United States District Court, D. New Hampshire
STEVEN J. McAULIFFE, District Judge.
Pro se plaintiff, June White, is a resident of New Hampshire and the author of an "unauthorized biography" of her son, Dana, who is the president of the mixed martial arts ("MMA") organization known as the Ultimate Fighting Championship ("UFC"). The defendant, Cynthia Ortiz, is a resident of Holt, Michigan. Ortiz is, it would seem, a fan of neither White nor her book.
Following the book's release, Ortiz began publishing numerous statements on various Internet websites that were highly critical of the author. Ortiz published many (if not all) of those statements using pseudonyms, in an effort to conceal her identity. She also appears to have used social media to further her attack on White, by publishing numerous statements on Twitter while posing as "The Real June White" ("@ RealJuneWhite") - statements White says were false and demeaning comments on her character, conduct, and her book.
In her amended complaint, White advances three common law claims against Ortiz: invasion of privacy by appropriation of her name (i.e., use of the Twitter account), defamation, and libel per se. She asserts that because she and Ortiz are citizens of different states and the amount in controversy exceeds $75, 000, the court may properly exercise diversity subject matter jurisdiction over her claims. See 28 U.S.C. § 1332. Pending before the court is Ortiz's motion to dismiss all three claims for failure to state a viable cause of action. See Fed.R.Civ.P. 12(b)(6). For the reasons given below, the motion is denied.
Standard of Review
When ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must "accept as true all well-pleaded facts set out in the complaint and indulge all reasonable inferences in favor of the pleader." SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), it must allege each of the essential elements of a viable cause of action and "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal punctuation omitted).
In other words, "a plaintiff's obligation to provide the grounds' of his entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). Instead, the facts alleged in the complaint must, if credited as true, be sufficient to "nudge [plaintiff's] claims across the line from conceivable to plausible." Id. at 570. If, however, the "factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal." Tambone, 597 F.3d at 442.
Accepting the allegations advanced in White's amended complaint as true, and based upon the admissions made in Ortiz's various filings, the relevant facts are as follows. Soon after White's book was released, Ortiz began publishing disturbing, vulgar, malicious, and inflammatory statements about White on various websites and through social media. Ortiz made those statements using a variety of pseudonyms, including "HBIC" (apparently shorthand for "head bitch in charge"), "TonyF575, " "SE Hinton, " "Lane Conley, " "Joe Blow, " and "Mark Twain." Ortiz also apparently registered the Twitter name "The Real June White, " under which she published various vulgar and humiliating statements while purporting to be the plaintiff. Based upon the statements attributed to Ortiz in the amended complaint, and the many attached exhibits which chronicle some of Ortiz's statements, it seems safe to say that Ortiz is, in the vernacular of the Internet, a troll.
A representative (though by no means exhaustive) list of some examples of Ortiz's work includes the following. While posing as "Tony Foster" ("TonyF575"), Ortiz published numerous statements on Twitter accusing White of being a bad parent, saying her children hate her and "disowned" her, asserting that she is mentally ill, and claiming she was a "barhoppin drop out 4 a mom" who "couldn't stay out of the bars long enough" to raise her son. Exhibits to Amended Complaint (document no. 48-1) at 12 (Twitter transcript). While White denies knowing Ortiz, Ortiz often asserted that she had personal knowledge about the topics on which she wrote (e.g., "I used 2 work 4 the IFL. Want me to continue cuz I will. U know what Im talkn about, " "Truth hurts, doesn't it?, " "What's the matter, June? Did some of my information hit too close to home?" and, "The wife is friends w/her daughter & she hates June!" Id. at 11, 17, and 29.
Under the moniker "JoeBlow, " Ortiz implied White had incestuous relations with family members (comments Ortiz elaborated upon elsewhere), was estranged from her children, and suffered from mental illness: "[White] should have stuck to doing her father and brothers instead of trying her hand at writing... Her only daughter Kelly cut her off, too. She won't let her kids see Grandma because she's freakin off her rocker!" Id. at 31. On a public book review page hosted on Amazon.com, and writing under the pseudonym "SE Hinton, " Ortiz directed her venomous rants directly at White:
You were a crappy mother and Dana and Kelly are going to hold that against you for the rest of your miserable life. They hated you way before the book. You can't even keep your lies straight in interviews.... [Y]our own mother told all of us the crap you used to put her through regarding Dana. You tried to get her to make him feel guilty about his relationship with you but she didn't do it because you are crazy and she knew it. And you lied about him ever saying he would. Why?
I know you lied because until you finally showed up to spend time with her it was MY mother who checked in on her daily and kept her company. Your mom told us what a disappointment you were and shared some of the cruel stunts you have pulled over the years trying to become a "somebody" as she put it. You lied to your family about being on your deathbed 3 years ago.... that's the last time [Dana] let you extort cash from him ($50, 000) because he was seeing through your BS.
And June, Dana succeeded despite you, not because of you. And your mom is the one who took care of these kids, not you. And stop lying about how much you worked and that's why you weren't home much because she told us how many times she called the bars telling you ...