Suing Doe reviewers under the Lanham Act fails

Reybold Gp. v. Does 1-20, 2017 WL 4326360, No. 17-810 (D. Del. Sept. 29, 2017) (magistrate judge)

Reybold sued the Does for infringement, dilution, injurious falsehood, and defamation based on their statements on ApartmentRatings.com about Reybold’s St. Andrews Apartment Complex, and made an ex parte motion for discovery.  Reybold wanted to issue a third-party subpoena to ApartmentRatings.com seeking, among other things, the IP addresses from which the online postings originated. Reybold planned to then subpoena the relevant ISPs associated with those IP addresses, in order to identify names, payment information, and other identifying information associated with those addresses.  The court, rightly, denied the motion.

Here’s two examples of the comments at issue:

(b) anonymous
I would in no way recommend this complex. Apartments are old, lawns are always trash covered, cigarette butts and dog crap everywhere. Trash areas are always a mess. Maintenance stuff never gets done. When it does they have to come back 3 or 4 times. My rent goes up every year and new people get deals, yet I get nothing for staying. I’m out of here this year. There is tons of new stuff around that is cheaper. Rock wood, Emblem, check these out. So much nicer for less money. Also, my UPS and FedEx packages are always getting stolen from my door and they don’t do anything about it. Good Riddance $hlt Andrews.
Added Feb 01, 2017 ...
(e) anonymous
I’ve been living at this place with bad wiring for months now and no one seems to care. I have several outlets that spark when I use them, some that don’t work at all, and one that only works when you tap on it. The wiring in my home is obviously not right. I have been begging them to fix it and they keep telling me they’re trying to get an electrician out to look at it but no one ever shows. I have children and I should feel safe having them live her[e] but I don’t. But let me pay rent one day late and they’re all over me. I hate this place.

Expedited discovery requires the party seeking discovery to demonstrate that its request is “reasonable” in light of the relevant circumstances. Where such discovery is sought in order to identify unknown or anonymous John Doe defendants, courts first ask whether the plaintiff has established a prima facie case for each essential element of the claim(s) in question. If so, courts have asked whether the plaintiff has demonstrated: (1) that it has no other way to identify the alleged wrongdoers, aside from obtaining the discovery at issue; or (2) that expedited discovery is necessary because evidence identifying the defendants may be otherwise destroyed (e.g., as a result of routine deletion by third party ISPs). Good cause can exist in these cases, although courts will still consider other protections for defendants from misuse of their personal information.

The court looked at the Lanham Act claims first, since they provided federal subject matter jurisdiction. There was no suggestion of false association in the complaint; claims for “Unfair Competition” and “Commercial Defamation” were both really false advertising claims.  Reybold failed to sufficiently allege commercial advertising or promotion: that the reviews were commercial speech, that they came from a defendant in commercial competition with Reybold [note that this should have been replaced with the Lexmark standard, but it makes no difference], or that the speech was made for the purpose of influencing consumers to buy a defendant’s goods or services.  Seven of the 14 challenged posts were listed as being written by a “Resident” or “Prospective Resident[,]” and all 14 postings either directly state or very strongly imply that the poster currently lives in, has previously lived in, or was thinking of moving to St. Andrews.  No post was explicitly identified with a competitor; one post mentions competitors, but still claims to be from a renter making comparisons.  And no other facts were pleaded to explain why the posts could plausibly be from competitors. 

Without the Lanham Act claims, the question arose whether the court had subject matter jurisdiction over the remaining claims.  With anonymous Does, it was hard to show diversity jurisdiction.  (Given the content of the posts, the more plausible inference was that there was no diversity jurisdiction.)  Some federal courts apparently think otherwise, but the Third Circuit has a fairly clear rule about whether the existence of unidentified or “Doe” defendants defeats diversity jurisdiction: where there are no allegations as to their citizenship, “John Doe parties destroy diversity jurisdiction if their citizenship cannot truthfully be alleged.”

Given the lack of a prima facie federal claim and the apparent lack of subject matter jurisdiction, the court denied Reybold’s motion for expedited discovery.