Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 1 of 9 PageID #: 75
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MISSOURI
`EASTERN DIVISION
`
`MICHAEL HENRY BLANK,
`
`Plaintiff,
`
`V.
`
`JOHN DOE, et al.,
`
`Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`No. 4:18-CV-780 JAR
`
`MEMORANDUM AND ORDER
`
`This matter comes before the Court on plaintiff Michael Henry Blank's response to the
`
`Court's order to show cause. (Docket No. 4). For the reasons discussed below, the Court will
`
`dismiss plaintiffs complaint without prejudice for lack of subject matter jurisdiction.
`
`Background
`
`Plaintiff filed his pro se complaint on May 21, 2018. (Docket No. 1). The complaint
`
`names John Doe and Jane Doe as defendants. (Docket No. 1 at 5). Plaintiff alleges that John Doe
`
`and Jane Doe both committed libel against him in a blog post on a website called Avenger
`
`Social. This blog is hosted by WordPress, which is owned by Automattic, Inc., a Delaware
`
`corporation. Neither WordPress nor Automattic, Inc. is named as parties to this suit.
`
`Plaintiff alleges that John Doe biogs under the handle "Jaybyrdtoldtweety," or simply,
`
`"Jaybyrd." On May 28, 2016, John Doe posted a blog entry titled: "Mr. Not So Hardness
`
`Michael H. Blank." According to plaintiff, John Doe claimed the post originated from an email
`
`sent to him by Jane Doe, who is referenced in the post as "The Women of Twitter." The blog
`
`post includes several screenshots of plaintiffs Twitter posts, as well as screenshots of what
`
`purports to be plaintiffs Amazon wish list. (Docket No. 4, Ex. 8). The post also contains
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 2 of 9 PageID #: 76
`
`commentary that allegedly suggests that plaintiff is impotent; that plaintiff is a crossdresser; and
`
`that plaintiff harasses and abuses women. (Docket No. 1 at 5). Plaintiff asserts that Jane Doe
`
`emailed the information to John Doe, who posted Jane Doe's email with some additional
`
`commentary.
`
`Plaintiffs complaint states that he lives in Chesterfield, Missouri. (Docket No. 1 at 2).
`
`However, with regards to John Doe and Jane Doe, he does not provide a job or title, street
`
`address, city and county, state and zip code, telephone number, or email address. In short, there
`
`is no information as to the citizenship of John Doe or Jane Doe. (Docket No. 1 at 2, 7).
`
`Plaintiff seeks $10,000 in actual damages for the time he spent addressing the blog post,
`
`and a further $500,000 in punitive damages based on the "post's targeted and malicious nature."
`
`(Docket No. 1 at 6). He asserts diversity of citizenship as the basis for this Court's jurisdiction.
`
`On August 13, 2018, the Court ordered plaintiff to show cause why his case should not be
`
`dismissed for lack of subject matter jurisdiction. (Docket No. 3). The Court noted that plaintiff
`
`has the burden of establishing diversity of the parties, but has not done so, due to the fact that he
`
`has named fictitious parties. Plaintiff was given twenty-one days in which to show cause why his
`
`case should not be dismissed.
`
`Plaintiff filed a response to the Court's show cause order on September 4, 2018. (Docket
`
`No. 4). His filing acknowledges that no federal question exists and his ability to continue his case
`
`rests upon determining total diversity of the parties involved. (Docket No. 4 at 1 ).
`
`Plaintiff states that he has attempted to identify the parties allegedly liable for defaming
`
`him, but has been unable to do so. He has obtained internet protocol (IP) addresses for both the
`
`Avenger Social website, which is hosted by WordPress, an Automattic Company, and for
`
`Tutanota, the email provider for Avenger Social. Based on the IP addresses, plaintiff has
`
`2
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 3 of 9 PageID #: 77
`
`determined that the Avenger Social website has a physical location of San Francisco, California.
`
`The main IP address of Tutanota, the email provider, returned a physical location in Germany.
`
`(Docket No. 4 at 2). Plaintiff acknowledges that identifying Jane Doe "definitively" will depend
`
`on determining John Doe's identity and compelling his disclosure of her identity.
`
`In order to determine the identities of the two defendants, plaintiff requests that the Court
`
`grant his "Ex Parte Motion for Expedited Discovery." If granted, plaintiff intends to issue third(cid:173)
`
`party subpoenas to Automattic's Word Press Company and, if necessary, to Twitter. He asserts
`
`that these subpoenas will allow him to establish the "legal name, address, phone number and
`
`other relevant information to determine if the proper diversity exists with defendants John Doe
`
`and Jane Doe." (Docket No. 4 at 2-3).
