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Ganjavi v. Smith

July 31, 2007

REZA GANJAVI, PLAINTIFF,
v.
JEREMY C. SMITH, CINDY SMITH, TODD TIPTON, WILLIAM D. JENNINGS, DOES 1-3, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

MEMORANDUM OPINION AND ORDER

Plaintiff Reza Ganjavi filed a sixteen-count third amended complaint against defendants Jeremy Smith ("Jeremy"), Cindy Smith ("Cindy"), Todd Tipton ("Tipton"), William D. Jennings ("Jennings"), and Does 1-3 alleging: (1) violation of attribution and integrity rights, under the Copyright Act 17 U.S.C. §106A; (2) false presentation in violation of the Anti-Cybersquatting Consumer Protection Act, under the Lanham Act 15 U.S.C. §1125; (3) invasion of privacy: false light; (4) libel per se; (5) libel; (6) invasion of privacy: appropriation of name or likeness; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; (9) intentional interference with prospective economic advantage; (10) common law unfair competition; (11) unfair competition, under the Illinois Consumer Fraud and Deceptive Business Practices Act ("CFA") 815 ILCS § 505/1 et seq.; (12) infringement of common law copyright; (13) intentional misrepresentation; (14) negligent misrepresentation; (15) trade libel; and (16) civil conspiracy. Defendant Jeremy has moved to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Defendants Tipton and Jennings have moved for to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). Defendant Cindy has moved for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, Jeremy's motion is granted. Because this court finds that it lacks subject matter jurisdiction the entire case is dismissed.

FACTS

According to the complaint, plaintiff is a musician and record producer in the genre of classical guitar. Allegedly, during the period from at least 2004 to at least 2006, defendants collectively, using their own names and/or aliases and/or plaintiff's forged identity, attacked plaintiff and his business individually and collaboratively by posting on Usenet's rec.music.classical.guitar newsgroup-an online forum that allows members to post their comments about certain topics on their own as well as in response to others-and by creating their own websites that allegedly "mocked" plaintiff's website. Plaintiff alleges sixteen different claims against all defendants, including civil conspiracy. According to the complaint, all defendants attempted to "assassinate" plaintiff's character in the classical guitar world.

Defendant Jeremy is a citizen of Illinois and is married to Cindy Smith, also a defendant in this action. Jeremy is an accountant, musician, and guitar teacher. According to the complaint, Jeremy set up forged websites and explicitly stated that he was plaintiff and committed a number of violations such as directing racial slurs at African-Americans, uttering ethnic slurs, showing sympathy for terrorism, portraying plaintiff as a homosexual and pedophile, and insulting other members of the classical guitar profession.

Defendant Jennings is a musician and a citizen of Texas. Jennings allegedly cooperated with Jeremy in authoring the fraudulent messages. In the messages plaintiff was portrayed as insulting himself and disparaging his own products. Jennings also "falsely discarded and quashed writings" that were actually written by plaintiff, altered racial and ethnic slurs, associated plaintiff with terrorism, and referred to plaintiff as a homosexual and pedophile.

Defendant Tipton is a musician, a performer, and a guitar teacher. He is a citizen of Minnesota. According to the complaint, Tipton published messages on Usenet in which he presented writings that he fraudulently attributed to plaintiff. In these messages he allegedly made false statements about plaintiff. He then subsequently replied to the texts that he fraudulently attributed to plaintiff and "bullied" plaintiff. Further, Jeremy and Tipton, with the assistance of Jennings and Cindy, allegedly set up and published mock websites resembling plaintiff's registered website in name, design, and content, but included "highly embarrassing content."

Cindy, who is married and lives with defendant Jeremy, is a citizen of Illinois. Cindy registered for a Usenet account, and according to the exhibits attached to her brief, made sixteen posts to Usenet, none of which concern plaintiff. There are two computers in the Smith household, each using a different operating system. Cindy has access to both computers, as does Jeremy. Plaintiff claims that Cindy co-authored a posting about plaintiff with her husband because it was signed "Jeremy and Cindy Smith." According to Jeremy's affidavit, however, he signed Cindy's name without her knowledge. Additionally, according to Cindy's affidavit, attached to her brief, she has not interacted with Reza Ganjavi, either directly or indirectly, and she was completely unaware of his existence until he filed a previous complaint against her husband in the Central District of California. Her affidavit also states that she was not involved in any internet activities of her husband.

Plaintiff originally brought a similar complaint against defendants Jeremy, Tipton, and Jennings, as well as a few others, in the Central District of California. The case was dismissed for lack of personal jurisdiction over Jeremy, Tipton, and Jennings. Plaintiff did not contest defendant Tipton's and Jennings's dismissal for lack of personal jurisdiction. Plaintiff did contest Jeremy's motion to dismiss for lack of personal jurisdiction, however, the judge granted the motion.

Plaintiff claims damages for his physical and emotional pain as well as for adverse effects to his reputation professionally and personally. According to the complaint, "plaintiff has suffered tremendous damage at all levels, physically, morally, emotionally, psychologically, and materially, both in terms of actual and opportunity costs." Plaintiff alleges diversity jurisdiction under 28 U.S.C. § 1332 because he claims the amount in controversy, including compensatory and punitive damages, is over $75,000. Plaintiff also claims that there is federal question jurisdiction based upon 17 U.S.C. § 106A(a) and 15 U.S.C. § 1125.

DISCUSSION

Defendant Jeremy's Motion to Dismiss

Defendant Jeremy has moved this court to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim. Plaintiff bases subject matter jurisdiction on diversity of citizenship as well as federal question. Defendant Jeremy Challenges plaintiff's federal question claims under a Fed. R. Civ. P. 12(b)(6) motion. He contends that the two counts that are based on federal question jurisdiction are so frivolous that they cannot support such jurisdiction. He then attacks plaintiff's assertion of diversity of citizenship jurisdiction because there is not $75,000 in controversy.

The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). Federal notice pleading "requires 'only a short and plain statement of the claim showing that the pleader is entitled to relief'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombley, 127 S.Ct. 1955, 1964 (2007)). When ruling on a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Moranski v. General Motors Corp., 433 ...


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