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.
De Rooy also argues that exercising jurisdiction would be
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
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. 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.
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, or at least imply assertions of fact, and
that he has sufficiently pled actual malice.
1. Opinion or Fact
Whether a statement is an assertion of fact or opinion is a
question of law for the court. Dworkin v. Hustler Magazine,
Inc., 867 F.2d 1188, 1193 (9th Cir. 1989); Baker v. Los Angeles
Herald Examiner, 42 Cal.3d 254, 260, 228 Cal.Rptr. 206, 209
(1986); Gaeta v. Delta Airlines, Inc., 1997 WL 655953, at *4
(N.D.Cal. 1997). Pure opinions — "those that do not imply facts
capable of being proved true or false" — are protected by the
First Amendment. Partington v. Bugliosi, 56 F.3d 1147, 1153 fn.
10 (9th Cir. 1995). Assertions of fact and statements that "may
imply a false assertion of fact," however, are not protected.
Id. (quotes, citations, ellipses omitted). To determine whether
a statement implies an assertion of fact, the Ninth Circuit
applies the following three-part test:
[W]e examine the totality of the circumstances in
which it was made. First, we look at the statement in
its broad context, which includes the general tenor
of the entire work, the subject of the statement, the
setting, and the format of the work. Next we turn to
the specific context and content of the statement,
analyzing the extent of figurative or hyperbolic
language used and the reasonable expectations of the
audience in that particular situation. Finally, we
inquire whether the statement itself is sufficiently
factual to be susceptible of being proved true or
Underwager v. Channel 9 Australia,