Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 1 of 10
`
`WO
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
`
`No. CV 08-0054-PHX-SMM
`ORDER
`
`))))))))))))))
`
`JAN E. KRUSKA,
`
`Plaintiff,
`
`v.
`
`PERVERTED JUSTICE FOUNDATION
`INCORPORATED, et. al.,
`
`Defendants.
`
`Before the Court is Defendant David Butler’s Second Motion to Dismiss (Doc. 64)
`for failure to state a claim upon which relief can be granted (Doc. 1). Also pending
`before the Court is Butler’s First Motion to Dismiss for Lack of Jurisdiction (Doc. 81)
`and Plaintiff’s Request for Sanctions (Doc. 90).
`BACKGROUND
`
`Factual Background
`A.
`In her Complaint, Plaintiff alleges that “David Butler is the President of Filmax
`Inc. a Tennessee based [c]orporation. Since Filmax Inc. is listed as the domain holder for
`www.jankruska.com and www.jankruska.net, Filmax Inc. is open to liability in this cause
`of action.” (Doc. 1, ¶ 45) Additionally, Plaintiff claims that she contacted April and
`David Butler and Filmax and requested that they cease and desist (Id. ¶ 46). David Butler
`allegedly responded via email and stated that he “fully supported what April Butler was
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 2 of 10
`
`doing.” (Id.) Plaintiff seeks relief against David Butler based on six counts: (1)
`intentional infliction of emotional distress; (2) defamation; (3) the Racketeer Influenced
`and Corrupt Organizations statutes (18 U.S.C. § 1961-1968) (“RICO”); (4) violations of
`federal cyberstalking and cyberharrassment law (18 U.S.C. § 2261A); (5) infringement of
`copyright under the Digital Millennium Copyright Act (“DMCA”); and (6) common law
`negligence (Id. ¶¶ 78-111).
`B.
`Procedural History
`On February 29, 2008, David Butler filed a Motion to Dismiss based upon failure
`to state a claim under Federal Rule of Civil Procedure 12(b)(6) (Doc. 23). The Court
`subsequently denied the Motion to Dismiss without prejudice because David Butler failed
`to cite any authority to support his statements in opposition to the claims set forth in
`Plaintiff’s Complaint (Doc. 62). David Butler filed his Second Motion to Dismiss under
`Rule 12(b)(6) on June 19, 2008 (Doc. 64).
`STANDARD OF REVIEW
`A complaint may be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of
`Civil Procedure only if “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 (1957); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th
`Cir. 1995). When deciding a Motion to Dismiss, all allegations of material fact in the
`complaint are taken as true and construed in the light most favorable to the plaintiff. W.
`Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
`A court may dismiss a claim either because it lacks “a cognizable legal theory” or
`because it fails to allege sufficient facts to support a cognizable legal claim. SmileCare
`Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996).
`“Dismissal without leave to amend is improper unless it is clear, upon de novo review,
`that the complaint could not be saved by any amendment.” Polich v. Burlington N., Inc.,
`942 F.2d 1467, 1472 (9th Cir.1991). When exercising its discretion to deny leave to
`amend, “a court must be guided by the underlying purpose of Rule 15 to facilitate
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 2 -
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 3 of 10
`
`I.
`
`decisions on the merits, rather than on the pleadings or technicalities.” United States v.
`Webb, 655 F.2d 977, 979 (9th Cir. 1981).
`DISCUSSION
`Butler’s Second Motion to Dismiss
`A.
`Intentional Infliction of Emotional Distress
`In Arizona, three elements are necessary to establish a claim for intentional
`infliction of emotional distress: “[F]irst, the conduct by the defendant must be ‘extreme
`and outrageous’; second, the defendant must either intend to cause emotional distress or
`recklessly disregard the near certainty that such distress will result from his conduct; and
`third, severe emotional distress must indeed occur as a result of defendant’s conduct.”
`Citizen Publishing Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005) (en banc) (quoting Ford
`v. Revlon, Inc., 153 Ariz. 38, 43 (1987)). A plaintiff must demonstrate that the
`defendant’s acts were “so outrageous in character, and so extreme in degree, as to go
`beyond all possible bounds of decency, and to be regarded as atrocious and utterly
`intolerable in a civilized community.” Mintz v. Bell Atlantic Systems Leasing Intern.,
`Inc., 905 P.2d 559, 563 (Ariz. Ct. App. 1995) (quoting Cliff v. Farmers Ins. Exch., 10
`Ariz. App. 560, 562 (1969)). Indeed, even unjustifiable conduct does not rise to the level
`necessary of “atrocious” and “beyond all possible bounds of decency” to establish an
`intentional infliction of emotional distress claim. Nelson v. Phoenix Resort Corp., 888
`P.2d 1375, 1386 (Ariz. Ct. App. 1994). This standard distinguishes “true claims from
`false ones, and . . . the trifling insult or annoyance from the serious wrong.” Godbehere
`v. Phoenix Newspapers, Inc., 783 P.2d 781, 785 (Ariz. 1989) (quotation omitted).
