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Doe v. Hesketh

United States District Court, E.D. Pennsylvania

April 25, 2014

JANE DOE, f/k/a MASHA ALLEN
v.
ALAN HESKETH, et al

Page 587

[Copyrighted Material Omitted]

Page 588

For JANE DOE, THE VICTIM IN THE " DISNEY WORLD GIRL" OR " INTERNET GIRL" CHILD PORNOGRAPHY SERIES formerly known as MASHA ALLEN, Plaintiff: ANGELA R. FOX, J. DARREN SUMMERVILLE, S. LEIGHTON MOORE, LEAD ATTORNEYS, SUMMERVILLE MOORE PC, ATLANTA, GA; MICHAEL A. FERRARA, JR., LEAD ATTORNEY, THE FERRARA LAW FIRM LLC, PHILADELPHIA, PA.

For DAN W. JOACHIM, MAYER FINKELSTEIN, SUED IN THEIR INDIVIDUAL CAPACITIES AND AS REPRESENTATIVES OF A CLASS OF PERSONS SIMILARLY SITUATED, Defendants: MICHAEL S. BOMSTEIN, PINNOLA & BOMSTEIN, PHILADELPHIA, PA.

DOUGLAS MICHAEL STUM, Defendant, Pro se, YAZOO CITY, MS.

RICHARD SCHEIRING, Defendant, Pro se, FORT DIX, NJ.

For CHARLES LINDAUER, Defendant: COLETTE RESNIK STEEL, LEAD ATTORNEY, PRO HAC VICE, THE STEEL LAW FIRM PC, ATLANTA, GA; GEORGE HENRY NEWMAN, NEWMAN & ASSOCIATES, PHILADELPHIA, PA.

JOSEPH MARCUS, Defendant, Pro se, PHILADELPHIA, PA.

For JOSEPH MARCUS, Defendant: SAMUEL BRAVERMAN, LEAD ATTORNEY, FASULO BRAVERMAN & DIMAGGIO LLP, NEW YORK, NY.

For STEPHEN JABBOUR, Defendant: CHRISTOPHER M. CHOATE, JOHN T. FLOYD, III, PRO HAC VICE, THE JOHN T. FLOYD LAW FIRM, HOUSTON, TX; DANIEL STRICK, LUCAS & CAVALIER LLC, PHILADELPHIA, PA.

ALBERT NOAH ABRAMS, Defendant, Pro se, LOMPOC, CA.

OPINION

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MEMORANDUM

Dalzell, J.

Plaintiff Jane Doe seeks statutory redress under 18 U.S.C. § 2255 for her victimization in the child-porn trade when she was a minor by suing a putative class of men convicted of illegally possessing her image, including defendants Dan W. Joachim, Mayer Finkelstein and Charles Lindauer. These three defendants each pled guilty in their respective Districts to possession of child pornography after which the Department of Justice sent Doe a notice that her image was among those in each defendant's possession.

Before us now are Joachim, Finkelstein and Lindauer's individual motions to dismiss Doe's amended complaint which we will consider together because they make identical arguments,[1] i.e., that we lack personal jurisdiction over each defendant; each defendant is not an appropriate representative of the putative defendant class; the statute under which Doe sued is void for vagueness under the Fifth Amendment; and the complaint impermissibly seeks punitive damages under a statute that permits recovery of actual damages alone. Doe opposes the three defendants' motions and seeks jurisdictional discovery to show that we have jurisdiction over these defendants.

For the reasons detailed below, we will grant these defendants' motions to dismiss on the basis of personal jurisdiction and accordingly we will not reach the Rule 12(b)(6) questions.[2]

I. Factual and procedural background

A. The Parties

From the age of five Doe was filmed being repeatedly raped and sexually abused by her then-adoptive father, defendant Matthew Mancuso, who then distributed those images over the Internet. First Amended Complaint (" FAC" ) at 2. Most of these acts took place in Mancuso's home in the Commonwealth of Pennsylvania, but others were filmed during their annual trips to Disney World -- including a widely distributed series through which Doe became known as " Disney World Girl." Id. ¶ 12. Mancuso distributed in secret online chatrooms some two hundred images of Doe in exchange for pictures and videos of other children being sexually abused. Id. ¶ 13.

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Doe alleges that the named defendants and others " conspired with each other, and with members of the class, to share and distribute these and other illegal child-abuse images, largely by means of the so-called 'darknet,' a collection of secure websites, online chatrooms, bulletin-board sites, and peer-to-peer file-sharing computer networks that communicate via the Internet but are specifically designed to conceal the participants' personal identifying information." Id. at 4. She further alleges that, because the images are illegal, defendants " operated under an agreement to protect each other's anonymity [by] communicating with each other remotely under fictitious usernames." Id.

