The opinion of the court was delivered by: Chesney, District Judge.
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO
DISMISS; GRANTING DEFENDANT'S MOTION TO STRIKE
Before the Court are the motions of defendant Diane De Rooy
("De Rooy") (1) to dismiss, pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure, for lack of personal
jurisdiction; (2) to dismiss, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, for failure to state a claim;
and (3) to strike, pursuant to California Code of Civil Procedure
§ 425.16. The Court, having considered the papers filed in
support of and in opposition to the motion, and the arguments of
counsel presented at the hearing on February 19, 1999, rules as
Plaintiff Gerald Nicosia ("Nicosia"), a California resident,
brings the instant action for slander and libel in connection
with statements De Rooy published about Nicosia on her web-site.
According to the Complaint, De Rooy has called Nicosia a killer,
an embezzler, a criminal, a fraud, a perjurer, and a liar, and,
in particular, De Rooy has stated:
Gerald Nicosia is to the Beats (and Jan) what Charles
Manson was to the hippies. Virtually everyone I've
interviewed over the 17 months, including
disinterested third parties, has said the same thing:
Gerald Nicosia killed Jan Kerouac. [Comp., ¶ 36;
Request for Judicial Notice ("RJN"), Ex. K].
[Nicosia used a Kerouac seminar] as a publicity
stunt, in an effort to keep the public from noticing
his embezzlement of at least $33,000 from Jan
Kerouac's heirs. [Comp., ¶ 34; RJN, Ex G at 7]. When
I began my research 18 months ago, I had no idea I
would discover that Gerry Nicosia's [sic] is a
self-serving fraud and criminal. [Comp. ¶ 35; RJN, Ex
G at 9].
[Joe Grant] is the foremost accomplice of Gerald
Nicosia, who for years has been illegally trying to
gain ownership of the papers and marketable image of
Jack Kerouac. [Comp., ¶ 45; RJN Ex. G at 7].
I thought [Nicosia] was maybe mentally unstable, from
the stress of his crusade, perhaps. But I had to
cross a line at some point into believing he was
simply, deliberately, lying, including perjuring
himself in court documents I'd gotten copies of.
[Comp., ¶ 37; RJN, Ex. E]. I have personal knowledge
of the underhanded and deceitful practices of these
two men. Although there is no controversy around the
Jack Kerouac Estate, and his papers are in no danger
whatsoever, Joe Grant and Gerald Nicosia persist in
telling these lies because they are embittered
believers in their own publicity. [Comp., ¶ 46; RJN
Ex. G at 7]. TWO YEARS AFTER THE DEATH OF JAN
KEROUAC, her name is still at the center of
controversy. Her heirs are still besieged by a
self-celebrating writer with dubious credentials, who
is living off the proceeds of her persona. Jan is
dead, but she is far from being laid to rest. Many
people have unpublished points of view relating to
Jan Kerouac's unfortunate association with Gerald
Nicosia. These viewpoints clearly reveal a man with
Napoleonic aspirations to conquer the literary
kingdom; a man who believes he is more ethical than
most people; a man who refuses to admit his own
desires for money and fame; a man who has alienated,
betrayed, or lied to everyone in the Beat community.
[Comp., ¶ 44; RJN, Ex. F at 2].
[Nicosia] is far less well known for his biography of
Jack Kerouac than he is for his role, many believe,
as the Svengali who manipulated Kerouac's daughter,
Jan. Two years after the death of Jan Kerouac, hardly
a week goes by when Nicosia doesn't invoke the dead
woman's name to shore up a sagging writing career.
[Comp., ¶ 42; RJN, Ex. F at 5]. Many people have
unpublished points of view relating to Jan Kerouac's
unfortunate association with Gerald Nicosia. These
viewpoints clearly reveal a man with Napoleonic
aspirations to conquer the literary kingdom[.]
[Comp., ¶ 44; RJN, Ex. F at 2].
Nicosia appears to be so serious about being Jack
Kerouac that he's even made application to trademark
his name for use, nationally and internationally, in
labeling `Clothing, Games, Toys & Sports Goods' (U.S.
Patent & Trademark Office, Serial No. 75-451,862
filed March 17, 1998). Taking his admitted enmeshment
and confessed transformation to its next logical
level, Gerald Nicosia is Jack Kerouac, and he's here
to get his stuff back. [Comp. ¶ 43; RJN, Ex. F at 6].
I. Motion to Dismiss for Lack of Personal Jurisdiction
De Rooy moves to dismiss, pursuant to Rule 12(b)(2) of the
Federal Rules of Civil Procedure, for lack of personal
Pursuant to Federal Rule of Civil Procedure 12(b)(2), a
defendant may move to dismiss the complaint on the grounds that
the court lacks jurisdiction over the defendant. In opposing a
motion to dismiss for lack of personal jurisdiction, the
plaintiff must present a prima facie case that personal
jurisdiction exists over the defendants. See United States v.
Ziegler Bolt and Parts Co., 111 F.3d 878, 880 (Fed.Cir. 1997).
