Opinion
CIVIL ACTION NO. 00-CV-10956-GAO.
September 27, 2001
MEMORANDUM AND ORDER
In 1997, Jeffrey Curley was abducted from his home in Cambridge, Massachusetts, and murdered. Charles Jaynes and Salvatore Sicari were later convicted of Curley's murder. Curley's parents bring this action for damages under the Massachusetts wrongful death statute, Mass.Gen. Laws ch. 229, §§ 2 and 6, as well as under the Ku Klux Klan Act, 42 U.S.C. § 1985, against the North American Man Boy Love Association ("NAMBLA"), John Doe, Inc., Roy Radow, Joseph Powers, David Thorstad, David Miller, Peter Herman, Max Hunter, and Arnold Schoen.
The defendants have moved to dismiss the amended complaint for failure to state a claim on which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2), and improper venue. One defendant has moved to dismiss for insufficiency of service of process. For the reasons that follow, the Rule 12(b)(6) motion is denied, the Rule 12(b)(2) motion is denied as to NAMBLA and Radow and denied without prejudice as to the remaining individual defendants. The motions to dismiss for improper venue and for insufficiency of service are denied.
I. Failure to State a Claim
In evaluating a motion to dismiss for failure to state a claim upon which relief can be granted, the Court must take as true all well-pleaded facts and draw all reasonable inferences favorable to the complainant. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
The defendants argue that the plaintiffs fail to state a claim on which relief can be granted because the amended complaint premises liability on the contents of the NAMBLA's website and newsletter, which the defendants urge is speech protected by the First Amendment to the United States Constitution.
Ordinarily, consideration of documents not attached to the complaint or expressly incorporated in it is not appropriate on a motion to dismiss under Rule 12(b)(6), unless the motion is treated as one for summary judgment under Rule 56. However, it is proper in evaluating whether the complaint states a claim to consider documents central to a plaintiff's claim that are specifically referred to in the complaint. See,e.g., Fudge v. Penthouse Int'l, Ltd., 840 F.2d 1012, 1014-15 (1st Cir.) (considering allegedly libelous article submitted by defendants with motion to dismiss), cert. denied, 488 U.S. 821 (1988). See also Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993); Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 n. 3 (1st Cir. 1991). Because the Amended Complaint alleges that "by its publications, meetings and website NAMBLA encourages its members to rape male children," and that "[u]pon information and belief immediately prior to said acts Charles Jaynes accessed NAMBLA's website at the Boston Public Library," Am. Comp. ¶¶ 18, 31, in evaluating the defendants' motion to dismiss the Court has considered copies of the NAMBLA Bulletin, as well as excerpts from the NAMBLA website.
The First Amendment's guarantee of freedom of expression is sweeping, but not absolute. There are categories of speech that do not receive constitutional protection, including obscenity, defamation, fighting words, and words likely to incite imminent lawless action. The plaintiffs seek to prove that the defendants' publications fall within the last category.
Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115 (1989).
Beauharnais v. Illinois, 343 U.S. 250 (1952).
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
Brandenburg v. Ohio, 395 U.S. 444 (1969).
The seminal case on incitement is Brandenburg v. Ohio, 395 U.S. 444 (1969). In that case, the Supreme Court overturned the Ohio Criminal Syndicalism Act because it punished "mere advocacy" as "distinguished from incitement to imminent lawless action." Brandenburg, 395 U.S. at 449. "[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." Id. (quoting Noto v. United States, 367 U.S. 290 (1961)). See also Hess v. Indiana, 414 U.S. 105, 109 (1973) (speech protected unless "words were intended to produce, and likely to produce, imminent disorder") (emphasis in original).
