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Ciolli v. Iravani

March 31, 2009

ANTHONY CIOLLI
v.
HEIDE IRAVANI, ET AL.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM

Presently before the Court are Defendants Ross Chanin ("Chanin") and ReputationDefender Inc.'s ("ReputationDefender") Motion to Dismiss (Doc. No. 26), Plaintiff Anthony Ciolli's ("Ciolli") Memorandum of Law in Opposition thereto (Doc. No. 36), Defendants Chanin and ReputationDefender's Reply in further support thereof (Doc. No. 49), Defendants David Rosen ("Rosen") and Rosen & Associates, P.C.'s ("Rosen & Associates") Motion to Dismiss (Doc. No. 30), Plaintiff Ciolli's Memorandum of Law in Opposition thereto (Doc. No. 40), Defendant Mark Lemley's ("Lemley") Motion to Dismiss (Doc. No. 32), Plaintiff Ciolli's Memorandum of Law in Opposition thereto (Doc. No. 38), Defendant Lemley's Reply in further support thereof (Doc. No. 47), Defendant Heide Iravani's ("Iravani") Motion to Dismiss (Doc. No. 56), Plaintiff Ciolli's Memorandum of Law in Opposition thereto (Doc. No. 61), and Defendant Iravani's Reply in further support thereof (Doc. No. 64). Also before the Court are Defendant Keker & Van Nest LLP's ("Keker & Van Nest") Motion to Strike Paragraphs of the Complaint (Doc. No. 31), Plaintiff Ciolli's Memorandum in Opposition thereto (Doc. No. 39), and Defendant Keker & Van Nest's Reply in further support thereof (Doc. No. 45). For the reasons stated below, the Motions are granted in part and denied in part as follows:

1. Defendant Keker & Van Nest's Motion to Strike Paragraphs of the Complaint (Doc. No. 31) and that portion of Defendant Iravani's Motion to Dismiss (Doc. No. 56) that incorporates by reference Keker & Van Nest's Motion are granted in part and denied in part.

2. Defendants Chanin and ReputationDefender's Motion to Dismiss (Doc. No. 26), Defendant Lemley's Motion to Dismiss (Doc. No. 32), and Defendant Iravani's Motion to Dismiss (Doc. No. 56) are denied without prejudice.

3. Defendants Rosen and Rosen & Associates' Motion to Dismiss (Doc. No. 30) is denied with respect to Count I.

4. Defendants Rosen and Rosen & Associates' Motion to Dismiss (Doc. No. 30) is granted with respect to Count II.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

While attending law school from August 2004 to May 2007, Plaintiff Ciolli was involved in the administration of the AutoAdmit website, an internet discussion board for the exchange of information on institutions of higher education. Beginning in 2005, pseudonymous visitors to the AutoAdmit website began to post several sexually explicit messages about Brittan Heller ("Heller"), a female student at Yale Law School. In 2007, Iravani, another female student at Yale Law, was the subject of similar posts on AutoAdmit and was also listed on T14 Talent, a website designed to rate the attractiveness of women from the top fourteen law schools in the country.

When Heller and Iravani failed to cause the removal of these posts from the Internet, they hired ReputationDefender, a public relations agency specializing in online reputation management. Chanin, a director at ReputationDefender, handled some aspects of Heller and Iravani's matter. As part of its representation, ReputationDefender launched a campaign to clean up AutoAdmit and to clear the posts directed at Heller and Iravani. This campaign included advocating for the application of public pressure "on the administration of the University of Pennsylvania" to encourage Ciolli to remove "any and all references and photographs to named individuals on the AutoAdmit site and affiliated pages." (Compl. ¶ 65 (quoting ReputationDefender website).)

Eventually, Heller and Iravani retained Lemley of the law firm of Keker & Van Nest and Rosen of the law firm of Rosen & Associates. On June 8, 2007, Heller and Iravani filed a lawsuit in the United States District Court for the District of Connecticut (the "Connecticut Litigation")*fn1 against Plaintiff Ciolli and 28 pseudonymous individuals for harassing comments made about them in posts to the AutoAdmit and T14 Talent websites. Following an investigation into the identity of the pseudonymous posters, Heller and Iravani amended their complaint on November 8, 2007, removing Plaintiff Ciolli and naming additional pseudonymous defendants.

Following his dismissal from the Connecticut Litigation, Plaintiff brought the instant action in the Court of Common Pleas of Philadelphia County on March 5, 2008. Defendants removed to this Court on June 3, 2008 on diversity grounds. The Complaint alleges wrongful initiation of civil proceedings and abuse of process claims against Heller, Iravani, Lemley, Keker & Van Nest, Rosen, and Rosen & Associates; libel, slander, publicity placing plaintiff in false light, and tortious interference with contractual relations against Heller, Iravani, Chanin, and ReputationDefender; and unauthorized use of name or likeness and publicity placing plaintiff in a false light against T14 Talent. (Compl. ¶¶ 156-218.) By Order dated February 23, 2009, we dismissed Heller as a defendant from the instant action because Plaintiff Ciolli had not demonstrated good cause for his failure to serve her with the summons and complaint within the time allotted by Federal Rule of Civil Procedure 4(m) and by the multiple extensions granted by this Court.

Now, several Defendants bring motions to dismiss. Specifically, Chanin and Reputation Defender bring a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction as well as Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted; Rosen and Rosen & Associates bring a motion to dismiss pursuant to Rule 12(b)(6); Lemley brings a motion to dismiss pursuant to Rule 12(b)(2); and Iravani brings a motion to dismiss pursuant to Rule 12(b)(6) as well as Rule 12(b)(2). Keker & Van Nest also brings a motion to strike certain paragraphs of Plaintiff's Complaint, which Iravani has adopted by reference into her motion to dismiss. There has been no response from Defendant T14 Talent.