`In the matter presently before the Court, Plaintiff’s Complaint fails to allege
`sufficient facts to support a cognizable legal theory for a claim against David Butler for
`intentional infliction of emotional distress. Plaintiff’s Complaint is predicated upon
`allegations that defendants April Butler and Filmax are listed as the domain name holders
`and responsible parties for www.jankruska.com and www.jankruska.net. Plaintiff does
`not set forth facts to support the existence of any “extreme and outrageous” conduct by
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 3 -
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 4 of 10
`
`David Butler, except for an email stating that “he fully supported what April Butler was
`doing.” There are no allegations of any alleged ownership, use or connection between
`David Butler and the websites, other than his position as president of the company that
`allegedly owned the websites. Consequently, Plaintiff’s claim of intentional infliction of
`emotional distress will be dismissed without prejudice.
`B.
`Defamation
`A claim for defamation in Arizona involving a non-public figure requires the
`following: (1) a false statement concerning the plaintiff; (2) the statement was
`defamatory; (3) the publication of the statement to a third party; and (4) the plaintiff was
`damaged as a result of the statement. Morris v. Warner, 770 P.2d 359, 366 (Ariz. Ct.
`App. 1988). For a defamation claim to succeed, the one who publishes the defamatory
`communication must know that the statement is false and defamatory, act in reckless
`disregard, or act negligently. Dube v. Likins, 167 P.3d 93, 104 (Ariz. Ct. App. 2007).
`For this count to succeed, David Butler would have to be directly liable as the
`declarant of the damaging statements or vicariously liable as the publisher or distributor
`of those statements. Plaintiff does not allege that any of the offending statements were
`created or developed by David Butler. Neither is there any claim by Plaintiff that David
`Butler personally published or distributed the supposedly defamatory statements. Rather,
`the websites on which the statements appeared were owned by April Butler and Filmax,
`not David Butler. As a result, Plaintiff’s defamation claim is dismissed without prejudice.
`C.
`RICO
`The Racketeer Influenced and Corrupt Practices Act (“RICO”) provides for a
`private right of recovery if a defendant is found to be in violation of the statute. “Any
`person injured in his business or property by reason of a violation of section 1962 of this
`chapter may sue therefor in any appropriate United States district court and shall recover
`threefold the damages he sustains and the cost of the suit, including a reasonable
`attorney’s fee . . .” 18 U.S.C. § 1964(c).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 4 -
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 5 of 10
`
`In order to recovery under RICO, several elements must be established, including
`“(1) that the defendant (2) through the commission of two or more acts (3) constituting a
`‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly invests in, or maintains an
`interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect interstate
`or foreign commerce.” Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983).
`Racketeering activity is further defined as “any act or threat involving . . . extortion” and
`“interfer[ing] with commerce, robbery or extortion.” 18 U.S.C. § 1961(1)(A), (B). The
`Ninth Circuit has held “[t]he key task [in RICO claims] is to determine whether this
`injury was by reason of the [defendant’s] alleged violations . . .” Mendoza v. Zirkle Fruit
`Co., 301 F.3d 1163, 1168 (9th Cir. 2002). This “. . . requirement the Supreme Court has
`interpreted to encompass proximate as well as factual causation.” Id.
`The acts allegedly constituting the RICO violation are laid out in Plaintiff’s
`Complaint.
`i. Sending mass e-mails, creating multiple webpages, blog pages, and
`internet bulletins accusing Plaintiff, among other things as being a ‘child
`Molester’ and ‘pedophile’
`ii. Encouraging and directing their associates and the general public to post
`and repost said information, encouraging their associates and the general
`public to undertake other criminal acts against Plaintiff including e-mails to
`harass, trespassing, criminal damage to property and bodily harm to
`Plaintiff, etc.
`iii. Encouraging and directing their associates, individuals, and the general
`public to contact and threaten business entities with which the Plaintiff has
`ties.
`(Doc. 1, ¶ 93). Plaintiff does not cite which definition of “racketeering activity,” as
`defined under 18 U.S.C. § 1961(1) David Butler allegedly committed. Broadly stated,
`Plaintiff’s RICO allegations are to encompass “any act or threat involving . . . extortion”
`under 1961(1)(A) or “interfer[ing] with commerce, robbery, or extortion” under
`§ 1961(1)(B). For this claim, the Court’s task is to determine whether the alleged injury
`was caused by David Butler. Plaintiff makes no assertion that David Butler created or
`disseminated any of the allegedly harmful statements. Indeed, with regard to each of the
`allegedly defamatory statements, there is no allegation that David Butler took any action,
`other than responding via email that he “supported what April Butler was doing.” The
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 5 -
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 6 of 10
`
`“racketeering activity” listed in RICO requires some affirmative act (“any act or threat”
`and “interference”). As such, David Butler could not be the actual or proximate cause of
`any harm Plaintiff suffered as a result of these “encouragements” or the allegedly
`defamatory statements. Therefore, this claim is dismissed without prejudice.