In determining whether the plaintiff has presented a prima
facie case, the Court must assume the truth of "well pled"
allegations in the complaint that are not contradicted. Wenz v.
Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). The Court
need not, however, assume the truth of conclusory allegations.
Id. Once the defendant has contradicted allegations contained
in the complaint, plaintiff may not rest on the pleadings, and
must present admissible evidence to support the court's exercise
of personal jurisdiction. Data Disc, Inc. v. Systems Technology
Associates, Inc., 557 F.2d 1280, 1284 (9th Cir. 1977) (citing
Taylor v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir.
1967)). The plaintiff must produce admissible evidence which, if
believed, would be sufficient to establish the existence of
personal jurisdiction. WNS, Inc. v. Farrow, 884 F.2d 200,
203-204 (5th Cir. 1989). The court is required to resolve
disputed facts in the light most favorable to the plaintiff.
Dakota Industr., Inc. v. Dakota Sportswear, Inc.,
946 F.2d 1384, 1387 (8th Cir. 1991).
In order to establish personal jurisdiction over defendants,
plaintiffs must first show that the forum state's jurisdictional
statute confers personal jurisdiction over defendants, and that
the exercise of such jurisdiction "accords with federal
constitutional principles of due process." Federal Deposit Inc.
Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1441
(9th Cir. 1987). California's "long-arm" statute extends
jurisdiction to the maximum extent permitted by due process.
(See Cal. Civ. Proc. § 410.10). Accordingly, the jurisdictional
inquiries under state law and constitutional due process
principles can be conducted simultaneously. Pacific Atl. Trading
Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir. 1985).
Nicosia argues that De Rooy is subject to specific jurisdiction
in California. In the Ninth Circuit, a three-part test is applied
to determine whether specific jurisdiction may be exercised over
a defendant consistent with due process principles:
(1) The nonresident defendant must do some act or
consummate some transaction with the forum or perform
some act by which he purposefully avails himself of
the privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its
laws[;] (2)[t]he claim must be one which arises out
of or results from the defendant's forum-related
activities[; and](3)[e]xercise of jurisdiction must
Omeluk v. Langsten Slip & Batbyggeri A/S, 52 F.3d 267, 270 (9th
Cir. 1995) (citations omitted). For personal jurisdiction over
the defendant to comply with due process, all of these
requirements must be met. Id.
"`Purposeful availment' requires that the defendant engage in
some form of affirmative conduct allowing or promoting the
transaction of business within the forum state." American Red
F.3d at 1051. "A defendant has purposefully availed himself of
the benefits of a forum if he has deliberately `engaged in
significant activities within a State or has created continuing
obligations' between himself and the residents of the forum."
Gray & Co. v. Firstenberg Machinery Co., Inc., 913 F.2d 758,
760 (9th Cir. 1990) (quoting Burger King v. Rudzewicz,
471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985)).
Thus, "[i]solated contacts, an attenuated affiliation, or the
unilateral activity of another party in the forum state is
insufficient." Advideo, Inc. v. Kimel Broadcast Group, Inc.,
727 F. Supp. 1337, 1340 (N.D.Cal. 1989).
Purposeful availment is not satisfied by merely creating a
web-site accessible by residents of the forum state. Cybersell,
Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997)
("Creating a[web]-site, like placing a product into the steam of
commerce, may be felt nationwide — or even worldwide — but,
without more, it is not an act purposefully directed toward the
forum state."). There has to be "`something more' [than a
web-site] to indicate that the defendant purposefully (albeit
electronically) directed his activity in a substantial way to the
forum state." Panavision International, L.P. v. Toeppen,
141 F.3d 1316, 1321 (9th Cir. 1998) quoting Cybersell, 130 F.3d at
418.*fn1 The requirement of "something more" applies equally to
defamation cases involving more traditional forms of publication,
like newspapers and magazines. See Gordy v. Daily News, L.P.,
95 F.3d 829 (9th Cir. 1996) (New York defendants who "wrote and
published their allegedly defamatory column intentionally
directing it at . . . a California resident" must do "something
more" to invoke jurisdiction).
In the instant case, the parties agree that De Rooy's creation
of a web-site in Washington State is not sufficient by itself to
subject her to jurisdiction in California. Nicosia must show that
De Rooy did "something more" to direct her activities toward this
"[T]he circulation of the defamatory material in the forum
state is an important factor in the minimum contacts analysis for
a defamation action." Gordy, 95 F.3d at 833 (quoting Casualty
Assurance Risk Insurance Brokerage v. Dillon, 976 F.2d 596, 599
(9th Cir. 1992)). In Gordy, cited by Nicosia, a California
resident brought suit in California against a New York newspaper
for defamation. Id. at 833. The Ninth Circuit found that the
newspaper's regular distribution of 13 to 18 copies of its
publication in California was sufficient to invoke jurisdiction
over the New York defendant. The court reached this conclusion
even though more than 99% of the newspaper's circulation was in
or near New York City, and only .0017% of the circulation was in
California. Id. at 830.