`
`Discussion
`
`The Court's order of August 13, 2018, directed plaintiff to show cause in writing why his
`
`case should not be dismissed for lack of subject matter jurisdiction. (Docket No. 3). Specifically,
`
`the Court noted that plaintiff was asserting jurisdiction based on diversity of citizenship, but that
`
`his complaint named two fictitious parties as defendants. Because the citizenship of the fictitious
`
`parties could not be determined, plaintiff had not carried his burden of establishing the existence
`
`of diversity jurisdiction. Plaintiffs response to the Court has not rectified this deficiency.
`
`A. Failure to Establish Diversity Jurisdiction
`
`Subject matter jurisdiction refers to a court's power to decide a certain class of cases.
`
`LeMay v. US. Postal Serv., 450 F.3d 797, 799 (8th Cir. 2006). "Federal courts are not courts of
`
`general jurisdiction; they have only the power that is authorized by Article III of the Constitution
`
`and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist.,
`
`475 U.S. 534, 541 (1986). See also Gunn v. Minton, 568 U.S. 251, 256 (2013) ("Federal courts
`
`3
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 4 of 9 PageID #: 78
`
`are courts of limited jurisdiction, possessing only that power authorized by Constitution and
`
`statute"). The presence of subject matter jurisdiction is a threshold requirement that must be
`
`assured in every federal case. Kronholm v. Fed. Deposit Ins. Corp., 915 F.2d 1171, 1174 (8th Cir.
`
`1990). See also Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987) ("The threshold
`
`requirement in every federal case is jurisdiction and we have admonished the district court to be
`
`attentive to a satisfaction of jurisdictional requirements in all cases"). As such, the issue of
`
`subject matter jurisdiction may be raised at any time, by any party or the court. Gray v. City of
`
`Valley Park, Mo., 567 F.3d 976, 982 (8th Cir. 2009).
`
`Federal courts have subject matter jurisdiction over both federal question cases and
`
`diversity of citizenship cases. See Auto-Owners Ins. Co. v. Tribal Court of Spirit Lake Indian
`
`Reservation, 495 F.3d 1017, 1020 (8th Cir. 2007) (finding that subject matter jurisdiction is
`
`lacking if neither diversity of citizenship nor federal question jurisdiction applies); Mclaurin v.
`
`Prater, 30 F.3d 982, 984-85 (8th Cir. 1994) (noting that Congress has directed that district courts
`
`shall have jurisdiction in both federal question and diversity cases). In this case, plaintiff
`
`acknowledges there is no basis for federal question jurisdiction. (Docket No. 4 at 1).
`
`Accordingly, in order to establish the existence of subject matter jurisdiction, he must rely on
`
`diversity of the parties.
`
`"Under 28 U.S.C. § 1332(a), district courts have original diversity jurisdiction over civil
`
`actions when the matter in controversy exceeds $75,000, without considering interest and costs,
`
`and when the citizenship of each plaintiff is different from the citizenship of each defendant."
`
`Ryan ex rel. Ryan v. Schneider Nat. Carriers, Inc., 263 F.3d 816, 819 (8th Cir. 2001). A
`
`complaint making a good faith allegation of the jurisdictional amount is sufficient to confer
`
`jurisdiction. Scottsdale Ins. Co. v. Universal Crop Prof. All., LLC, 620 F.3d 926, 931 (8th Cir.
`
`4
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 5 of 9 PageID #: 79
`
`2010). However, a "complaint will be dismissed if it appears to a legal certainty that the claim is
`
`really for less than the jurisdictional amount." Id. See also Kopp v. Kopp, 280 F.3d 883, 884 (8th
`
`Cir. 2002). "The legal certainty standard is met where the legal impossibility of recovery is so
`
`certain as virtually to negative the plaintiffs good faith in asserting the claim." Peterson v. The
`
`Travelers lndem. Co., 867 F.3d 992, 995 (8th Cir. 2017).
`
`"Complete diversity of citizenship exists where no defendant holds citizenship in the
`
`same state where any plaintiff holds citizenship." OnePoint Solutions, LLC v. Borchert, 486 F.3d
`
`342, 346 (8th Cir. 2007). For purposes of diversity, state citizenship requires an individual's
`
`physical presence in the state coupled with an indefinite intention to remain there. Blakemore v.