In various contexts, Courts of Appeals have held particular exercises of "speech" not to be protected by the First Amendment guarantee because they qualified as "incitement" to unlawful activity. Thus, speech which counsels and procures criminal conduct will support liability for "aiding and abetting" in both the criminal, see United States v. Barnett, 667 F.2d 835 (9th Cir. 1982), and civil contexts,see Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997). InBarnett, the defendant had produced and sold detailed instructions for the manufacture of phenylcyclidine (PCP) to a person who manufactured the illegal drug by following the instructions. The court said, "To the extent, however, that Barnett appears to contend that he is immune from search or prosecution because he uses the printed word in encouraging and counseling others in the commission of a crime, we hold expressly that the first amendment does not provide a defense as a matter of law to such conduct." 667 F.2d at 843 (emphasis in original). In Rice, relatives of a murder victim brought a wrongful death action against the publisher of Hit Man: A Technical Manual for Independent Contractors, which gave "detailed factual instructions on how to murder and to become a professional killer" and which allegedly incited the actual murder. 128 F.3d at 239. The court of appeals reversed the district court's grant of summary judgment in favor of the publisher. The court specifically rejected the claim that the publication was protected under the Brandenburg doctrine, saying, "[A]s this case reveals, and as the [Supreme] Court itself has always seemed to recognize, one obviously can prepare, and even steel, another to violent action not only through the dissident 'call to violence,' but also through speech, such as instruction in the methods of terror or other crime, that does not even remotely resemble advocacy, in either form or purpose." Rice, 128 F.3d at 265. See also United States v. Knapp, 25 F.3d 451, 457 (7th Cir. 1994); United States v. Rowlee, 899 F.2d 1275 (2d Cir. 1990); United States v. Buttorff, 572 F.2d 619 (8th Cir. 1978), all holding that persons who counsel and assist others to file false or fraudulent tax returns act outside the zone of "mere advocacy" protected under the Brandenburg doctrine.
Virtually all the cases cited by the parties on this issue involve fully developed factual records after trial or upon a motion for summary judgment. In contrast, the present motion addresses only the allegations of the amended complaint. As noted above, a motion to dismiss for failure to state a claim should be granted only where it is clear that there is no set of facts that is consistent with the allegations that could support liability on any of the theories advanced by the plaintiffs. See Hishon, 467 U.S. at 73. What the plaintiffs can ultimately prove will be seen, but for the time being, it is not clear that the Brandenburg doctrine would foreclose liability on any set of facts that might be shown. Accordingly, the motion to dismiss under Rule 12(b)(6) is denied.
II. Personal Jurisdiction
NAMBLA and the individual defendants have also moved to dismiss on the ground that the Court lacks personal jurisdiction over them, and that venue is improper in this District. Defendant Joseph Powers has moved to dismiss based on insufficient service of process.
Prior to filing their motion to dismiss, the defendants NAMBLA and Radow moved for a more definite statement pursuant to Fed.R.Civ.P. 12(e). That motion did not raise nor mention the defenses of lack of personal jurisdiction, improper venue, or insufficient service of process. Failure to include these Rule 12 defenses in the Rule 12(e) motion works a waiver of them. Fed.R.Civ.P. 12(g) and (h)(1). The First Circuit has said that "it is clear under this rule that defendants wishing to raise any of these four defenses must do so in their first defensive move, be it a Rule 12 motion or a responsive pleading." Manchester Knitted Fashions, Inc. v. Amalgamated Cotton Garment and Allied Indus. Fund, 967 F.2d 688, 692 (1st Cir. 1992) (quotingGlater v. Eli Lilly Co., 712 F.2d 735, 738 (1st Cir. 1983)); see also Clark v. Associates Commercial Corp. v. Howard, 149 F.R.D. 629, 632 (D.Kan. 1993) ("[T]he cases and commentators are overwhelmingly of the opinion that a party who makes a Rule 12(e) motion for a more definite statement may not thereafter assert by motion a Rule 12(b) defense that was available at the time of the initial motion."); Martin v. Delaware Law School of Widener Univ., 625 F. Supp. 1288, 1296 (D.Del. 1985) (by not raising defenses of lack of personal jurisdiction, improper venue, and insufficient service of process at time motion for more definite statement was filed, defendant waived its right to assert those defenses in motion to dismiss). Because such motions are easily raised, courts in this Circuit "strictly apply the waiver rule established in Fed.R.Civ.P. 12(h)(1)."Manchester, 967 F.2d at 692. By failing to raise the defenses of personal jurisdiction and improper venue in their motion for a more definite statement, the defendants NAMBLA and Radow have waived the right to assert those defenses by a subsequent motion to dismiss, and their motion is, accordingly, denied.
