Opinion
CIVIL ACTION NO.: 14-00574-BAJ-EWD
01-07-2016
TODD HORATIO WHITE, ET AL. v. NBA PROPERTIES, INC., ET AL.
RULING AND ORDER
Before the Court is a Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) or Alternatively, Motion for Summary Judgment (Doc. 18) filed by Defendants NBA Properties, Inc., Ayala Deutsch, and Sacha Tarrant (collectively, "Defendants"). Plaintiffs Todd Horatio White and Cajun Supermarket, Inc. (collectively, "Plaintiffs") have filed a motion in opposition, (Doc. 19), to which Defendants have replied, (Doc. 22). Jurisdiction is proper pursuant to 28 U.S.C. § 1332. For reasons explained herein, Defendants' motion is GRANTED.
I. BACKGROUND
Plaintiffs assert that the allegations made by Defendants in two cease and desist letters, (see Doc. 1-2 at pp. 14—17), and a subsequent Uniform Domain Name Dispute Resolution Policy proceeding, (id. at pp. 18—25), constitute defamation under LA. CIV. CODE art. 2315, (id. at pp. 2—13). Defendants respond that: (1) all claims against Defendants Ayala Deutsch and Sacha Tarrant should be dismissed pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(2), and (2) all claims against Defendant NBA Properties, Inc. should be dismissed pursuant to either Rule 12(b)(6) or Rule 56. (See Doc. 18).
The Internet Corporation for Assigned Names and Numbers ("ICANN") provides that all domain-name disputes must be resolved before the Asian Domain Name Dispute Resolution Centre ("ADNDRC") pursuant to the Uniform Dispute Resolution Policy ("UDRP"). See Lockheed Martin Corp. v. Network Sols., Inc., 141 F. Supp. 2d 648, 651—52 (N.D. Tex. 2001).
II. DISCUSSION
A. The Court Lacks Personal Jurisdiction over Defendants Ayala Deutsch and Sacha Tarrant.
On August 14, 2013, Defendant Sacha Tarrant ("Tarrant") wrote a letter to Plaintiff Todd Horatio White demanding that he cease and desist use of the internet domain name "NBASTYLE.COM". (See Doc. 1-2 at pp. 14—15). On August 28, 2013, Defendant Ayala Deutsch ("Deutsch") wrote a letter to Darrell White of Plaintiff Cajun Supermarket, Inc. offering to purchase the domain name "NBASTYLE.COM" for $1,000 and threatening to initiate a Uniform Domain Name Dispute Resolution Policy proceeding if he refused. (Id. at pp. 16—17). Both Defendants are lawyers who, in writing the above-letters, were acting on behalf of their employer/client NBA Properties, Inc. (Id. at pp. 15, 17) (signature lines); (See Doc. 18-3 at ¶¶ 2, 5, 15); (See Doc. 18-4 at ¶¶ 4, 11—12).
See supra p. 1 n.1.
Plaintiffs assert that these letters "constitute more than sufficient contact to establish [personal] jurisdiction" over Defendants Tarrant and Deutsch. (See Doc. 19 at p. 3). However, neither a cease and desist letter nor a settlement offer can, without more, confer personal jurisdiction over a non-resident defendant such as Tarrant or Deutsch.
With respect to the issue of personal jurisdiction, the burden is Plaintiffs' to bear. See Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985).
See Sinclair v. StudioCanal, S.A., 709 F. Supp. 2d 496, 508 (E.D. La. 2010); DNH, L.L.C. v. In-N-Out Burgers, 381 F. Supp. 2d 559, 564 (E.D. La. 2005) (citing cases).
See Burger King Corp. v. Rudzewicz, All U.S. 462, 478—79 (1985).
See Doc. 18-4 at ¶¶ 15—24.
See Doc. 18-3 at ¶¶ 15, 19.
Defendants' motion is therefore GRANTED, and Plaintiffs' claims against Tarrant and Deutsch are hereby DISMISSED WITHOUT PREJUDICE pursuant to Rule 12(b)(2).
Accordingly, all arguments related to the fiduciary shield doctrine are moot. See Doc. 18-1 at pp. 7—9.