Here, De Rooy did more than the defendants in Gordy to direct
her activities toward California. Nicosia has sufficiently shown
that De Rooy sent at least eleven e-mails, out of a total of one
hundred, to California addresses, inviting the recipients to view
the articles on her web-site. (Id. at ¶¶ 6 & 7).*fn2 While the
absolute number of contacts (11) is comparable to the number of
contacts in Gordy (13 to 18),
the percentage of California contacts (10%) is much higher than
that in Gordy (.0017%).
De Rooy argues that the instant case is distinguishable from
Gordy because the defendants in Gordy actually delivered the
defamatory material into the forum state, while the e-mails she
sent merely invited people to view her web-site. This is a
distinction without a difference. The "something more"
requirement considers whether a defendant sufficiently directed
her activities toward the forum state. De Rooy's e-mail
invitations target California residents in a way similar to
sending the defamatory material itself.*fn3
De Rooy also argues that personal jurisdiction does not lie
because the brunt of Nicosia's alleged injury is not felt in
California, but in New Mexico and Florida, where the probate of
the Kerouac estate took place. De Rooy relies upon Gordy for
the proposition that, when an allegedly defamatory statement
concerns activities outside of the forum state, the brunt of the
injury is felt outside the forum state. While some language in
Gordy may be read to support such an interpretation,*fn4 the
facts do not. In Gordy, where the Ninth Circuit found
jurisdiction proper in California, the court also noted that
"[t]he events reported in the allegedly defamatory article did
not take place in California, nor did the article mention
California." Id. at 831. Furthermore, to the extent the content
of the story is relevant to personal jurisdiction, the content of
De Rooy's articles actually bolsters a finding of personal
jurisdiction. Nicosia's sale of Jan Kerouac's archives to the
Bancroft Library, which De Rooy discusses at length on her
web-site, took place in California. (See De Rooy Decl., Ex. F at
For the foregoing reasons, the Court finds that Nicosia has
made a prima facie showing that De Rooy purposefully directed her
activities toward California so as to satisfy the purposeful
2. Arising Out of Forum Related Contacts
De Rooy also disputes that the claim arose out of her contacts
with California. The Ninth Circuit applies a "but for" test to
decide whether a defendant meets this requirement. Shute v.
Carnival Cruise Lines, 897 F.2d 377, 385-86 (9th Cir. 1990),
rev'd on other grounds, 499 U.S. 585, 111 S.Ct. 1522, 113
L.Ed.2d 622 (1991). Courts, therefore, must ask the following
question: but for the defendant's contacts with the forum state,
would the plaintiff's claims against the defendant have arisen?
Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). As
applied to the instant case, the answer is clearly "yes." But for
De Rooy's posting of her articles on her web-site and sending
e-mails to Californians, Nicosia's claims against De Rooy would
not have arisen.
Here, De Rooy has not demonstrated that her inconvenience is so
great as to constitute a deprivation of due process and has not
otherwise made a compelling showing of unreasonableness.
Therefore, the Court finds the exercise of jurisdiction
For the foregoing reasons, the Court finds that De Rooy is
subject to personal jurisdiction in California. Accordingly, the
Court hereby DENIES De Rooy's motion to dismiss, pursuant to Rule
12(b)(2) of the Federal Rules of Civil Procedure, for lack of
II. Motion to Dismiss for Failure to State a Claim
De Rooy also brings a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
A motion to dismiss under Rule 12(b)(6) cannot be granted
unless "it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to
relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
102, 2 L.Ed.2d 80 (1957). Dismissal can be based on the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. Balistreri v. Pacifica
Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Dismissal is
disfavored, however, and should be granted only in
"extraordinary" cases. United States v. Redwood City,
640 F.2d 963, 966 (9th Cir. 1981).
Generally, a district court may not consider any material
beyond the pleadings in ruling on a Rule 12(b)(6) motion. Hal
Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
896 F.2d 1542, 1555 n. 19 (9th Cir. 1989). Material which is properly
submitted as part of the complaint may, however, be considered.
Id. In addition, documents specifically referred to in a
complaint, though not physically attached to the pleading, may be
considered where authenticity is unquestioned. Branch v.
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Finally, the Court
may take judicial notice of matters of public record. Mack v.
South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.
In analyzing a motion to dismiss, the Court must accept as true
all material allegations in the complaint and construe them in
the light most favorable to the nonmoving party. NL Industries,
Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). Factual
allegations may be disregarded, however, if contradicted by
documents to which the court may properly refer. Durning v.
First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
Conclusory allegations, unsupported by the facts alleged, need
not be accepted as true. Holden v.
Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).
De Rooy argues that Nicosia's complaint should be dismissed (1)
because, as a matter of law, the allegedly defamatory statements
are opinions protected by the First Amendment, and (2) because
Nicosia has failed to sufficiently allege actual malice. Nicosia
responds that the challenged statements are unprotected
assertions of fact, ...