As to the other individual defendants named in the amended complaint, Powers, Thorstad, Miller, Herman, Hunter, and Schoen, the plaintiffs do not offer a specific factual basis to justify a conclusion that this Court has personal jurisdiction over those persons under the Massachusetts long-arm statute. The burden is the plaintiffs' to establish personal jurisdiction. See Boit v. Gar-Tec Prods., Inc., 967 F.2d 671 (1st Cir. 1990). It is not sufficient to allege, without differentiating among defendants, that "defendants" generally performed certain acts that brought them within the scope of the long-arm jurisdiction of the Court. Each defendant is entitled to an individual evaluation of his claim that the Court lacks jurisdiction over his person. It is not enough to show that the organization to which the individual defendant belonged had sufficient contacts with the forum to support personal jurisdiction. Rather, the facts "personal" to each defendant must support jurisdiction. The record in this case lacks such specific facts on which a finding of personal jurisdiction could be made as to the individual defendants. The single exception is Radow, who, as explained above, has waived the defense of lack of personal jurisdiction.
However, because the Court will allow an additional amendment to the complaint, see Part V below, the plaintiffs will have an opportunity to make a better case for personal jurisdiction as to these defendants, if one can be made. Their motion is, accordingly, denied without prejudice to its renewal after the complaint has been further amended.
III. Venue
An action not founded solely on diversity jurisdiction may be brought in a district where "a substantial part of events . . . giving rise to the claim occurred." 28 U.S.C. § 1391(b)(2). The amended complaint alleges that Jaynes's contacts with NAMBLA as well as the abduction of Jeffrey Curley occurred within this District. Venue is proper.
IV. Service of Process
Defendant Joseph Power has moved to dismiss for insufficient service of process, arguing that the method of service employed by the plaintiffs, mailing a copy of the complaint to his former address, did not comply with Fed.R.Civ.P. 4(e). However, on January 18, 2001, this Court granted the defendants' motion for an order allowing parties that were yet unserved leave to proceed without disclosing their true names or addresses (Dkt. No. 16). Powers, whether or not previously served properly, agreed that counsel could accept service on his behalf for the sake of keeping his identity and address undisclosed to the plaintiffs. See Defendants' Motion for an Order Allowing Certain Unserved Parties Leave to Proceed at ¶ 7 ("Subject to the allowance of this motion, the moving parties have authorized counsel to accept service and enter our appearance on their behalf.") Therefore, he has waived any objection on the ground of improper service of process.
V. Further Amendment of the Complaint
The plaintiffs have moved to file a second amended complaint. One of the purposes of the amendment is to add a RICO claim under 18 U.S.C. § 1961 et seq. However, as the defendants correctly point out, only persons who have been injured in their "business or property" may pursue a civil RICO claim for damages. See 18 U.S.C. § 1964(c); Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985). Damages for wrongful death or personal injury are not available under § 1964(c).See Grogan v. Platt, 835 F.2d 844 (11th Cir. 1988). The dictum in Libertad v. Welch, 53 F.3d 428, 437 (1st Cir. 1995) is not a basis for finding a RICO cause of action for the harm claimed by the plaintiffs.
In addition, the proposed second amended complaint seeks to add at least one newly named defendant and some unnamed "John Doe" members of NAMBLA and also refocuses the other claims in the case. There is no reason not to allow those amendments.
The solution is to deny the motion to file the proffered second amended complaint, but to permit the plaintiffs, within 35 days of the date of this order, to file a second amended complaint that omits the RICO claim, but otherwise makes the changes reflected in the current proposed version.
VI. Conclusion
The defendants' motion to dismiss for failure to state a claim on which relief can be granted is denied. The motion to dismiss for lack of personal jurisdiction is denied as to NAMBLA and Radow and denied without prejudice as to the other individual defendants. The motion to dismiss for improper venue and defendant Power's motion to dismiss for improper service of process are also denied.
It is SO ORDERED.