Order Denying Motions for Summary Judgment (Docs. 75, 79 and Various Other Relief (Docs. 184, 195, 197)
JENNIFER A. DORSEY, District Judge.
This cybersquatting case arises out of the alleged targeting of Plaintiffs Marc Randazza, his wife Jennifer, and their young daughter Natalia, by Defendant Crystal Cox, a self-proclaimed "investigative blogger." The Randazzas allege that Cox and Defendant Eliot Bernstein have engaged in an online harassment campaign to extort them by registering dozens of internet domain names that incorporate the Randazzas' names and then demanding they agree to purchase Cox's "reputation management" services to remove this allegedly defamatory material from the internet and rehabilitate their cyber reputations. Cox maintains that this lawsuit was instituted to harass her and stifle her First Amendment freedoms of speech and expression.
The Randazza Plaintiffs move for summary judgment on their claims against Cox.
Motions for Summary Judgment
In November 2012, the Randazzas sued Cox and Bernstein alleging violations of individual cyberpiracy protections for various registered websites under 15 U.S.C. § 8131, cybersquatting for various registered websites under 15 U.S.C. § 1125(d), their right of publicity under NRS 597.810, their common law right of publicity, intrusion upon seclusion, and civil conspiracy. The claims were based on allegations that Cox and Bernstein registered several domain names containing Plaintiffs' names, that Cox's blog posts contained objectionable characterizations of the Plaintiffs, and that these acts were designed to extort and harass the Randazzas and capitalize on and damage the goodwill Marc Randazza claims he built up in his own name as a prominent First Amendment attorney.
Bernstein has not appeared or answered the allegations, but Cox has. She contends that she registered the domain names to control public relations information when she thought Marc Randazza would represent her in another lawsuit. Cox also strongly objects to Plaintiffs' characterization of her motivation and actions as "extortion."
The tortured history of this case is rife with procedural maneuvering by both sides. All parties have disrupted the Court's timely management of its docket, wasted judicial resources, and threatened the orderly administration of justice by sandbagging the docket with multiple impertinent, legally unsupported, and frivolous filings. The instant motions were not spared from these tactics. Despite Mr. Randazza's self-proclaimed prominence as a First Amendment attorney and being represented by independent counsel, Plaintiffs have failed to authenticate more than half of their proffered exhibits in support of their motion; and half of the authenticated ones are immaterial to this motion. Equally confounding is that pro se Cox has submitted a 255-page nonsensical summary judgment motion and a 183-page opposition to Plaintiffs' summary judgment motion, neither of which includes any relevant legal authority or complies with this Court's rules of procedure and evidence. In short, all parties have fallen far short of sustaining their initial summary judgment burdens and both motions are denied.
A. Authentication of Evidence
The first step in analyzing these motions is to determine what evidence the Court may consider in evaluating whether the parties met their respective burdens. In Orr v. Bank of America, the Ninth Circuit Court of Appeals "made it clear that `unauthenticated documents cannot be considered in a motion for summary judgment.'"
Documents may be authenticated two ways: (1) through the personal knowledge of a party who attests that the document is what it purports to be; or (2) any other manner permitted by Federal Rules of Evidence 901(b) (which provides ten methods of authentication) or 902 (identifying selfauthenticating documents that "require no extrinsic evidence of authenticity in order to be admitted").
Plaintiffs' proffered evidence falls into several categories, and the Court addresses each in turn:
Plaintiffs offer at Exhibit B an article from Forbes Magazine. Printed material "purporting to be a newspaper or periodical" is self-authenticating.
Few courts have considered how a website print-out or blog posting may be authenticated. Those that have considered the issue have found "website print-outs [were] sufficiently authenticated where the proponent declared that they were true and correct copies of pages on the internet and the print-outs included their webpage URL address and the dates printed."
The websites contained in Exhibits E, K, Q, R, S, and T have been properly authenticated under this standard because Plaintiff Marc Randazza has attested that they are true and correct copies and the print-outs include the webpage URL address and the dates the websites were printed.
