at CoOp reports on the Amended Complaint in the AutoAdmit lawsuit, filed last Thursday, with links to the new complaint and to some early commentary. As a substantive matter, I agree with Dave that this is a stronger pleading, with some new or more-detailed allegations (involving letters sent to Yale Law School Faculty and to several law firms containing verifiable factual assertions about the plaintiffs) that could form the basis for defamation and/or false light claims, as opposed to amorphous claims of Intentional Infliction of Emotional Distress based on crude, obnoxious, and reprehensible, but seemingly constitutionally protected, comments. This case may be of a piece with the lawsuit against Fred Phelps and Westboro Baptist Church, in terms of seeking to recover for intentional infliction based on speech about private individuals.
But the procedural aspects of this case always have fascinated me; the case is a walking civ pro/fed courts exam.
First, there now are no named defendants in the lawsuit. The one named individual in the original complaint, former administrator of Auto Admit Studies (and former Penn law student) Anthony Ciolli, was dropped in the amended pleading; all the defendants are identified only by the screen names they used for their posts and comments. The complaint has not been served, because there is nobody on whom to serve it. Plaintiffs' counsel will try to learn those names through discovery from some non-party (Ciolli, perhaps?), but only after getting leave of court to take that discovery (I expect the court will grant leave). Plaintiffs also must keep an eye on the statute of limitations (which is two years on the state tort claims in Connecticut). If the plaintiffs do not identify some or all of the defendants by name until after the limitations period has run, they might find some claims as to some defendants time-barred. I discuss the issue of unknown-defendant pleading in-depth here.
Second, there is a nice jurisdictional problem here. Plaintiffs assert two bases for jurisdiction. The first is § 1331 federal question jurisdiction over DOE II's claim for copyright infringement against two or three of the 38 pseudonymous defendants. The second is § 1367 supplemental jurisdiction over the state-law tort claims (libel, intentional infliction, false light, and disclosure) brought by both DOE plaintiffs against all the defendants. The copyright claim is based on the posting of certain copyrighted photographs of DOE II without her consent; the tort claims are based on the posting of the photos, in addition to the many posts. The claims thus appear sufficiently linked to satisfy §1367's requirement that claims be "so related" as to "form part of the same case or controversy under Article III of the United States Constitution."
The jurisdictional wrinkle is that a district court has discretion to decline to exercise supplemental jurisdiction over state-law claims in several situations, two of which might be relevant here. Under §1367(c)(3), if the court dismisses the federal claim, it can (and usually does) decline to retain jurisdiction over the state-law claims. Some commentators have questioned the strength of the copyright claims; I do not know enough about copyright law to say for sure. But if that claim is weak enough to be dismissed, the plaintiffs could be forced out of federal court on the state-law claims.
Under § 1367(c)(2), the court can decline supplemental jurisdiction over the state law claims when they "substantially predominate" over the federal claims. That provision might be in play here. The copyright claims are brought by one of the plaintiffs against only two or three of the many defendants, so most of the parties to the case are uninvolved in the anchor federal claim. The crux of this case is the pattern of harassing, offensive, outrageous, and libelous comments about the plaintiffs on the web site; the posting of the photos seems secondary to that. If this case is "really about" the offensive statements that violated the plaintiffs' rights under state tort law, the court may decide those claims should be heard in the (more-appropriate) state-court forum.
Finally, there is some chance that a new jurisdictional hook--§ 1332 diversity jurisdiction--could present itself, if discovery reveals that some of the defendants are not Connecticut citizens (both DOE plaintiffs are Connecticut citizens). The plaintiffs then could proceed against some of these defendants in federal court on the state-law claims, although it would require the dismissal over the remaining defendants who either are unknown or who also are Connecticut citizens. The jurisdictional question may require some liability trade-offs, at least if the plaintiffs want to remain in federal court: Go forward against some of the defendants, if there are some who are diverse from the plaintiffs, and let others go.
It will be interesting to watch how these procedural issues will play out as the plaintiffs try to find some identifiable defendants in the coming months.
Posted by Howard Wasserman on November 11, 2007 at 11:13 PM | Permalink
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