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July 7, 1999


The opinion of the court was delivered by: Chesney, District Judge.



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 follows:


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
  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].

Nicosia also alleges that De Rooy implied that he had forged a letter from Jan Kerouac (Comp., ¶ 51; RJN Ex. F at 10), and accused Nicosia of delivering a "heartless" speech about Jan at her memorial service. (Comp., ¶ 52; RJN Ex. F at 20).


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 jurisdiction.

A. Legal Standard

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).

B. Analysis

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
  be reasonable.

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.

1. Purposeful Availment

"`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 Cross, 112 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 state.

"[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 5).

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 availment requirement.

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.

3. Reasonableness

De Rooy also argues that exercising jurisdiction would be unreasonable*fn5 because De Rooy does not have the financial means to defend the instant suit in California. The defendant has the burden of showing unreasonableness and must do so by "present[ing] a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995) (citation omitted). Although the burden of defending in the forum state is a factor in assessing reasonableness, unless the "inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction." Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128-29 (9th Cir. 1995) (citation omitted).

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 reasonable.

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 personal jurisdiction.

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 Procedure.

A. Legal Standard

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. 1986).

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).

B. Analysis

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, ...

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