`
`Missouri Pac. R.R. Co., 789 F.2d 616, 618 (8th Cir. 1986).
`
`In his complaint, plaintiff lists two fictitious parties, John Doe and Jane Doe, as
`
`defendants. He has not provided a job or title, street address, city and county, state and zip code,
`
`telephone number, or email address for either defendant. Rather, plaintiff states that this
`
`information is "unknown." Likewise, plaintiffs response to the Court's order to show cause also
`
`fails to provide information regarding the citizenship of John Doe or Jane Doe.
`
`The party asserting diversity jurisdiction has the burden of establishing it. Hertz Corp. v.
`
`Friend, 559 U.S. 77, 96 (2010). "Given this burden, the general rule has been that, on challenge,
`
`the diverse citizenship of the fictitious defendants must be established by the plaintiff in order to
`
`continue a federal court action." Lee v. Airgas Mid-South, Inc., 793 F.3d 894, 899 (8th Cir. 2015).
`
`See also Howell by Goerdt v. Tribune Entm 't Co., 106 F.3d 215, 218 (7th Cir. 1997) ("[B]ecause
`
`the existence of diversity jurisdiction cannot be determined without knowledge of every
`
`defendants' place of citizenship, 'John Doe' defendants are not permitted in federal diversity
`
`suits"). As plaintiff has not ascertained the citizenship of the fictitious parties named in his
`
`5
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 6 of 9 PageID #: 80
`
`complaint, he has not established the diversity of the parties. Therefore, his complaint must be
`
`dismissed for failure to establish the Court's subject matter jurisdiction.
`
`B. Plaintifrs Ex Parte Motion for Expedited Discovery
`
`Plaintiffs response to the Court's order to show cause includes an "Ex Parte Motion for
`
`Expedited Discovery." (Docket No. 4 at 2). Plaintiff seeks an order allowing him to "issue third(cid:173)
`
`party subpoenas to Automattic's WordPress Company, and if necessary, Twitter, to determine
`
`the legal name, address, phone number and other relevant information" in order to determine if
`
`diversity exists between the parties. (Docket No. 4 at 2-3).
`
`Generally, a party may not seek discovery from any source before the Rule 26(f)
`
`conference, unless authorized by the Federal Rules of Civil Procedure, by stipulation, or by court
`
`order. Fed. R. Civ. P. 26(d)(l). In determining whether to grant expedited discovery, courts
`
`apply either a "good cause" standard or a preliminary injunction standard. Progressive Cas. Ins.
`
`Co. v. F.D.IC., 283 F.R.D. 556, 557 (N.D. Iowa 2012). While the Eighth Circuit has not
`
`expressly adopted either standard, the majority of federal courts use the good cause standard. Id.
`
`"Under the good cause standard, the party requesting expedited discovery must show that the
`
`need for expedited discovery, in consideration of administration of justice, outweighs prejudice
`
`to the responding party." Cook v. Williams, 2009 WL 3246877, at *l (E.D. Mo. 2009).
`
`Moreover, courts typically deny motions for expedited discovery when the movant's request is
`
`overly broad. Monsanto Co. v. Woods, 250 F.R.D. 411, 413 (E.D. Mo. 2008).
`
`Expediting the discovery process is not the norm. Progressive Cas. Ins. Co., 283 F.R.D.
`
`at 557. Good cause has been shown in a patent infringement case where a plaintiff needed to
`
`collect seed samples before they were destroyed. See Monsanto, 250 F.R.D. at 413. Good cause
`
`has also been shown in a case where the plaintiff was terminally ill and a deposition needed to be
`
`6
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 7 of 9 PageID #: 81
`
`taken to preserve his testimony. See Cook, 2009 WL 3246877, at *l. Expedited discovery has
`
`also been granted in copyright cases involving illegal file sharing on the internet. See Paisley
`
`Park Enters., Inc. v. Ziani, 2018 WL 6567828, at *3 (D. Minn. 2018) ("Expedited discovery for
`
`purposes of serving a complaint is particularly relevant in copyright cases involving file sharing
`
`because as a practical matter, copyright owners cannot deter unlawful peer-to-peer file transfers
`
`unless they learn the identities of the persons engaged in that activity").