B. Defendant NBA Properties, Inc. is Entitled to Summary Judgment Pursuant to the Doctrine of Qualified Privilege.
Defendant NBA Properties, Inc. moves for summary judgment pursuant to Rule 56, asserting that the defamatory statements upon which Plaintiffs' claims rest are subject to qualified privilege. "Qualified pi-ivilege is an affirmative defense to defamation provided by Louisiana law for one who can prove that he made a statement (1) in good faith (2) on a matter in which he had an interest or a duty (3) to another person with a corresponding interest or duty." Smolensky v. McDaniel, 144 F. Supp. 2d 611, 618—19 (E.D. La. 2001) (quoting Stockstill v. Shell Oil Co., 3 F.3d 868, 872 (5th Cir. 1993)); see also Kennedy u. Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06); 935 So. 2d 669, 682. If there is a genuine dispute of material fact as to any of these three elements, summary judgment will not lie. See Fed. R. Civ. P. 56(a).
"[A] party may file a motion for summary judgment at any time until 30 days after the close of all discovery." See Fed. R. Civ. P. 56(b) (emphasis added).
For the reasons provided infra, all arguments related to Defendants' motion to dismiss pursuant to Rule 12(b)(6) are moot. See Doc. 18-1 at pp. 9—13.
Given that jurisdiction in this case is proper pursuant to 28 U.S.C. § 1332, the Court's analysis is governed by state substantive law. See Shanks u. Allied-Signal, Inc., 169 F.3d 988, 993 (5th Cir. 1999) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).
Plaintiffs do not dispute that Defendant NBA Properties, Inc. had an interest or a duty in the allegedly defamatory statements it made. Nor do Plaintiffs dispute that the allegedly defamatory statements were made to parties with a corresponding interest or duty. Rather, Plaintiffs assert that because Defendant NBA Properties, Inc. has allegedly "used language that is inaccurate and misleading," the question of good faith is a "credibility determination" that "entitles Plaintiffs[] to their day in court." (See Doc. 19 at p. 5).
In support of their position, Plaintiffs cite Painter v. Suire, No. 12-cv-511, 2014 WL 3897660, at *2 (M.D. La. Aug. 8, 2014), a case in which the court held that a motion for summary judgment does not lie where the defense of qualified immunity is invoked absent "a judicial determination" that the allegedly defamatory statements "were actually made in good faith." But Painter is inapplicable where, as here, a quasi-judicial body has rendered judgment in Defendants' favor. (See Doc. 1-2 at p. 26). Moreover, Plaintiffs have not offered any evidence to rebut Defendants' good-faith defense. Compare Maggio v. Liztech Jewelry, 912 F. Supp. 216, 220 (E.D. La. 1996) (noting that under Louisiana law, a statement is made in "good faith" when the person making it honestly and reasonably believes it to be correct), with (Doc. 19 at p. 5) (wherein Plaintiffs assert that Defendants' statements were not made in good faith because they employed "language that is inaccurate or misleading").
There can be little doubt that the ADNDRC, see supra p. 1 n.1, is a quasi-judicial body, cf. Grace v. Louisiana Hous. Fin. Agency, No. 11-cv-752, 2012 WL 1252623, at *4, *5 n.5 (M.D. La. Mar. 13, 2012) (referring to a state unemployment hearing as a a "quasi-judicial proceeding"), report and recommendation adopted, 2012 WL 1253005 (M.D. La. Apr. 13, 2012); Lockheed, 141 F. Supp. 2d at 651—52 (discussing the procedure by which domain-name disputes are resolved); Williams v. DiVittoria, 777 F. Supp. 1332, 1340 (E.D. La. 1991) (referring to an attorney disciplinary hearing as a "quasi-judicial proceeding").
Defendants' assertion of qualified privilege had the "practical effect" of shifting the summary-judgment-burden onto Plaintiffs. See Kennedy, 935 So. 2d at 683.
Such evidence would have, of course, been viewed in a light most favorable to Plaintiffs. See Coleman v. Houston Independent School Dist., 113 F.3d 528, 533 (5th Cir. 1997). --------
Defendants' motion is therefore GRANTED, and Plaintiffs' claims against NBA Properties, Inc. are hereby DISMISSED WITH PREJUDICE pursuant to Rule 56.
III. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants' Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) or Alternatively, Motion for Summary Judgment (Doc. 18) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs' claims against Defendants Ayala Deutsch and Sacha Tarrant are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiffs' claims against Defendant NBA Properties, Inc. are DISMISSED WITH PREJUDICE.
Baton Rouge, Louisiana, this 7th day of January, 2016.
/s/ _________
BRIAN A. JACKSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA