Court rejects request for permission to serve process by e-mail

In the case of Ehrenfeld v. Bin Mufouz, the U.S. District Court for the Southern District of New York has refused Ehrenfeld’s request to allow service of process on Bin Mufouz, a Saudi Arabian national, by e-mail. Although service of process by e-mail is permissible in certain circumstances, Ehrenfeld failed to show that in this case correspondence by e-mail would be reasonably calculated to notify Bin Mufouz of the action.

Ehrenfeld wrote a book about the evils of funding terrorism. Bin Mufouz, a resident of Saudi Arabia, took offense to statements Ehrenfeld made about him in the book and filed a defamation lawsuit in the U.K. Ehrenfeld never appeared in that action, and Bin Mufouz threatened to enforce a default judgment against Ehrenfeld.

In response to those threats, Ehrenfeld filed this suit in federal court in New York, seeking a declaratory judgment that Bin Mufouz could not enforce the U.K. default judgment against her. Being unable to obtain service of the complaint and summons, Ehrenfeld filed a motion for leave to obtain service by alternate means pursuant to Fed. R. Civ. P. 4(f)(3). Rule 4(f) provides for service on foreign individuals, and Rule 4(f)(3) specifically allows service by “means not prohibited by international agreement as may be directed by the court.”

The court noted that there is no international agreement addressing service of process on persons in Saudi Arabia. Thus, service could be made in any manner the court would approve. Ehrenfeld proposed various ways in which service might be made, including via e-mail to an address found on Bin Mufouz’s website.

The court refused to allow service of process by e-mail. It noted that “although courts have upheld service via e-mail, those cases involved e-mail addresses undisputedly connected to the defendants and that the defendants used for business purposes.” In this case, Ehrenfeld had not persuaded the court that Bin Mufouz maintains the website on which the e-mail address was found, that he checks that e-mail account, or that he would be likely to receive information transmitted to that e-mail address. The court found that the e-mail address was used only as an informal means of accepting requests for information rather than for receiving important business communications.

Ehrenfeld v. Bin Mufouz, 2005 WL 696769 (S.D.N.Y., March 23, 2005).

InternetCases.com Podcast — April 1, 2005

This week’s podcast discusses the Kentucky Court of Appeals case of Ross-Carter v. Commonwealth.

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New York tax ruling could discourage telecommuting

The Court of Appeals of New York has held that a computer programmer who was an employee of a New York company and worked from his home in Tennessee 75% of the time was delinquent in paying his New York state income tax by allocating only 25% of his income in calculating the amounts due. The court upheld the constitutionality of the “convenience of the employer” test, which provides that when a nonresident is employed by a New York employer, income derived from work in another state is taxable by New York unless performed out of state for the necessity of the employer.

Huckaby v. New York State Div. of Tax Appeals, 2005 WL 705977 (Ct.App. N.Y. March 29, 2005).

Change in mail delivery policy moots prisoner’s First Amendment complaint

In the case of West v. Frank, decided on March 25, 2005 by the U.S. District Court for the Western District of Wisconsin, the court dismissed a prisoner’s complaint that a prison policy prohibiting mail delivery of information printed from the Internet was unconstitutional. The court held that the issue became moot after the policy was amended to allow delivery of such materials.

Plaintiff, an inmate in a Wisconsin prison, suffered from liver disease and desired information about the liver transplant process. After he was unable to acquire such information from the prison’s medical staff, plaintiff asked family members to send him information through the mail. On three occasions, family members printed out information from medical websites and sent them through the mail to the plaintiff. Prison officials did not deliver the materials to the plaintiff, however, citing the prison’s policy which prohibited inmates from receiving printed Internet materials.

Plaintiff brought a civil rights action against various prison officials alleging that the policy violated his First Amendment rights. At the summary judgment stage, the matter was dismissed. The court found that the prison’s change in policy to allow inmates to receive printed materials on the Internet made the First Amendment question moot. The parties to the action no longer had “an interest in the outcome that the law recognize[d] as actionable.” Further, it was “absolutely clear that the allegedly wrongful behavior [of the prison] could not reasonably be expected to recur.”

West v. Frank, 2005 WL 701703 (W.D. Wis., March 25, 2005).

California Court of Appeal: “Dumb Ass” is not a defamatory term

[Thanks to Denise at Bag and Baggage for alerting me to this entertaining and humorous case.]

It’s not too often that the courts get to pass judgment on the really important issues of our time. But in its March 24 decision in the case of Vogel v. Felice, the California Court of Appeal has determined that calling someone a “dumb ass” does not give rise to liability for defamation. “A statement that [a person] is a ‘Dumb Ass,’ even first among ‘Dumb Asses,’ communicates no factual proposition susceptible of proof or refutation.”

Of course there was a bit more at issue in this case. The plaintiffs were two candidates for public office who filed a libel suit against the defendant website operator. On his site, the defendant had listed the “Top Ten Dumb Asses,” and the plaintiffs occupied the top two slots on this list. The defendant accused one of the plaintiffs of being a “dead beat dad,” while accusing the other plaintiff of being “Bankrupt, Drunk & Chewin’ tobaccy.” Various links associated with plaintiffs led to certain unsavory websites.