`D.
`Cyberstalking and Cyberharrassment
`18 U.S.C. § 2261A governs a federal cyberstalking or cyberharrassment claim.
`Punishment for violations of this act is covered by 18 U.S.C. § 2261 and includes fine or
`imprisonment. See 18 U.S.C. § 2261(b). The act creates no private right of recovery.
`See 18 U.S.C. § 2261A.
`As these allegations are defined in the federal criminal code, and the statute
`provides no private right of action for a violation, Plaintiff’s claim under this statute is
`dismissed with prejudice.
`E.
`Digital Millennium Copyright Act (DCMA)
`“Plaintiffs must satisfy two requirements to present a prima facie case of direct
`infringement: (1) they must show ownership of the allegedly infringing material and (2)
`they must demonstrate that the alleged infringers violate at least one exclusive right
`granted to copyright holders under 17 U.S.C. 106.” A&M Records, Inc. v. Napster, Inc.,
`239 F.3d 1004, 1013 (9th Cir. 2001).
`The Ninth Circuit has held that a defendant is a contributory infringer if he (1) has
`knowledge of another’s infringement and (2) either (a) materially contributes to or (b)
`induces that infringement. See Perfect 10, Inc. v. Visa Intern. Service Ass’n, 494 F.3d
`788, 795 (9th Cir. 2007) (contributory infringement found when defendant “(1) has
`knowledge of a third party’s infringing activity, and (2) induces, causes, or materially
`contributes to the infringing conduct”); A&M Records, 239 F.3d at 1019 (9th Cir. 2001)
`(contributory infringement found in Internet cases when the defendant “engages in
`personal conduct that encourages or assists the infringement”); Metro-Goldwyn-Mayer
`Studios v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (“one infringes contributorily by
`intentionally inducing or encouraging direct inducement”); Perfect 10, Inc., v.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 6 -
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 7 of 10
`
`Amazon.com, Inc., 487 F.3d 701, 727 (9th Cir. 2007) (contributory infringement found
`where an actor “knowingly tak[ing] steps that are substantially certain to result in such
`direct infringement”).
`Plaintiff has alleged copyright infringement occurred when copyrighted pictures of
`her were posted on www.jankruska.com and www.jankruska.net along with excerpts of
`articles she had written. There is no allegation that David Butler committed a direct
`violation of any copyright by posting any allegedly copyrighted photos or articles on the
`websites www.jankruska.com and www.jankruska.net. Rather, Plaintiff appears to allege
`that David Butler is secondarily liable for contributory copyright infringement through
`being president of the company owning the website where April Butler posted
`copyrighted material. David Butler may have had knowledge of April Butler’s
`infringement of Plaintiff’s copyrights as evidenced by his email indicating his “support”
`of her activities. However, there is no claim that David Butler materially contributed or
`induced April Butler’s infringement. Therefore, this claim is dismissed without
`prejudice.
`Prima Facie Tort1
`F.
`Negligence is defined as “conduct which falls below the standard established by
`law for the protection of others against unreasonable risk of harm.” Res. 2d Torts 282. To
`prevail on a cause of action for negligence, a plaintiff must establish that the defendant
`owed a duty to the plaintiff, the defendant breached that duty, causation, and actual
`damages. See Vivian Arnold Realty Co. v. McCormick, 506 P.2d 1074, 1079 (Ariz. Ct.
`App. 1973); Berne v. Greyhound Parks of Arizona, Inc., 448 P.2d 388 (Ariz. 1968). A
`negligence claim may only be maintained if there is a legally recognized duty requiring
`the defendant to conform to a particular standard of conduct in order to protect others
`from unreasonable risks of harm. Ontiveros v. Borak, 667 P.2d 200 (Ariz. 1983). In her
`Complaint, Plaintiff specifies no duty owed by David Butler under Arizona law, or any of
`
`1The Court interprets this claim to mean common law negligence.
`
`- 7 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 8 of 10
`
`the other elements necessary for a negligence claim. Thus, the motion to dismiss as to the
`negligence claim will be granted without prejudice.
`II.