II. LEGAL STANDARD

A. Motion to Strike

"The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). A motion to strike is "not favored and usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties." McInerney v. Moyer Lumber & Hardware, 244 F. Supp. 2d 393, 402 (E.D. Pa. 2002).

B. Motion to Dismiss

Pursuant to Federal Rule of Civil Procedure 12(b), a party may assert several defenses by motion before filing a responsive pleading. One such defense is the lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). A motion to dismiss for lack of personal jurisdiction "is inherently a matter which requires resolution of factual issues outside the pleadings." Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). "When a defendant raises the defense of the court's lack of personal jurisdiction, the burden falls upon the plaintiff to come forward with sufficient facts to establish that jurisdiction is proper." Mellon Bank PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). To meet this burden, the plaintiff must establish "with reasonable particularity sufficient contacts between the defendant and the forum state to support jurisdiction." Provident Nat'l Bank v. Cal. Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). The plaintiff must establish these "jurisdictional facts through sworn affidavits or other competent evidence." Time Share Vacation Club, 735 F.2d at 66 n.9.

"Although the plaintiff bears the burden of demonstrating the facts that establish personal jurisdiction," the court must accept any disputed facts in the light most favorable to the plaintiff. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002) (citations omitted).

A complaint may also be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When evaluating a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), we must accept as true all factual allegations set forth in the complaint. See Malia v. General Electric Co., 23 F.3d 828, 830 (3d Cir. 1994). However, "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007), and a court "need not credit a complaint's 'bald assertions' or 'legal conclusions,'" Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (internal quotation marks omitted). In other words, "'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 127 S.Ct. at 1965) (ellipses in original). Therefore, a claim may be dismissed when the facts alleged and the reasonable inferences drawn therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 179-80 (3d Cir. 1988). The court may look to the allegations made in the complaint, the exhibits attached to the complaint, and any documents whose authenticity no party questions and whose contents are alleged in the complaint. Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). Documents attached to a defendant's Rule 12(b)(6) motion to dismiss may only be considered if they are referred to in the plaintiff's complaint and if they are central to the plaintiff's claims. Id.

III. DISCUSSION

A. Motion to Strike

Defendants Keker & Van Nest and Iravani seek to strike portions of Plaintiff's Complaint*fn2 that discuss the substance*fn3 of three sets of settlement communications that took place in the course of the Connecticut Litigation. The first set of communications allegedly occurred between Jarrett Cohen ("Cohen"), the owner of the AutoAdmit website and a non-party in the Connecticut Litigation, and attorneys Rosen and Lemley. According to the Complaint, Cohen contacted Rosen and Lemley to inquire into the reasons behind the naming of Ciolli as a defendant. (Compl. ¶ 113.) Plaintiff claims that Rosen and Lemley refused to give an explanation but offered to drop Ciolli from the lawsuit if Cohen would delete the threads about Heller and Iravani on AutoAdmit and "provide them with a wide range of concessions not related to the litigation, such as creating a dispute resolution system for AutoAdmit and implementing a terms [of] service or privacy policy." (Id. ¶¶ 114, 116, 150.)

The next set of communications took place at a meeting in Philadelphia attended by Iravani, Heller, Rosen, associates from Rosen & Associates and Keker & Van Nest, Cohen and his attorney, and Ciolli and his attorney in the Connecticut Litigation, Marc Randazza ("Randazza"). (Id. ¶ 124.) The Complaint states that, although Ciolli attended the meeting, he was not a part of the actual negotiations. (Id. ¶ 126.) Allegedly, "when asked what . . . Iravani and Heller wanted from . . . Ciolli as part of a potential settlement agreement, their attorneys replied that their clients wanted 'nothing' from [Ciolli] but only wanted concessions from . . . Cohen" in exchange for Ciolli's dismissal. (Id. ¶ 128.) These concessions included:

[the institution of] a privacy policy and terms of service on the AutoAdmit message board, [the deletion of] all threads about . . .

Iravani and Heller from the message board, [a] request that Google remove all threads about . . . Iravani and Heller from its search engine, [the removal of] all future threads about . . . Iravani and Heller within 14 days of the initial posting, . . . [the] logging [of] IPs on the AutoAdmit website, [the creation of] a dispute resolution system to arbitrate disputes . . . , and [the requirement] that . . . Cohen respond to all emails regarding AutoAdmit-related matters sent by anyone . . . within 14 days. (Id. ¶ 129.) Cohen allegedly refused the agreement, stating that Iravani and Heller were using Ciolli as a hostage in order to secure a deal with Cohen that he would not otherwise make. (Id. at 130-31.)

The Complaint also discusses the third set of communications, which took the form of conversations between Randazza and Lemley. According to the Complaint, Randazza contacted Keker & Van Nest to ask, among other things, why Ciolli had been named as a defendant. (Id. ¶ 133.) Randazza gathered that Ciolli had been thought to be one of the pseudonymous posters on AutoAdmit. (Id. ¶ 134.) Later, Lemley allegedly contacted Randazza directly to "resolve . . . Ciolli's participation in the case" and admitted that "Ciolli had been sued in error" as one of the purported pseudonymous posters. (Id. ¶ 137-39, 141.) However, the Complaint claims that, when Lemley again contacted Randazza, he stated that, "although . . . ...


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