The defendant filed a special motion to strike the complaint under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute (Cal. Civ. Proc. Sec. 425.16) which entitles such motion in any cause of action “arising from any act of [the defendant] in furtherance of [his or her] right of petition or free speech under the United States or California Constitution in connection with a public issue … unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” The trial court denied the motion to strike, but the Court of Appeal reversed.

The court broke the analysis down to three questions: (1) Did plaintiffs’ cause of action arise from conduct in furtherance of the defendant’s petition or speech rights? (2) Was defendant’s conduct connected with a public issue? and (3) Had the plaintiffs established a probability of success on their claims? The court easily determined that the first two questions were to be answered in the affirmative. Most of the analysis focused on the third question. The court determined that the plaintiffs had not established a probability of success on their claims.

In finding that plaintiffs had not established a probability of success, the court noted that the complaint was legally insufficient on its face, because plaintiffs had failed to plead that defendant acted with “actual malice.” Furthermore, the complaint and the record was factually insufficient to support a probability of success for various reasons.

First, as discussed above, the claim that being called a “dumb ass” was defamatory failed as a matter of law for the inability of such a statement to be proved or disproved. Secondly, because the plaintiffs were public figures, they had the burden of proving the challenged statements were false. The court found that plaintiffs had not provided enough detail to show the “substantial falsity” of the claims. Finally, the court held that linking to various sites in connection with the plaintiffs’ names was not defamatory in that the association created thereby did not convey a substantially false meaning.

Vogel v. Felice, 2005 WL 675837 (Cal. Ct. App., March 24, 2005).

Internet research by juror no basis for mistrial in Kentucky court

Juror’s research into definitions of culpable mental states did not affect criminal defendant’s substantial rights.

Appellant Ross-Carter was convicted of child abuse and sentenced to six years in prison. She appealed her conviction on several grounds, one of them being that the trial court should have granted her a mistrial after one of the jurors conducted independent legal research on the Internet.

One evening while the trial was in recess, the juror looked up the definitions of culpable mental states on the Internet on her home computer and printed them. Upon learning of this, the judge interviewed the juror and determined that the juror had not shared this information with any of the other jurors. Furthermore, the definitions she had printed out were “precisely” the same as those in the jury instructions. Ross-Carter’s counsel moved for a mistrial, but the motion was denied.

On appeal, the court affirmed the denial of the motion for mistrial. The appellate court held that the trial court did not abuse its discretion in denying a mistrial, which is an “extreme remedy” and that there was no manifest necessity requiring it in this situation. Considering the record as a whole it did not appear that either the outcome of the trial or the defendant’s substantial rights were affected, and therefore the motion was properly denied.

Ross-Carter v. Commonwealth, (Not Reported in S.W.3d), 2005 WL 678539 (Ky.App., March 25, 2005.

Court declines expanding reach of antitrust laws to cover DSL and telephone services

The U.S. District Court for the Southern District of New York has granted defendant Verizon’s motion to dismiss in the case of Greco v. Verizon Commumications, Inc., holding that the effect of the antitrust laws should not be expanded to prohibit Verizon from refusing to provide DSL service to customers of competing local telephone providers.

Upset that Verizon offered its DSL service only to customers who also purchased its local phone service, Plaintiff Greco filed a class action antitrust lawsuit. Greco claimed, among other things, that this conduct of Verizon violated §2 of the Sherman Act by monopolizing local phone service. Verizon moved to dismiss, and the court granted the motion.

At issue was whether the court should extend the reach of the antitrust laws to force a “telecommunications monopolist” such as Verizon to deal with certain customers. The analysis relied heavily on a previous case involving Verizon, the 2004 Supreme Court decision of Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, (540 U.S. 398, 406 (2004) (“Trinko” ).

The Trinko case had dealt with the question of whether Verizon had violated §2 of the Sherman Act where it had allegedly discouraged customers from dealing with its rivals through various means. In that case, the court declined to apply §2, “because of the uncertain virtue of forced sharing and the difficulty of identifying and remedying anticompetitive conduct by a single firm.” The Trinko court considered four factors, which the court also considered in the present case: (1) the costs versus benefits of antitrust intervention; for example, whether judicial intervention would risk distorting investment, (2) whether the requested relief would require a court to assume a role for which it is “ill-suited,” i.e., to thrust it into the role of a “central planner,” (3) whether remediation would require “continuing supervision of a highly detailed decree,” and (4) whether there exists a “regulatory structure designed to deter and remedy anticompetitive harm.”

In declining to expand the reach of the antitrust laws in the present case, the court focused on how daunting it would be to figure the amount of damages to which the plaintiff would be entitled. For example, the court would have to consider such details as what amounts had been spent on running wires to a customer’s home (including securing rights of way, digging trenches or placing poles, and running wire underground or along poles), and how such costs should bee allocated among unbundled services. The court noted that such allocation of costs is a highly complex and hotly contested issue, and that it was thus ill-suited to redress the alleged injuries.

Greco v. Verizon Comm., Inc. (2005 WL 659200 (S.D.N.Y., March 22, 2005)

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