`Butler’s First Motion to Dismiss for Lack of Jurisdiction
`On February, 29, 2008, Butler filed a Motion to Dismiss based upon failure to state
`a claim under Federal Rule of Civil Procedure 12(b)(6) (Doc. 23). The Court
`subsequently denied this Motion to Dismiss without prejudice because Butler failed to
`cite to any authority to support his statements in opposition to the claims set forth in
`Plaintiff’s Complaint (Doc. 62).
`Following the Court’s Order, Butler filed a Second Motion to Dismiss under Rule
`12(b)(6) on June 19, 2008 (Doc. 64). This Second Motion to Dismiss is discussed above.
`Approximately one month later, on July 8, 2008, he filed his First Motion to Dismiss for
`Lack of Jurisdiction in which he argues that the Court should dismiss Plaintiff’s
`Complaint for lack of personal jurisdiction (Doc. 81). As the Court grants the Second
`Motion to Dismiss under Rule 12(b)(6), Butler’s First Motion to Dismiss for Lack of
`Jurisdiction will be denied as moot.
`III.
`Plaintiff’s Request for Sanctions
`Plaintiff filed a Motion for Sanctions arising from Defendant’s filing of his First
`Motion to Dismiss for Lack of Jurisdiction (Doc. 90). Plaintiff requests sanctions against
`Defense counsel under Federal Rule of Civil Procedure Rule 11 for “filing an untimely
`and frivolous Motion.” Since the First Motion to Dismiss for Lack of Jurisdiction
`allegedly was not warranted under Federal Rule 12, Plaintiff seeks “reasonable expenses,
`including fees incurred by Plaintiff in responding to Defendant’s Motion dated July 8,
`2008.”
`In discussing situations in which sanctions are appropriate, Rule 11(b) states the
`following:
`By presenting to the court a pleading, written motion, or other paper--
`whether by signing, filing, submitting, or later advocating it--an attorney or
`unrepresented party certifies that to the best of the person's knowledge,
`information, and belief, formed after an inquiry reasonable under the
`circumstances:
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 8 -
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 9 of 10
`
`(1) it is not being presented for any improper purpose, such as to harass,
`cause unnecessary delay, or needlessly increase the cost of litigation;
`(2) the claims, defenses, and other legal contentions are warranted by
`existing law or by a nonfrivolous argument for extending, modifying, or
`reversing existing law or for establishing new law;
`(3) the factual contentions have evidentiary support or, if specifically so
`identified, will likely have evidentiary support after a reasonable
`opportunity for further investigation or discovery; and
`(4) the denials of factual contentions are warranted on the evidence or, if
`specifically so identified, are reasonably based on belief or a lack of information.
`
`Fed. R. Civ. P. 11(b) (emphasis added). It appears that Butler’s First Motion to Dismiss
`for Lack of Jurisdiction was filed based upon defense counsel’s best knowledge,
`information, and belief, formed after an reasonable inquiry. Furthermore, the arguments
`contained therein were not presented to the Court for an improper purpose and were not
`frivolous. As the party who initiated the lawsuit, Plaintiff must bear the cost of filing and
`defending motions in this case. As a result, no award of sanctions is appropriate.
`
`Accordingly, for the reasons given above,
`
`IT IS HEREBY ORDERED GRANTING Butler’s Second Motion to Dismiss
`(Doc. 64).
`
`IT IS FURTHER ORDERED DISMISSING without prejudice Count III
`(intentional infliction of emotional distress) against Defendant David Butler (Doc. 1).
`
`IT IS FURTHER ORDERED DISMISSING without prejudice Count IV
`(defamation) against Defendant David Butler (Doc. 1).
`
`IT IS FURTHER ORDERED DISMISSING without prejudice Count V (RICO)
`against Defendant David Butler (Doc. 1).
`
`IT IS FURTHER ORDERED DISMISSING with prejudice Count VI2
`(cyberharassment) against Defendant David Butler (Doc. 1).
`
`2This ruling references the first count labeled VI in Plaintiff’s Complaint (Doc. 1).
`
`- 9 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 2:08-cv-00054-SMM Document 150 Filed 02/06/09 Page 10 of 10
`
`IT IS FURTHER ORDERED DISMISSING without prejudice Count VI3
`(DMCA violations) against Defendant David Butler (Doc. 1).
`
`IT IS FURTHER ORDERED DISMISSING without prejudice Count VII
`(common law negligence) against Defendant David Butler (Doc. 1).
`
`IT IS FURTHER ORDERED DENYING Butler’s First Motion to Dismiss for
`Lack of Jurisdiction as MOOT (Doc. 81).
`
`IT IS FURTHER ORDERED DENYING Plaintiff’s Request for Sanctions
`(Doc. 90).
`
`DATED this 5th day of February, 2009.
`
`3This ruling references the second count labeled VI in Plaintiff’s Complaint (Doc. 1).
`
`- 10 -
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28