With respect to those moving to dismiss, Doe alleges that defendant Joachim pled guilty in 2012 to receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Id. at ¶ 30. As part of the conduct of his offense, Doe alleges that Joachim " communicated with other possessors and distributors of child pornography by means of the Internet," using a fictitious screen name to advertise, distribute and receive illegal images -- including of Doe -- through " websites, chatrooms, and other modes of online communication." Id. at ¶ 31. Joachim's last known address before his incarceration was in Metairie, Louisiana. Id.

As to defendant Finkelstein, Doe alleges that in 2007 he pled guilty to possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Id. ¶ 57. Doe alleges that Finkelstein " communicated with others via the Internet to distribute and receive images of child sexual abuse." Id. ¶ 58. Doe's image was among the 14,000 still images and 324 videos that federal agents found on his home and law-office computers. Id. His last known address prior to his incarceration was New Orleans, Louisiana.

Doe alleges that defendant Lindauer pled guilty in 2010 to one count of transporting child pornography in violation of 18 U.S.C. § § 2252A(a)(1) and 2252A(b)(1)[3] and one count of possession of child pornography in violation of 18 U.S.C. § § 2252A(a)(5)(B)[4] and 2252A(b)(2). Id. at ¶ 42. He was sentenced in 2011 to nine years' imprisonment. Id. Doe alleges that Lindauer " used a particular type of peer-to-peer file-sharing software that is commonly used by child pornographers to conceal their identifying information when interacting with one another and trading illegal images." Id. ¶ 43. She further alleges that, using the pseudonym " ForVicky," Lindauer received and distributed hundreds of digital pictures and videos, among them depictions of the rape and sexual abuse of small children including Doe. Id. Lindauer's last known address before his incarceration was in Charlottesville, Virginia. Id. ¶ 44.

B. Procedural History

Doe brings this lawsuit under 18 U.S.C. § 2255, which is known as " Masha's Law" and named after this plaintiff. Id. at 2. The statute provides in relevant part:

Any person who, while a minor, was a victim of a violation of [a predicate offense] and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee. Any person as described in

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the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.

18 U.S.C. § 2255(a). Doe rehearses that any plaintiff who establishes a claim under Masha's Law may recover a minimum of $150,000 in damages from each defendant " [a]s a punitive deterrent to such crimes[] and in recognition of both the magnitude of the damages resulting to the victim and the difficulty of precisely calculating the amount of such damages." FAC at 5. Doe seeks " at least" the $150,000 in statutory minimum damages from each member of the putative class. Id.

The United States Department of Justice (" DOJ" ) identified each of the named defendants as having " received, possessed, and/or distributed one or more of the illicit images" Mancuso created of Doe and each defendant was convicted of a predicate offense to 18 U.S.C. § 2255. Id. ¶ 15. Under the DOJ's Victim Notification System, Doe learned of each defendant " who illegally possessed and/or distributed" one or more of the images of her that Mancuso created. Id. ¶ 16. To date, Doe has received over 2,000 such notifications. Id.

Because these images continue to circulate and Doe suffers a severe deprivation of her privacy as a result, she changed her name and took steps to shield her address and personal information before filing this lawsuit. In January of 2014, we granted her unopposed motion to proceed under a pseudonym. See January 29, 2014 Order.

On February 4, 2014 Doe filed her first amended complaint against thirteen named defendants whom she sued individually and as class representatives under 18 U.S.C. § 2255(a). Defendants Joachim and Finkelstein each filed motions to dismiss on March 14, 2014 and defendant Lindauer filed his motion to dismiss a week later. Doe responded to the motions on April 7, 2014.

II. Discussion

A. Legal Standard for Motion to Dismiss for Lack of Personal Jurisdiction

A district court considering a challenge to its jurisdiction over a defendant has " considerable procedural leeway in choosing a methodology for deciding the motion." 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1351 (3d ed. 2013). In ruling on a motion under Rule 12(b)(2) we must accept all of the plaintiff's allegations as true and accept disputed facts in the plaintiff's favor. See Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002); see also Fed.R.Civ.P. 12(b)(2) and (6).

" But once a defendant has raised a jurisdictional defense, a plaintiff bears the burden of proving by affidavits or other competent evidence that jurisdiction is proper." Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1302 (3d Cir. 1996). As our Court of Appeals explained in Time Share Vacation Club v. Atlantic Resorts, Ltd, 735 F.2d 61 (3d Cir. 1984), " [a] Rule 12(b)(2) motion. . . is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies." Id. at 66 n.9. The plaintiff must respond with " competent evidence" and " actual proofs," and may not " rely on the bare ...


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