`
`Given the specific facts in this case, the Court finds that plaintiff has not shown good
`
`cause to expedite discovery. There has been no showing that evidence might be destroyed or
`
`otherwise lost if expedited discovery is not granted. He has also failed to demonstrate there are
`
`no other reasonable means to identify the defendants. Further, unlike in a copyright infringement
`
`case, plaintiff has not alleged that he is suffering an ongoing harm that can only be deterred
`
`through identification of the persons engaged in that activity.
`
`More importantly, plaintiff has not made any showing that the entities he intends to
`
`subpoena have the information he seeks. WordPress, which plaintiff asserts is a division of
`
`Automattic, allegedly hosts the website Avenger Social. However, there is no indication that
`
`WordPress is affiliated with Avenger Social in any way, or that WordPress possesses the
`
`information plaintiff demands. That is, there is no showing that Word Press or Automattic is
`
`responsible for Avenger Social's content, or that it has access to the name and address of the
`
`individual blogger posting on the Avenger Social site as "Jaybyrdtoldtweety," much less that
`
`same identifying information about Jane Doe, who has merely emailed the site. Further, he has
`
`not made any showing that WordPress or Automattic is the appropriate target for a subpoena
`
`seeking such identifying information based solely on an IP address.
`
`7
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 8 of 9 PageID #: 82
`
`Even if WordPress had John Doe's information, plaintiff has not established how
`
`expedited discovery would identify Jane Doe, who - according to plaintiff - set this case in
`
`motion by sending an email to the Avenger Social Site. He states he would "compel" John Doe
`
`to provide this information, but there is no indication that John Doe has Jane Doe's actual name
`
`and address.
`
`Similarly, plaintiff fails to demonstrate how a subpoena to Twitter would be successful.
`
`The offending blog post of which plaintiff complains does not contain any "tweets" - the word
`
`used to describe a posting made on Twitter - other than those that purport to be made by plaintiff
`
`himself. Instead, the post is in the form of an email allegedly received by the blogger
`
`"Jaybyrdtoldtweety," with the sender of the email signing off as "the Women of Twitter."
`
`Despite this signature line, there is no Twitter handle for Jane Doe, and nothing else upon which
`
`a search could be based. As such, it is difficult to see how Twitter could provide this information,
`
`even if subpoenaed. 1
`
`Plaintiffs request for expedited discovery is overbroad and fails to demonstrate that the
`
`targets of his proposed subpoenas would be able to comply. In short, he is attempting to use the
`
`Court's authority to engage in a fishing expedition in order to identify the names and addresses
`
`of two people behind an anonymous internet post, without evincing any likelihood that service of
`
`his Rule 45 subpoenas would provide the information he is seeking. In this situation, granting
`
`plaintiffs request for expedited discovery, and allowing him to issue third-party subpoenas,
`
`would not be appropriate. See Mosby v. Mabry, 697 F.2d 213, 214 (8th Cir. 1982) (stating that a
`
`1 Plaintiffs show cause response directs the Court's attention to a woman with the Twitter handle @Juliettelsabell.
`Plaintiff refers to her as "the one directly referenced female in the post." (Docket No. 4 at 2). However, upon review
`of the attached exhibit, which purports to be the allegedly defamatory blog post, the Twitter user @Juliettelsabell
`does not appear to be related to the Jane Doe sought by plaintiff. Rather, the reference to @Juliettelsabell appears on
`the screenshot of a tweet that plaintiff apparently posted himself, in which plaintiff linked his post to that particular
`user.
`
`8
`
`

`

`Case: 4:18-cv-00780-JAR Doc. #: 5 Filed: 01/15/19 Page: 9 of 9 PageID #: 83
`
`"trial court has discretionary power to refuse to subpoena witnesses and prevent abuse of process
`
`in both civil and criminal proceedings"). Therefore, plaintiff's motion for expedited discovery is
`
`denied.
`
`Accordingly,
`
`IT IS HEREBY ORDERED that plaintiff's complaint 1s DISMISSED without
`
`prejudice. See Fed. R. Civ. P. 12(h)(3).
`
`IT IS FURTHER ORDERED that plaintiff's "Ex Parte Motion for Expedited
`
`Discovery" (Docket No. 4) is DENIED.
`
`IT IS HEREBY CERTIFIED that an appeal from this dismissal would not be taken in
`
`good faith.
`
`A separate order of dismissal will be entered herewith.
`
`Dated this 15th day of January, 2019.
`
`A. ROSS
`TED STATES DISTRICT JUDGE
`
`9
`
`