3. Letters, Emails, and Text Messages
A document may be authenticated by personal knowledge "by a witness who wrote it, signed it, used it, or saw others do so."
Plaintiffs have authenticated the letter sent from Mr. Randazza to Defendant Bernstein presented in Exhibit A by Randazza's affidavit stating that he wrote and signed the letter. Similarly, Mr. Randazza's curriculum vitae and the "About" page of his blog attached as Exhibits I and J have been properly authenticated because Mr. Randazza is a person with personal knowledge and he wrote his curriculum vitae and the "About" page of his own blog. Plaintiffs have also authenticated via circumstantial evidence the emails between Cox and Mr. Randazza contained in Exhibit H because the email contains sufficient indicia of authenticity by context, the email addresses, and previous correspondence between the parties.
But Plaintiffs have not authenticated the purported emails between Cox and Dylan Energy CEO Martin Cain contained in Exhibit C. Although Plaintiffs attempt to authenticate Exhibit C via circumstantial evidence, there is a gap in the email chain. Mjr@randazza.com purportedly received the forwarded email from email@example.com; savvybroker@ yahoo.com (the email associated with Cox) sent the email to firstname.lastname@example.org. Therefore, it is unclear how the person in control of the email address email@example.com came to be in possession of an email originally addressed to firstname.lastname@example.org. Without some explanation of the gap in this email chain by someone with personal knowledge, there is insufficient circumstantial indicia of authenticity for the Court to consider this document.
Plaintiffs have not authenticated the text message screen shot in Exhibit A either. The screen shot purporting to be a text-message exchange between Messrs. Randazza and Bernstein has not been authenticated because it does not have circumstantial indicia of authenticity. It is unclear which phone numbers sent or received the messages or to whom those phone numbers belonged when the screen shot was taken, or who took the screen shot. Without this type of supporting evidence, the Court cannot consider the text message in Exhibit A.
Finally, Exhibit L, which is a compiled listing made by the Plaintiffs of the allegedly infringing domain names, is not evidence, and no realistic effort has been made to render it authentic and worthy of evidentiary consideration.
4. Administrative Agency Decisions
Certified copies of public records are self-authenticating when the copy is certified as correct by "the custodian or another person authorized to make the certification."
5. YouTube Video
Exhibit N is a transcript of a YouTube video. The single court having addressed how to authenticate a Youtube.com video, albeit in a criminal context, found that videos from the online video network are self-authenticating as a certified domestic record of a regular conducted activity if their proponent satisfies the requirements of the business-records hearsay exception.
The transcript of the YouTube video contained in Exhibit N has not been properly authenticated. Although Mr. Randazza has attested that it is a true and correct copy of a transcript of a video posted on YouTube.com, he has not established that he is a person with personal knowledge who prepared the transcript, nor has he established when it was prepared and that it is complete and accurate. To the extent that the YouTube.com video itself is offered as evidence, it similarly has not been authenticated because Plaintiffs have not proffered the certificate of YouTube's custodian or other qualified person verifying that the page had been maintained as a business record in the course of regularly conducted business activities. Without this certification, the video has not been properly authenticated and cannot be considered.
With these evidentiary limitations, the Court now turns to the merits of Plaintiffs' summary judgment arguments.
B. Plaintiffs are not entitled to summary judgment on their claims.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law."
Once the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to "set forth specific facts showing that there is a genuine issue for trial."
1. Genuine issues of material fact preclude summary judgment on Plaintiffs' claims 1-3 relating to violations of individual cyberpiracy protections under 15 U.S.C. § 8131.
The Randazzas' first, second, and third claims arising under 15 U.S.C. § 8131 allege that Defendants' registration of the multiple domain names violates the provision that provides cyberpiracy protection for individuals.
To prevail under this theory, a plaintiff must show that the specific intent to profit existed at the time of the registration.
Genuine issues of material fact preclude entry of judgment in the Randazzas' favor on these first three cyberpiracy claims. They have failed to show by admissible evidence that at the time the Defendants registered domain names there was a specific intent to profit by selling the domains to Plaintiffs or a third party. At best, they have demonstrated only that Defendant Cox offered to sell Mr. Randazza a few of the domain names at some point after the domain names were registered. This ex post action does not prove the specific intent to profit at the time the domains were purchased. Even if the Court were to consider post-registration conduct, it still cannot infer intent at the time of registration because the evidence undermines that conclusion.
2. Genuine issues of material fact preclude summary judgment on claims 4-5 for Cybersquatting under 15 U.S.C. § 1125(d).
The Randazzas' fourth and fifth claims allege that Defendants' registration of the domain names violates the provision that prohibits cybersquatting.
Jennifer and Natalia Randazza's claims fail as a matter of law because they have not alleged or shown any facts to support common-law trademarks in their personal names. Thus, Jennifer and Natalia are not entitled to summary judgment in their favor on these claims.
Assuming Mr. Randazza could show a common law trademark in his name, he has not demonstrated Defendants acted with bad-faith intent to profit from that mark. To determine whether Defendants acted in bad faith, the Court considers the nine nonexclusive factors outlined in § 1125(d)(1)(b): (1) the trademark or intellectual property rights of the defendants in the domain name;
(2) the extent to which the domain name is the legal name of a person, (3) defendant's prior use of the domain name in connection with a bona fide offering of goods and services, (4) whether the defendant made a bona fide noncommercial fair use of the domain name, (5) defendant's intent to divert consumers from the mark owner's online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site, (6) whether the defendant offered to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name, (7) whether the defendant provided false contact information when registering the domain name, (8) whether the defendant registered multiple domain names which defendant knew were identical to or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, and (9) the extent to which the trademark incorporated into the domain name is distinctive.
3. Genuine issues of material fact preclude summary judgment on claim 6 for Right of Publicity under NRS § 597.810.
Plaintiffs' sixth claim alleges that Defendants' registration of the domain names containing the entirety or part of the Randazzas' personal names violated their rights of publicity under Nevada law. NRS § 597.810 prohibits "[a]ny commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use. . . ."
Genuine issues of material fact also preclude entry of judgment in Plaintiffs' favor on this privacy claim. The Randazzas have failed to show by admissible evidence that Defendants intended to advertise, sell, or solicit the purchase of any product, merchandise, goods, or service. Indeed, Plaintiffs have offered no admissible evidence that tends to show any commercial use of the their names. Thus, summary judgment is also denied on this claim.
4. Claim 7 for Common Law Right of Publicity is legally untenable.
Plaintiffs' seventh claim alleges that Defendants' registration of the domain names containing the entirety or part of the Randazzas' personal names violated their common law rights of publicity. "Nevada has codified the right of publicity tort."
5. Genuine issues of material fact preclude summary judgment on claim 8 for common law intrusion upon seclusion.
The Randazzas' eighth claim alleges that Defendants' registration of five of the domain names containing the entirety or part of their names amounted to a common law intrusion upon seclusion. To recover for the tort of intrusion, a plaintiff must prove that there was an intentional intrusion (physical or otherwise) on his seclusion that would be highly offensive to a reasonable person.
Genuine issues of material fact preclude entry of judgment in Plaintiffs' favor on this intrusion claim. Plaintiffs Jennifer and Natalia have failed to show by admissible evidence that the mere registration of a domain name would be highly offensive to a reasonable person, and Mr. Randazza has failed to show that registering the domain names, coupled with the comments contained in the two admissible blog posts, would be highly offensive to the reasonable person as a matter of law. Mr. Randazza has a decreased expectation of privacy in his workplace. By his own characterization, he is an attorney "renowned through the United States and the world for expertise in First Amendment, intellectual property, and Internet law."
By talking about his experience and the clients he represents, Mr. Randazza invites commentary on his work as an attorney and criticism from those who oppose the positions of his clients. Mr. Randazza may be perceived to have interjected himself into the public sphere by making television and radio guest appearances, giving quotes and interviews in newspapers, magazines, and other publications, appearing at speaking engagements, and having an ABA-recognized Top blog website, all as reflected on his résumé.
6. Genuine issues of material fact preclude summary judgment on claim 9 for Civil Conspiracy.
Plaintiffs' ninth claim alleges that Bernstein and Cox colluded to register the domain names containing the entirety or part of the Randazzas' names to violate their rights. To state a valid claim for civil conspiracy, a plaintiff must show: (1) defendants, by acting in concert, intended to accomplish an unlawful objective for the purpose of harming the plaintiff; and (2) the plaintiff sustained damages as a result.
Genuine issues of material fact also preclude entry of judgment in the Randazzas' favor on this theory. They have not demonstrated by admissible evidence that Cox and Bernstein acted in concert. The only admissible evidence on this point is a blog post purportedly written by Cox. Plaintiffs claim that Cox "states that Bernstein is her business partner."
C. Defendant Cox is not entitled to summary judgment on her claims.
Cox has moved for summary judgment on her original "Counter-Complaint."
Cox's Motions for Various Relief
A. Motion for Sanctions (#184)
Cox has made a habit of filing "notices" combined with "motions" comprised of singlespaced pages of allegations of miscellaneous conduct by the Randazzas and scores of other people and entities both connected with and wholly disassociated from this litigation. Document 184 is another example of this type of filing by Cox. From this generally nonsensical document, into which Cox has cut and pasted a number of other documents for reasons unclear to this Court, the Court divines Cox's request that Randazza—himself a lawyer—be sanctioned for "acting rogue as his own attorney" in this litigation because he emailed her directly and offered to discuss settlement. Doc. 184 at 13. She also asks the Court to "Sanction Ronald Green and J. Malcom DeVoy of Randazza Legal Group" and essentially order Randazza to hire different attorneys.
Cox offers absolutely no legal basis for this Court to award the relief she seeks. Randazza is not prohibited from emailing Cox, and Cox has no authority over whom Randazza retains as his counsel. This is also not the first time that Cox has asked for—and been denied— this relief.
B. Motion to Relate Case to State Court Matter (#195)
By document 195, Cox moves "to legally relate" a case filed and pending in the Eighth Judicial District Nevada state court.
Although the Local Rules of Practice allow parties to file a notice of related cases pending in this courthouse,
Cox also uses this document to again reiterate (without citing any legal authority in violation of Local Rule 7-2(a)) her request that the Court "make" the Randazzas "get outside counsel."
C. Motion for Reconsideration and for Legal Advice (#197)
Document 197 is captioned a "Notice," "Reply," and "Motion to allow Cox to Counter Sue Jennifer Randazza and x." Like documents 184 and 195, this one is primarily incoherent and contains the same collection of many-times-reiterated allegations with little discernible connection to this case. It is largely duplicative of documents 184 and 195 and a myriad of Cox's filings before them. But it contains the additional statement, "Cox moves this court to allow Cox to counter sue Jennifer Randazza and to either remove Jennifer and the minor or allow [Cox] to counter sue the assets of BOTH."
Although Cox offers no legal authority for her request, it appears that this is really a request for reconsideration of the Court's February 14, 2014, Order permitting Cox to file a limited counterclaim against Plaintiff Marc Randazza
Cox has not even mentioned the Court's prior decision, let alone set forth facts or law of a "strongly convincing nature" to justify reconsideration of it. Any allegedly improper actions taken by Jennifer and Natalia Randazza's attorney in the prosecution of this case cannot be remedied with otherwise baseless and retaliatory counterclaims. And the Court's review of the alleged "settlement offer and threatening letter" shows no apparent impropriety.
Cox's failure to comply with Local Rule 15-1 is a second, independent reason for denial of the request for permission to assert counterclaims against these plaintiffs. LR 15-1 contains the requirement that a party asking for permission to file an amended pleading "attach the proposed amended pleading" to the motion to amend.
Cox has been cautioned that she must learn the rules of this Court if she is going to serve as her own counsel in this case. She is again cautioned that her pro se status does not give her a pass from compliance with all rules of this Court.
Finally, this document contains the additional statement that "Cox moves this court to advise her on what to do" in this litigation.